Alert Digest No 9 of 2003

Tuesday, 18 November 2003

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ANZAC Day (Amendment) Bill

Introduced: 29 October 2003
Second Reading Speech: 30 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Small Business and the
Minister for Sport and Recreation

Purpose

The Bill amends the Anzac Day Act 1958 (the ‘Act’) to recognise service by Australians in all conflicts, including peace-keeping activities, to make amendments to the Act and to various other Acts and to refer to "ANZAC" in these and to recognise the origins of that word and to increase penalties under laws controlling activities on ANZAC Day.

Content and Committee comment

[Clauses]

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

[4]. Substitutes the word "ANZAC" for "Anzac" in the short title in section 1.

[5]. Inserts the heading "Commemoration of ANZAC Day" into section 3 of the Act and expands the reference to commemoration to include the service of Australians for their country in all conflicts and peace-keeping activities subsequent to World War I.

[6]. Inserts the heading "Sports on ANZAC Day" to section 4 of the Act and substitutes the word "ANZAC" for "Anzac" wherever it occurs in section 4.

[8 and 9]. Amends sections 5 and 5A of the Act to increase the penalty for all breaches of the provisions relating to the use of cinemas and other entertainment on ANZAC Day from 5 to 100 penalty units.

[10]. Inserts a new section 7 into the Act to deem the ANZAC Day Proceeds Fund to be the same fund as it was before the commencement of this Bill.

[13 to 18]. Substitutes the word "ANZAC" for "Anzac" wherever it occurs in a number of Acts.
The Committee makes no further comment.

The Committee makes no further comment.

Crimes (Money Laundering) Bill

Introduced: 5 November 2003
Second Reading Speech: 6 November 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill —

• amends the Crimes Act 1958 to insert offences in relation to dealing with proceeds of crime, dealing with property suspected of being proceeds of crime and dealing with property which subsequently becomes an instrument of crime;

• repeals Part 14 (Money Laundering) of the Confiscation Act 1997; and

• corrects a reference in the Surveillance Devices Act 1999.

Content and Committee comment

[Clauses]

[2]. Section 7 of the Bill (amendment of the Surveillance Devices Act 1999) comes into operation on the day after Royal Assent. The remaining provisions commence on proclamation but not later than 1 January 2004.

[3]. Inserts a new Division 2A (Money Laundering) in Part I of the Crimes Act 1958.

New section 193 provides definitions including for ‘deals with’, which includes receive, possess, conceal or dispose of.

New section 194 provides for offences for dealing with proceeds of crime. These offences will replace the existing offence in section 122 of the Confiscation Act 1997.

New section 194(1) prohibits a person dealing with proceeds of crime, knowing that it is proceeds of crime and intending to conceal that it is proceeds of crime. A maximum penalty of 20 years imprisonment applies. The prosecution will be required to prove that the defendant intended to "launder" the property, in the sense of disguising its illegal origins.

New section 194(2) prohibits a person dealing with proceeds of crime, knowing that it is proceeds of crime.

New section 194(3) provides that a person must not deal with proceeds of crime, being reckless as to whether or not it is proceeds of crime. (To be reckless, a person must be aware that there is a substantial risk that the property is proceeds of crime, and decide to deal with the property anyway despite this risk).

Offence committed by ‘negligence’ – standard of proof for criminal negligence higher than for civil negligence

New section 194(4) provides that a person must not deal with proceeds of crime, being negligent as to whether or not it is proceeds of crime.

The Committee notes this extract from the explanatory memorandum –

Criminal negligence is not the same as civil negligence. The lack of care which may constitute civil liability will not be enough to make a person criminally responsible under the principles of criminal negligence developed by the courts at common law. To establish criminal negligence, the prosecution must prove that the accused person consciously and voluntarily dealt with property (although he or she failed to realise that it was proceeds of crime), and this occurred in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and such a high risk that the property was proceeds of crime, that the accused person's conduct merits criminal punishment.

New section 194(5) provides that it is a defence to a prosecution under section 194 if the accused satisfies the court that he or she dealt with the property in order to assist in law enforcement. A similar defence applies in existing section 122 of the Confiscation Act 1997.

Strict liability offence

New section 195 creates a summary offence for dealing with property if there are reasonable grounds to suspect that it is proceeds of crime. (Imprisonment – 2 years maximum) This replaces the existing offence in section 123 of the Confiscation Act 1997.

The Committee notes this extract from the explanatory memorandum –

The offence is a strict liability offence. Accordingly, it is intended that the common law defence of honest and reasonable mistake of fact should apply.

New section 195A provides for new offences for dealing with property that subsequently becomes an instrument of crime.

New section 195A(1) provides that a person commits an offence if he or she deals with property, intending that it will become an instrument of crime; and the property does subsequently become an instrument of crime.

New section 195A(2) provides that a person commits an offence if he or she deals with property, being reckless as to whether it will become an instrument of crime; and the property does subsequently become an instrument of crime.

Offence committed by ‘negligence’ – standard of proof for criminal negligence higher than for civil negligence

New section 195A(3) provides that a person commits an offence if he or she deals with property, being negligent as to whether it will become an instrument of crime; and the property does subsequently become an instrument of crime.

New section 195A(5) provides that it is a defence to a prosecution under section 195A if the accused satisfies the court that he or she dealt with the property in order to assist in law enforcement. A similar defence applies in existing section 123 of the Confiscation Act 1997.

[4]. Inserts a new section 599 in the Crimes Act 1958. This is a transitional provision. It provides that the amendments made by this Bill to the Crimes Act 1958 apply only to offences alleged to have been committed on or after commencement of clause 3 of the Bill.

The Committee makes no further comment.

Firearms (Amendment) Bill

Introduced: 5 November 2003
Second Reading Speech: 6 November 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

This Bill amends to the Firearms Act 1996 (the ‘Act’) to clarify the annual minimum participation requirements for handgun sporting shooters by making provision for the prescribing of specified classes of general category handgun and setting out the requirements for handgun target shoots. It also makes certain statute law revision amendments necessary to correct a number of cross-references in the Act.

Content and Committee comment

[Clauses]

[2]. Sections 3, 4, 5, 6 and 7 come into operation on the day on which section 10 of the Firearms (Trafficking and Handgun Control) Act 2003 (not yet proclaimed) comes into operation. The remaining provisions of the Act come into operation on the day after Royal Assent.

[3]. Amends section 16 of the Act to clarify the annual minimum participation requirements for holders of general category handgun licences for the reason of target shooting by defining the term “specified class of handgun” and setting out the requirements that handgun target shoots have to meet.

[4]. Amends section 19 of the Act to clarify the annual minimum participation requirements for holders of a junior licence for the reason of handgun target shooting by incorporating a definition of the term "specified class of handgun" and setting out the requirements that handgun target shoots must meet.

The Committee makes no further comment.

Fisheries (Further Amendment) 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 Fisheries Act 1995 (the ‘Act’) to

• create various indictable offences in relation to trafficking in, taking and possessing abalone and rock lobster;

• increase the powers of authorised officers in relation to the enforcement of the Act,

• facilitate aquaculture activities;

• modify and clarify the operation of the compensation provisions of the Act;

The Bill also makes consequential amendments to the Confiscation Act 1997 and the Magistrates’ Court Act 1989.

Content and Committee comment

[Clauses]

[2]. Other than sections 5, 31, 44 and 46, the provisions in the Bill come into operation on Royal Assent. Section 5 comes into effect on proclamation but not later than 1 January 2005. Section 44 comes into operation on proclamation but not later than 1 April 2004. Sections 31 and 46 come into force on 1 April 2004 (the date that commercial fishing licences are next renewed).

[3]. Inserts a definition for ‘commercial quantity’ in respect to priority species. This is relevant to the new indictable offences in clause 5.

Indictable offences – commercial quantity trafficking, taking and possession of priority species.

[5]. Inserts new sections 111A, 111B and 11C respectively creating the indictable offences of trafficking, taking and possession of a commercial quantity of priority species (abalone and rock lobster). The penalties range from a maximum of 10 years imprisonment for trafficking to 5 years imprisonment for possession.

[7]. Inserts new sections 119A and 119B being offences for making false or misleading statements when providing information and keeping records for the purposes of the administration of the Act in relation to priority species and generally.

[8]. Amends the Confiscation Act 1997 to make the new record keeping offence relating to priority species a forfeiture offence. The new indictable offences inserted by the Bill are made automatic forfeiture offences for the purposes of that Act.

Powers of arrest

[9]. Inserts new sections 101A to 101I. The sections provide for powers of authorised officers including powers of arrest for offences under the Act, power to arrest of a person in breach of an order, power to arrest a person breaching bail conditions, or a person against whom an arrest warrant has been issued. A power for an authorised officer or member of the police force to search a person suspected of carrying a priority species. There are provisions for recording details of and other safeguards such as annual reports and other record keeping requirements.

