Alert Digest No 3 of 2004

Tuesday, 20 April 2004

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Control of Genetically Modified Crops Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The purposes of the Bill are to –

• provide for the making of orders that designate areas of the State for the purpose of preserving the identity of genetically modified (‘GM’) crops or non-GM crops for marketing purposes;

• prohibit or restrict the cultivation of GM crops, or other dealings with GM crops or GM crop related material; and

• provide an offence for contravening those orders and certain other offences; and

• allow authorised officers to monitor compliance with the Act;

• allow the Magistrates' Court to order (on application) the forfeiture and destruction of GM crops or GM crop related material if an order has been contravened.

The Committee notes this extract from the explanatory memorandum –

The Gene Technology Act 2000 (Cth) and the complementary Victorian Gene Technology Act 2001 are part of a national scheme which regulates certain dealings with genetically modified organisms (the Gene Technology Law). The national scheme deals with the environmental, health and safety issues associated with gene technology and establishes a national Gene Technology Regulator who can issue licences for dealings with genetically modified organisms (GMOs).

The Gene Technology Regulator does not consider marketing issues which may arise from a product being identified as genetically modified (GM) or non-GM. However, the Gene Technology Law recognises that regulation of GM crops for marketing purposes is a role for each State and Territory to consider, as marketing issues are a significant factor in deciding whether to grow GM crops or not. Section 21(1)(aa) of the Gene Technology Law provides for the Gene Technology Ministerial Council to issue a policy principle in respect of recognising areas designated under a law of a State or Territory for the purpose of preserving the identity of GM or non-GM crops for marketing purposes. On 31 July 2003, the Ministerial Council made a policy principle which recognises the States' right to declare such areas.

In accordance with the policy principle, the Bill will enable Victoria to prohibit or control the cultivation of GM crops in specified areas (or the whole State) and specified dealings with those crops for the purpose of preserving the identity of crops as either GM crops or non-GM crops for marketing purposes.

The Bill will also immediately declare Victoria to be an area in which the cultivation of specified GM canola crops which have been approved for general release by the Gene Technology Regulator is prohibited.

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

• The Bill is non-prescriptive in that it allows a regulatory response by way of Orders to be made in respect to crops and regions within Victoria.

• The Minister may make exemptions to persons or a class of persons from the operation of an order or of a part of an order.

• The Bill creates an offence of selling a GM organism to a person knowing that the person intends to use the organism in contravention of an order made under the Act.

• GM canola is the first crop approved by the regulator. The government has placed a four year moratorium on any commercialisation of GM canola by way of an immediate deemed Order provided in the Schedule to the Bill.

• Non-commercial research trials may be permitted under the provisions of the Bill.

Content and Committee comment

[Clauses]

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

[4]. Provides for the Minister to make an order designating an area (or areas) of Victoria to be an area in which GM crops or a specified class of GM crops must not be cultivated; or an area in which GM crops must not be cultivated unless they are of a specified class; or which is the only area in which a specified class of GM crops may be cultivated.

[5]. A notice of an order must be published in the Government Gazette and in a newspaper circulating generally throughout the State as soon as practicable after it is made.

[6]. The Minister may exempt a person or class of persons from the operation of all or part of an order, subject to specified conditions.

[9]. Provides for the making of an order or the variation of an order to be subject to disallowance by Parliament. The Bill provides for this by applying the provisions of the Subordinate Legislation Act 1994 to the making of an order or the variation of an order as if it were a statutory rule for the purposes of tabling in Parliament and disallowance.

[13]. Provides for the Secretary to appoint persons employed under Part 3 of the Public Sector Management and Employment Act 1998 as authorised officers for the purposes of the Bill.

[14]. Provides authorised officers with certain entry, search and seizure powers.

[15]. Provides the Magistrates' Court with the power, on the application of an authorised officer, to order a GM crop or GM crop related material cultivated or dealt with in contravention of the Bill to be forfeited and to be destroyed or disposed of.

[16]. Provides for a person affected by a forfeiture order, including the Crown, to appeal against the decision to make the order. It also provides for a person affected by a failure or refusal to make a forfeiture order to appeal against the refusal or failure.

[17]. Makes it an offence for a person to cultivate a crop in contravention of an order or to otherwise contravene an order. The offence only applies if the person knows or is reckless as to whether the crop or crop related material to which the contravention relates is a GM crop or GM crop related material.

Delegation

[25]. Provides for the Minister to delegate the functions or powers under the Bill to a person employed under Part 3 of the Public Sector Management and Employment Act 1998. However, the Minister cannot delegate the power to make, vary or revoke an order, to grant an exemption or the power to delegate.

Regulations

[26]. Provides for the Governor in Council to make regulations required or permitted by the Bill to be prescribed or necessary to be prescribed to give effect to the Bill.

