Scrutiny of Acts and Regulations Committee

Alert Digest No 11 of 2004

Tuesday, 30 November 2004

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Accident Compensation Legislation (Amendment) Bill

Introduced: 16 November 2004
Second Reading Speech: 18 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for WorkCover, Treasurer and
Attorney-General

Purpose

The Bill amends the Accident Compensation Act 1985 to —

• streamline processes enabling seriously injured and terminally ill workers access to common law compensation without unnecessary delays,

• amend the provisions relating to compensation for hearing loss,

• ensure that workers injured over the age of 63 are not unduly discriminated against in their entitlements to weekly payments;

• make further improvements to the return to work aspects of the WorkCover scheme; and

• provide injured workers with a general right of access to information relating to their claim under the Act.

The Bill also amends the Accident Compensation (WorkCover Insurance) Act 1993 to improve the administrative efficiency of the premium collection system and the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and the Workers Compensation Act 1958 to upgrade references to indexed amounts.

Content and Committee comment

[Clauses]

The Bill provides that, with the exception of sections 5, 15 to 18, 21, 23 to 31 and 45, the provisions comes into operation on Royal Assent. Sections 5, 15 to 18 and 23 are deemed to have come into operation on 18 November 2004, the date of second reading of the Bill. Sections 21, 24 to 31 and 45 come into operation on a day or days to be proclaimed but not later than by 1 July 2005.

Amendments to the Accident Compensation Act 1985

[5]. Amends section 104B of the Act by substituting a new impairment benefit process to reduce the time for workers to access common law damages.

[12]. Inserts a new Division 9A into the Act section 135BA which deals with applications made by terminally ill workers under sections 134AB or 135A. The Division allows workers with terminal illnesses to bring claims outside the requisite pre-litigation processes established by sections 134AB or 135A so as to allow them to issue a writ for damages.

[19]. Inserts a new section 119IA into the Act which provides the Authority with the ability to withdraw an offer of settlement made to an applicant or to avoid a settlement contract (in cases of fraud or misrepresentation) once an offer has been accepted under Division 3A of Part 4.

[21]. Amends section 93CB of the Act to provide that the decrease in the level of weekly payments of compensation to 60% pre-injury average weekly earnings (PIAWE) after 13 weeks of incapacity following an injury, will be increased to 75% where the worker has a current work capacity but the employer has failed to offer suitable employment.

[23]. Amends section 93E of the Act to extend the entitlement period of weekly payments for people over 63 years of age from 52 to 104 weeks with an automatic cut off after that time. The Committee notes this extract from the explanatory memorandum –

The amendment will ensure greater parity between those workers who are injured well before retirement age and those who are injured within the period contemplated by section 93E.

[24]. Amends section 99 of the Act to provide a worker with some choice of occupational rehabilitation or service providers from a list of providers approved by the Authority.

Right to information

[28]. Inserts a new section 107A into the Act which broadens the existing right of claimants to access information under the Act consistent with a number of other workers' compensation jurisdictions. The section provides claimants with a general right of access to information under the Act, other than certain defined categories of exempt information.

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

The main object of the Freedom of Information Act 1982 (FOI act) is to enable the public to access information in the possession of the government. Whilst the Victorian WorkCover Authority is subject to the FOI act, authorised agents who perform the authority's statutory function of managing claims for workers compensation are not. This difference creates a dual process for the authority and agents in handling requests for information, with significant duplication of effort, inefficiencies, delays and increased costs.

The Bill proposes to remove that duplication and broaden the existing right of workers to access information under the Accident Compensation Act and to require the authority, agents or self-insurers, at the request of a worker, to give the worker information held by the authority, agents or self-insurers relating to the worker's claim, other than exempt information. Exempt information is defined as information contained in documents which would be considered exempt under sections 30, 31, 32, 33 or 35 of the Freedom of Information Act 1982. These sections provide that exempt documents include, internal working documents, law enforcement documents, documents affecting legal proceedings, documents affecting personal privacy, and documents containing material obtained in confidence.

[36]. Amends section 249(1) of the Act by providing that false information must not be provided by electronic transmission in addition to the current requirement that false information must not be provided orally or in writing.

The Committee makes no further comment

Corrections and Major Crime (Investigative Powers) Acts (Amendment) Bill

Introduced: 10 November 2004
Second Reading Speech: 11 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

This Bill amends the Corrections Act 1986 to require a prisoner to obtain the approval of the Secretary to the Department of Justice (‘the Secretary’) before making an application for a change of name. The Bill also makes some related changes to the power of a prison Governor to stop or censor prisoners' mail to enable mail that is proposed to be sent in contravention of this requirement to be stopped. In addition, the Bill makes a number of minor amendments to the Major Crime (Investigative Powers) Act 2004.

Content and Committee comment

[Clauses]

[2]. Other than Part 3 the provisions in the Bill come into operation either on Royal Assent or the day after Assent. Part 3 is deemed to commence on the day on which the Major Crime (Investigative Powers) Act 2004 received the Royal Assent.

Amendment of the Corrections Act 1986

[4]. Inserts a new Division 5 of Part 6 of the Act to set out the requirements for approval by the Secretary of change of name applications by a prisoners. New section 47H requires a prisoner to obtain the approval of the Secretary before making an application for a change of name. New section 47I provides for the Secretary's power to approve a change of name application. The Secretary must not approve a change of name application if the Secretary is satisfied that the change of name would be reasonably likely to be a threat to prison security; jeopardise a prisoner's safe custody or welfare; be used to further an unlawful purpose; or be regarded as offensive by a victim of crime or an appreciable sector of the community.

Amendments to the Major Crime (Investigative Powers) Act 2004

[6]. Amends section 54 and makes it clear that a person who has been issued with a witness summons under the Major Crime (Investigative Powers) Act 2004 or (if a prisoner) an order under section 18 of that Act may make a complaint to the Special Investigations Monitor (SIM) within 3 days after that person was questioned or required to produce a document.

[7]. Clarifies which duties and powers of the Chief Examiner may be delegated, and also provides that the SIM may delegate to an employee in his or her office any function, power or duty under the Act, the Police Regulation Act 1958 or the Whistleblowers Protection Act 2001, other than the power to make reports to Parliament and the power of delegation.

[8]. Clarifies the obligation on the Director, Police Integrity to video record evidence.

The Committee makes no further comment

Emergency Services Telecommunications Authority Bill

Introduced: 10 November 2004
Second Reading Speech: 11 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

The Bill makes provision for certain emergency services telecommunications services and other communications services to be delivered by the Emergency Services Telecommunications Authority (ESTA) (“the Authority”) established by the Bill.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on proclamation but not later than by 1 January 2006. Section 45 is to come into operation on a day to be proclaimed. (Refer to notes under clauses 44 and 45).

[5 to 18]. Establishes the ESTA sets outs its membership, powers and functions and other administrative and procedural matters.

[13]. Provides that, a member of the Authority is not personally liable for anything done or omitted to be done, in good faith, in the circumstances specified. Liability attaches instead to the Authority. [19]. Provides that the Authority may by instrument delegate its powers other than the power of delegation. The delegation may be to a member or employee of the Authority or to a person engaged to provide services to the Authority.

[21 to 26]. Deals with the appointment of members, functions, reports and procedures of an advisory committee established to advise the Authority. The Authority in carrying out its functions must have regard to any advice and recommendations of the advisory committee.

