Alert Digest No 2 of 2004

Tuesday, 30 March 2004

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Commonwealth Games Arrangements (Further Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Commonwealth Games

Purpose

The Bill amends the Commonwealth Games Arrangements Act 2001 (the ‘Act’) in order to provide for authorisations for broadcasting, making recordings and advertising in relation to the Commonwealth Games, to provide for various offences and enforcement matters relating to broadcasting, making recordings, advertising and the obstruction or hindering of Commonwealth Games events and to make other miscellaneous amendments to that Act.

Content and Committee comment

[Clauses]

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

[5]. Inserts new section 3B to the Act permitting the Minister, by way of a notice published in the Government Gazette, to declare an event conducted before the Commonwealth Games to be a test event for the purposes of the Act.

[7]. Inserts new Divisions 2A and 2B of Part 5A of the Act to permit the Corporation to authorise broadcasting of Commonwealth Games events.

New section 56KE makes it an offence to broadcast, telecast or transmit any sound or image of a Commonwealth Games event for profit or gain without a broadcasting authorisation or unless a determination under section 56KD is in force.

New section 56KF makes it an offence to record sound or moving images of a Commonwealth Games event for profit or gain without a broadcasting authorisation or unless a determination under section 56KD is in force.

Division 2B permits the Corporation to authorise aerial advertising within sight of a Commonwealth Games venue or event.

New section 56KJ makes it an offence to display an advertisement within sight of a Commonwealth Games venue or event without an aerial advertising authorisation during March 2006.

[8]. Inserts new sections 56ZAB to 56ZAH in the Act.

Section 56ZAB provides that a member of the police force who believes a person is committing, has committed or is about to commit an offence against section 56KE (unauthorised broadcasting) or 56KF (unauthorised recording) may seize any broadcasting equipment being used by the person if a request to stop that activity has been made and that request has not been complied with.

New section 56ZAE enables a person from whom broadcasting equipment has been seized to apply to the Magistrates' Court for the return of the equipment, unless proceedings for an offence under section 56KE or 56KF have commenced.

New section 56ZAF enables the person from whom broadcasting equipment was seized to recover the equipment or to receive compensation, if the equipment is not returned in accordance with section 56ZAD or otherwise and proceedings are not instituted for an offence against section 56KE or 56KF or if the defendant is found not guilty.

New section 56ZAH enables a court to order that if a person is found guilty of an offence against section 56KE or 56KF any broadcasting equipment used in the commission of an offence may be forfeited to the Crown and that the Minister may dispose of the equipment as the Minister sees fit.

[9]. Inserts a new section Part 5B in the Act to make it an offence for a person to intentionally or recklessly obstruct or hinder the conduct of a Commonwealth Games event.

Section 56ZD makes it an offence to intentionally or recklessly obstruct or hinder participants, officials, volunteers or contractors involved with the conduct or management of a Commonwealth Games event.

The Committee makes no further comment.

Corrections (Further Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Corrections

Purpose

The Bill amends the Corrections Act 1986 (the ‘Act’) to –

• provide an expanded class of victims of crime to be included on a victims register to be given information under the Act,

• how such information is dealt with, and

• to provide for victim submissions to the Adult Parole Board under the Act and to include regulation-making powers for a victims register.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 30 August 2004.

Expanded definition of ‘victim’

[6]. Expands the category of persons eligible to receive information by redefining ‘victim’ for the purposes of the Act. Victim means –

• a person who has had a criminal act of violence committed against him or her;

• a family member of a person who has died as a direct result of a criminal act of violence committed against that person;

• a family member of a person who has had a criminal act of violence committed against that person; and is under 18 years of age or is incapable of managing his or her own affairs because of mental impairment;

• a person who is or has been the spouse or domestic partner of a prisoner; and has an intervention order (other than an interim intervention order) under the Crimes (Family Violence) Act 1987 in force against the prisoner.

[8]. Inserts proposed new sections 30B to 30I into the Act.

New section 30B provides that a person may apply for inclusion on the victims register.

New section 30C provides that a person who is a “victim” must be included on the victims register.

Discretion to include non-victim on the register

In certain matters are proven the Secretary has a discretion to approve the inclusion on the register a person who does not fall in the definition of "victim". New section 30C(3) provides that the discretion may be exercised where the applicant can demonstrate a documented history of domestic violence committed by the prisoner or where the applicant has a substantial connection to the offence for which the prisoner is serving.

New section 30D provides the Secretary a discretion to refuse to include details of an applicant's nominee on the victims register if the Secretary believes on reasonable grounds that the disclosure of information under section 30A to the nominee may endanger the security of any prison, the safe custody and welfare of the prisoner or any other prisoner, or the safety or welfare of any other person; or may result in contravention of section 30I.

New section 30F allows the Secretary to prepare guidelines for the exercise of powers under section 30C. The guidelines must be approved by both the Minister for Corrections and the Attorney-General. The guidelines are to be published in the Government Gazette and take effect on their publication.

New section 30H provides that information received from the Secretary under section 30A is to be treated in an appropriate manner that respects the confidential nature of the information.

New section 30I establishes offences for inappropriately using information relating to the personal affairs of a prisoner where it is known that the information was disclosed under section 30A.

Victim statements to Adult Parole Board

[9]. Inserts proposed new sections 74A and 74B into the Act dealing with victim submissions to the Adult Parole Board (the ‘Board’) and allows the Board a discretion to determine the weight it gives such submissions.

New section 74A provides that a person on the register may make a submission to the Board whether a parole order should be made.

New section 74B requires the Board to consider a victim submission and in its absolute discretion determine the weight it gives the submission. Sub-section (2) prevents the release of the victim submission to the prisoner unless the Board believes that the release is essential in the interest of fairness and justice and the author of the victim submission has an opportunity to consent to the disclosure, amends the submission so it can be released or withdraws his or her submission. Sub-section (3) provides that where a victim has not provided consent to release the victim submission, amended the submission to allow its release or withdrawn the submission from consideration after a request under sub-section (2), the Adult Parole Board must not release the submission to the prisoner but may reduce the weight it would otherwise have given to it.