GM canola crops prohibited in Victoria

[28]. Provides that the order set out in the Schedule is to be taken to be an order made under clause 4 of the Bill. The requirements under the Bill providing for the notice of an order to be published in the Government Gazette and in a newspaper and provisions relating to disallowance of the order do not apply to the order made under this clause. The Order expires on 29 February 2008.

Schedule

The Schedule designates Victoria as an area in which the cultivation of specified GM canola crops which have been approved by the Gene Technology Regulator for general release is prohibited.

The Committee makes no further comment.

Crimes (Assumed Identities) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon.Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill introduces a legislative scheme for law enforcement officers and other authorised people to lawfully acquire and use assumed identities (false identities) for intelligence gathering and law enforcement purposes.

The Bill also facilitates the mutual recognition of things done in relation to assumed identities under corresponding laws.

The Committee notes the following points from the Attorney-General’s Second Reading Speech –

• The Bill implements model national scheme legislation to tackle cross-border criminal investigations/ activity.

• There is currently no ‘assumed identity’ legislation in Victoria and the Bill introduces a formal regulatory scheme for assumed identities.

• The provisions will enable assumed identities authorised and issued in one jurisdiction to be recognised as valid in other participating jurisdictions.

• Applications for assumed identities will only be able to be granted by the chief officer of a law enforcement agency.

• Entries in the Register for Births, Deaths and Marriages are to be authorised by a Supreme Court judge and entries cancelled when no longer needed.

• Officers committing offences as a consequence of obtaining or using false identities in the course of an operation are provided with an immunity for those offences.

• The Bill provides for offences for misuse of an assumed identity and criminal liability that may attach for things done outside the scope or authority of the criminal investigation.

• There are various levels of offence provided in the Bill for unlawful disclosure of the true identity of a person working under an assumed identity.

• There are auditing and accountability provisions in the Bill.

• Mutual recognition provisions provide for a corresponding authority from a participating jurisdiction to use an assumed identity to be recognised in Victoria and a Victorian authority to use an assumed identity to be recognised and lawfully used in another participating jurisdiction.

• The model law will eventually be enacted in all States and Territories.

• The Bill provides an open-ended commencement provision as Commonwealth regulations will need to be made in relation to the powers and duties that need to be conferred on officers of the Australian Crime Commission.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation by proclamation.

In respect to the necessity to use an open-ended commencement provision the Committee notes the Minister’s comments in the Second Reading Speech and the following extract from the explanatory memorandum -

This is necessary because the provisions of the Bill that confer powers and duties on officers of the Australian Crime Commission will require associated Commonwealth regulations to be made under the Australian Crime Commission Act 2002 (Cth).

[4]. Allows a law enforcement officer to make a written application to the chief officer of a law enforcement agency for an authority to acquire and use an assumed identity.

[5]. Allows the chief officer of a law enforcement agency to grant an authority to acquire or use an assumed identity, and to impose conditions on the authority. The chief officer may delegate this function under clause 34.

[9]. The chief officer of a law enforcement agency must conduct a review every 12 months of every authority granted by the chief officer or his or her delegate.

[10]. Provides for making entries in the Register of Births, Deaths and Marriages in relation to assumed identities.

The chief officer may make an application to the Supreme Court for an entry in the Register if this has been authorised under clause 5(5)(a). The Supreme Court may only grant the order if satisfied that the order is justified having regard to the nature of the activities undertaken.

[12]. Allows the Supreme Court to order the Registrar of Births, Deaths and Marriages to cancel an entry that has been made in the Register under clause 10 of the Bill. Such applications must be heard in closed court.

[19]. Provides that an authorised officer may acquire or use an assumed identity if the acquisition or use is in accordance with an authority and in the course of duty.

An authorised civilian may acquire or use an assumed identity if the acquisition or use is in accordance with the authority and with any directions given by the person's supervisor.

[20]. Provides that authorised persons will receive protection from criminal liability for an act which would otherwise be an offence, as long as the act is done in the course of acquiring or using an assumed identity in accordance with the authority and in the case of a law enforcement officer acting in the course of duty.

[24 to 28]. Deal with mutual recognition for assumed identity documentation under corresponding laws of a participating jurisdiction.

[29]. Creates an offence of misuse of an assumed identity.

[30]. Creates an offence of unlawfully disclosing information about an assumed identity.

There is a more serious unlawful disclosure offence where the person makes the disclosure intending to, knowing that, or being reckless as to whether, the disclosure would endanger the health or safety of a person, or prejudice the effective conduct of an investigation, or intelligence-gathering.

Reports, record keeping and auditing of records

[31]. Law enforcement agencies must report certain details of assumed identity authorities granted to the Minister and the tabling of reports in the Parliament. Tabled reports will exclude information where the Minister is satisfied that the information may endanger a person’s safety, prejudice an investigation, prosecution or operational activity.

[32]. Sets out what kind of records the law enforcement agency must keep in relation to assumed identities.