[31 and 32]. Provides that the Authority may determine a fee to be charged by it for the provision of its services and deals with the payment and collection of the fee.

[35]. Makes provision for Regulations in relation to matters necessary to be prescribed to give effect to the Bill.

Amendments to the Emergency Management Act 1986

[37]. Amends section 21C of the Act to include within the functions of the Emergency Services Commissioner (the ‘Commissioner’) the monitoring and investigating the non-financial performance of ESTA in relation to emergency services and other related services organisations.

[38]. Amends section 21E of the Act to provide that the Commissioner has powers to arrange for monitoring and investigation. [39]. Amends section 41 of the Act to enable the Commissioner to obtain any information that the Commissioner reasonably believes is necessary to monitor, and investigate the non-financial performance of ESTA.

The Committee makes no further comment

Fair Trading (Enhanced Compliance) Bill

Introduced: 10 November 2004
Second Reading Speech: 11 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

This Bill amends the Fair Trading Act 1999 and other of the Consumer Acts listed in Schedule 1 to that Act to enhance compliance with those Acts. It also makes a minor amendment to the Trustee Companies Act 1984.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill comes into operation on the day after Royal Assent except for clause 37, which comes into operation on 1 July 2005.

Amendments to the Fair Trading Act 1999

[4]. Inserts a new section 24A to create a specific offence for the sending of false invoices and other false claims for payment where no goods or service have been provided.

[12]. Inserts a new section 106HA to enable the Director of Consumer Affairs Victoria to gather information to assist in monitoring compliance with the Act and regulations.

Limited privilege against self-incrimination

New section 106HA(3) and (4) provides that a person is not excused from answering a question or producing a document on the grounds that the answer or document may incriminate that person, however the answer or document cannot be used in any proceedings other than proceedings under the section.

[15]. Insets a new section 129A to enable the court to permit Consumer Affairs Victoria to destroy goods it has seized that are subject to a ban order.

[17]. Amends section 146 to enable the Director of Consumer Affairs Victoria to apply to the Magistrates' Court, with the consent of the person giving an undertaking, for an order requiring that person to comply with the undertaking.

[19]. Inserts a new section 149A to enable the County Court and the Supreme Court to grant injunctions requiring person who has breached, or been involved in a breach of the Act, to do an act or thing, for example, and without limiting the generality of the orders that can be made, the orders listed in section 149A(3).

Amendments to the Co-Operatives Act 1996

[30]. Inserts a new Division 2 of Part 17 to enable certain offences to be enforced by infringement notice.

32]. Substitutes a new Schedule 6 listing the offences to which the new infringement-notice provisions apply.

Amendments to the Estate Agents Act 1980

[39]. Amends section 64 to remove the obligation on auditors to report deficiencies in an estate agent's trust account caused solely by bank error or inadvertence, provided that such deficiency is rectified within 2 business days of being discovered, and amends section 90 to remove the offence of not reporting a deficiency in these circumstances.

[40]. Inserts a new Division 2 of Part VI consisting of sections 70 and 70A to 70Y to align the inspection powers under the Act with those in other business-licensing legislation, particularly to allow inspection for the purpose of monitoring compliance with the Act.

The section includes standard provisions concerning search with consent, entry without consent or warrant. Search warrants may be issued pursuant to the forms and procedures under the Magistrates’ Court Act 1989.

Limited privilege against self-incrimination

New section 70U provides that a person is not excused from answering questions or producing a document on the grounds of self-incrimination. However a person may claim the privilege against self-incrimination before answering a question and in those circumstances the answer is not admissible in evidence in any criminal proceedings other than in respect to the falsity of the answer given.

Amendments to the Fundraising Appeals Act 1998

[46]. Inserts a new Division 2 of Part 5 to enable certain offences to be enforced by infringement notice.

[48]. Inserts a Schedule of offences enforceable under the new infringement notice provisions.

Amendments to the Residential Tenancies Act 1997

[65]. Inserts a new Division 2A of Part 13 to enable certain offences to be enforced by infringement notice. [67]. Substitutes a new Schedule 2 of offences enforceable under the new infringement notice provisions.

Amendments to the Sale of Land Act 1962

[70]. Inserts new sections 38(6) and (7) to enable genuine bids by a co-owner of land under public auction as exceptions to the prohibition on undisclosed vendor bids, providing that the auction conditions allow for such bids and the auctioneer declares that such bids may be made; inserts a new section 39(3) to exclude such bids from the offence provisions; and inserts a new section 41(1)(d) to clarify that the auctioneer cannot make a bid on behalf of a co-owner seeking to purchase the interest of another co-owner.

Amendments to the Travel Agents Act 1986

[76]. Inserts a new Part 3B to enable certain offences to be enforced by infringement notice.

The Committee makes no further comment

Gambling Regulation (Further Amendment) Bill

Introduced: 16 November 2004
Second Reading Speech: 17 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill provides further for club keno and the oversight of raffles and raffle organisers. It provides for a gaming industry employee's licence to replace special employee's licences, technician's licences and bingo centre employee's licences.

The Bill abolishes the Gambling Research Panel and provides for a Responsible Gambling Ministerial Advisory Council. It also makes other miscellaneous amendments to the Gambling Regulation Act 2003 (‘the Act’) and the Casino Control Act 1991.

Content and Committee comment

[Clauses]

[2]. Provides for certain sections to come into operation on the day after Royal Assent. The remaining provisions (other than sections 21 and 45) commence on proclamation but not later than by 1 July 2006. A number of sections commence on proclamation (see below).

[21]. Amends the definition of “disciplinary action” in section 7.3.9 of the Act to replace the reference to “50” with “500”. This corrects an error in the conversion of the fine to penalty units by item 10.8 of Schedule 1 to the Monetary Units Act 2004.

[25]. Inserts a new section 8.2.5 into the Act to require that if the proceeds of a raffle are to benefit a political party, that fact must be disclosed to the raffle ticket purchasers.

Note: This provision does not apply to raffles conducted by political parties that hold a minor gaming permit, as the regulations already require the name of the holder of the permit to be printed on each raffle ticket.

[29]. Inserts a new Part 5A into Chapter 8 of the Act to provide for a new licensing regime for commercial raffle organisers.

[32]. Inserts a new Chapter 9A into the Act dealing with a new form of licence for employees engaged in the gaming industry. This new Chapter will replace the three existing employee licensing regimes in the Principal Act.

[34]. Amends section 10.1.26 of the Act to provide that certain commissioners (the Chairperson, the Deputy Chairperson or the Executive Commissioner) can by instrument delegate certain functions to an employee or member of staff.

[35]. Replaces Part 2 of Chapter 10 of the Act relating to the Gambling Research Panel with new provisions for a Responsible Gambling Ministerial Advisory Council.

The Committee makes no further comment

Heritage (World Heritage) Bill

Introduced: 16 November 2004
Second Reading Speech: 18 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Heritage Act 1995 (“the Act”) to provide for the protection of places in Victoria that are included in the World Heritage List.

Content and Committee comment

[Clauses]

[2]. Provides for the Act to come into operation on a day to be proclaimed but not later than by 1 January 2006.

[8]. Inserts new Part 3A (World Heritage) into the Act to provide for the protection of places in Victoria that have been included in the World Heritage List and recorded in the Heritage Register. If the Minister considers that a World Heritage Environs Area should be declared, the Minister may recommend to the Governor in Council that the area be declared. The Governor in Council may, on the recommendation of the Minister, by Order published in the Government Gazette, declare the area to be a World Heritage Environs Area.