[11]. Amends the grounds in section 109 of the Act on which an authorised officer or member of the police force may demand the name and address of a person. An authorised officer or member of police force may now demand the name and address of a person if the officer or member believes on reasonable grounds that the person has committed an offence under the Act.

[14]. Substitutes sections 53(3)(a) to (c) of the Act to impose stricter conditions on a licensee wishing to avoid vicarious liability for a contravention of licence conditions by an agent.

[20]. Amends section 129 to provide that where a court finds a corporation guilty of an offence it may impose a penalty of up to 5 times the maximum monetary penalty that applies to the offence.

[21]. Inserts new section 130C making it clear that a person may be proceeded against for contempt of court proceedings asan alternative to proceedings under the Act where an order is breached.

[33]. Inserts new section 61A which retrospectively validates certain Ministerial directions made under section 61(1)(c) which are currently the subject of litigation.

[34]. Clarifies the nature of compensation which is payable for a licence which has been cancelled by Ministerial Direction under section 61 of the Act. Specific heads of damage are provided, and certainty is provided as to how those are to be assessed, subject to other specified adjustments. The clause also substitutes section 63(6) providing that disputes in relation to the payment of compensation under section 63 are to be determined in accordance with new Part 11. (Refer to clause 47 below and section 85 Constitution Act 1975 provisions and statement relevant to the new Part 11).

No compensation payable by the Crown

[36]. Inserts new section 64C providing that –

No compensation is payable by the Crown for loss or damage that results from an order made by the Minister under sections 64, 64A or 64AB.

Sections 64, 64A and 64AB deal with Ministerial orders published in the Government Gazette, concerning a declaration that the whole, or a specified zone or zones of a fishery is to be managed by the allocation of quotas.

The Committee notes this extract from the explanatory memorandum –

It is considered appropriate that the State should not be responsible for financial losses for decisions made as a result of sustainability issues which have an effect on access to fishing resources.

.[46]. Repeals section 159 of the Act enabling the implementation of cost recovery in respect to abalone licences.

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).

[47]. Inserts a new Part 11 consisting of new sections 199 to 214 and is consequential to clause 34 which repeals section 63(6) of the Act. Section 63(6) applied Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986 (with necessary modifications) to the Act. The procedures for a disputed claim are set out in the provisions. The new provisions are substantively the same as provided under the previous section 63(6).

New section 214 declares that it is the intention of sections 202(1), 209 and 210(2) to alter or vary section 85 of the Constitution Act 1975.

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

Clause 47 of the Bill proposes to insert a new section 214 into the Fisheries Act 1995.

The proposed section 214 states that it is the intention of sections 202(1), 209 and 210(2) of the Fisheries Act to alter or vary section 85 of the Constitution Act 1975.

The existing section 63(6) of the Fisheries Act 1995 provides that certain provisions of the Land Acquisition and Compensation Act 1986, with any necessary modifications, apply to the determination of compensation under the section as if the claim were a claim under section 37 of the Land Acquisition and Compensation Act.

Clause 34(2) of the Bill repeals section 63(6), and clause 47 of the Bill effectively imports the provisions of the Land Acquisition and Compensation Act 1986 that were previously applied by section 63(6) into the Fisheries Act 1995 and makes some modifications to those provisions to better reflect their placement in that Act.

Several of the imported provisions, namely proposed sections 202(1), 209 and 210(2), limit the jurisdiction of the Supreme Court.

The proposed section 202(1) provides that compensation disputes in which the amount in dispute is $50,000 or less must be determined by the Victorian Civil and Administrative Tribunal, unless an issue of unusual difficulty or of general importance is involved. Proposed section 209 requires the Supreme Court to ratify settlement agreements, and provides that those agreements, on ratification, are to take effect as if they were a determination of the court. The proposed section 210(2) limits appeals to the Court of Appeal to questions of law.

The reason for limiting the jurisdiction of the Supreme Court in the way just described is to attempt to ensure that compensation disputes can be dealt with in an expeditious and a cost-effective manner that provides certainty to the parties involved in the dispute. It would largely defeat the purpose of establishing a compensation dispute resolution process if a dispute concerning a relatively small amount of money on an issue of no general importance could be required to be taken to the Supreme Court, or if a settlement agreement could be revisited, or if a decision of the Supreme Court on a matter involving more money could be relitigated on the merits before the Court of Appeal.

It should be mentioned that proposed sections 202(1), 209 and 210(2) are simply replications of sections 81(1), 88 and 89(2), respectively, of the Land Acquisition and Compensation Act 1986. As previously mentioned, that act applies to compensation disputes under section 63 of the Fisheries Act 1995 at present - therefore, proposed sections 202(1), 209 and

210(2) do not effect any change to the law that applies to compensation disputes.

The Committee makes no further comment.

Forests and National Parks Acts (Amendment) Bill

Introduced: 29 October 2003
Second Reading Speech: 30 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The Bill amends the Forests Act 1958 (the ‘Act’) to provide for supply of hardwood sawlog levels not to exceed total sustainable yield rates; makes amendments to the Act relating to its administration and regulation-making powers; amends the Conservation, Forests and Lands Act 1987 to provide for delegation of certain powers to VicForests; amends the National Parks Act 1975 to make further provision in relation to the boundaries of certain parks; and makes other minor amendments to the National Parks Act 1975 and the Fisheries Act 1995.

Content and Committee comment

[Clauses]

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

[5]. Inserts a new sub-section (2) into section 99A of the Act to enable regulations to be made which incorporate material contained in documents, codes, standards, rules, specifications or methods.

[6]. Amends section 11 of the Conservation, Forests and Lands Act 1987 to permit the Minister and the Secretary to delegate their respective powers to VicForests or an employee of VicForests, to allow VicForests to carry out its functions.

[8]. Amends section 48A of the National Parks Act 1975 to state that the amendments made to that Act by the Bill (as well as to the National Parks (Marine National Parks and Marine Sanctuaries Act 2002) are not intended to affect native title rights and interests except as provided for by the Native Title Act 1993 (Cth).

[11]. Amends section 165(1) of the Fisheries Act 1995 as a consequence of the Bill and its effect on the marine national parks referred to in that Act.

The Committee makes no further comment.

Gambling Regulation Bill

Introduced: 5 November 2003
Second Reading Speech: 6 November 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill re-enacts and consolidates the law relating to various forms of gambling and to establish a Victorian Commission for Gambling Regulation.

The Act will -

• generally prohibit gambling and activities relating to gambling unless authorised under the proposed Act or the Casino Control Act 1991;

• provide for the conduct under licence of gaming on gaming machines at approved venues and the casino;

• provide for the licensing of wagering and betting competitions, including on-course wagering;

• provide for the conduct under licence of public lotteries and trade promotion lotteries;

• provide for the conduct of club keno games;

• provide for the conduct under licence of interactive gaming;

• provide for the conduct of gaming by community or charitable organisations;

• provide for the licensing of bingo centre operators and employees;

• provide for the conduct of gaming on board ships travelling between Victoria and Tasmania;

• establish the Victorian Commission for Gambling Regulation to oversee gambling in Victoria;

• continue the Gambling Research Panel;

• provide for the appointment of inspectors and inspection powers to ensure compliance with the Act;

• set out offences.

The Acts to be repealed are listed in [12.1.1].

Content and Committee comment

[Clauses]

Note:

The Bill adopts a numbering system that is different from the usual system used for Victorian legislation. The first digit in each clause number is the number of the Chapter. The second digit is the number of the Part. The third digit is the sequential number of the clause within that Part.

[1.2]. Chapter 1 and section 12.1.4 come into operation on the day after Royal Assent.

The remaining provisions (other than section 12.1.5 come into operation on proclamation but not later than 1 July 2005.

Section 12.1.5 (abolition of special tax arrangements for tabarets) comes into operation on 1 July 2009.

Chapter 2 – General prohibition on gambling

The Chapter re-enacts the Lotteries Gaming and Betting Act 1966, with minor changes.

Lotteries

[2.2.1]. Declares lotteries to be contrary to law, and creates offences related to establishment or conduct of lotteries.

[2.2.7]. Provides that no offence is committed against the provisions in the Chapter in respect of anything done for the purposes of a raffle, lottery or other activity authorised by legislation.

[2.2.8]. No offence is committed under clause 2.2.1 in specified circumstances, including allotment of prizes of money at an amusement centre where the value of prize money available at each attempt does not exceed $50.

Unlawful Games and Gaming

[2.3.1]. Declares to be unlawful a number of games.

[2.3.2]. Authorises the conduct of two-up on ANZAC Day at RSL sub-branches and other places approved by the Minister on the recommendation of the RSL.

[2.5.12]. Sets out offences relating to betting with a minor.