Audit of records by a person appointed by the chief officer

[33]. The chief officer of an agency must arrange an audit at 6 month intervals of the records kept under clause 32. The audit is to be conducted by a person appointed by the chief officer. The clause provides the person appointed to conduct the audit may, but need not be, an officer of the law enforcement agency. The person appointed to undertake the audit must not be an officer granting an authority to which the records relate or a person authorised under an authority to which the records relate.

Delegation

[34]. Provides that the chief officer of a law enforcement agency may delegate to a senior officer any of the chief officer's functions under the Bill. No more than 4 delegations may be in force at any one time with respect to any one law enforcement agency. "senior officer" for Victoria Police means an officer of the rank of superintendent or above. For the Australian Crime Commission, "senior officer" means Director National Operations; or Director; or General Manager National Operations; or any other Senior Executive Service positions that are prescribed by the regulations.

[35]. Provides for a general regulation-making power.

The Committee makes no further comment.

Crimes (Controlled Operations) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The main purposes of the Bill are to –

• establish a comprehensive regulatory scheme for authorising, conducting and monitoring controlled operations authorised in Victoria. A controlled operation is a covert investigative method used by law enforcement agencies such as Victoria Police and the Australian Crime Commission during which an undercover officer (and sometimes a civilian) associates with criminal suspects to obtain evidence of offences and during the investigation may need to engage in unlawful conduct;

• recognise controlled operations authorities that have been issued in other jurisdictions that have also enacted the model laws;

• indemnify law enforcement and civilian participants in controlled operations against civil liability for conduct engaged in as part of an authorised controlled operation.

The Bill also amends the Fisheries Act 1995 and the Wildlife Act 1975 to regulate controlled operations under those Acts, and repeals certain accomplice provisions in other Victorian Acts.

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

A controlled operation is an investigative method where an operative (who can be a law enforcement officer or a civilian who is assisting a law enforcement agency) conceals his or her identity in order to associate with people suspected of being involved in organising or financing crimes. As part of the investigation, it may be necessary to authorise the operative to commit an offence (such as to purchase drugs) in order to gather evidence or intelligence.

It will apply the model provisions to regulate both cross-border investigations and investigations that occur wholly within Victoria. This scheme will replace the existing piecemeal approach to controlled operations in this State.

Certain types of activity cannot be authorised as part of a controlled operation. This includes activity which would:

• cause the death of or serious injury to any person;

• seriously endanger any person's health and safety;

• involve the commission of a sexual offence; or

• involve conduct that would result in unlawful loss of or serious damage to property.

Law enforcement officers and civilians who engage in authorised unlawful activity as part of an authorised controlled operation will be protected from criminal responsibility, provided that certain requirements are met. Victoria Police and the Australian Crime Commission must also indemnify authorised participants against any civil liability arising from their conduct during the operation.

A cross-border controlled operation authority authorises operatives to engage in unlawful conduct in their own jurisdiction and any other jurisdiction that has adopted the model laws.

The Bill requires law enforcement agencies to keep adequate records and report on the nature and use of controlled operations.

The Bill creates an oversight role for the Victorian Ombudsman who will inspect the records of the law enforcement agency at least once every 12 months and report to the Parliament on the work and activities of the law enforcement agencies and the extent to which controlled operations conducted during the year complied with the legislation.

As well, Victoria Police will be required to provide a six-monthly report to the Ombudsman on the number of authorities issued, varied, cancelled and the types of activities engaged in. The Commonwealth Ombudsman will undertake the same oversight role for the Australian Crime Commission.

The Bill includes a compensation provision which would make the government liable to pay compensation to a person who suffers loss or serious damage to property as a direct result of a controlled operation. This would not apply if the loss or damage to property occurred as a direct result of that person engaging in criminal activity or if the person is a law enforcement officer.

The mutual recognition provisions in the Bill will mean that cross-border authorities issued here in Victoria are recognised as valid and effective in any other jurisdiction which implements legislation based on the model laws. This will mean that police do not have to apply for a new authority when a suspect moves across Victorian borders.

Members will note that the Bill does not have a default commencement date. This is to allow time for necessary commonwealth regulations to be made in relation to the powers and duties that have been conferred on officers of the Australian Crime Commission in the bill. It will also allow time for Victoria Police and the departments of primary industries, and sustainability and environment to establish appropriate systems to ensure that they comply with the new laws. Once this has been done, the Bill can be proclaimed.

Content and Committee comment

[Clauses]

[2]. The Bill comes into force on a day or days to be proclaimed.

[4]. Declares the relationship of the Bill to other Victorian laws.

The Bill provides for the authorisation and conduct of controlled operations, and provides protection from criminal liability for participants who engage in authorised controlled conduct. However, the Bill is not intended to limit the discretions of a court in proceedings relating to information gathered in a controlled operation authorised under the Bill. For example, the Bill is not intended to affect a court's discretion to admit or exclude evidence (subject to clause 4(3)), or to stay proceedings in the interests of justice.