[11]. Inserts new paragraphs into section 112(1) of the Act to allow regulations to be made in relation to aspects of the victims register and victim submissions.

The Committee makes no further comment.

Estate Agents and Travel Agents Acts (Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Estate Agents Act 1980 (“the Act”) to expand the range of purposes for which the Estate Agents Guarantee Fund can be applied and to rename the Fund as the Victorian Property Fund to reflect its wider scope.

The Bill also amends the Travel Agents Act 1986 to give effect to the National Competition Policy Review of the Act by removing the Crown's exemption from the need to be licensed as a travel agent when carrying on the business of a travel agent.

Content and Committee comment

[Clauses]

[2]. Saving Part 3 the provisions in the Bill come into operation on the day after Royal Assent. Part 3 (amendments to the Travel Agents Act 1986) comes into operation by proclamation but not later than by 1 January 2005.

Amendments to the Estate Agents Act 1980

[4]. Amends section 75 of the Act to broaden the allowable payments out of the Victorian Property Fund to include funding of the administration of the Subdivision Act 1988, the Retirement Villages Act 1986, or the Sale of Land Act 1962, contributions to the funding of the VCAT Residential Tenancies List; funding for any matter relating to the regulation of estate agency practice under any other Act or law; and funding for general consumer protection issues relating to interests in land.

[5]. Amends section 76(3) of the Act to expand the range of purposes to which excess money in the Victorian Property Fund can be applied.

[9]. Inserts a new Part IX, which provides that the Victorian Property Fund is the same fund as the Estate Agents' Guarantee Fund despite its name change.

Amendments to the Travel Agents Act 1986

[12]. Repeals section 3(2) which provided that nothing in the Act is to be taken to bind the Crown and [13] inserts a new section 5A to provide that the Act binds the Crown.

The Committee makes no further comment.

Limitation of Actions (Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Limitations of Actions Act 1958 (‘the Act’) —

• in relation to the application of section 20A (Limitation on proceedings for the recovery of tax) of that Act; and

• to prevent the recovery of windfall gains in proceedings for the recovery of a tax or an amount attributable to a tax.

Content and Committee comment

[Clauses]

[2]. The Bill is deemed to have come into operation on 4 March 2004 (the date of the Minister’s Second Reading Speech in the Legislative Assembly).

[3]. Amends section 20A of the Act in three ways by ensuring that -

• the section operates in relevant proceedings between parties of any kind; and

• a payment made under colour of authority is covered by section 20A(1); and

• section 20A(2) operates in relation to all mechanisms by which a tax is exacted, including subordinate legislation (such as regulations) as well as other instruments which are applied as a law of Victoria or are enforceable under such applied law. For the purposes of the Act (section 20A(5)) ‘Tax’ includes fee, charge or other impost.

[4]. Inserts an anti-windfall provision as a new section 20B of the Act.

New section 20B(1) provides that a proceeding for the recovery of money paid by way of a tax or an amount attributable to a tax is only maintainable to the extent that the proceeding will not result in a windfall gain to the claimant. The onus is on the claimant to satisfy the court that the claimant will not receive a windfall gain. If the claimant satisfies the court that the recovery of part of money paid will not result in a windfall gain, the claimant may maintain a proceeding in respect of that part of the money paid.

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[5]. Inserts a new section 38B in the Act to declare that it is the intention of section 20A as amended by the Bill and the new section 20B to alter or vary section 85 of the Constitution Act 1975.

The amended section 20A restricts the capacity of the Supreme Court to entertain proceedings brought after the expiry of the limitation periods referred to in that section.

The new section 20B restricts the capacity of the Supreme Court to entertain proceedings where a claimant could benefit from a windfall gain.

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

Clause 5 of the Bill inserts a new section 38B in the Limitation of Actions Act 1958 which states that it is the intention of:

• section 20A, as amended by section 3 of the Limitation of Actions (Amendment) Act 2004; and

• the new section 20B (inserted by section 4 of the Limitation of Actions (Amendment) Act 2004) –

to alter or vary section 85 of the Constitution Act 1975.

The purpose of the amendments to section 20A effected by clause 3 of this Bill is to establish or clarify: that the section operates in proceedings between individuals; that section 20A(1) applies to proceedings brought on the ground of a payment made under colour of authority; and that section 20A(2) applies in relation to a wider class of instruments, rather than just Acts.

The reason for limiting the jurisdiction of the Supreme Court is that the purpose of clause 3 could not be achieved if the Supreme Court could entertain proceedings to which the modified section 20A applies where such proceedings are brought after the expiration of the limitation periods referred to in that section.

The purpose of the introduction of the new section 20B effected by clause 4 of this Bill is to introduce a general anti-windfall provision in proceedings for the recovery of a tax or an amount attributable to a tax and to ensure that it applies in proceedings between parties of any kind.

The reason for limiting the jurisdiction of the Supreme Court is that the purpose of clause 4 could not be achieved if the Supreme Court could entertain proceedings to which the new section 20B applies without fulfilling the conditions prescribed by that section.

[6]. Inserts a new section 39A in the Act to provide that the amendments made by the Bill apply to and in relation to money paid before, on or after 4 March 2004, but not to a proceeding commenced before that date.

The Committee makes no further comment.

Marine (Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Marine Act 1988 to –

• consolidate and clarify within the Marine Act 1988 provisions related to harbour masters, their functions and powers;

• clarify the powers and functions of local authorities (now called waterway managers) in State waters;

• introduce a power to enable police and vessel surveyors to conduct random vessel safety audits;

• make other changes to improve or clarify the operation of the legislation.

The Bill also amends the Port Services Act 1995 to preserve regulations made in connection with management of local ports.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 30 come into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 February 2005.

Amendments to the Marine Act 1988

[4]. Inserts a new section 10A and provides that the Register of recreational vessels maintained by the Director does not provide evidence of title to any recreational vessel.