New section 62D enables any person to make a written submission on the draft World Heritage Strategy Plan to the Heritage Council and to request an opportunity to be heard by the Heritage Council in relation to the submission.

New section 62F requires the Heritage Council to examine all submissions on the draft World Heritage Strategy Plan that it received on or before the submission date.

New section 62J requires a copy of the Approved World Heritage Strategy Plan to be kept at certain locations for inspection by members of the public free of charge.

New section 62X provides that it is an offence for an owner or occupier of a listed place or part of a listed place, to fail to comply with an Approved World Heritage Management Plan in carrying out works or activities in relation to the listed place.

The Committee makes no further comment

Housing (Housing Agencies) Bill

Introduced: 16 November 2004
Second Reading Speech: 18 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Housing Act 1983 (“the Act”) to provide a regulatory framework comprising a registration system for non-profit community housing agencies providing low-cost rental housing for low-income people.

To be registered, an agency must have a non-profit structure, and must have the provision of affordable rental housing to low-income Victorians as its primary focus. Registered agencies must comply with performance standards.

Registered agencies will need to establish appropriate mechanisms to deal with complaints by tenants and prospective tenants of their services.

The Registrar of Housing Agencies may commence intervention activity against an agency if the registered agency fails to meet the performance standards or the prescribed registration criteria.
The Bill also amends the Borrowing and Investment Powers Act 1987 and the Transfer of Land Act 1958.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (other than sections 6, 13 and 15) will come into operation on 1 January 2005. Sections 6 and 15 will come into operation on 1 July 2005 and section 13 on the date on which section 113(1) of the Public Administration Act 2004 comes into operation.

[5]. Inserts new Parts VIII (ss.73–142) and IX (s.143) into the Act, establishing the Registrar of Housing Agencies and setting out its powers and functions. These include the power to register rental housing agencies, to monitor their performance against performance standards and to take action when the standards are not met or the Act is not complied with.

New section 73 provides that the object of the Part is to provide a regulatory framework to encourage the development of rental housing agencies serving the housing needs of low-income tenants by providing for the registration of rental housing agencies and the regulation and monitoring of registered agencies.

New section 74 provides that the Registrar of Housing Agencies is appointed by the Governor in Council on the recommendation of the Minister.

New section 79 provides that the Registrar's functions are to register and monitor rental housing agencies, to establish and maintain the Register of Housing Agencies, to make recommendations to the Minister on the standards of performance to be met by registered agencies and to monitor compliance with those standards, and with Part VIII and the regulations.

New section 81 provides that a rental housing agency may apply to the Registrar to be registered.

New section 89 provides that the Registrar must establish a Register of Housing Agencies.

New section 92 provides that some information on the Register will be available for the public to search.

New section 98 provides that a tenant or prospective tenant whose complaint remains unresolved after 30 days may refer the complaint to the Registrar.

New section 116 provides that an inspector may require a registered agency or anyone involved in a registered agency to produce relevant documents at a specified time and place.

New section 117 provides that an inspector may enter a property, though not a residence, and may search it and seize relevant documents where the inspector believes on reasonable grounds that the relevant documents are connected with a failure to comply with this Part or the performance standards.

New section 118 provides that an inspector may apply to a magistrate for a search warrant. The relevant rules under the Magistrates Court Act 1989 about search warrants apply.

Privilege against self-incrimination

New section 125 provides that a person may refuse to give information or to produce a document or to do anything else he or she is required to do under Division 7, if doing so would tend to incriminate the person.

Legal professional privilege

New section 126 provides that a legal practitioner may refuse to comply with a requirement under section 116 or 122 if compliance would involve disclosure of privileged information. The legal practitioner may not refuse to comply if the party entitled to claim the privilege has waived that right.

If the legal practitioner refuses to comply, the legal practitioner must provide written information to the inspector stating the name and address of the person entitled to claim the privilege, and particulars to identify any document containing the privileged communication. Failure to do so is an offence punishable by a fine of up to 60 penalty units.

New section 131 provides that the Registrar may recommend the appointment of one or more members to the governing body of a registered agency.

New section 132 provides that the Registrar may give instructions to a registered agency or members of its governing body.

New section 134 provides that if a registered agency intends to wind up its operations, it must give the Registrar at least 28 days' notice.

New section 135 provides that if an appointment is made to the governing body of a registered agency under section 131 or section 132, the Registrar may provide that person with an indemnity against any liability for anything done in good faith in the performance of his or her duties.

New section 136 provides that if the Registrar is exercising intervention powers under section 131 or section 132, the Registrar may also provide the agency with financial accommodation, including a loan, grant, guarantee or debt waiver. The Registrar must have the Minister's and the Treasurer's approval to do this.

New section 137 provides that the Registrar is given powers under the Borrowing and Investment Powers Act 1987.

New section 138 provides that the Registrar may delegate powers to an employee of the Department of Human Services or to an inspector. The Registrar cannot delegate the power of delegation.

New section 139 provides that a registered agency or a member of its governing body may apply to VCAT to review an instruction or a decision of the Registrar.

New section 140 provides that if a registered agency or person does not comply with a direction of the Registrar under section 132, the Registrar may apply to the Supreme Court for an enforcement order.

New section 141 provides that the Registrar may revoke a registered agency's registration if satisfied on reasonable grounds of certain matters.

New section 142 provides that a body may apply to VCAT for a review of a decision to revoke its registration under Part VIII within 28 days after the statement of reasons is given.

New section 143 empowers the making of regulations by the Governor in Council for or with respect to any matter or thing that is by the Act authorized or required or permitted to be prescribed or that is necessary to be prescribed for carrying the Act into effect.

[9]. Substitutes a new section 35 of the Act to allow the Director, with the prior approval of the Minister, to delegate powers to the Registrar and to employees of the Department and any other person (other than powers under Division 6 of Part VIII). The power of delegation remains subject to Ministerial approval.

The Committee makes no further comment

Legal Profession Bill

Introduced: 11 November 2004
Second Reading Speech: 16 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill implements a new regulatory framework for the legal profession in Victoria while simultaneously implementing national model provisions.

The Bill will abolish the Legal Practice Board, the office of the Legal Ombudsman and the Legal Profession Tribunal and replace them with a new streamlined regulatory framework. The Bill establishes the Legal Services Board (“the Board”) as the peak body in the new regulatory system and the Legal Services Commissioner (“the Commissioner”). The main function of the Commissioner is to receive and deal with complaints about the legal profession. The Bill transfers the key functions of the current Legal Profession Tribunal to the Victorian Civil and Administrative Tribunal (“VCAT”).

In respect to the national model regulating the profession, the Committee notes the explanatory memorandum –

The national reforms contained in this Bill come out of the National Legal Profession Project sponsored by the Standing Committee of Attorneys-General. This major initiative has been driven by the continuing evolution of a national and international legal services market and will establish a regulatory framework that removes State and Territory barriers while meeting the needs of the profession and protecting the interests of consumers. The national model provisions are aimed at ensuring standards and procedures are broadly uniform across all Australian jurisdictions in order to facilitate national practice.

Content and Committee comment

[Clauses]

Note: The Bill is structured in Chapters, Parts and Divisions.