[6 to 11]. Provide definitions relating to types of controlled operations such as cross-border and local controlled operations.

[12 to 27]. Make provisions for applications, variations and other procedures by law enforcement officers for authorising controlled operations.

[13]. After considering an application the chief officer may grant or refuse the application for a controlled operation.

Operation may not induce the commission of an offence

[14]. Sets out the matters that must be considered by the chief officer when deciding whether or not to grant an authority for a controlled operation. One such matter requires the chief officer to be satisfied that the controlled operation will not be conducted in a way that would induce a person to commit any offence that they would not otherwise have intended to commit.

A controlled operation cannot be authorised if it will involve any conduct which would seriously endanger the health or safety of any person; or cause the death of, or serious injury to, any person; or involved the commission of a sexual offence against any person; or result in unlawful loss of or serious damage to property (other than illicit goods).

[18]. Sets out the matters that must be included in an authority for a controlled operation. There are two types of authority "formal authority"—in writing and signed by the chief officer; or "urgent authority"—orally in person or by telephone, fax, e-mail or any other means of communication.

[19]. Provides for the duration of the various types of authorities.

[26]. Describes the effect of an authority for a controlled operation.

[28]. Protects a participant who engages in controlled conduct (e.g. purchase of drugs) during an authorised operation from criminal responsibility for that conduct. This protection from criminal responsibility only applies if certain conditions are met. Amongst them is the requirement that the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit.

[29]. Indemnifies a participant in controlled operation authorised by that agency against any civil liability incurred because of conduct the participant engages in.

[32]. Provides protection from criminal responsibility for a person who assists a participant to engage (ancillary conduct) in controlled conduct.

[33]. Provides for compensation to a person who suffers loss or serious damage to property as a direct result of a controlled operation authorised in Victoria.

[34]. Requires a principal law enforcement officer to report loss or serious damage to property occurring in the course of, or as a direct result of, an authorised operation to the chief officer of the law enforcement agency as soon as practicable.

Mutual Recognition

[35]. Provides for mutual recognition of corresponding authorities across borders. The clause applies sections 26 to 32 to the corresponding authorities (with necessary modifications) as though that corresponding authority were given under section 13 of the Act.

[36]. Creates offences relating to the unauthorised disclosure of information.

Report to Ombudsman

[39]. The relevant Ombudsman must prepare an annual report, as soon as practicable after 30 June each year concerning the work and activities of the law enforcement agency under this Act. The Victorian Ombudsman will report on controlled operations conducted by Victoria Police. The Commonwealth Ombudsman will report on the Australian Crime Commission. Both the Victorian Ombudsman and the Commonwealth Ombudsman must give a copy of their report to the Minister and to the chief officer of the law enforcement agency to which the report relates.

Inspections

[42]. The Victorian Ombudsman must at least once every 12 months inspect the records of Victoria Police, and the Commonwealth Ombudsman to inspect the records of the Australian Crime Commission, to determine the extent of compliance with this Act.

Delegation

[43]. Provides that the functions of the chief officer under this Act may only be delegated as provided by the Act.

[44]. Provides that the chief officer of Victoria Police may delegate his or her functions in relation to the authorisation of controlled operations to other senior officers within Victoria Police.

• The chief officer can delegate a Deputy Commissioner to exercise any of the functions relating to the authorisation of all types of controlled operations. An Assistant Commissioner may be delegated to exercise the chief officer's functions relating to the authorisation of local major and minor controlled operations and urgent applications for cross-border controlled operations.

• The chief officer may delegate to an officer of the rank of superintendent or above functions relating to the authorisation of local minor controlled operations and notifications.

[45]. The chief officer of the Australian Crime Commission may also delegate functions under this Act relating to the authorisation of controlled operations to senior officers of the Commission. The definition of "senior officer" is set out in clause 45(2) and is equivalent to the delegations for Victoria Police.

Regulations

[47]. Provides a general regulation making power.

Fisheries Act 1995

The Committee notes this extract from the Second Reading Speech –

The provisions in the fisheries and wildlife legislation operate differently to other Victorian provisions. Fisheries and wildlife controlled operations are authorised and conducted by the Department of Sustainability and Environment (DSE) and the Department of Primary Industries (DPI) and are authorised under section 110A of the Fisheries Act 1995 and section 63 of the Wildlife Act 1975.

Part 6 of the Bill amends the Fisheries Act 1995 regarding controlled operations under that Act to incorporate similar accountability features to those contained in Parts 2 to 5 of this Bill.

[49]. Inserts a new Part 7A (new sections 131A to 131Z) in the Fisheries Act 1995. The new Part incorporates many of the features of authorisation, monitoring and oversight of controlled operations as are set out in Parts 2 to 5 of the Bill (clauses 6 to 47). The key differences are that the law enforcement agency will be the Department of Primary Industries; the fisheries provisions will not have cross-border application.