[8]. Substitutes sections 26A to 26H with proposed sections 26A to 26HA, to insert a number of new provisions relating to harbour masters which were previously found in both the Marine Act 1988 and the Port Services Act 1995. The clause consolidates these provisions in the Act. The sections deal with the functions and powers of harbour masters.

Section 26C(1) defines the functions of a harbour master.

Section 26HB makes it an offence to fail to comply or to obstruct a harbour master's direction.

[10]. Inserts new sections 72 to 77 in relation to the appointment of inspectors.

New sections 72 to 75 respectively concern the appointment of inspector’s, identity cards, the requirement to produce identity cards when exercising powers under the Act and an offence to impersonate an inspector.

Safety inspections - power of search without consent or warrant

New section 77 will allow an inspector or a member of the police force to enter and search a recreational or commercial vessel and inspect any equipment or document found on the vessel to ensure that the vessel complies with the requirements under the certificate of survey or the regulations as to design, construction, equipment and operation.

[13]. Inserts new section 85(3B) and (3C) to allow for an appeal to the Victorian Civil and Administrative Tribunal against imposition of conditions by the Director on a harbour master licence.

[14]. Amends section 87(1) of the Act to include regulations relating to local ports made under the Port Services Act 1995. This will enable prosecutions for breaches of those regulations to be brought.

[16]. Inserts new sections 99C to 99F dealing with the issue of certificates of competency by the Director.

[18]. Inserts new section 105(1A) which is a regulation making power to enable harbour master directions to be placed in regulations.

[19]. Inserts a new section 108A providing a regulation making power for fees that may be charged by waterway managers for services provided by waterway managers.

[23]. Inserts a new regulation making power in schedule 5 of the Act to enable the mutual recognition of licences and certificates of competency from other jurisdictions.

Amendments to the Port Services Act 1995

[30]. Inserts a new section 184 exempting, on certain conditions, regulations to be made under the Port Services Act 1995 relating to local ports; from the consultation and regulatory impact statement process required under the Subordinate Legislation Act 1994. The Minister will be required to certify in writing that the regulations to be made under the Port Services Act 1995 relating to local ports are the same in substance as the Marine (Designated Ports) Regulations 2004 to be made under the Marine Act 1988.

The Committee makes no further comment.

Monetary Units Bill

Introduced:2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill establishes a new scheme to provide for the annual indexation of fees and penalties payable to the Public Account. Fees and penalties payable to the Public Account are generally to be fixed by reference to fee units or penalty units. These fee units and penalty units are to be indexed annually, commencing 1 July 2004, by an amount to be fixed by the Treasurer before the start of each financial year.

The Bill changes certain fees and penalties that are specified in monetary amounts in a number of Acts to fees and penalty units. The conversion rate is based on the value of a fee unit as $10 and a penalty unit as $100.

The Bill provides regulation-making power for the Governor in Council, on the certificate and recommendation of the Treasurer, to enable existing fees and penalties in statutory rules to be converted to equivalent fee or penalty units so that those fees and penalties will be automatically indexed under the Bill. Powers are included to enable fees and penalties to be converted back to monetary amounts as the need arises to remove them from the indexation system.

Content and Committee comment

[Clauses]

[2]. Sections 1, 3, 9, 11 and 12 come into operation on Royal Assent the remaining provisions commence on 1 July 2004.

[4]. Sets out the meaning of a fee unit in all Acts and statutory rules. The fee unit is the mechanism by which fees under Acts and statutory rules are payable to the public account will be indexed.

[5]. Outlines the steps in the process of indexing the value of fee units and penalty units.

[6]. Provides that before 1 June each year the Treasurer will publish in the Government Gazette and a newspaper circulated generally in Victoria the fee unit and penalty unit to apply commencing the following 1 July.

Notes from the Explanatory Memorandum:

The Treasurer will notify the Chairperson of the Scrutiny of Acts and Regulations Committee of the annual rate by means of a letter of advice, as is currently the case for the notification of the rate for the purposes of section 8(1)(a) of the Subordinate Legislation Act 1994.

[7]. Establishes the mechanism for calculating the monetary amount of a fee or a penalty that is expressed in fee units or penalty units. The amount of a fee will be calculated by multiplying the number of fee units or penalty units applicable in each instance by the value of a fee unit established by the Treasurer in accordance with clause 5 and then rounded to the nearest 10 cents for a fee unit or rounded to the nearest dollar in the case of a penalty unit.

[8]. Provides that all future fees or penalties to be prescribed by statutory rule can be fixed by reference to fee units or penalty units.

[9]. Establishes the regulation making authority of the Governor in Council with respect to fee units and penalty units for fees and penalties prescribed in statutory rules.

Clause 9(2) establishes that Part 2 of the Subordinate Legislation Act 1994 will not apply to regulations made under clause 9(1). This is to enable the conversion of monetary amounts into units and vice versa, as well as the application of indexation to fees that have been exempted. The Treasurer must certify to the Governor in Council that such regulations are made in accordance with the provisions of this section before the exemption can apply.

[11]. Provides for transitional arrangements for the financial year 2004–2005 in which indexation will commence under the new provisions in the Bill.

[12]. Provides that the provisions of the Subordinate Legislation Act 1994 do not apply in fixing the value of a fee unit or penalty unit or the annual rate in accordance with this Bill.

[13]. Substitutes a new section 110 in the Sentencing Act 1991. The primary legislative reference point for penalty units will remain the Sentencing Act 1991 however the value of penalty units in Acts and most subordinate instruments will be set in accordance with this Bill.

[14]. Amends section 4(1) of the Environment Protection Act 1970 in order to ensure that a fee unit in that Act is to be calculated in accordance with this Bill. This is required because the current monetary value of a fee unit under the Environment Protection Act 1970 is different to that set by this Bill.