[1.1.2]. With the exception of clauses 3.5.2(7) and (9) and 8.1.1(1), the provisions in the Bill will come into operation on a day or days to be proclaimed but not later than by 1 January 2006. Clauses 3.5.2(7) and (9) and 8.1.1(1) will come into operation on the day after the day the Act receives Royal Assent.

[2.2.2]. Prohibits persons from engaging in legal practice in Victoria unless they are Australian legal practitioners.

[2.2.3]. Imposes restrictions on representing or advertising that persons are entitled to engage in legal practice unless they are Australian legal practitioners.

[2.3.2]. Specifies the eligibility requirements for admission to practice.

[2.3.10]. Provides that the two main functions of the Board of Examiners are: to consider applications for admission to the legal profession; and to recommend to the Supreme Court that an applicant meets the admission requirements.

[2.3.11]. Allows applicants for admission to appeal to the Supreme Court against a decision of the Board of Examiners regarding their application.

[2.3.12]. The Council of Legal Education may make rules regarding the academic qualifications and legal training required for admission to the legal profession. The rules made are statutory rules for the purposes of the Subordinate Legislation Act 1994.

[2.4.1]. The purposes of the Part are: to facilitate national practice; to provide for the certification of Australian lawyers; and to allow for a system for the issue of local practising certificates.

[2.5.3]. The Board may ask the Chief Commissioner of Police to conduct a criminal record check of an applicant for the grant or renewal of a local practising certificate.

[2.5.4]. The Board may require an applicant for the grant or renewal of a local practising certificate or a local legal practitioner to undergo a health assessment. [2.5.7]. The Board must pay the cost of a health assessment and health assessment report. [2.5.9]. A suitability report is confidential. A member, member of staff or agent of the Board must not disclose the report or information contained in the report except in the circumstances set out in this clause.

[Part 2.7]. Deals with incorporated legal practices (other than a community legal centre) and sets out eligibility for, and the obligations of, an incorporated legal practice. The provisions also deal with the auditing and management of incorporated legal practices.

[2.7.36]. Provides for multi-disciplinary partnerships for the purposes of this Act and allows an Australian legal practitioner to be in partnership with a person who is not an Australian legal practitioner and to provide legal services as part of the business of the partnership.

[2.7.53]. The regulations may make provision for the legal services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships, and for other services that they can provide in circumstances where a conflict of interest may arise relating to the provision of legal services. The regulations may provide that a contravention of the regulations is capable of constituting unsatisfactory professional conduct or professional misconduct.

[Part 2.8]. Deals with Australian-registered foreign lawyers who may practise foreign law in Victoria.

[Part 2.9]. Deals with community legal centres and requires a centre to employ one or more supervising legal practitioners to be responsible for the provision of legal services at the centre.

[Part 3.2]. Has provisions relevant to the manner of legal practice. The provisions prohibit compulsory clerking and compulsory chambers. Compulsory robing is not to be compulsory for civil trials not involving a jury or a summary criminal proceedings.

The regulations may prohibit local legal practitioners from carrying on, engaging in or practising any business, profession or occupation that is inconsistent with legal practice or that may cause a conflict between the practitioner and a client.

[3.2.11]. Sets out the subject-matter than may be dealt with in legal profession rules.

[3.2.17]. Sets out the binding nature of the legal profession rules on Australian legal practitioners and locally registered foreign lawyers to whom they apply.

[Part 3.3]. Deals with trust money and trust accounts and sets out when investigations in respect to monitoring compliance and contraventions may be conducted and deals with the powers of inspectors to require production of records.

[3.3.37]. An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises, if the inspector believes on reasonable grounds that there is on the premises evidence that a person or person may have contravened this Part or regulations made for the purposes of this Part. The rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 apply.

[3.3.44]. An inspector may obtain information for the purposes of an investigation from a financial institution or other specified body.

Legal professional privilege and the privilege against self-incrimination

[3.3.46]. In respect to trust account investigations it is not a reasonable excuse for a person not to produce a document, give information, answer a question or do anything else the person is required to do on the ground of any duty of confidence owed by a law practice or legal practitioner to a client. Self-incrimination is also not a ground upon which a person may refuse to comply.

However, if the person, before complying with a request of an inspector, objects to the inspector that compliance may tend to incriminate the person, the document, information, answer or thing is inadmissible in evidence in any proceeding for an offence other than an offence in relation to the keeping of trust accounts or the receipt of trust money, or an offence in relation to the giving of false or misleading information.

[Part 3.4]. Provides for legal costs, costs agreements, disclosures and reviews.

[3.5]. Requires a law practice (ie: an Australian legal practitioner who is a sole practitioner, a law firm, a multi-disciplinary partnership or an incorporated legal practice) to obtain professional indemnity insurance before commencing to engage in legal practice in Victoria and to maintain that insurance at all times while engaged in legal practice in Victoria. The insurance must cover civil liability of the law practice and all persons who are or were principals or employees of the law practice in connection with the practice's legal practice and administration of trusts in Victoria.

[Part 3.6]. Deals with fidelity cover out of a Fidelity Fund for defaults in respect to trust money.
[Chapter 4]. Deals with civil complaints and disputes, mediation and in respect to disciplinary complaints.

[4.2.15]. Where a client of a law practice or an Australian legal practitioner makes a complaint about the practice or practitioner, the client is taken to have waived legal professional privilege or the benefit of any duty of confidentiality to enable the practice or practitioner to disclose to the Commissioner any information necessary for investigating and dealing with the complaint.

[4.4.3]. Provides a definition of “professional misconduct”.

[4.4.39]. Provides that nothing in this Part affects or takes away from the inherent power of the Supreme Court to discipline local legal practitioners and interstate legal practitioners engaged in legal practice in Victoria. This preserves the Court's common law powers over persons admitted to practice by the Court.

[Chapter 5]. Makes provision for external intervention in the business and professional affairs on lawyers, for example where the Board appoints a manager or supervisor in respect of trust money. Such appointees have powers of entry to legal practice premises and powers of access to relevant records and documents. The Chapter also deals with receivers appointed for a law practice.

[Chapter 6]. Establishes the Legal Services Board (‘the Board’) as a body corporate as public authority and sets out its objectives, powers, functions and membership.

[6.2.18]. A member or acting member of the Board is not personally liable in the performance of a function under this Act if the member acts in good faith in the performance of a function under this Act or in the reasonable belief that the act or omission was in performance of a function under the Act. Any liability resulting from the act of omission attaches to the Board itself. Delegates of the Board are also protected from personal liability. [6.2.19]. Sets out to whom a function of the Board may be delegated.

[Part 6.3]. Provides that there is to be a Legal Services Commissioner and sets out the functions and powers of the Commissioner. The Commissioner is the Chief Executive Officer of the Board. The Commissioner must administer the affairs of the Board in accordance with the policies and directions of the Board and sets out the circumstances where the Commissioner can not be held personally liable. The Part further sets out the functions that the Commissioner may or may not delegate and to whom the functions may be delegated.

[Part 6.4]. Provides that all employees that are necessary for the purposes of the Board or Commissioner are to be employed by the Commissioner under Part 3 of the Public Sector Management and Employment Act 1998.

[Part 6.5]. Provides that the Council of Legal Education is continued, provides for its functions and lists its members.

[6.5.9]. Provides that the Board of Examiners is continued, and lists its members.