New section 131L protects from criminal responsibility authorised participants in a controlled operation who engage in controlled conduct in accordance with the authority for the operation. New section 131O provides similar protection from criminal responsibility for certain ancillary conduct as is contained in clause 32.

New section 131P provides similar notification requirements for loss or serious damage to property as is contained in clause 34.

No compensation provision similar to clause 33

The Committee notes the explanatory memorandum concerning loss or damage of property as a consequence of a controlled operation under the Act –

New Part 7A of the Fisheries Act 1995 does not contain an equivalent provision to clause 33 which provides compensation for property or serious damage in certain circumstances.

New section 131S requires the Secretary to provide reports to the Ombudsman every 6 months and new section 131T requires the Ombudsman to prepare an annual report on the work and activities of law enforcement officers under this Part and to table this report in Parliament.

No delegation of function permitted

New section 131X stipulates that functions or powers of the Secretary under this Part may not be delegated to any other person.

Wildlife Act 1975

Part 7 amends the Wildlife Act 1975 regarding controlled operations under that Act to incorporate similar accountability features to those contained in Parts 2 to 5 of the Bill.

[51]. Inserts a new Part IX in the Wildlife Act 1975.

The new Part (new section 71 to 74 and 74A to 74V) incorporates many of the features of authorisation, monitoring and oversight of controlled operations as set out in Parts 2 to 5 of this Bill. The key differences are that the law enforcement agency will be the Department of Sustainability and Environment; the wildlife provisions will not have cross-border application.

New section 74H protects from criminal responsibility authorised participants in a controlled operation who engage in controlled conduct in accordance with the authority for the operation.

New section 74J provides similar protection for participants in an authorised controlled operation who are unaware of a variation or cancellation of the authority as is contained in clause 31 and new section 74K provides similar protection from criminal responsibility for certain ancillary conduct as is contained in clause 32.

No compensation provision similar to clause 33

New section 74L provides similar notification requirements for loss or serious damage to property as is contained in clause 34.

The Committee notes the explanatory memorandum concerning loss or damage of property as a consequence of a controlled operation under the Act –

New Part IX of the Wildlife Act 1975 does not contain an equivalent provision to clause 33 which provides compensation for property or serious damage in certain circumstances).

New section 74M creates two offences relating to the unauthorised disclosure of information about controlled operations authorised under this Part.

New section 74O requires the Secretary to provide reports to the Ombudsman every 6 months.

New section 74P requires the Ombudsman to prepare an annual report on the work and activities of law enforcement officers under this Part and to table this report in Parliament. New section 74S requires the Ombudsman to conduct similar inspections of the records of the Department.

No delegation of functions to be permitted

New section 74T states that the functions or powers of the Secretary under this new Part may not be delegated to any other person.

[58]. Provides that an authority may be given under this Act to investigate criminal activity occurring before, on or after the commencement of the provisions in the Act.

The Committee makes no further comment.

Health Services (Supported Residential Services) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Health Services Act 1988 (the ‘Act’) in relation to supported residential services.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than 31 December 2004.

[5]. Amends section 10(c) and (f) and in effect provide that supported residential services must be provided in a safe environment (10(c)) and that residents are entitled to pursue relationships with members of either sex. (see section 10(f)) – the amendment is shown in bold below).

Section 10(f) currently provides –

residents are entitled to social independence including the right to choose and pursue friendships (and relationships) with members of either sex, to practise religion and cultural customs and to exercise rights as citizens.

[12]. Amends section 106 to provide that a residential statement containing the prescribed information must be prepared and provided to the resident or the resident's guardian or the resident's administrator within 48 hours of a person taking up residence in a supported residential service. (see clause 25 for transitional arrangements).

[14]. Amends section 108F(1) to provide that a proprietor must keep an accurate and up to date record of injuries and incidents involving residents.

[15]. Substitutes section 108H to provide that a proprietor can only manage or control a resident's money with the consent of the resident or the resident's administrator, and that the amount of money managed cannot be more than a prescribed amount.

[16]. Amends section 108L(2) to provide that a proprietor must ensure that a person employed in the care of residents in a supported residential service is a fit and proper person.

The explanatory memorandum notes that –

Guidelines will be issued by the Secretary to assist proprietors in the assessment of "fit and proper”.

[20]. Inserts new section 143 to provide for the delegation of Ministerial powers and functions of the Minister (other than the Minister for Health) to any person or class of persons employed by the Department or to an officer or class of officers in the public service.

[22]. Substitutes section 146(3) to require an authorised officer to produce an identity card before exercising a function or upon request when exercising a function.

Privilege against self-incrimination retained

[23]. Amends section 147(1) to provide that an authorised officer may ask questions and request documents from the proprietor and staff of a health service establishment. New section 147(3) provides that where an authorised officer requires questions to be answered the authorised officer must advise the person that it is a reasonable excuse for that person to refuse to comply with the request if it would tend to incriminate that person.