Schedules

[15] Refers to Schedule 1 of the Bill, which makes consequential amendments to convert fees and penalties set in monetary amounts into fee units and penalty units to be in place for indexation for the financial year 2004–2005. The fees and penalties listed in the Acts in Schedule 1 will then be indexed annually.

[16]. Refers to Schedule 2 of the Bill which amends the Petroleum (Submerged Lands) Act 1982 to convert penalties currently set in penalty units into monetary amounts. These penalties are to be excluded from indexation because they are part of a uniform national scheme.

The Committee makes no further comment.

Petroleum (Submerged Lands)(Amendment) Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Cameron MLA
Portfolio responsibility: Minister for Resources

Purpose

The Bill amends the Petroleum (Submerged Lands) Act 1982 (‘the Act’) with respect to the occupational health and safety of persons in offshore petroleum facilities, data management and the protection of confidentiality.

The Committee notes this extract from the explanatory memorandum –

The Petroleum (Submerged Lands) Act 1982 (‘the Act’) mirrors the Commonwealth Petroleum (Submerged Lands) Act 1967 (Cth). This reflects the commitment to the 1967 Offshore Constitutional Settlement, under which the Commonwealth, the States and the Territories agreed that "the Commonwealth and States should endeavour to maintain, as far as practicable, common principles, rules and practices in the regulation and control of the exploration for and the exploitation of the petroleum resources in submerged lands".

In August 2001, with the support of the industry and the workforce, the Commonwealth Department of Industry Science and Resources prepared a report on offshore safety. The Report found that the current system of regulation was inadequate, with unclear limitations, overlapping Acts and inconsistent application between Commonwealth and State jurisdictions.

The Commonwealth has responded to the Report by passing the Petroleum (Submerged Lands) Amendment Act 2003 ("the Commonwealth Amending Act") which provides for the creation of a National Offshore Petroleum Safety Authority to regulate occupational health and safety matters on offshore petroleum facilities in both Commonwealth and State waters. The Commonwealth Amending Act also provides for amendments to data management and the protection of confidentiality of information and petroleum mining samples.

This Bill reflects the amendments made by the Commonwealth Amending Act to ensure that a consistent regulatory regime operates on offshore facilities in State waters and meets the State's obligations under the Offshore Constitutional Settlement.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on Royal Assent but not later than by 1 January 2005.

[5]. Inserts a new section 15A in the Act to effectively disapplies the current Victorian occupational health and safety laws (as prescribed by regulations to be made) in State waters in relation to offshore petroleum facilities and operations. In their place, the occupational health and safety regime set out in the new Schedule 7 to the Act will apply (as inserted by clause 14 of the Bill).

[6]. Inserts a new section 122A in the Act to provide that regulations may be made about data management relating to accounts, records, cores, cuttings or samples that are collected and retained as a result of offshore petroleum operations.

[8]. Inserts new sections 151J to 151Q dealing with confidentiality of mining samples obtained by the Minister and their use and transmission to other Ministers. The new sections do not override any requirements of the Information Privacy Act 2000.

[9]. Inserts a new sections 151ZB to 151ZS in the Act regarding occupational health and safety.

New section 151ZF confers general functions on the Safety Authority that are concerned with the occupational health and safety of persons engaged in offshore petroleum operations. New sections 151ZHI and 151ZJ deals with the Safety Authority Board, its functions and powers. New section 151ZN provides a power of delegation from the CEO of the Authority to an employee of the Authority.

New section 151ZS applies to the Safety Authority, the CEO, an OHS inspector and a person acting under direction of the Safety Authority or CEO and provides that they are not personally liable for acts or omissions done in good faith for the performance of a function under a listed OHS law (Refer to section 85, Constitution Act 1975 statement and report below).

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 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 151ZT in the Act and declares that it is the intention of section 151ZS and clause 69(2) of Schedule 7 as inserted by clauses 9 and 14 respectively 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 151ZT of the Petroleum (Submerged Lands) Act 1982 to be inserted by clause 11 of the Bill states that it is the intention of section 151ZS and clause 69(2) of schedule 7 to alter or vary section 85 of the Constitution Act 1975.

New section 151ZS provides that the safety authority, the CEO, an OHS inspector and a person acting under the direction or authority of NOPSA is excluded from liability for the performance of an OHS function carried out in good faith.

This exemption from liability does not currently exist in the Victorian Petroleum (Submerged Lands) Act 1982 but reflects a similar exemption conferred by the Commonwealth Petroleum (Submerged Lands) Act 1967. Inclusion of this provision is consistent with the offshore constitutional settlement between the Commonwealth and the States to provide for consistent offshore regulation. It will also enable the safety authority to carry out their functions without constraint from possible legal action in both commonwealth and state waters, particularly when incidents occur on offshore facilities that require immediate action.

The exclusion from liability also applies the new clause 69(2) of schedule 7. This new clause provides an exemption from liability for a person who contravenes a code of practice issued for the practical guidance of operators or employers of offshore petroleum facilities.

Currently there is no provision for codes of practice and their exemption from liability in our Act. It has been included to reflect similar requirements applying in the Commonwealth Petroleum (Submerged Lands) Act 1967. Inclusion of this provision is consistent with the offshore constitutional settlement between the Commonwealth and the States to provide for consistent offshore regulation. It will also enable the operators-employers of offshore facilities to choose to carry out their functions within the broad parameters of a code of practice without breaches of the code being subject to possible legal action in both Commonwealth and State waters.

The Committee is of the view that the proposed section 85 Constitution Act 1975 provisions are appropriate and desirable in all the circumstances.

Schedule

[14]. Inserts a new Schedule 7 into the Act regarding occupational health and safety on offshore petroleum facilities. Clause 2 outlines the content of the Schedule and Clause 4 defines ‘facilities’ for the purpose of the application of the Schedule to OHS matters.

Clause 47 establishes that OHS inspectors have the powers, functions and duties conferred or imposed by a listed OHS law.