[2.5.14]. Sets out offences in relation to totalisators.

[2.5.21]. Empowers a magistrate, on application by a member of the police force, to issue a special warrant to enter a place suspected of being a common gaming house or place.

[2.5.24]. Is an offence provision relating to a person who allows a house or place to be used as a common gaming house or place.

[2.5.25]. An owner may serve a notice to quit if the owner has reasonable grounds to suspect that a house or place is a common gaming house or place.

[2.5.27]. Provides for the Magistrates' Court, on application by an officer of police, to declare a house or place to be a common gaming house or place.

Strict liability offence

[2.5.32]. It is an offence for persons to be found in, entering or leaving a declared common gaming house or place. Sub-section (2) provides a defence of ignorance of a declaration and entering or leaving premises for a lawful purpose.

Strict or absolute liability offence

[2.5.33]. It is an offence for a person who has been convicted of an indictable offence to be found in a declared common gaming house or place.

[2.5.34]. Prohibits the conduct of business in a declared common gaming house or place.

Strict liability offences

[2.5.35]. It is an offence to be the owner of a declared common gaming house or place which is used as a common gaming house or place. It is a defence to a prosecution if the owner took all reasonable steps to evict the occupier from the house or place.

[2.2.36]. It is an offence to be the occupier of a declared common gaming house or place which is used as a common gaming house or place. It is a defence for the occupier to prove that he took all reasonable steps to prevent such use.

Entry to declared house or place

[2.5.38]. Provides arrest, search and seizure powers for members of the police force in relation to declared common gaming houses and places.

Search warrant

[2.5.39]. Empowers a magistrate, on application by a member of the police force, to issue a warrant to enter a house or place if the member suspects on reasonable grounds that the owner or occupier is allowing it to be used as a means of access to or exit from a common gaming house (an "accessory house or place").

On prosecution of offence - person found in common gaming house - self-incrimination is not an excuse but witness to be given an indemnity certificate

[2.5.40]. Sets out the procedures which apply if a person is found entering or leaving a common gaming house or place when it is entered under a warrant. On the prosecution of a person in connection with a common gaming house or place any other person (a witness for the prosecution) found there may be required to give evidence on oath relating to the offence. A witness so required to give evidence is not excused from doing so on the grounds that the evidence may incriminate the person.

[2.5.41]. In respect to witnesses under 2.5.40 this section provides for the issue of certificates to witnesses who have been examined and [2.5.42] provides for indemnity for persons receiving certificates against any criminal, forfeiture or pecuniary penalty.

Strict liability offence

[2.5.43]. It is an offence to be found in a common gaming house or place without lawful excuse.

[2.6.2]. Provides for search for, and seizure of, instruments of betting.

Vicarious liability

[2.6.7]. Provides for liability of an employer or principal for offences committed by persons in the course of employment or while acting as an agent. A defence that the employer took ‘reasonable precautions’ to prevent the employee or agent committing the offence is provided.

Chapter 3 – Gaming Machines

The Chapter is based on provisions similar to those provided in the Gaming Machine Control Act 1991.

[3.2.1]. Declares gaming in an approved venue or casino lawful.

[3.2.3]. Enables the Minister to make directions as to requirements for gaming machines.

[3.2.4]. Provides for the Minister to declare regional limits on gaming machines.

[3.2.5]. Provides that no compensation is payable by the State in respect of any direction given or anything done in relation to actions to enforce the regional limits imposed under section 3.2.4. The clause is based on section 12AB of the Gaming Machine Control Act 1991. (Refer to section 85 of the Constitution Act 1975 statement below).

[3.3.1]. Outlines the contents of Part 3, being the procedure for obtaining premises approvals and approval for 24 hour gaming.

[3.4.21]. Provides for VCAT review of a decision by the Commission in relation to a proposal to increase gaming machine numbers in a venue by the applicant or by a council that made a submission on the application.

[3.5.23]. Provides for rules to be made by the Commission about gaming machine areas and the conduct of gaming in approved venues. This clause is based on section 78 of the Gaming Machine Control Act.

[3.5.24]. Provides for parliamentary disallowance of rules.

[3.5.29]. Bans large denomination note acceptors and autoplay machines.

[3.5.43]. Allows a venue operator to remove or refuse entry to a person in certain circumstances.

[3.5.46]. Prohibits entry into a gaming machine area by a minor.

Chapter 4 – Wagering and betting

The Chapter is based on provisions similar to those found currently in the Gaming and Betting Act 1994.

[4.1.1]. The Chapter makes provision for the carrying on of licensed wagering and betting by specified means and to provide for the issue of a gaming licence in conjunction with the issue of a wagering licence, allowing the licensee to conduct gaming in accordance with Chapter 3.

[4.3.26]. Provides for appeals against declarations made by the Minister. (Refer to section 85 of the Constitution Act 1975 statement below).

[4.4.1]. Provides for on-course wagering permits.

[4.7.1]. Prohibits the licensee or an operator or a permit holder from accepting bets from, or giving or sending tickets or acknowledgment in respect of a bet, to a minor. It also prohibits a minor from betting or buying a ticket in a totalisator or an approved betting competition, and requires the prominent display of a warning notice to minors wherever the licensee operator or a permit holder accepts bets.

Chapter 5 – Lotteries

The provisions in this Chapter are based on similar provisions currently found in the Public Lotteries Act 2000.

[5.1.1]. The Chapter provides for the lawful conduct of public lotteries, including football pools and competitions.

[5.2.5]. Empowers the Commission to disallow lottery rules.

[5.3.3]. A public lottery licence may only be held by a non-natural person with a physical place of business in Victoria.

[5.6.3]. Empowers the Commission to investigate a licensee if it reasonably suspects that the licensee is not, or is no longer, a suitable person or body to conduct the public lottery.

Privilege against self-incrimination – limitation of use

[5.6.4]. Provides that the Commission may require a licensee or former licensee to provide information, to produce records or to permit records to be examined and copied. If a person claims in writing, before complying with a notice, that the information required to be provided may incriminate them, the information provided may not be used against them in criminal proceedings other than proceedings under the Act.

Chapter 6 – Club Keno

[6.1.1]. The Chapter makes provision for the game of club keno and replaces the provisions in the Club Keno Act 1993.

Chapter 7 – Interactive Gaming

[7.1.1] The Chapter makes provision for the protection of persons participating in interactive gaming by regulating the provision of interactive gaming services. An example of interactive gaming is gaming via the Internet and replaces the existing provisions of the Interactive Gaming (Player Protection) Act 1999.

Privilege against self-incrimination

[7.7.3]. Provides for the Commission to obtain information or documents relevant to an investigation. The privilege against self-incrimination applies in full.

Non-reviewable decisions

[7.8.1(3)]. Provides for certain ‘non-reviewable decisions’ including decisions as to probity.

Chapter 8 – Community and Charitable Gaming

The Chapter is based on the provisions found in the Gaming No. 2 Act 1997.

[8.2.1]. Provides that community and charitable gaming is lawful when conducted in accordance with the requirements of the Chapter.

[8.5]. Deals with the licensing of Bingo Centre Operators.

Chapter 9 – Onboard Gaming

[9.1.1]. The Chapter makes provision for gaming on ships operated by a company formed and incorporated pursuant to section 5 of the TT-Line Arrangements Act 1993 (Tas). The Chapter is based on provisions currently located in the TT-Line Gaming Act 1993 (Vic).

Chapter 10 – Administration and Enforcement

[10.1.1]. Establishes the Victorian Commission for Gambling Regulation.

[10.1.26]. Provides for delegation of the powers of a Commissioner to be performed by a member of the Commission’s staff.

[10.1.27]. Protects commissioners and delegates against liability for action or inaction which occurs in good faith. The liability attaches instead to the Commission.

[10.1.29 to 10.1.37]. Deals with confidentiality and disclosure provisions.

[10.2.1]. Continues the Gambling Research Panel as a body corporate.

[10.3.1]. Continues the Community Support Fund, which was established under the Gaming Machine Control Act 1991.

[10.3.4]. Continues the Mental Health Fund previously established under section 58 of the Public Lotteries Act 2000.

[10.4.2]. Provides for investigation by the Commission of applications.

[10.4.3]. Empowers the Commission to require the provision of photographs and finger and palm prints. If this requirement is not met the Commission may refuse to consider an application.

[10.4.4]. Requires the Commission to refer copies of applications, any photographs and finger and palm prints and any supporting documentation to the Chief Commissioner of Police.

[10.5.2]. Provides for checks including police checks, on persons who are under consideration for appointment to be inspectors.

[10.5.6]. Prevents a person who ceases to be an inspector from being employed at, or being significantly associated with, a key operative. The prohibition applies for 4 years, unless the Executive Commissioner otherwise approves.