[Part 6.6]. Provides for the continuation of the Legal Practitioners’ Liability Committee as a body corporate with perpetual succession. [Part 6.7]. Requires the Board to maintain a fund called the Public Purpose Fund.

Chapter 7 - General

[Part 7.1]. Deals with the regulation of conveyancing businesses, including a list of persons prohibited from conducting such a business.

[7.2.11]. Provides that nothing in the Act abrogates any existing immunity from liability for negligence enjoyed by a lawyer before the commencement of the section and also provides that a lawyer may not enter into an agreement with a client seeking to avoid any professional liability. Such an agreement is void. [7.2.13]. Provides the Board with the power to apply to the Supreme Court for an injunction in relation to a contravention of the Act or regulations.

[7.2.17]. Sets out the power of the Governor in Council to make regulations.

The Committee makes no further comment

Occupational Health and Safety Bill

Introduced: 17 November 2004
Second Reading Speech: 18 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Industrial Relations

Purpose

The Bill creates a legislative framework to give effect to the objects of the Bill, repeals the Occupational Health and Safety Act 1985.

The Bill provides that the objects of the Bill are to –

• secure the health, safety and welfare of employees and other persons at work,

• eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work,

• ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons,

• provide for the involvement of employees, employers and organisations representing those persons in the formulation and implementation of health, safety and welfare standards.

Content and Committee comment

[Clauses]

[3]. The Act comes into operation on 1 July 2005, subject to the following —

• section 28 comes into operation on 1 July 2006;

• Division 6 of Part 2 and section 170(2) come into operation on the day after the day on which the Bill receives the Royal Assent; and

• Part 4 comes into operation on a day to be proclaimed but not later than by 1 January 2006.

[7 and 8]. Sets out the functions and powers of the Victorian WorkCover Authority (“the Authority”).

[12]. The Authority has the power to make guidelines.

[16]. Provides for enforceable undertakings in connection with a matter relating to a contravention or alleged contravention by the person of the Act or regulations.

[18]. Confers on the Authority the power to give advice to a person who has a duty or obligation under the Bill or regulations about how to comply with that duty or obligation.

[19]. Establishes the Occupational Health and Safety Advisory Committee, provides for its membership and gives it certain functions.

[21]. Sets out the main duties of employers relating to health and safety.

[23]. Sets out the duties of employers to persons other than employees concerning health and safety.

[24]. Sets out the duties of self-employed persons concerning health and safety.

[25]. Sets out the duties of employees while at work.

[26]. Sets out the duties of persons who manage or control workplaces (to any extent).

[27]. Sets out the duties of designers of plant.

[28]. Sets out the duties of designers of buildings or structures to be used as workplaces and requires a person who designs a building or structure (or part of a building or structure) who knows, or ought reasonably to know, that the building or structure or part is to be used as a workplace to ensure that the building, structure or part is designed to be safe and without risks to the health of persons using the building, structure or part as a workplace for a purpose for which it was designed. (This section commences 1 July 2006).

[29]. Sets out the duties of manufacturers of plant or substances.

[30]. Sets out the duties of suppliers of plant or substances.

[31]. Sets out the duties of a person who installs, erects or commissions plant.

[32]. It is an indictable offence for a person to, without lawful excuse, recklessly engage in conduct that places or may place another person who is at a workplace in danger of serious injury.

[35]. Provides that an employer has a duty to consult with employees.

[37 to 39]. Deal with the duty to provide incident reports and sets out the incidents to which Part 5 applies.

[39]. Establishes a duty not to disturb an incident site.

[54]. Provides for the election of health and safety representatives. [58]. Sets out the powers of health and safety representatives.

[67]. Sets out the obligations of employers concerning the training of health and safety representatives.

[74]. Provides for directions to cease work which may be made by an employer or the health and safety representative, following consultation between them, if an issue concerning health or safety arises at the workplace; and the issue concerns work which involves an immediate threat to the health or safety of any person; and it is not appropriate to implement issue resolution procedures under clause 73 given the nature of the threat and degree of risk.

Prohibition on discrimination – health and safety representatives and related discrimination

[76]. Creates indictable offences relating to certain discrimination such as dismissal or other form of detriment (in respect to health and safety issues – such as a person who is or has been a health and safety representative or has given information to an inspector) and threats against employees or prospective employees.

[77]. Provides that if all the facts constituting an offence against clause 76 (other than the reason for the defendant's conduct) are proved, the defendant bears the onus of proving that the alleged reason for engaging in the conduct was not the dominant reason.

[79 to 94]. Provides for authorised representatives of registered employee organisations, powers of entry to work places and makes it an offence to obstruct an authorised representative.

[95 to 126]. Deal with the appointment of inspectors and their powers of search and entry, issue of search warrants pursuant to the forms and procedures of the Magistrates’ Court Act 1989. The provisions also cover powers to issue non-disturbance notices and improvement notices.

[119]. Permits an inspector to ask a person to state his or her name and address if the inspector reasonably believes that the person may be able to assist in the investigation of an indictable offence under the Bill that has been committed or is suspected of having been committed; or has committed or is about to commit an offence (summary or indictable) under the Bill or regulations.

[120]. Gives an inspector the power to give verbal or written directions to a person at a workplace if the inspector reasonably believes that it is necessary to do so because of an immediate risk to the health or safety of any person.

[127]. Sets out decisions made under the Act that are reviewable decisions and the eligible persons who are eligible to apply for review of a reviewable decision (eligible persons). [129]. Provides that a person who is an eligible person in relation to a reviewable decision may apply to the Victorian Civil and Administrative Tribunal for review.

[132]. Places a 3-year limitation period on the prosecution of indictable offences against the Act.

[135]. Enables a court to make an adverse publicity order (on its own initiative or on the application of the prosecutor) if the court convicts or finds a person guilty of an offence against the Act or regulations.

[139 to 148]. Enables regulations to be made in relation to infringement notices.

[149]. Enables the Minister to make an order approving a compliance code for the purpose of providing practical guidance to persons who have duties or obligations under the Act or regulations. [150]. A failure to comply with a compliance code does not give rise to any civil or criminal liability. [151]. Enables Parliament to disallow an order approving a compliance code, or a variation order.

Privilege against self-incrimination

[154]. Provides that a natural person, may refuse or fail to give information or do any other thing that the person is required to do by or under the Bill or regulations, if giving the information or doing the other thing would tend to incriminate the person.

The protection does not apply to the production of a document that the person is required to produce under the Bill or regulations, or the giving of a person's name or address as required by section 119.

Legal professional privilege

[155]. Expressly preserves legal professional privilege.

Delegation

[156]. Allows the Minister to delegate all or any of his or her functions or powers under the Bill or regulations to any person. However, any person to whom powers are delegated is subject to the Minister's directions.

[158]. Allows regulations to be made to effect to the purposes of the Act.

[159]. Repeals the Occupational Health and Safety Act 1985.