Clause 48 provides that an OHS inspector may conduct an inspection at any time or as directed by the Safety Authority, to determine that a listed OHS law is being complied with, a listed OHS law has been contravened or concerning an accident or dangerous occurrence at a facility.

Powers of search and entry

Clause 49 and 50 provides for powers of entry and search at ‘facilities’ and ‘regulated business premises’ (at any reasonable time) by an OHS inspector.

Clause 51 provides OHS inspectors with powers of entry and search at premises (where documents may be present) other than "regulated business premises" that are not facilities. Entry is either by consent of the occupier or by means of a judicial warrant.

Search Warrant

Clause 52 establishes how warrants to enter premises (other than regulated business premises) may be obtained pursuant to the forms and procedures provided in the Magistrates’ Court Act 1989.

Clause 54 provides that an OHS inspector has the power to require reasonable assistance and information in the conduct of an inspection.

Clause 55 provides that the an OHS inspector has the power to require a person being questioned in relation to the conduct of an inspection to answer questions and produce documents or articles, if the inspector believes it is reasonably necessary to do so in connection with the conduct of the inspection. A person must not, without reasonable excuse fail to give information or provide a document or give false or misleading information in a material particular.

Privilege against self-incrimination - use limitation

Clause 56 provides a modified form of the privilege against self-incrimination in answering questions or producing documents during the conduct of an investigation.

A person is not excused from answering a question providing information or producing a document. The clause however provides a ‘use limitation’ excluding the admissibility of any information gained from use in any civil proceedings or in any criminal proceedings other than under clause 55 (above).

Clause 69 provides for prescribed codes of practice to have the purpose of providing practical guidance to operators and employers of members of the workforce. A person is not liable to any civil or criminal proceedings for contravening a code of practice. (Refer to section 85 Constitution Act 1975 statement and report above).

Clause 73 relates to unfair dismissal or other prejudicial acts in the nature of victimisation against an employee as a result of (for example) a health and safety complaint by that employee.

Clause 78 provides a defence (if proven by the defendant) of necessity for failure to comply with an OHS law in emergency situations.

The Committee makes no further comment.

Road Management Bill

Introduced: 2 March 2004
Second Reading Speech: 4 March 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill –

• establishes a new statutory framework for the management of the road network which facilitates the coordination of the various uses of road reserves for roadways, pathways, infrastructure and similar purposes;

• sets out rights of road users and amends the Road Safety Act 1986 to provide a statement of obligations of road users (which will be relevant to negligence actions);

• establishes the general principles which apply to road management;

• provides for the role, functions and powers of a road authority;

• provides for the making of Codes of Practice to provide practical guidance in relation to road management;

• facilitates the making of road management plans as part of the management system to be implemented by a road authority in the performance of road management functions;

• enables the declaration and discontinuance of roads;

• provides a new process for the declaration and classification of roads and the re-allocation of management responsibility for roads and parts of roads;

• provides for a road authority to keep a register of public roads in respect of which the road authority is the coordinating road authority;

• provides for the construction, inspection, maintenance and repair of public roads;

• sets out the road management functions of road authorities;

• sets out the road management functions of infrastructure managers and works managers in providing infrastructure or conducting works;

• provides for issues relating to civil liability arising out of road management;

• provides for mechanisms to enforce and administer provisions of the Act;

• makes related amendments to the Transport Act 1983, the Road Safety Act 1986, the Local Government Act 1989 and other Acts.

Content and Committee comment

[Clauses]

[2]. Some of the machinery provisions in the Act commence on Royal Assent other provisions come into operation on 1 July 2004. All remaining provisions will commence on proclamation but not later than by 1 January 2005.

Native title rights and interests not affected by provisions in the Bill

[5]. Sets out a number of rules to interpret the application of the Act and its interrelationship with other Acts amongst its provisions clause 5(9) provides that native title rights and interest are not affected by the Bill.

Rights of road users

[7]. Part 2 of the Bill confers specified rights on members of the public using roads that are legally enforceable. These rights are not intended to take away or derogate from rights conferred by the common law.
[8]. Describes the rights of members of the public to pass along roads. These rights are intended to be the same as existing common law rights, and to be subject to other laws that limit the rights.

[9]. Describes the rights of owners and occupiers of land adjoining a road to access the road from their land. These rights are intended to be the same as existing common law rights, and to be subject to other laws that limit the rights.

[10]. Provides that the rights of the public, whether under this Bill or the common law, in respect of a public highway can only be extinguished in accordance with this Bill or other legislation that authorises the discontinuance or permanent closure of a road.

[11]. Deals with the power to declare and name a road by a road authority. The clause does not limit other means by which public highways may be dedicated under the common law or created under other Acts. Land may become a "highway" under the common law by operation of the doctrine of "dedication and acceptance", where land is dedicated to the public for use as a highway and it is used as such. Both dedication and acceptance may be inferred from conduct.

[12]. Empowers a road authority to discontinue a road or a part of a road. The clause also sets out a consultation procedure with which a road authority must comply before it discontinues a road in accordance with the clause.

[17]. Sets out which roads are to be treated as "public roads" for the purposes of this legislation. Under clause 40, the relevant road authority will have a positive duty to manage roadways and pathways on public roads for public use.

[20-29]. Sets out the principal objects of road management and permits the Minister to give directions and provides that the Governor in Council may make codes of practice by Order.

Proposed section 23 enables the Governor in Council to give exemptions from specified provisions of the Act for specified persons, projects or activities.

Exemption orders must be tabled in Parliament and may be disallowed by either House in the same way as regulations. Failure to table may be reported to each House by the Committee.

A Code of Practice cannot impose a duty on a person; direct how any matter or thing is to be done; create an enforceable legal right; or impose any liability or penalty.

[30]. Requires Codes of Practice to be tabled in Parliament and provides that either House may disallow a Code in the same way as regulations and the Committee may recommend disallowance of Codes of Practice as though they were ‘statutory rules’ within the meaning of the Subordinate Legislation Act 1994.

[34]. Sets out the general functions of a road authority.