[24]. Inserts a new sub-section (2) in section 149 to provide that a person cannot be found guilty of the offence of obstructing an authorised officer if that officer had not previously identified him or herself and had not warned the person of the nature of the offence.

[25]. Is a transitional provision that makes it clear that section 106 as amended by clause 12 of the Bill does not apply to proprietors in respect to persons who are residents before the provision comes into force.

The Committee makes no further comment.

Heritage (Further Amendment) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 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 improve the operation and administration of that Act. The main amendments to the Act are to —

• enable registration of objects whether or not they are attached or adjacent to a registered place or a place nominated for inclusion in the Heritage Register;

• enable the Heritage Council to adjourn the period within which the Council must determine a permit appeal;

• require the consent of the relevant owner to an application for consent under section 129 of the Act in relation to an archaeological relic;

• increase the range of orders a court may make, and the powers of the Executive Director, in relation to contraventions of the Act.

Content and Committee comment

[Clauses]

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

[5]. Repeals section 25 of the Act which restricted the registration of objects to those that were in or attached to a place and were part of the significance of the place.

[12]. Amends section 50 to enable an applicant for a heritage certificate to know if a repair order has been issued for an object as well as a place.

[13]. Amends section 52 to enable penalties to be imposed on a person selling a registered place or registered object who has not informed the Executive Director as is currently required by this section.

[14]. Inserts a new section 52A that requires new owners of registered places and registered objects to notify the Executive Director within 28 days of purchase or acquisition of their name and address and if the place is a building, whether they intend to occupy the building. The purpose of this amendment is to ensure that accurate records of all owners of registered places and objects are maintained. Penalties are provided in the Act for a failure by an owner to undertake this action.

[15]. Amends section 58 and provides for an interim protection order relating to an object to be able to be served by displaying it on or near that object. The display can be near a heritage object to prevent damage to the object.

[16]. Amends section 59 to require a notice of the existence of an interim protection order relating to an object to be displayed on or near the object. The display can be near a heritage object to prevent damage to the object.

[18]. Amends section 68 to provide that the owner of an object can be required to display a copy of an application for a permit relating to that object on or near that object. The display can be near a heritage object to prevent damage to the object.

Search warrants and powers of entry

[27]. Amends section 150 to enable an inspector to be able to enter a building or land other than a residence to investigate the cultural heritage significance of an object or to determine that the Act is being complied with in relation to a registered object.

[28]. Amends section 150A to empower an inspector to apply to a magistrate for a search warrant in relation to a registered object at a place which is a residence, for the purposes of obtaining evidence if the inspector believes on reasonable grounds that there may be evidence of the commission of an offence against the Act or regulations.

[29]. Amends section 150E to provide that an inspector may apply to a magistrate for an order permitting entry to a residence for the purpose of investigating the cultural heritage significance of an object at that residence. Section 150E provides that an order can only be applied for if the occupier of the residence refuses to give written consent to entry or if the occupier of the residence cannot be located and the inspector or authorised person is satisfied that the residence is unoccupied.

The Committee makes no further comment.

Land (Miscellaneous) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill revokes reservations and Crown grants over certain land and amends the Melbourne Cricket Ground Act 1933 in order to provide for reservation of a stratum of land at the Melbourne Cricket Ground. Consequential amendments are also made to the Melbourne Cricket Ground Trust Act 1989.

Content and Committee comment

[Clauses]

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

[3]. Provides for revocation of reservations and Crown grants over land formerly used for the site of the Kyneton Hospital.

[4]. Revokes part of a reservation and Crown grant over land at Sandhurst reserved for water supply purposes.

[10]. The Registrar of Titles is authorised to make any necessary changes to the Register under the Transfer of Land Act 1958 resulting from the operation of the Bill.

[12]. Provides for the addition of a stratum of land to the Melbourne Cricket Ground.

The Committee makes no further comment.

Land Tax (Amendment) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill makes amendments to the Land Tax Act 1958 (the ‘Act’) to insert a new Part into the Act which imposes land tax as from 1 July 2004 on certain easements held by electricity transmission companies. After a transitional period, the Bill provides that the value of the taxable easements will be determined by the Valuer-General every second year, and will be indexed in alternate years.

The Bill amends the Valuation of Land Act 1960 to insert provisions regarding the valuation of the relevant easements for the purposes of the Land Tax Act 1958, and to allow for objections to those valuations.
The Committee notes this passage from the Second Reading Speech –

An easement is an interest in land owned by another person. An easement gives the holder a right to use a portion of the land owned by another in a particular way, or to prevent the landowner from using a portion of their land in a certain way. Easements are legal interests in land and recognised as such by the registrar of titles.

The Bill provides that electricity transmission easements will become taxable. These are defined as interests in land held by electricity transmission companies operating under the Electricity Industry Act 2000. The extent and value of these types of land holdings acquired by large electricity transmission companies is significant, and it is appropriate that they constitute taxable interests in land for the purposes of the Land Tax Act 1958.