[10.5.8]. Confers on inspectors a right of entry onto premises used in connection with any activity regulated by gaming legislation, for the purposes of exercising the inspector's functions.

[10.5.10]. Confers on inspectors power to require a person found on premises to state the person's full name and residential address.

[10.5.12]. Empowers an inspector, with the consent of the Executive Commissioner, to apply for a search warrant with the forms and procedures found in the Magistrates’ Court Act 1989 applying.

Privilege against self-incrimination

[10.5.19]. Confers protection against self-incrimination other than in respect to the production of records, machinery or equipment required to be kept or produced by or under a gaming Act. This general self-incrimination provision is subject to sections 2.5.40(2)(f), 5.6.4(2) and 7.7.3(4).

[10.5.20]. Empowers an inspector to serve an infringement notice on a person believed to have committed a prescribed offence against gaming legislation.

[10.5.28]. Provides for forfeiture of instruments of gaming, money or securities for money that have been lawfully seized or are found in the possession or control of a person found committing an offence against gaming legislation.

[10.5.29]. Provides for the seizure, without warrant, of equipment which an inspector reasonably suspects is unauthorised gaming equipment.

Chapter 11 – General

[11.1.5]. Requires the destruction of finger prints and palm prints by the Commission when the Commission has no further use for them.

[11.1.6]. Provides for the discretionary refund of fees (in whole or in part) following refusal or withdrawal of an application.

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

[11.1.7]. Declares that it is the intent of sections 3.2.5 and 4.3.26(7) to alter or vary section 85 of the Constitution Act 1985.

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

The proposed section 3.2.5 provides that no compensation is payable by the Crown in respect of anything arising out of three categories of actions by the Victorian Commission for Gambling Regulation.

The first category of action is a direction given under the proposed section 3.2.4 to a gaming operator requiring compliance with a regional cap on the number of gaming machines.

The second category of action is any action taken by the commission under the proposed section 3.4.17(6). That action would cover the proposal by the commission of an amendment to the conditions of a venue operator's licence to vary the number of gaming machines permitted in an approved gaming venue. A gaming operator, for the purpose of complying with a regional cap, would propose such an amendment as a result of a request in writing.

The third category of action is a decision made by the commission arising out of such a proposed amendment. This would be a decision to amend the conditions of a venue operator's licence to amend the number of gaming machines permitted in an approved gaming venue.
The reason why the Supreme Court is not to have jurisdiction in these matters is as follows.

By enacting this Bill the Parliament has indicated that it is a matter for the government, acting in the interests of the community as a whole, to determine the most appropriate distribution of gaming machines throughout the state.

Therefore, no compensation right should exist in respect of the removal of gaming machines as a result of directions made by the Victorian Commission for Gambling Regulation, or proposals for amendments to venue operators' licences, or approvals of amendments to those licences, to comply with decisions made by the government regarding the distribution of gaming machines.

This limitation is a re-enactment of the limitation currently imposed under the Gaming Machine Control Act 1991.

Clause 4.3.26(7) of the Bill provides that except as otherwise provided, a declaration of the Minister under Division 5 of Part 3 of Chapter 4 of the Bill may not be challenged or called into question.

That Division enables the Minister to make declarations relating to the regulation of shareholding interests in the holder of the wagering and gaming licences. Clause 4.3.26 provides for certain appeals to the Supreme Court against those declarations and provides that, except as provided in the Division, a declaration of the Minister may not be challenged or called into question. The provisions in that Division to enforce the restrictions on shareholdings, including the making of declarations by the Minister and the limitation of appeals to the Supreme Court against such declarations, are an essential mechanism for achieving the objects of the legislation and, in particular, for ensuring probity in the conduct of the business of the licensee and in dealings in shares of the licensee.

This limitation is a re-enactment of an existing limitation under the Gaming and Betting Act 1994.

[11.2.1]. Sets out the regulation-making power of the Governor in Council.

Chapter 12 – Amendments, Repeals and Transitional provisions

[12.1.1]. Repeals the following Acts –

• Club Keno Act 1993;

• Gaming and Betting Act 1994;

• Gaming Machine Control Act 1991;

• Gaming No. 2 Act 1997;

• Interactive Gaming (Player Protection) Act 1999;

• Lotteries Gaming and Betting Act 1966;

• Public Lotteries Act 2000;

• TT-Line Gaming Act 1993.

Schedules

Schedule 1 lists topics with respect to which regulations can be made, in accordance with 11.2.1.

Schedule 5 makes consequential amendments to the Casino Control Act 1991.

The Committee makes no further comment.

Health Legislation (Further Amendment) Bill

Introduced: 28 October 2003
Second Reading Speech: 29 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends various Acts relating to the registration endorsements of health practitioners with respect to the practice of acupuncture. The Bill also amends the Health Records Act 2001, Health Services Act 1988 and repeals the Pathology Services Accreditation Act 1984.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2, 12 and 13 of the Bill come into operation on the day after Royal Assent; and that the remaining provisions come into operation on proclamation but not later than 1 January 2004.

[3]. Provides that a person may not use the title, either in English or any other language, Chinese medicine practitioner, acupuncturist or Chinese herbal medicine practitioner if they are not registered under the Chinese Medicine Registration Act 2000.

[4 to 11]. Make amendments to a number of health practitioner related Acts in respect to endorsements under those Acts for practitioners to be exempt in respect to the practise of acupuncture or in the case of the Pharmacists Act 1974 an exemption endorsement in respect to dispensing Chinese herbs.

[12]. Amends sections 10 and 11 of the Health Records Act 2001 to provide that the Act does not apply to an agency within the meaning of the Privacy Act 1998 (Cth).

[14]. Repeals the Pathology Services Accreditation Act 1984.

The Committee makes no further comment.

Parliamentary Committees Bill

Introduced: 5 November 2003
Second Reading Speech: 6 November 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Premier

Purpose

The Bill—

• repeals and replaces the Parliamentary Committees Act 1968;

• improves the operation of the Parliamentary Committee system by adopting a new Bill which is more user friendly and is drafted in plain English;

• does not replicate the 1968 Act provisions relating to Private Bills;

• preserves the number, membership and procedures of all existing Parliamentary Committees under the 1968 Act;

• makes a number of changes designed to clarify the powers of Committees;

• allows for reports and responses to reports to be provided when Parliament is not sitting;

• makes necessary transitional and consequential amendments.

Content and Committee comment

[Clauses]

[2]. The Act will commence operation on the day after Royal Assent.

[4]. Declares that the provisions in the Bill do not limit Parliament’s inherent power to establish committees and to confer functions on them.

[5]. Establishes the 11 Committees currently in existence.

[6]. The term of office of a Joint House Committee is the period until dissolution or determination of the Assembly.

[7 to 17]. Provides the terms of reference of the 11 Parliamentary Committees established under section 5 of the Act.

[17]. Section 17(c) will allow the Scrutiny of Acts and Regulations Committee to consider Acts that it was unable to consider under 17(a) and 17(b) because an Act had been given Royal Assent prior to the Committee being able to report on such Act while it was still a Bill. The Committee may only exercise this jurisdiction within 30 days of the establishment of the Committee at the commencement of each Parliament.

[18 to 20]. Provides for the appointment and functions of ‘Specific Purpose Committees’ as may be appointed by the Council and the Assembly.

[21]. Specifies the membership requirements for Joint Investigatory Committees. A Committee must consist of not more than 9 Members of whom 2 must be from the Assembly and 2 from the Council.

[22]. A Committee must elect a chairperson and a deputy chairperson.

[23]. Provides that a quorum for a Committee is a majority of the members appointed, but cannot be exclusively members from a single House.

[24]. Each Member (including the Chairperson) has a deliberative vote, in the event of equal votes, the chairperson has a casting vote.\

[25]. Deals with provisions concerning when and where a Joint Investigatory Committee may sit.

[26]. The provision allows members of Parliament and the public to be invited to a meeting by a Committee, but precludes them from voting at a meeting.

[27]. A Committee may hold a public hearing on any proposal it is inquiring into or considering, but may refuse to hear evidence publicly if the evidence is irrelevant or where it has other information which makes that evidence unnecessary.

Unless the Council and the Assembly otherwise resolve, a legal practitioner may not present a person or body at a public hearing.

A Committee may deliberate in private.

[28]. Deals with the way Committees take evidence.

A Committee may send for persons, documents and other things.

The use of the term “document” in the new Bill broadens the scope of access as this term is defined widely in section 38 of the Interpretation of Legislation Act 1984.

A Committee must take evidence in public unless it resolves to take evidence in private as a result of special circumstances. The clause also allows the Committee to take evidence on oath or affirmation.

The clause allows a Committee to empower a specified member or members of the Committee to send for persons, documents and things and to take evidence in relation to any Committee inquiry providing the Committee unanimously agrees to authorise the member or members. If the member is to take evidence from a witness, the witness must agree to giving evidence to that member.