Statutory duty to inspect, maintain and repair public roads

[40]. Imposes on road authorities a specific statutory duty to inspect, maintain and repair public roads. The clause describes the content of the duty and those parts of a public road to which the duty applies and does not apply.

Note:

The statutory duty (and the principles concerning the performance of road management functions set out clause 101) reflect the decision of the High Court in Brodie's Case that road authorities have a responsibility to take reasonable steps to actively manage the roads and paths under their administration to ensure that they are reasonably safe for use.

The clause also sets out how the standard of inspection, maintenance or repair is to be determined for the purposes of this duty.

[56]. Provides for development contributions for the cost of construction of a new public road from an owner or occupier of land who may benefit from such construction.

[57]. Provides for an appeal process initially to the road authority and if necessary for review by VCAT, in respect to proposed payment contributions under clause 56.

[62]. Creates an offence to obstruct the use of a public highway by persons or vehicles lawfully entitled to use the public highway unless otherwise authorised or permitted by or under the Bill, the Road Safety Act 1986 or if the obstruction arises out of a lawful and reasonable use of the road.

[71]. Provides for the appointment by road authorities of members of their staff as authorised officers for the purposes of the Act.

[75]. Confers a power to enter land.

[76]. Confers a power on authorised officers to require a person to state his or her name and residential address. This power may only be exercised if the authorised officer believes on reasonable grounds that the person has contravened, or is contravening, the Act or regulations.

[79]. It is an offence to fail to comply without reasonable excuse with a requirement of an authorised officer to provide name and address.

Privilege against self-incrimination maintained

[81]. Confers a protection against self-incrimination without any abrogation.

[90 to 96]. Enables road management infringement notices to be used as an alternative to prosecution.

Civil Liability

[98]. Declares that the civil liability provisions are not to be construed as derogating from any duty or liability that a person other than a road authority, infrastructure manager or works manager has under any other Act or at common law.

[101]. Sets out the principles which a court must consider when determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function.

The principles provide a statutory basis to the major principles enunciated by the High Court in Brodie's Case.

[102]. Sets out limitations on liability of road authorities. The clause provides that a road authority is not liable in any proceedings for damages, whether for breach of the statutory duty imposed by clause 40 or for negligence, in respect of any alleged failure by the road authority to remove a hazard or to repair a defect or deterioration in a road or to give a warning of a hazard, defect or deterioration in a road.

The limitation of liability does not apply if the road authority had actual knowledge of the particular risk which resulted in the harm. A road authority is to be taken to have had actual knowledge if written notice had been given to the authority under clause 115.

The clause does not affect any liability of a road authority arising out of a failure to inspect a road in accordance with the duty imposed by clause 40.

[104]. Provides that, where one person has a duty in relation to a matter and another person has a discretionary power to take remedial action in relation to that matter, that only the person with the duty is liable for the claim.

[105]. Provides that in respect of damage arising from a failure to maintain a public road or non-road infrastructure it is a defence for a road authority, infrastructure manager or works manager to prove that it had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic.

[106]. Deals with issues of contributory negligence other than that of road authorities.

[107]. Provides that a road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road. Nor does it have a duty to maintain, inspect or repair the roadside of any public highway (whether or not a public road).

[109]. Provides that neither the Crown nor a road authority is liable for a public highway not being fenced in or fenced off.

[110]. Limits the liability of road authorities for property damages where the value of the damage is equal to or less than the "threshold amount", namely $1000, with CPI indexation under clause 111.

In relation to property damages claims, the clause requires that any amount which may be recovered is to be reduced by the threshold amount. In effect, a road user bears the first $1000 of any property damage claim arising out of the condition of a road or infrastructure.

Further, a road authority is not liable for tar damage if the road authority has closed the road to traffic during works and a reasonable period after the tar was applied and covered the portion of the road to which the tar was applied with gravel or stones or other appropriate material before re-opening the road to traffic.

Delegations

[117]. Provides that the Minister may, by instrument, delegate to any person his or her powers or functions under the Bill or the regulations, except the power of delegation.

[118]. Provides that a road authority may, by instrument, delegate to any person its powers under the Bill or the Regulations or under any other Act, except the power of delegation.

A road authority may also delegate to another road authority and may authorise that other road authority to sub-delegate those powers.

The Committee notes the wide delegation provisions provided in clauses 117 and 118 and that no additional information supporting the need for such powers is provided in either the Second Reading Speech or the explanatory memorandum. The Committee will seek further information from the Minister to determine whether these provisions are justified in all the circumstances. Pending the Minister’s response the Committee draws attention to the provision. The Committee also notes the explanatory memorandum in respect to clause 118 incorrectly refers to a delegation by a road authority to staff whereas the clause refers not to staff but rather to ‘any person’. The Committee will advise the Minister of the inconsistency.

[127]. Deals with compensation that may be payable by a road authority in respect of cases where the construction of a freeway or a decision results in existing access to any land being denied. The clause also sets out circumstances in which compensation will not be payable and if compensation is payable how it is to be determined.

[129]. Partially abrogates the common law "ratione tenure" rule, under which an owner of land may have a duty to maintain a public highway over that land by reason of his or her tenure of the land. The clause provides that neither the Crown nor a road authority is liable for the maintenance of a road only because of ownership of the road. The duty of road authorities to maintain roads will be set out in clause 40.

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[131]. Provides that it is the intention of Divisions 2 and 3 of Part 6 and section 129 to alter or vary section 85 of the Constitution Act 1975. These provisions deal with civil liability of road authorities and works and infrastructure managers.

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

It is the intention of Divisions 2 and 3 of Part 6 and section 129 of this Bill to alter or vary section 85 of the Constitution Act 1975. I therefore make the following statement under section 85(5) of the Constitution Act 1975 to set out the reasons for altering or varying that section. In doing so, I will also outline and explain a number of changes that the Bill makes to the law relating to civil liability in relation to the management and condition of roads.