The Committee makes no further comment

Public Administration Bill

Introduced: 11 November 2004
Second Reading Speech: 16 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill contains provisions that —

• specify the structure of the public service, including the creation of Departments, the employment of employees and executives and the transfer of employees;

• elaborate new public sector values that indicate the standards expected of public officials in the performance of their duties;

• specify new public sector employment principles that indicate the required processes to ensure merit and equity in public sector employment;

• create an independent Public Sector Standards Commissioner with the power to issue binding codes of conduct for public officials and undertake reviews of action taken with respect to a person’s employment in a public service body;

• establish a State Service Authority with broad powers to conduct systems reviews of management systems, structures and processes in public service bodies and public entities, undertake special inquiries into any matter relating to a public service body, public entity or special body or special reviews into any matter relating to a public service body or public entity;

• empowers the State Services Authority to promote careers within public administration, maintain appropriate data related to the public sector workforce and nuture professional behaviour within the public sector;

• enhance the integrity and public regard of employment in the public sector by prohibiting reprisal action against public officials;

• provide for the good governance of newly created public entities (that operate outside of Government Departments) by imposing generic governance duties upon their boards or Commissioners and imposing generic governance duties upon directors of public entities;

• provide for the good governance of the whole public sector by requiring public entities to provide financial and other relevant information about their operations and specify the minimum accounting, corporate and financial records to be maintained by those bodies; and

• enable a whole of government direction to be made requiring public entities (or a class of entity) to comply with specific government policies.

The Bill reproduces provisions concerning declared authorities and the employment of Ministerial officers, Parliamentary Advisers and judicial employees from the Public Sector Management and Employment Act 1998. The Bill now provides that the Leader of the Opposition, the leader of minor parties and independent members of Parliament may employ advisers on the terms and conditions directed by the Premier. Amendments are also made to the Parliamentary Officers Act 1975 to provide for the Administrative Departments of the Parliament.

Content and Committee comment

[Clauses]

[2]. The Act will come into force on proclamation but not later than by 1 January 2006.

[5]. Defines “public entities” for the purpose of the Act. The provision also enables the Governor in Council to declare that a body or class of body is not a public entity for the purposes of the Act.

[6]. Defines “special bodies” for the purpose of this Bill. This definition identifies a category of bodies that are excluded from the governance requirements of public entities. These are officers or bodies such as the Ombudsman, the Victoria Police and the Auditor-General whose functions require an independence from the routine control of executive government.

[7]. Specifies the public sector values that are expected to be observed by public officials employed in the public sector in the performance of their duties, other than by special bodies.

[10]. Empowers the Governor in Council to establish, abolish or change the name of a Department.

[18]. Empowers a public service body Head to delegate any of his/her functions. A delegate may further sub-delegate a function if he/she is authorised to do by the delegation instrument.

[20]. Provides that public service body Heads have all the powers and duties of an employer on behalf of the Crown, including assigning work and discipline.

[21]. Enables a person employed in the public service to be first employed on probation for a period of 3 months.

[22]. Enables regulations to be made under the Act to establish procedures for dealing with allegations of misconduct by an employee and impose a disciplinary regime of various forms of penalties. The section also specifies various behaviour that constitutes “misconduct” for these purposes.

[25]. Provides that the employment of executives is governed by a contract of employment between the executive and the employer.

[27]. Allows an executive officer to return to a non-executive role in the public service if, immediately before his/her employment as an executive, that person was a non-executive employee and thereafter was continuously employed as an executive without a break in service.

[28]. Enables the transfer of an employee of the public service body, by the public service body Head, to another public service body or public entity, on employment terms and conditions that are no less favourable, if the Head of the other public service body or public entity agrees.

[31]. Provides that a transfer of duties by an employee to other duties in the public service body or another public service body under this Division or otherwise, is not to be deemed as a resignation or termination and the service after that transfer is to be regarded as continuous service by that employee.

[32]. Prohibits full-time employees from engaging in other paid employment or carrying on a business, profession or trade without permission to do so. Employees must obtain this permission from the public service body Head.

Part-time employees must not undertake other employment or carry on a business, profession or trade that in the opinion of the public service body Head (or in the opinion of the Premier in the case of the public service body Head) conflicts with the proper performance of the employees duties.

[33]. States the grounds on which the employment of a non-executive employee may be terminated by the public service body Head.

[34]. Enables the employment of an executive (other than the Official Secretary) to be terminated in accordance with that executive's contract of employment by the public service body Head (or by the Premier if the executive is a public service body Head).

[35]. Provides that employees whose employment is terminated or whose remuneration is reduced have no entitlement to compensation unless an entitlement is specified in an award or agreement in force under a law of the Commonwealth, the contract of employment or directions issued by the Premier.

[37 to 47]. Provides for the establishment of the State Services Authority consisting of members appointed by the Governor in Council on the recommendation of the Premier. The provisions deal with the Authority’s powers, functions and necessary administrative and like matters.

[48]. Allows members of the Authority or the Public Sector Standards Commissioner to delegate any of their functions to a person or class of person employed under Part 3 of this Bill.

[49 to 60]. Empowers the Authority to conduct reviews and special inquiries of management systems, structures or processes in a public service body or public entity or the functional relationships between public service bodies or public entities.

[63]. Enables the Public Sector Standards Commissioner to issue binding codes of conduct. A contravention of a binding code of conduct may constitute misconduct for the purposes of the proposed Act.

[64]. Enables an employee of a public service body to have a review of any action taken related to his/her employment.

[78]. States that other duties imposed on directors of public entities by other legislation are not affected by the duties imposed by the Bill and the provisions in the Bill do not derogate from any other civil or criminal liability which might attach to directors.

[79]. Outlines the duties of directors of public entities.

Where a director of a public entity becomes a candidate for any Parliament, or a local council in any jurisdiction, they must notify the board of the entity of that fact, and must not use the entity’s resources to further their candidature.

[81]. Specifies the duties imposed upon the board of a public entity. [82]. Prohibits a public entity from making loans to directors (or relatives or spouses of directors).

[86]. Enables the responsible Minister to apply for an injunction to restrain a contravention of this Bill or any other law by the board of a public entity.

[89]. Specifies powers and procedures to remove a director or suspend a director of a public entity from office.

[92]. Empowers the Governor in Council, on the recommendation of the Premier, to make an Order requiring all public entities, or a specified public entity or class of entity to comply with a specified whole of government policy.

[98]. Provides for the employment of Ministerial officers.

[99]. Provides for the employment of Parliamentary advisers. The Leader of the Opposition, other party leaders and Independent members of Parliament may employ advisers, subject to the direction of the Premier.

[102]. Deals with the employment of judicial employees.

[104]. Enables the Governor in Council to make an Order declaring an authority to be a “declared authority”; declaring a person or body to have the functions of public service body Head in relation to a declared authority; and specifying the provisions of this Bill that are to apply to a declared authority.

[105]. States that the provisions of this Bill apply to declared authorities only if they are specified to apply to the authority in an Order in Council made under section 104.

[106]. Unless expressly provided for the Act does not apply to judicial officer holders, the Solicitor-General, the Director of Public Prosecutions, Crown Prosecutors, the Police Force and Parliamentary Officers.

[107]. Specifies an offence for a person (not a public official) who takes detrimental action against a public official and a substantial reason for that detrimental action was that the official holds that office.

[109]. Enables the Premier and a public service body Minister to delegate any of his or her powers under this Bill to any person, other than this power of delegation.

[112]. Enables regulations to be made to give effect to the purposes of the Act.

[113]. Repeals the Public Sector Management and Employment Act 1998 and the Public Sector Reform (Miscellaneous Amendments) Act 1998.

[114]. Amends section 72 of the Constitution Act 1975 to provide for the Chief Parliamentary Counsel to continue to be employed as Government Printer for Victoria.