The clause also provides that a member, who is authorised to take evidence, has all the privileges and immunities of the Committee.

Any witness called by a Committee is entitled to prescribed expenses, and any person may make written submissions to a Committee. Committees must keep records of all evidence given before them, and of any determinations made.

[29]. Ensures that evidence taken by a Committee whose term expires before it reports to Parliament can be considered by another Committee with the same name or functions as the one that expired.

[30]. Allows Committees to engage persons to investigate particular issues being inquired into or considered by the Committee, with the authorisation of a Presiding Officer and to make use of the services of an employee under the Public Sector Management and Employment Act 1998 with the consent of the Minister for Public Employment.

Sub-committees

[31]. Allows for the creation of sub-committees with a minimum of 4 Members. A majority of Members forms the quorum of a sub-committee. The chairperson has a deliberative and casting vote.

[32]. A Committee may empower specified members of a Sub-committee to take evidence on the same basis as in clause 28, and sub-committees enjoy the same privileges and immunities as Committees. Sub-committees must report to Committees who can adopt, reject or adopt their report with variations.

[33]. A Committee may obtain inquiry work either by referral given to it by a House or by Order of the Governor in Council. A House referral may specify a time by which a Committee must report. A Committee may also inquire into, consider and report into any annual report or other document tabled in either House in accordance with an Act. A Committee must give priority to a referral from a House over a referral under an Order and must comply with any time limitation in House referrals.

[34]. A Committee may make interim reports and publish documents in relation to the proposal. Committees must include any minority report on behalf of a member of with its report to Parliament if requested by the member. Committees can also include in a report to Parliament a draft bill to give effect to recommendations that cannot be given effect to otherwise than by Act.

[35]. Within 21 days of adoption of a report the chairperson of a Committee must cause the report to be tabled in Parliament. The clause also allows for reports to be given to the clerks of the Houses when Parliament is not sitting.

[36]. States the time frame in which Government responses to reports must be given (within 6 months of tabling) to the Parliament. The clause also allows for responses to be given to the clerks of the Houses when Parliament is not sitting.

[37]. Unless a Committee decides that special circumstances exist, it must make available to a member of the public who so requests, any evidence, report produced under clause 30 or determination made by the Committee. The Committee must not, however, make available any document which contains evidence given to it on the basis that it remain private.

[38 to 42]. Establishes the House Committee and deals with its term, functions, membership and procedures. [43 and 44]. Provides for the term and procedure of the Library Committee.

[49]. Provides that payments made to Members under the Act do not constitute an office of profit under the Crown for the purposes of the Constitution Act 1975.

[50]. Gives immunity from judicial review to Committee proceedings, recommendations, reports or any documents published.

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).

[51]. Declares that it is the intention of clause 50 to vary section 85 of the Constitution Act 1975.

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

Clause 50 of the proposed Act provides that proceedings of joint investigatory committees, or any recommendations or reports made by a joint investigatory committee, do not give rise to a cause of action in law and must not be the subject of, or in any way be called into question in, any proceedings before a court.

Section 19 of the Constitution Act 1975 provides that the Council and the Assembly and their committees and members hold and enjoy the same privileges, immunities and rights as were held by the House of Commons in 1855. Therefore Victorian parliamentary committees are protected from being 'impeached or questioned' in any 'court or place of Parliament'.

The powers and privileges of both the Houses of Parliament include the inherent power to take any action to ensure the functioning of its chambers, to regulate its proceedings and to arrest and punish for contempt or breach of privilege.

To avoid doubt, clause 50 of the Bill expressly seeks to protect committee proceedings, reports and recommendations from judicial consideration. This allows committee members to discharge their duties and responsibilities without obstruction or fear of prosecution and to foster free and frank discussion of proposals and matters that may be considered by committees.

[52]. Regulations may be made to give effect to the purposes of the Act.

[53 to 64]. Make a range of consequential amendments to various Acts. The Parliamentary Committees Act 1968 is repealed and references to that Act are replaced.

[65]. Provides for the continuing membership and operation of existing Committees, despite the repeal of the 1968 Act.

The Committee makes no further comment.

Partnership (Venture Capital Funds) Bill

Introduced: 28 October 2003
Second Reading Speech: 30 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

This Bill amends the Partnership Act 1958 (the ‘Act’) to provide for –

• the formation and registration of incorporated limited partnerships that are separate legal entities distinct from their partners;

• the relationship of the partners of incorporated limited partnerships to each other and to the incorporated limited partnership; and

• the limitation of liability of the general partners and limited partners for the liabilities of the incorporated limited partnership.

Content and Committee comment

[Clauses]

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

[4]. Inserts a new Part 5 in the Act dealing with incorporated limited partnerships.

Proposed section 82(2) provides that a provision of Part 5 will prevail in the event of inconsistency with a provision of any other Part of the Act that applies to incorporated limited partnerships.

Proposed section 83 provides that an incorporated limited partnership is formed on registration under Part 5.

Proposed section 84 provides that an incorporated limited partnership is a body corporate with legal personality and perpetual succession; that it may have a common seal; and that it may sue or be sued in its firm-name.

Proposed section 85 provides that an incorporated limited partnership must have at least one limited partner (which may be a body corporate), and at least one but no more than 20 general partners (any of whom may be bodies corporate). Proposed section 86 provides that there must at all times be a written partnership agreement.

Proposed section 87 provides that an existing partnership or the proposed partners of a proposed incorporated limited partnership may apply for registration as an incorporated limited partnership if the partnership is registered or is intended to be registered under Part 2 of the Venture Capital Act 2002 (Cth) as a Venture Capital Limited Partnership or Australian Fund of Funds within the meaning of that Act, or if the partnership is or is intended to be a venture capital management partnership within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth.

Proposed section 95 provides that an incorporated limited partnership has the legal capacity and powers of an individual and also all the powers of a body corporate, except as otherwise provided by the partnership agreement.

Proposed section 97 provides that, subject to proposed section 98, a limited partner has no liability for the liabilities of the incorporated limited partnership or of a general partner, but not so as to prevent the satisfaction of such liabilities by the contributions of capital or property by limited partners, or by the enforcement of the obligation to so contribute.

Proposed section 102 provides that if a general partner becomes a limited partner, they enjoy limited liability only from that point, and not in relation to their earlier activities as a general partner; and that if a limited partner becomes a general partner, their limitation of liability prior to their change of status is unaffected.

Proposed sections 106 to 114 deal with the winding up of an incorporated limited partnership.

Proposed section 116 entitles a person who deals with an incorporated limited partnership or with a person who has acquired property from the partnership to make the assumptions set out in proposed section 117, unless the person knew or suspected that the relevant assumption was incorrect; and for the inability of the partnership to assert that any of the assumptions are incorrect. Proposed section 117 provides for the assumptions a person may make under section 116.

Proposed sections 118 and 119 provide for offences in respect to the identification and registered offices, of an incorporated limited partnership.

Proposed section 124 provides for the Director to issue a notice to an incorporated limited partnership to furnish information within a specified period; and for an offence for the partnership not to comply with the notice or to provide false or misleading information.

Proposed section 125 provides for confidentiality of information acquired by the Director carrying out functions under the Act.

Proposed section 126 provides that if an offence is committed under Part 5 by a partnership or a limited partnership, it is committed by each partner or general partner; and for a defence for any partner in a prosecution under specified sections of Part 5, that the partner took all reasonable precautions and exercised all due diligence to avoid the commission of the relevant offence.

Proposed section 127 provides for the Director to delegate functions under Part 5 to a person employed under Part 3 of the Public Sector Management and Employment Act 1998.

Proposed section 128 provides for regulations to be made for or with respect to any matter or thing required or permitted by Part 5 to be prescribed, or necessary to be prescribed to give effect to Part 5.

The Committee makes no further comment.

Road Safety (Drug Driving) Bill

Introduced: 29 October 2003
Second Reading Speech: 30 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Road Safety Act 1986 to -

• allow Police and other authorised officers to require oral fluid samples from drivers at the roadside for the purposes of drug testing.

• make it an offence for a person's oral fluid or blood to test positive (within 3 hours of driving) for certain illicit drugs, namely methylamphetamine and delta-9-tetrahydrocannabinol ("THC"), which is the active component of cannabis.

• extend the existing enforcement system relating to drink-driving to the new drug-driving offences, such as requirements to cooperate in tests, power for police to prevent drivers who test positive to the target drugs from continuing their journey, and proof of offences through use of certificate evidence.

• the drug road-side screening process is a pilot scheme and unless the amendments are extended in operation after an evaluation of the effectiveness of the process, they will sunset on 1 July 2005.