The provisions of the Bill do not apply to any other type of easement in Victoria.

The tax is expected to raise approximately $75 million in the 2005 calendar year.

This Bill also makes several amendments to the Valuation of Land Act 1960 which are necessary to support the land tax changes that are being introduced.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on Royal Assent.

[3]. Part 2 of the Bill amends the Act for the purposes of imposing land tax on transmission easements at current land tax rates. The Commissioner of State Revenue will assess the tax based on easement holdings at a specific date, and issue notices of assessment accordingly. Relevant existing provisions relating to objections to tax assessments, recovery of tax and general administration are amended as required to ensure they are applicable.

[6]. Inserts Part IIB into the Act (new sections 13M–13T). New section 13M imposes the tax and new section 13N details the method of assessment of land tax on transmission easements.

[9]. Provides a scheme for taxpayers to make objections to assessments of land tax on transmission easements.

Amendment to the Valuation of Land Act 1960

Part 3 of the Bill inserts provisions into the Act regarding valuation of transmission easements, which are necessary as a result of the changes made by the Bill to the Land Tax Act 1958.

[15]. Inserts new section 5B into the Act which provides for the valuation of transmission easements.

[20]. Inserts new section 17A into the Act, which contains the objection provisions applicable to valuations of transmission easements.

The Committee makes no further comment.

Surveillance Devices (Amendment) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Surveillance Devices Act 1999 (the ‘Act’) –

• with respect to warrants and emergency authorisations for the use of surveillance devices; and

• recognises warrants and emergency authorisations that have been issued in other jurisdictions.

The Committee notes this extract from the explanatory memorandum –

This Bill implements national model legislation that was developed by a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council to facilitate the use of surveillance devices by law enforcement agencies in cross-border investigations. The model law was published in November 2003 in the Joint Working Group's Report on Cross-Border Investigative Powers for Law Enforcement.

To simplify the regulatory regime in Victoria, the Bill implements the model legislation not only in relation to cross-border investigations, but also (wherever possible) to local investigations. This will mean that law enforcement officers will be able to obtain one warrant that will apply locally and in other participating jurisdictions (once those jurisdictions also enact the model).

Major points of interest about this Bill from the Attorney-General’s Second Reading Speech –

• Currently cross-border investigations require separate surveillance device warrants for each jurisdiction.

• The Bill provides a nationally co-ordinated approach to powers for cross-border criminal investigations.

• The Bill implements national scheme model surveillance devices laws closely based on the provisions already existing in the Victorian Act. The Act as amended will allow law enforcement officers to obtain a single warrant that will apply both within Victoria, and in other participating jurisdictions.

• Other than devices that are installed pursuant to judicial warrant or emergency authorisation the use of surveillance devices are prohibited.

• New surveillance devices may be prescribed by regulations.

• Emergency warrants may be issued by senior law enforcement officers however a retrospective approval (or an order to cease use) for the device will need to be made by a judge of the Supreme Court within 2 working days of the use of such a device. All applications for warrants and retrospective approval of authorisations are to be made in closed court.

• Warrants and emergency use authorisations issued in other jurisdictions may be executed in Victoria and Victorian warrants and authorisations will be able to be executed in participating jurisdictions.

• The Bill provides protection for ‘protected information’ gathered as a consequence of the use of a device or protected information relating to the warrant application process for a device. The Bill also prescribes the circumstances in which protected information may be communicated in certain limited circumstances.

• Law enforcement agencies will have to take active steps to discontinue and retrieve devices and to seek warrant revocation devices when devices are no longer needed.

• The Bill provides for additional reporting of device usage by law enforcement agencies and tabling of an annual report in Parliament with relevant information.

• The Bill creates an oversight role for the Victorian Ombudsman and the Commonwealth Ombudsman with half yearly reports concerning compliance of agencies with the legislation to the respective Parliaments.

Submission

The Committee received a submission of the Victorian Privacy Commissioner concerning the definition of ‘tracking device’ for the purposes of the legislation. The Committee reproduces the report as Appendix 5.

The Committee notes the current definition of ‘tracking device’ means an electronic device the primary purpose of which is to determine the geographical location of a person or an object.

Parliamentary Committees Act 2003, section 17(iv) - unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000. The Committee notes the submission of the Victorian Privacy Commissioner concerning the existing definition of ‘tracking device’ in section 3 of the Act namely that the continued inclusion of the words ‘primary purpose’ within the definition is inconsistent with the Model Bill and as adopted by other jurisdictions. As the definition will now apply to cross-border surveillance and warrants issued outside Victoria the Committee will seek further clarification from the Attorney-General whether the existing definition of ‘tracking device’ is appropriate and proportionate for the purposes of the Act. Pending the Attorney-General’s advice the Committee draws attention to the provision.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation.