[115]. Provides for privileges of former members of Parliament and unsuccessful Parliamentary candidates being specified in Schedule 1 to the Bill.

Amendments to the Parliamentary Officers Act 1975

[119]. Inserts a new provision to specify the administrative departments of the Parliament.

[121]. Substitutes new provisions allowing the President or the Speaker to create or abolish offices in administrative departments of the Parliament.

[123]. Allows the President or the Speaker to employ persons for temporary work.

[124]. Inserts a provision enabling the delegation of the powers of the President or Speaker to a department head.

Schedules

Schedule 1 describes the rights of former members of Parliament and unsuccessful candidates to return to employment in the public sector.

Schedule 2 inserts savings and transitional provisions that include provisions to preserve existing employment arrangements; preserve any current grievance proceeding; abolish the office of Commissioner for Public Employment; preserve existing codes of conduct, until replaced; and preserve existing Departments.

Schedule 3 makes consequential amendments to a number of Acts.

The Committee makes no further comment

Safety on Public Land Bill

Introduced: 16 November 2004
Second Reading Speech: 17 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The Bill provides for public safety in State forests by providing for the establishment and enforcement of public safety zones; and amends the Forests Act 1958 with respect to powers of committees of management in reserved forests.

This Bill will makes amendments to –

• protect flora and fauna. For example to allow rehabilitation of a site in a heavily used area or to allow for forest regeneration following a bushfire or other disturbance;

• protect water, soil, natural, cultural or historical values such as restricting access to water supply infrastructure, to minimise soil erosion following heavy rainfalls, or to temporarily restrict vehicle traffic to a historic mine or other place of significance;

• ensure the safe conduct of timber harvesting operations;

• better manage public recreational activities such as restricting access to allow for preparation for public events such as car rallies, music festivals or orienteering events;

• protect sites where scientific or research investigations or educational activities are being conducted;

• allow the orderly and safe management of fuel reduction and fire suppression activities; and

• maintain public safety in events such as landslips and floods.

Content and Committee comment

[Clauses]

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

[4]. Section 4(1) provides the Secretary with the power to declare an area of State forest to be a public safety zone section 4(2)(a) to (h)) list certain specified purposes and section 4(2)(i) then provides that a declaration may be made for any other prescribed purpose.

[5]. Specifies what must be contained in a public safety zone declaration.

[9]. Provides that public safety zone declarations do not apply to certain specified persons such as authorised officers.

[10]. Provides that the Secretary may authorise a person or class of person to be in a public safety zone, subject to any specified terms and conditions.

[11]. Provides that the Secretary must display a notice on or near the public safety zone to warn people that the area is a public safety zone and to outline the restrictions that apply in that area. Failure to display a notice however, does not affect the liability of any person who contravenes the Act.

[12]. Provides that it is an offence to damage or remove a public safety zone notice or any barrier erected to prohibit or restrict access to a public safety zone.

[13]. Provides that it is an offence for a person who is not authorised to carry out any activity in a public safety zone in contravention of a public safety zone declaration or to contravene any restriction or condition applying to a public safety zone which is specified in the public safety zone declaration.

[14]. Provides that an authorised officer may direct a person to leave a public safety zone and provides that it is an offence to fail to comply with a correctly executed direction.

[15]. Provides that it is an offence for a person who is not authorised under the Act to be in a public safety zone to re-enter or attempt to re-enter a public safety zone contrary to a direction of an authorised officer to leave the zone.

[16]. Provides that the holder of a miner's right or a tourist fossicking authority is not entitled to re-enter a public safety zone in contravention of a direction of an authorised officer to leave the zone.

[17]. Gives an authorised officer the power to ask a person to state his or her name and ordinary place of residence or business if the authorised officer believes on reasonable grounds that the person has committed or is committing an offence against the Act. It is an offence not to comply with the request without a reasonable excuse for doing so or to give a false name or address.

[21]. Amends the Forests Act 1958 to provide that the Governor in Council may make regulations setting aside areas of land for specific purposes, including restricting or prohibiting public access to those areas in respect of reserved forests declared under section 50 of that Act.

[24]. Provides for regulation making powers, including the power to prescribe additional purposes for which a public safety zone may be declared.

The Committee makes no further comment

Transport Legislation (Amendment) Bill

Introduced: 16 November 2004
Second Reading Speech: 18 November 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the —

• Chattel Securities Act 1987 to reduce the period in which the discharge or extinguishment of a registered security interest must be reported,

• Melbourne City Link Act 1995 to make various changes concerning tolling and tolling enforcement (particularly to facilitate the sending of invoices to users of City Link) and various minor amendments in relation to agreements,

• Police Regulation Act 1958 to allow police to disclose vehicle accident information in certain cases,

• Rail Corporations Act 1996 to restrict what a determination concerning access to a rail transport service may contain,

• Road Management Act 2004 to enable VicRoads to sell land from discontinued roads,

• Road Safety Act 1986 to —

• authorise shorter driver licence periods for people who are 75 years of age or older,

• require that an alcohol interlock condition be imposed for a longer period in certain cases,

• make special provision in relation to breaches of mass, dimension and load restraint limits and requirements, in particular where those breaches involve heavy vehicles,

• enable the certification of pilot vehicle drivers,

• Road Safety (Drug Driving) Act 2003 to make some statute law revision amendments,

• Sentencing Act 1991 to require that an alcohol interlock condition be imposed for a longer period in certain cases,

• Transport Act 1983 —

• to enable deadlocks in relation to proposed agreements between the operators of rail infrastructure and the proposed operators of rolling stock to be resolved; and

• to enable interstate commercial passenger vehicles to operate in Victoria in certain circumstances; and

• to require the licensing authority to be satisfied of certain matters in relation to certain dealings for or in connection with the transfer of a taxi-cab licence or the assignment of rights to operate a vehicle under a taxi-cab licence before authorising the transfer of the licence or assignment of the right; and

• clarify the scope of the regulation making powers relating to trading in taxi-cab licences; and

• to require the organisers of public events that may have an impact on public transport to prepare appropriate plans; and

• Transport (Rights and Responsibilities) Act 2003 in minor respects; and

• Port Services Act 1995 to make further provision for Crown land reserves forming part of the port of Melbourne.

Content and Committee comment

[Clauses]

[2]. The commencement provision are complex with some provisions commencing on the day after Assent and some other provisions coming into force on 1 February 2005. Other provisions commence on proclamation with forced commencement provisions on 1 July 2005, 30 September 2005 and in the case of section 53 by 1 January 2006.

Clause 44 amends the Road Safety (Drug Driving) Act 2003. Clause 44(1) is deemed to have come into force on 16 June 2004 and clause 44(2) is deemed to have come into force on 9 December 2003.

The Committee notes this extract from the explanatory memorandum –

Both of these amendments correct section cross-references in earlier legislation relating to drug-driving. It is proposed to backdate those amendments to the dates those earlier Acts were passed to ensure that there is no period during which the errors amended by the provisions had legal effect.

Amendments to the Melbourne City Link Act 1995

[8]. Amends sections 69, 70 and 71 of the Act to make provision in relation to the fixing of tolls and toll administration fees.

[9]. Amends section 72 of the Act to extend its operation in relation to liability to pay the toll and relevant toll administration fees.