Content and Committee comment

[Clauses]

[2]. Other than clause 23, the provisions in the Bill will come into operation on proclamation but not later than 1 December 2004. Clause 23 (sunset clause) comes into force on 1 July 2005.

[6]. Establishes two presumptions in respect of the drug-driving offences created by clause 7. They relate to presence of a prescribed concentration of drugs or more than the prescribed concentration of drugs in the driver's blood or oral fluid and the offence of providing a sample of oral fluid or blood within 3 hours of driving or being in charge of a motor vehicle that contains a prescribed illicit drug.

[7]. Inserts new drug-driving offences in section 49 of the Act. Sub-clause (1) creates an offence of driving or being in charge of a motor vehicle where any prescribed illicit drug is present in the blood or oral fluid of the person. Sub-clause (2) creates an offence of refusing to provide an oral fluid sample or failing to comply with a requirement in relation to the provision of oral fluid.

Sub-clause (4) creates offences of providing a sample of oral fluid or blood within 3 hours of driving or being in charge of a motor vehicle that contains the prescribed illicit drugs.

[8]. Provides for the cancellation of the driver licence or permit of a person who is convicted or found guilty of the offences created by clauses 7(1) and 7(4), and for the disqualification of such a person from obtaining a further licence or permit.

[13]. Provides for preliminary oral fluid testing and oral fluid testing and analysis, by inserting new sections 55D and 55E in the Act.

Section 55D(1) enables a member of the police force to require oral fluid samples from drivers of motor vehicles for the purposes of preliminary testing. A person is eligible for such testing if he or she is —

• found driving or in charge of a motor vehicle;

• the driver of a motor vehicle that has been required to stop at a preliminary testing station;

• believed on reasonable grounds to have driven or been in charge in the preceding three hours of a motor vehicle that has been involved in an accident; or

• believed on reasonable grounds to have been, in the preceding three hours, an occupant of a motor vehicle that has been involved in an accident, and it has not been satisfactorily established which of the occupants of the motor vehicle was the driver.

New section 55D(2) enables authorised officers of the Roads Corporation or the Department of Infrastructure to require persons driving or in charge of commercial motor vehicles to undergo a preliminary oral fluid test.

New section 55D(3) provides that a preliminary oral fluid test must be carried out in accordance with the prescribed procedure. This procedure will be specified in Regulations to be made under the Act.

New section 55D(4) provides that only appropriately trained officers may be authorised under section 55D(2).

New section 55D(7) requires a person undergoing a preliminary oral fluid test to remain at the testing place until the sample of oral fluid has been tested.

New section 55D(8) provides that a person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.

New section 55E(2) provides that if a preliminary oral fluid test indicates that a person's oral fluid contains a prescribed illicit drug, or if a person refuses or fails to undergo a preliminary oral fluid test, then that person may be required to provide a sample of oral fluid for testing and analysis. The sample of oral fluid required under this provision will only be sent for analysis if the test of the sample indicates that it contains a prescribed illicit drug. It will be the results of the analysis that form the basis of any charge.

New section 55E(6) provides that only members of the police force or officers of the Roads Corporation or the Department of Infrastructure who have been specifically authorised may carry out the procedure for the provision of a sample of oral fluid under section 55E.

New section 55E(10) provides that a person is not obliged to provide a sample of oral fluid under section 55E if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.

New section 55E(12) provides that a person must not be convicted or found guilty of refusing to provide a sample of oral fluid if the refusal occurred for a substantial reason other than the desire to avoid providing incriminating evidence.

New section 55E(13) provides for when a person who has been required to provide a sample of oral fluid under section 55E(2) or (3) may be required to provide a sample of blood for analysis.

New section 55E(17) confers immunity from legal action on specified persons involved in taking blood samples under section 55E(13) (see section 85 statement at clause 21 below).

New section 55E(18) enables a person who is required to provide a sample of oral fluid under section 55E to request the taking and analysis of a blood sample.

[16]. Inserts a new section 57B in the Act to include additional evidentiary provisions regarding oral fluid tests.

Information Privacy - DNA analysis prohibited

[18]. Inserts a new section 58B into the Act making it an offence to intentionally or recklessly do any of the following -

• supply, or cause to be supplied, a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Act to a person to be analysed for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample;

• carry out an analysis of a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Act for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample; or

• include, or cause the inclusion of, information derived from the analysis of a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Act for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample on a DNA database.

The example at the end of new section 58B(1) provides –

Deriving a DNA profile from the sample is a purpose for which analysis is prohibited.

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

These amendments will only enable random testing of drivers for THC and methylamphetamine. Drivers cannot be made subject to random testing for other drugs without further amendments to the Road Safety Act.

The results of any analysis of oral fluid or blood collected as a result of this Bill will not be able to be used to establish any offence that is not related to road safety.

Furthermore, the Bill contains provisions to ensure that samples taken under the Road Safety Act cannot be used for DNA testing.

[19]. Inserts new section 62(1A) to provide that a member of the police force may form the opinion that a person is, by reason (amongst other matters) of his or her physical or mental condition, incapable of having proper control of a motor vehicle, on the basis of the results of the analysis of a breath sample conducted under section 55 or on the basis of a test of an oral fluid sample conducted under new section 55E.

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).

[21]. Inserts new sub-section (2) in section 94B in the Act to declare that it is the intention of section 55E(17) to alter or vary section 85 of the Constitution Act 1975.

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

The effect of section 55E(17) will be to confer immunity on certain persons for carrying out certain procedures under the Road Safety Act 1986, and thereby prevent the bringing of proceedings against those persons in the Supreme Court in respect of those procedures.

Section 55E of the Road Safety Act 1986, as inserted by clause 13 of this Bill, is part of the new procedures for detecting drivers with prescribed illicit drugs in their oral fluid. It includes provision for registered medical practitioners and approved health professionals to take blood samples in certain circumstances.

The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of drugs in the body of a driver to do so without fear of litigation by persons who are the subject of the tests to be authorised by this legislation.

[22]. Amends Schedule 2 of the Act to allow regulations to be made relating to the testing and analysis of oral fluid samples.

[23]. Repeals the provisions in the Bill that relate to drug-driving and makes a number of amendments consequential to these repealing provisions. Clause 23 comes into operation on 1 July 2005. The Committee notes this extract from the Minister’s Second Reading Speech – By sunsetting the roadside drug-screening provisions of this legislation, the government is ensuring that roadside drug screening can only continue after it has been scrutinised by this Parliament in the light of practical experience of the system.

The Committee makes no further comment

Shop Trading Reform (Simplification) Bill

Introduced: 5 November 2003
Second Reading Speech: 6 November 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Minister for Small Business

Purpose

The Bill amends the Shop Trading Reform Act 1996 (the ‘Act’) to simplify the management and enforcement of shop trading in Victoria.

Content and Committee comment

[Clauses]

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

[4]. Substitutes a new section 4 in the Act to provide that a shop is an exempt shop if the predominant business carried on in the shop is that of a chemist shop, a petrol shop, an eating-house, restaurant, cafe or any other shop that sells cooked or prepared meals that are ready to eat on the premises or to be consumed off the premises, or a kind prescribed by the regulations (also see clause 8 below).

A shop is also an exempt shop if the number of persons employed in the shop does not exceed 20; and the number of persons employed in shops by the occupier and any related bodies corporate in Victoria does not exceed 100 (calculated on a full-time equivalent basis).

[5]. Inserts a new Part 2A in the Act providing new inspection powers.

New section 6D provides that Inspectors appointed under the Act will have power to seek Court orders to obtain information or documents if they have reasonable grounds for believing that a person may have contravened the Act. Inspectors will also have powers to enter parts of shops open to the public and purchase goods.

Privilege against self-incrimination

New section 6F provides –

6F. Protection against self-incrimination

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.

(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.

New section 6G contains a confidentiality provision relevant to information obtained directly or indirectly by inspectors carrying out their functions under the new Part.

[8]. Amends the regulation making powers in section 11 of the Act to provide that the Minister may only recommend the making of regulations prescribing a kind of business for the purposes of section 4(1)(d) (exempt shops) if the business is one of selling goods that, in the opinion of the Minister, are essential goods.

The Committee makes no further comment.

Wrongs and Other Acts (Law of Negligence) Bill

Introduced: 28 October 2003
Second Reading Speech: 30 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Wrongs Act 1958 in relation to –

• negligence;

• contributory negligence;

• mental harm;

• the liability of public authorities;

• damages for injury or death;

The Bill also amends the –

• Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 in relation to proportionate liability;

• Victorian Managed Insurance Authority Act 1996 to empower the Authority to insure or indemnify other persons and bodies;

• Building Act 1993 in relation to insurance for domestic building work.

Content and Committee comment

[Clauses]

[2]. Other than sections 6, 14(2) and Part 5 the provisions in the Bill commence on the day after Royal Assent.