Principles concerning performance of road management functions

Clause 101 sets out principles for ascertaining whether there is a duty of care, and if so, the standard of care for the purposes of determining whether there has been negligence on the part of a road authority or the manager of works or infrastructure on a road. The principles are closely based on the principles set out in the High Court majority judgment in Brodie's case.

The reason for the provision is that it is desirable to have a clear legislative statement of the principles of liability of road authorities and the managers of works and infrastructure on roads, including utilities, in the interests of promoting responsible management practices and greater certainty in litigation.

The policy defence

Division 2 deals with liability for claims for the negligent performance or non-performance by a road authority of road management functions, whether the claim is brought in tort, in contract or under statute. The key proposal is set out in clause 103, which proposes a policy defence for road authorities. The bill proposes to implement, in relation to the management of roads, recommendation 39 of the Final Report of the Review of the Law of Negligence (the Ipp report) to the commonwealth government in October 2002. That recommendation reads as follows:

In any claim for damages for personal injury or death arising out of negligent performance or non-performance of a public function, a policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant's position could have made it.

In May 2001, the High Court decided that the highway rule was no longer part of the common law of Australia. That rule had protected highway authorities from liability for nonfeasance, that is, for non-performance of their road management functions.

The nonfeasance immunity was unsatisfactory for the reasons set out in the majority judgment of the High Court.

The distinction between poor performance, or misfeasance, and non-performance, or nonfeasance, was sometimes hard to draw, and this made the outcome of litigation uncertain in such cases. In short, the rule was uncertain, unworkable and unfair.

But the new common-law position also poses significant practical problems for the efficient management of the road network. One of the major problems is the lack of certainty for road authorities in setting their maintenance programs and allocating budgets. The government accepts the principle that a road authority should be liable for not maintaining its roads to a reasonable standard, but those standards need to be certain in practice. They must also reflect the policies and priorities of the particular road authority across its whole range of functions, as determined through the normal processes of democratic government.

The Bill therefore seeks to clarify, in relation to road management functions, the boundary between policy decisions, which are subject to the principles of administrative law, and operational failings, which may be the subject of negligence actions.

To these ends, clause 103 provides that an act or omission will not be wrongful if the road authority's actions were consistent with its policies in relation to the performance of its road management functions. These policies may be set out in road management plans, but do not have to be. The defence also applies if the road authority was acting in accordance with a policy direction issued by the relevant minister. However, the policy defence will not apply if the policy was so unreasonable that no reasonable authority or minister would have made the decision. This is intended to adopt the administrative law test known as 'Wednesbury unreasonableness'.

Clause 102 provides that a road authority will not be liable for failure to remove hazards or repair defects or deterioration that arise between inspections, unless the authority is actually aware of the problem. This will not affect liability for failure to carry out inspections.

A road authority may become aware of a defect or deterioration either because it is found by inspection or because it has been reported to the authority. Clause 40 of the bill imposes separate duties on road authorities to inspect and to repair roads. A road authority may be liable for damages if it does not perform either of these tasks to the appropriate standard.

The reason for the clause is to make clear how the policy defence will work where the road authority is not actually aware of a hazard, defect or deterioration which is a factor in causing injury or damage.

If the road authority was aware of the defect, then the issues will be whether the defect was of a type that required remedial action and, if it was, whether the road authority had failed to take the appropriate action within the appropriate time. On the other hand, if the road authority was not actually aware of the defect, the issue will be whether the authority had carried out appropriate inspections. If it did, then it has carried out its responsibilities to the required standard and should not be held to be at fault.

For example, say a council as a road authority makes a policy decision that a particular road is to be inspected every three months. Provided that policy is properly implemented, the road authority would not be responsible for an accident caused by a pothole in the road that developed between inspections and of which the road authority was unaware. However, it could be liable if a court decided that the council's policy in relation to inspection intervals was so unreasonable that no reasonable council would have made that decision.

It may also be liable if the council was actually aware of the defect - for example, if it is proven that the pothole had been reported but not repaired within the time set under the council's policy or, if there were no policy, within a reasonable time.

The reason for these changes is that it is simply not possible for road authorities to be fully aware of the condition of all roads all of the time. What they need to do is establish a reasonable system for managing their roads, including the setting of reasonable inspection and maintenance schedules and target times for repairing defects or deteriorations that are found or reported. In establishing such a system, the road authority must have regard to the whole range of its activities and the resources available to carry them out and set their priorities and policies accordingly.

The proposed policy defence will protect a road authority from liability if it has established and implemented such a reasonable system.

However, if the road authority's policy is plainly unreasonable, or if the road authority has not made a policy in relation to the function in question, then it will be for a court to determine what was a reasonable standard. In doing so, the court must have regard to the matters set out in clause 101 of the bill, including the character of the road and the traffic that uses it.

Liability where two bodies have road management functions

Clause 104 provides that, where a person has a duty in relation to a matter and another person has discretionary power to take remedial action, only the person with the duty is liable for negligence in relation to the exercise of those functions.

The reason for the provision is to reinforce this bill's allocation of responsibility for various road management functions and to ensure that responsibility is matched by accountability. An organisation or person that causes harm by failing to carry out its responsibilities properly should be held accountable and bear the financial consequences of that failure. The provision also aims to reduce the costs of litigation by avoiding the involvement of other parties that were not under a duty to take action.

Defence to prove that reasonable care was taken

Clause 105 of the bill establishes a defence to a claim based on alleged negligence for a road authority or the manager of works or infrastructure on a road to show that it had taken reasonable steps in carrying out its road management functions.

The reason for this provision is to set out what a road authority or works and infrastructure manager needs to prove in legal proceedings if it is to establish that it had carried out its functions properly and was not negligent. Compliance with a road management plan or other policy decision of a road authority will establish this defence unless it can be shown that the policy was manifestly unreasonable.

Contributory negligence

Clause 106 requires a court to consider whether any of the matters set out in proposed section 17A of the Road Safety Act 1986 was a relevant factor for the purposes of determining issues of contributory negligence in litigation relating to the condition of a road or infrastructure.