[12]. Inserts a new section 87(7) in the Act to clarify that the owner of a vehicle who is taken to be guilty of an offence (detected by a prescribed tolling device) is liable to the same penalties and subject to the same consequences to which he or she would have been liable and subject had he or she been the actual driver at the time of the occurrence of the offence. (also refer to clause 32).

[15]. Amends section 91(1) of the Act to extend the power of the Roads Corporation to disclose certain registration and ownership information to a relevant corporation.

Amendment to the Police Regulation Act 1958

[17]. Inserts a new Part VIB into the Act which regulates the disclosure of vehicle accident information by Victoria Police.

New section 118N provides that certain persons involved in a vehicle accident and their representatives may request access to vehicle accident information from Victoria Police for an authorised purpose. New section 118P provides that Victoria Police may disclose vehicle accident information upon request if the requirements of section 118O have been met.

New section 118Q sets out 2 offences prohibiting the disclosure or use of vehicle accident information except for an authorised purpose. The penalty for both offences is 60 penalty units.

Amendments to the Road Management Act 2004

[20]. Amends the regulation making power at section 132(2) of the Act to enable regulations to be made for certain purposes, in particular, with regulating the conduct of people on roads and enabling the regulations to confer a right of appeal or review against any decision of a road authority under the regulations.

Amendments to the Road Safety Act 1986

Part 7 makes a number of amendments to the Act. The major amendments are –

• provides for the issuing of driver licences to drivers aged 75 years or more for periods that are shorter than the periods for which licences may be issued to drivers aged under 75 years of age;

• responds to a recent decision of the Supreme Court (Roads Corporation v Parsons & Holloway) in relation to appeals against demerit point suspensions by—

• clarifying the grounds on which an appeal may be brought;

• making provision with respect to offences detected by a photographic detection service so that it is clear that the owner of the detected vehicle is liable to the same penalties and subject to the same consequences as if he or she had been the actual driver (including demerit points) unless the owner nominates the actual driver;

• allowing for applications to the Magistrates Court for extensions of time to respond to traffic infringement notices if the applicant can prove that he or she did not actually receive the notice, provided that an extension cannot be sought more than 14 days after the person actually became aware of the notice;

• providing that, where a court grants an extension of time, the applicant has a further 28 days to exercise the options he or she would have had if the notice had been received, such as contesting the charge in court, nominating the actual driver;

• makes provision for the admissibility of evidence of the fact that a person has incurred demerit points in certain circumstances;

• amends the provisions dealing with alcohol interlocks;

• makes provision with respect to the penalties that may be specified in parking infringement notices issued by members of the police force;

• makes provision with respect to the preparation and registration of industry codes of practice for the transport industry;

• implements the Model Bill developed by the National Transport Commission (NTC) regarding mass, dimension and load restraint limits and requirements for heavy vehicles. The Model Bill provides for the categorisation of mass, dimension and load restraint offences, establishes the responsibilities and liability of various parties involved in road transport in relation to those offences, sets out the powers of enforcement officers and courts where such offences are detected and deals with other compliance and enforcement related matters.

Discrimination on the basis of age permitted

[23]. Amends sections 19 and 95 of the Act to provide that different provision may be made on the basis of age when issuing driver licences.

New sub-section (3A) in section 19 of the Act provides that the Roads Corporation may grant driver licences to people who are 75 years of age or more for shorter terms than the terms that usually apply to people who are less than 75 years of age.

New sub-section (10) into section 95 of the Act provides that the regulations in relation to driver licensing may make provision for people who are 75 years of age or more that is different to provision made for people who are less than 75 years of age.

The Committee notes the following extract from the explanatory memorandum –

Following on the report of the Parliamentary Road Safety Committee on the Safety of Older Road Users, the Government decided that driver licence renewals of people over the age of 75 should be limited to periods of 3 years. This clause enables the implementation of that decision.

The Equal Opportunity Act 1995 prohibits discrimination on the basis of age. However, section 69 of that Act exempts discrimination that is authorised by a provision of another Act. It is intended that the amendments to the Road Safety Act 1986 outlined above will be authorising provisions for the purposes of section 69.

[27]. Substitutes the existing section 26 of the Act with new sections 26 and 26AA.

The new section 26 provides for appeals against certain decisions of the Roads Corporation under section 24 of the Act in relation to the refusal, variation, suspension or cancellation of licences.

The new section 26AA provides for appeals to the Magistrates' Court against the suspension of driver licences or learner permits by VicRoads under section 25 of the Act as a result of demerit points being incurred.

[31]. Amends sections 50AAA(3A), 50AAB(3)(a) and 50AAC(1) of the Act in relation to alcohol interlocks.

[32]. Inserts a new section 66(6) in the Act to clarify that the registered operator of a motor vehicle is liable for penalties and other consequences (including demerit points) flowing from offences detected by photographic detection devices and involving a vehicle registered in the operator's name. This reflects the "owner onus" principle, namely, that the registered operator of a vehicle must take full responsibility for a traffic camera, parking or tolling offence involving his or her vehicle unless and until he or she nominates the actual driver.

[34]. Inserts new sections 77A and 77B in the Act to provide for extension of time limits for certain offences and special defences for drivers of heavy vehicles.

Section 77A provides that a proceeding for an offence under Division 4 or Division 6 of Part 10 against a person in any capacity other than as a driver or operator of a vehicle may be commenced within 2 years after the commission of the alleged offence.

Section 77B provides a defence to a driver of a heavy vehicle against a charge for an offence involving deficiencies concerning a heavy vehicle.

[36]. Amends section 89B(1) of the Act to extend the time in which an application for an extension of time for objecting to a traffic infringement notice can be made from 7 days to 14 days.

[41]. Inserts new Parts 10 and 11 in the Act (new sections 150 to 222 – heavy vehicle provisions and offences) making provision concerning breaches of certain mass, dimension and load restraint limits and requirements in order to give effect to nationally agreed policies for compliance with, and enforcement of, road transport laws.

New section 198 provides for offences of providing false or misleading information to a responsible person.

New section 199 provides for vicarious responsibility of a body corporate for the conduct of a director, employee or agent of the body corporate while acting within the scope of his or her apparent authority, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

New section 215 provides a defence to a charge for a relevant heavy vehicle offence if the person charged had a reasonable belief at the time the conduct constituting the offence occurred that circumstances of sudden or extraordinary emergency existed and that the conduct was the only reasonable way to deal with the emergency and was a reasonable response to that emergency.

New section 216 provides a defence to a charge for a relevant heavy vehicle offence if the person charged established that the conduct constituting the offence was authorised or excused by or under a law.

New section 217 provides a special defence for an owner or operator who establishes that their vehicle was being used at the relevant time by an employee or agent outside the scope of their employment or agency.

Amendments to the Road Safety (Drug Driving) Act 2003

[44]. Makes various statute law revisions to the Act in respect to sections 7(4A)(b) and section 9.

Amendments to the Transport Act 1983

[51]. Makes amendments to the regulation making powers in section 162 of the Act so as to provide more comprehensively for the regulation of trading in, and dealings related to, the transfer of taxi-cab licences and the assignment of the right to operate a vehicle under such licences.

[53]. Inserts a new Division 10 into Part VI of the Act which will provide a process for the proper planning for the impact of events on regular public transport services provided by passenger transport companies and bus companies which require deviation, delay, replacement or cancellation as a consequence of the event.

The Committee makes no further comment

Scrutiny of Acts and Regulations Committee
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