Section 6 is deemed to have commenced on 1 October 2003, as it clarifies the effect on contribution proceedings brought under Part IV of the Wrongs Act 1958 of amendments to the Limitation of Actions Act 1958 that commenced on that date.

Section 14(2) is deemed to have commenced on 21 May 2003 as it inserts an expanded category of "significant injury" into Part VBA of the Wrongs Act 1958 (Thresholds in relation to Recovery of Damages for Non-Economic Loss). The purpose of the retrospective amendment is to ensure that the benefit of the expanded definition of significant injury is available from the date of commencement of Part VBA, as that Part affects existing injuries.

Part 5 (Amendments to Building Act 1993) comes into operation on a day to be proclaimed but not later than 1 January 2005.

Amendments to the Wrongs Act 1958

[3]. Inserts new Parts X, XI and XII consisting of new sections 43 to 87.

New Part X concerns negligence.

Section 44 provides that the Part applies to any claim for damages resulting from negligence, regardless of whether the claim is brought in tort, contract, under statute or otherwise.

Section 45 provides that this Part does not apply to any claims for damages under certain Acts that provide for compensation to injured persons. It also does not apply to an injury that is a dust-related condition or that results from the use of tobacco products, unless the claim relates to the provision of or failure to provide a health service. Regulations may exclude other classes of claims from the operation of the Part.

Section 47 provides that, except as provided by the Part, the Part does not affect the common law.

Section 48 sets out general principles in relation to duty of care.

Section 48(2) requires that, in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider a number of matters, amongst other relevant things. (Note: section 85 Constitution Act 1975 statement and report below).

Section 51 sets out a number of general principles to be applied in determining whether the negligent conduct of one person has caused harm to another. (Note: section 85 Constitution Act 1975 statement and report below).

Section 52 provides that the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Section 53 sets out the meaning of obvious risk for the purpose of section 54.

Section 54(1) amends the common law defence of voluntary assumption of risk (volenti non fit injuria) in a limited way. It provides that where the defence is raised and the risk of harm is an obvious one, the person is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. The amended defence does not apply in respect of a proceeding on a claim for damages relating to the provision of a professional service or health service;

Section 58 restates the basic rule about the standard of care in relation to the conduct of all persons professing to have particular skills. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 59 modifies the law regarding the standard of care that applies to professionals. In any case involving an allegation of negligence where a court is considering the conduct of a professional, the conduct will not amount to negligence if the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field ("peer professional opinion") as competent professional practice, unless (in the circumstances of the case before it), the court determines that such peer professional opinion is unreasonable. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 62 provides that the principles that govern determination of negligence also apply to determination of contributory negligence on the part of the person who suffers harm for failing to take precautions against the risk of that harm. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 63 provides that contributory negligence can cover any proportion of the responsibility for the harm, up to and including 100%, although a finding of 100% contributory negligence will defeat the claim.

Section 64 provides power to make regulations for the purposes of Part X.

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).

[3]. Section 65 declares that it is the intention of sections 48(2), 51(2), 51(3), 51(4), 58, 59(5) and 62 to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court.

New section 48 sets out general principles that apply in assessing the duty of care. A person will not be considered to be negligent in failing to take precautions against a risk unless the conditions specified in new section 48(1) are met. New section 48(2) sets out things that the court must take into account in determining whether a reasonable person would have taken precautions against a risk of harm.

The purposes of section 48(2) are to:

• direct the court on how to assess the adequacy of precautions taken and thereby provide greater clarity;

• ensure greater predictability in decision making by encouraging the consistent consideration of these factors in cases before the courts; and

• restate the law as it relates to this aspect of duty of care to ensure that the law operates in a balanced way that is fair to both plaintiffs and defendants.

New section 51 sets out general principles that apply in respect of causation. New section 51(2) deals with claims where there is an evidentiary gap in factual causation. For example, an evidentiary gap exists in a case where a person has been exposed to a similar risk of harm by a number of different defendants and it is not possible to assign responsibility to any one of those defendants.

New section 51(2) provides that in deciding whether to bridge an evidentiary gap in an appropriate case the court must consider, amongst other relevant things, and in accordance with established principles, whether or not and why responsibility for the harm should be imposed on a particular defendant.

New section 51(3) provides that if it is relevant to the determination of factual causation to determine what the injured person would have done if the negligent person not been negligent, the matter is to be determined subjectively in light of all the relevant circumstances.

New section 51(4) provides that in determining whether it is appropriate for the scope of the defendant's liability to extend to the harm caused to the injured person the court must consider whether or not and why responsibility for the harm should be imposed on the defendant.

The purposes of sections 51(2), (3) and (4) are to -

• direct the court on how to apply relevant principles and thereby provide greater clarity;

• ensure greater predictability in decision making by encouraging the consistent application of these principles in cases before the courts; and

• restate the law as it relates to this aspect of causation to ensure that the law operates in a balanced way that is fair to both plaintiffs and defendants.

New section 58 directs the court on the standard of care to be expected of persons who hold themselves out as possessing particular skills. This is to be determined by reference to what could reasonably be expected of a person professing that level of skill (and not a greater level of skill).

It is also to be determined not in hindsight, but by reference to the relevant circumstances as at the date of the alleged negligence. The purposes of section 58 are to:

• direct the court on how to assess this aspect of the standard of care and thereby provide greater clarity;

• ensure greater predictability in decision making by encouraging the consistent application of these principles in cases before the courts;

• ensure that this aspect of standard of care is applied in a balanced way that is fair to both plaintiffs and defendants; and

• restrict the further expansion of liability by the courts in respect of the standard of care of a person professing to have a certain skill.

New section 59 sets out the standard of care applicable to the conduct of a professional whenever a professional service is provided. In any case involving an allegation of negligence where a court is considering the conduct of a professional, the conduct will not amount to negligence if the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice unless the court determines that such peer professional opinion is unreasonable.

Where a court determines that peer professional opinion is unreasonable new section 59(5) requires the court to specify in writing the reasons for that determination. Section 59(6) provides that this requirement does not apply to a jury.

The purposes of new section 59(5) are to:

• ensure that the court directs itself to the considerations set out in section 59; and

• increase transparency in judicial decisions in cases involving the standard of care applicable to the conduct of a professional whenever a professional service is provided.

New section 62 sets out the principles that the court must apply in determining whether a person who has suffered harm has been contributorily negligent.

The purposes of new section 62 are to:

• direct the court on how to apply relevant principles and thereby provide greater clarity;

• ensure greater predictability in decision making by encouraging the consistent application of these principles in cases before the courts; and

• modify the law as it relates to this aspect of contributory negligence to ensure that the law operates in a balanced way that is fair to both plaintiffs and defendants. The policy underlying this approach is that persons should not only take reasonable care of others but also of themselves.

[3]. Section 66 is a transitional provision. This section provides that Part X will apply to negligence arising before, on or after the commencement of section 3 of the Wrongs and Other Acts (Law of Negligence) Act 2003. It also provides that section 61 will apply to acts or omissions occurring before, on or after that commencement. But these provisions will not apply to proceedings commenced in a court before that commencement. Section 3 will commence on the day after the day this Bill receives Royal Assent.

Part XI – Mental Harm

Section 68 provides that Part XI applies to all claims resulting from negligence, whether under tort, contract, statute or otherwise.

Section 69 provides that Part XI does not apply to any claims for damages under certain Acts that provide for compensation to injured persons. It also does not apply to an injury that is a dust-related condition or that results from the use of tobacco products, unless the claim relates to the provision of or failure to provide a health service.

Section 71 provides that, except as provided by the Part, the Part does not affect the common law.
Section 72 provides for the situation where a person owes another person a duty of care not to cause pure mental harm.

Section 73 precludes recovery of damages for pure mental harm arising wholly or partly from mental or nervous shock unless the plaintiff witnessed at the scene a person being killed, injured or put in danger, or was in a close relationship with a person killed, injured or put in danger. Section 73 also provides that no damages are to be awarded for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by this Act or any other written or unwritten law. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 74 provides that damages for consequential mental harm may only be recovered if the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstance of the case, suffer a recognised psychiatric illness if reasonable care were not taken or if the defendant knew, or ought to have known, that the plaintiff is a person of less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. In this section the circumstances of the case include the injury to the plaintiff out of which the mental harm arose. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 75 precludes recovery of damages for economic loss arising from mental harm unless the mental harm consists of a recognised psychiatric illness. Section 28LE of the Wrongs Act 1958 already precludes recovery of damages for non-economic loss for psychiatric injury unless the injury is assessed at more than 10% using established psychiatric guidelines.

Section 76 provides power to make regulations for the purposes of Part XI.

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).

[3]. Section 77 declares that it is the intention of sections 73, 74 and 75 to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court.