Section 17A, which is to be inserted by clause 138 of the bill, places a number of general obligations on road users, including a duty to drive safely having regard to road, weather and traffic conditions.

The reason for the provision is to ensure that the duties that this bill proposes to impose on all road users are taken into account in civil proceedings.

Roadsides and public highways

Clause 107 provides that a road authority does not have a statutory or a common-law duty to perform road management functions in relation to a public highway that is not a public road or in relation to roadside areas. The reason for this is that road authorities should devote their resources to the roadways and pathways that actually form part of the public road network.

The community cannot afford, and road authorities should not be required, to maintain as roads all land over which the public may have a right of way.

Occupier's liability

Clause 108 clarifies that a road authority is not an occupier of land, and that a road is not 'premises', for the purposes of occupier's liability under section 14B of the Wrongs Act 1958. This exemption from liability will not apply to buildings on roadside areas.

The purpose of the clause is to ensure consistency with the position under Australian and English common law in relation to occupier's liability. Roads are public places, and road authorities cannot exercise the same degree of control over roads that private land-holders can exercise over their holdings.

Fences

Clause 109 provides that neither the Crown nor a road authority is liable for damage that may be caused by reason that a road is not fenced. The reason for this is that road authorities do not have sufficient funds to fence off roads, and in many cases it is simply not appropriate to fence a road. The decision whether to fence a road should therefore be left to the relevant road authority. This confirms the existing position under section 249 of the Transport Act 1983 in respect of roads administered by Vicroads, and extends the principle to roads generally.

Threshold for small property damage claims

Clause 110 establishes a deductible of $1000 on property damage claims against road authorities where the claim arises out of the condition of a road or infrastructure on a road. Clause 111 provides for the threshold to be linked to the consumer price index.

The reason for these proposals is that minor damage to vehicles, bicycles and other property will inevitably occur from time to time.

The risk of minor damage, such as broken windscreens and punctures, is reasonably incidental to the decision to operate a vehicle or a bicycle on the roads. Further, the prevention of damage to vehicles, bicycles and other property is generally more within the control of the driver or road user than the road authority. While the value of such claims may be small individually, the total amount of the claims, and the administrative and legal costs of dealing with them, could become a significant diversion of funds that can be better spent on road maintenance and improvement. Indeed, in many cases the processing costs may exceed the value of the claim itself, making it uneconomic to defend the claim. With the abolition of the nonfeasance defence, claims of this nature will increase and it would be an inappropriate use of road maintenance funds to pay for the repair of minor damage to vehicles and other property caused by road conditions. For all these reasons, it is considered that the risk of minor property damage should be borne by the vehicle or property owner.

The community cannot afford to become, through its road authorities, the de facto insurer for minor property damage on the road system.

Modification of a common-law rule

Clause 129 deals with an old common-law rule that a landowner may be responsible for the maintenance of public highways over the owner's land. The rule appears to have had little, if any, application in Australia. Clause 129 proposes to abrogate the rule in relation to roads on Crown land and land owned by a commonwealth or state authority.

The scope and content of road authorities' duties to maintain roads is to be determined in accordance with this bill.

The reason for clause 129 is to ensure that the vesting of roads in the Crown or road authorities does not have the unintended result of creating a common-law duty to maintain those roads by reason of tenure.

Section 85 statement relating to amendments to the Victorian Civil and Administrative Tribunal Act 1998.

Clause 168 of the bill inserts a new section 160A into the Victorian Civil and Administrative Tribunal Act 1998, which states that it is the intention of section 52 of that act as amended by clause 167(1) of this bill to alter or vary section 85 of the Constitution Act 1975. I therefore make the following statement under section 85(5) of the Constitution Act 1975 to set out the reasons for altering or varying that section.

The effect of clause 167(1) is that appeals to the Victorian Civil and Administrative Tribunal against road authority decisions of the following kinds will be treated as planning appeals:

• decisions under clause 57 in relation to development contributions;

• decisions under clause 126 and schedule 2 of the Bill, which deal with access to controlled access roads;

• decisions taken under the regulations made under clause 132 of this Bill. This is consistent with the existing position under the Transport Act 1983.

Treating such appeals as planning matters means that section 52 of the Victorian Civil and Administrative Tribunal Act will operate to exclude the jurisdiction of the Supreme Court, County Court and Magistrates Court to hear or continue to hear a matter where the tribunal has jurisdiction to review that matter, unless the court is of the opinion that there are special circumstances. This merely maintains the status quo in the hearing of planning disputes.

[132]. Sets out the regulation-making powers.

[136 to 179]. Make amendments to other Acts that are necessary or consequential upon the coming into force of the provisions in the Bill.

[138]. Inserts new section 17A into the Road Safety Act 1986 in effect requiring all road users to exercise personal responsibility for their own and others' safety and interests.

[139]. Inserts a new section 68A into the Road Safety Act 1986 creating various offences in relation to the unauthorised use of a freeway.

[167] Amends the Victorian Civil and Administrative Tribunal Act 1998. The effect of the amendments is to treat appeals to the Tribunal as appeals under "planning enactments" for the purposes of that Act. This maintains consistency with the current position, as appeals against decisions under regulations under section 56 of the Transport Act 1983 are presently treated as appeals under "planning enactments".
The matters under this Bill in respect of which the Tribunal will have jurisdiction are—

• decisions in relation to development contribution in relation to the construction of State roads under clause 57,

• decisions in relation to access to controlled access roads under clause 126 and Schedule 2, and

• decisions under regulations made under clause 132.

[168]. Declares that it is the intention of section 52 of the Victorian Civil and Administrative Tribunal Act 1998, as amended by clause 167, to alter or vary section 85 of the Constitution Act 1975. (see section 85 Constitution Act 1975 statement and report above).

The Committee makes no further comment.

Committee Room
29 March 2004

Scrutiny of Acts and Regulations Committee
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