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

New section 73 places limits on the recovery of damages for pure mental harm. New section 74 places limits on the recovery of damages for consequential mental harm. New section 75 also prevents the court from making an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

The purposes of new sections 73, 74 and 75 are to:

• modify certain aspects of the law relating to liability for mental harm in claims for damages resulting from negligence to ensure that the law operates in a balanced way that is fair to both plaintiffs and defendants; and

• restrict the further expansion of liability and damages by the courts in relation to mental harm, to the extent that sections 73, 74 and 75 affect aspects of the common law.

Part XII – Liability of Public Authorities

Section 82 provides that the Part is not intended to affect the common law, except as provided in sections 83, 84 and 85.

Section 83 sets out principles that apply to determine whether a public authority has a duty of care, or has breached a duty of care. These principles apply in addition to the new provisions regarding negligence in clause 3. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

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

Section 86 declares that it is the intention of section 83 to alter or vary section 85 of the Constitution Act 1975.

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

New section 83 sets out the principles that a court is to consider when determining whether a public authority has a duty of care or has breached a duty of care. It is important to note that this provision does not confer immunity on public authorities. It describes factors that a court must consider, for instance by specifying that the functions required to be exercised by a public authority are limited by the financial and other resources that are reasonably available to the authority. The purposes of new section 83 are to:

• direct the courts on how to apply relevant principles regarding the liability of public authorities and thereby provide greater clarity;

• ensure greater predictability in decision making by encouraging the consistent application of these principles in cases brought before the courts;

• ensure that the law operates in a balanced and fair way. Public authorities are required to take reasonable care of others and are accountable for their actions in court. However, in exercising all of their functions public authorities are also subject to the Parliament and the executive. A public authority will also necessarily be limited in the financial and other resources available to exercise the functions conferred upon it, and in some instances will be implementing policy decisions for which the executive may be politically accountable. Priorities accorded by a public body may change over time, based on policy, financial and statutory considerations. The provisions in this part are therefore designed to ensure that the unique nature of public bodies and their activities is taken into account so that the public interest is not impaired, and the provision of publicly funded services to the community in the future is not threatened, by the risk of inappropriate civil liability; and

• restrict the further expansion of liability of public authorities by the courts, to the extent that section 83 affects aspects of the common law.

[4]. Inserts new sections 19A–19C into Part III of the Act.

Section 19A provides that in an action under Part III no damages may be awarded for loss of gratuitous care provided by the deceased person to the dependants unless the court is satisfied that the care was provided to the dependants; and was being provided for a least 6 hours per week; and had been provided for at least 6 consecutive months before the death, or the injury that caused the death, to which the damages relate or there is a reasonable expectation that but for the death the gratuitous care would have been provided for at least 6 consecutive months for at least 6 hours per week.

Section 19B provides for a cap on the amount of damages that can be awarded for gratuitous care.

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

[5]. Inserts new section 23AB to declare that it is the intention of sections 19A and 19B to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court.

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

New section 19A limits the circumstances in which damages may be awarded to dependants for loss of gratuitous care in claims brought under Part III of the Wrongs Act 1958. New section 19B sets out the limits for the award of damages in those circumstances.

The purpose of limiting the circumstances in which an award of damages may be made is to limit the number of claims for loss of gratuitous care. The purpose of limiting the level of damages that may be awarded is to prevent excessive awards of damages for these types of claims

[6]. Amends section 24 of the Act to clarify the operation of section 24(4) in the light of concerns raised about the effect on the limitation period for bringing contribution claims of amendments made to the Limitation of Actions Act 1958 by the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003.

[9]. Inserts a new section 28HA into Part VB of Act that permits the court in determining damages for non-economic loss to refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

[10]. Inserts section 28ID to 21IF into Part VB of the Act. These sections place a limitation on damages awarded for the loss of capacity to care for others. Under this section no damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous care for others unless the court is satisfied that the care was provided to the claimant's dependants; and was being provided for at least 6 hours per week; and had been provided for at least 6 consecutive months before the injury to which the damages relate or there is a reasonable expectation that but for the injury the gratuitous care would have been provided for at least 6 consecutive months for at least 6 hours per week.

Section 28IE provides for a cap on the amount of damages that can be awarded for loss of capacity to provide gratuitous care.

Section 28IF provides that nothing in sections 28ID and 28IE affects any other law relating to damages arising from a loss of capacity to care for others. (Note: section 85 of the Constitution Act 1975 declaration and statement below).

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

[11]. Inserts a new section 28J(3) and declares that it is the intention of section 28D (as affected by the amendments made to Part VB of the Wrongs Act 1958 by clause 10 of the Bill) to limit the jurisdiction of the Supreme Court. Section 28D provides that a court cannot award damages to a claimant contrary to Part VB. Sections 28ID and 28IE have been inserted in Part VB. Sections 28ID and 28IE place limits on what the Supreme Court may award in damages for loss of capacity to provide gratuitous care to others.

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

Clause 10 of this Bill proposes to insert new sections 28ID and 28IE into Part VB (Personal Injury Damages) of the Wrongs Act 1958. New section 28ID limits the circumstances in which damages may be awarded to a claimant for loss of capacity to provide care for others. New section 28IE sets out the limits on an award of damages in these circumstances. The purpose of limiting the circumstances in which an award of damages may be made is to limit the number of claims for loss of capacity to provide care for others. The purpose of limiting the level of damages that may be awarded is to prevent excessive awards of damages for these types of claims.

[14]. Amends section 28LF of the Act to insert into the section an additional category, based on psychological or psychiatric injury arising from the loss of a child. The provision is retrospective to 21 May 2003. (Also refer to clause 35 below).

[26]. Inserts new section 28LXA in the Act to provide that the Minister on the recommendation of the Convenor of Medical Panels (who is appointed under section 63 of the Accident Compensation Act 1985), may publish in the Government Gazette a notice fixing scales of fees and costs for referrals of medical questions to a Medical Panel. The new section provides that such a notice must be laid before each House of Parliament within 5 sitting days of its publication and is disallowable by either House.

[35]. Is a transitional provision. Clause 2 provides that clause 14(2) is deemed to have come into operation on 21 May 2003, which is the date on which the original provisions creating a threshold for general damages took effect. This will apply even if the proceedings were commenced prior to the commencement of the Bill. However an award of damages already made cannot be called into doubt retrospectively.

[36-38]. Amend the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (not yet in force) in respect of provisions for proportionate liability.

[41-42]. Amend the Building Act 1993.

The Committee makes no further comment.

Wrongs (Remarriage Discount) Bill

Introduced: 28 October 2003
Second Reading Speech: 29 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Wrongs Act 1958 (the ‘Act’) to provide a statutory basis to prevent a court, when apportioning damages for wrongful death, from making a separate discount for the remarriage, re-partnering or prospects of remarriage or re-partnering of certain dependants of the deceased.

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

The prohibition applies regardless of whether the plaintiff is a man or a woman and regardless of the sex of the new partner.

Content and Committee comment

[Clauses]

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

[3]. Inserts new sections 19(2), 19(3), 19(4) and 19(5) into section 19 of the Act.

New sub-section (2) provides that in any action for wrongful death commenced after the commencement of the provisions in the Bill, no separate reduction may be made on account of the remarriage or formation of a domestic partnership, or the prospects of the remarriage or formation of a domestic partnership, of the surviving spouse, domestic partner, former spouse or former domestic partner of the deceased.

New sub-section (3) defines a "domestic partner" and "spouse" of the deceased.

New sub-section (4) provides that for the purposes of determining whether a person was a domestic partner of the deceased, all the circumstances of the relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958.

Section 275(2) of the Property Law Act 1958 sets out a number of factors which the court may take into account in assessing whether a person is a domestic partner of another person, including the duration of the relationship, the degree of mutual financial support in the relationship and whether friends and family regard the persons as domestic partners of each other.

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).

[4]. Inserts new section 23AD at the end of Part III of the Act and declares that it is the intention of section 19(2) of the Act to alter or vary section 85 of the Constitution Act 1975.

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

Section 19(2) provides that in an action under Part III of the Wrongs Act 1958 that is commenced after the commencement of the Bill, no separate reduction of damages may be made on account of the remarriage or formation of a domestic partnership, or the prospects of the remarriage or formation of a domestic partnership, of the surviving spouse, domestic partner, former spouse or former domestic partner of the deceased.

The purpose of the new section 19(2) is to restrict the powers of the court in the assessment of damages in these types of actions in order to ensure that plaintiffs are protected from any possible future application of the 'remarriage discount'. While the Bill reflects the common law set out by the High Court in De Sales v. Ingrilli, the government considers it important to make a clear legislative statement to ensure that this outdated, discriminatory and offensive discount no longer applies in Victoria.

The Committee makes no further comment.

Committee Room
17 November 2003

Scrutiny of Acts and Regulations Committee
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