The Committee notes the Minister’s Second Reading Speech and the following extract from the explanatory memorandum concerning the commencement by proclamation provision.

This is necessary because, in order for the provisions of the Bill that confer powers and duties on officers of the Australian Crime Commission to be effective, the Commonwealth Government will need to make regulations under the Australian Crime Commission Act 2002 (Cth). In addition, the Commonwealth Parliament will need to pass legislation to enable the Commonwealth Ombudsman to perform proposed functions under the Bill.

[4]. Amends the ‘purposes’ section of the Act to allow for the recognition of warrants and emergency authorisations that are issued in other jurisdictions for the installation and use of surveillance devices (the new Part 4A of the Act).

[9]. Substitutes Division 1 in Part 4 of the Act and consists of sections 13 to 20 and sections 20A to 20H.

The Division sets out the types of warrant that may be issued (surveillance or retrieval), which court may issue a type of warrant, the application process for a warrant, including remote applications and emergency applications. A retrieval warrant authorises the retrieval of a surveillance device when the warrant under which the device was installed has expired or is no longer applicable.

New section 14 provides that a Supreme Court judge can deal with an application for any warrant, whereas a magistrate has the power to issue warrants for tracking devices only.

New section 15 concerns the application process for a surveillance device warrant and new section 16 concerns remote applications. This enables warrant applications to be made by telephone, facsimile, e-mail or other means of communication where it is impracticable for the law enforcement officer to apply in person. Applications, extension application, revocation or retrieval applications are all to be heard in closed court.

New section 17 sets out the matters the judge or magistrate must take into account when determining warrant applications and new section 18 sets out what a surveillance device warrant must specify.

New section 19 details what a surveillance device warrant authorises. The amended section will authorise a surveillance device to be installed, used, maintained and retrieved in relation to particular premises, an object or class of object, or a person.

New section 20B imposes obligations on the chief officer of a law enforcement agency to ensure that the use of a surveillance device is discontinued and an application is made for the warrant to be revoked, if the use of the device is no longer necessary.

New section 20C allows an application to be made for a retrieval warrant. The application process is similar to an application for a surveillance device warrant.

New section 20D allows an application for a retrieval warrant to be made by telephone, facsimile, e-mail or other means of communication if it is impracticable for the law enforcement officer to apply in person.

New section 20E sets out the matters the Supreme Court judge or the magistrate must take into account when determining an application for a retrieval warrant. New section 20G details what a retrieval warrant authorises.

Emergency application and retrospective court application

[10]. Substitutes Division 3 in Part 4 of the Act concerning emergency authorisations. The new Division consists of sections 25 to 30A.

New section 26 allows a senior officer of a law enforcement agency to give an emergency authorisation for the use of a surveillance device in limited circumstances where there is an imminent threat of serious personal violence or substantial property damage. The provisions then go on to provide for retrospective court approval or cancellation of en emergency authority.

New section 27 allows a senior officer of an agency to give an emergency authorisation for the use of a surveillance device in serious and urgent circumstances where a serious drug offence has been, is being, is about to be or is likely to be committed. Authorisation under section 27 allows the law enforcement officer to whom it is given to do all the things that may be authorised by a surveillance device warrant, except that the device cannot be installed or used outside Victoria.

New section 28 requires a senior officer to apply to a Supreme Court judge within two business days for approval of the exercise of powers under the emergency authorisation.

New section 30 sets out what the Supreme Court judge must be satisfied of before approving the emergency use of powers.

[11]. Inserts a new Part 4A into the Act concerning the recognition of corresponding warrants and authorisations.

New section 30B ensures that a corresponding warrant can be executed in Victoria as if it were issued under the Act and new section 30C ensures that a corresponding emergency authorisation can authorise the use of a surveillance device in Victoria as if it were given under the Act.

[13]. Inserts new Divisions 1, 2 and 3 into Part 5 of the Act dealing with restrictions on use, communication and publication of information.

New section 30D defines "protected information". It includes not only information obtained from surveillance devices under warrants and emergency authorisations, but also information that relates to the application process behind warrants and emergency authorisations.

New section 30H obliges the chief officer of a law enforcement agency to ensure the secure storage and eventual destruction of records and reports obtained from the use of surveillance devices under warrants and emergency authorisations.

New section 30L provides that the chief officer of a law enforcement agency must report annually to the Minister administering the Act.

New section 30P obliges the Victorian Ombudsman to inspect the records of Victorian law enforcement agencies and the Commonwealth Ombudsman to inspect the records of the Australian Crime Commission, to determine the extent of each agency's compliance with the Act.

New section 30Q obliges both the Victorian and Commonwealth Ombudsman to report to the Victorian Parliament on the results of their inspection, and cause a copy of the report to be given to the Attorney-General.

[16]. Substitutes a new section 37 which is a general regulation-making power. Regulations may be made to declare a corresponding law, prescribe offences for the purposes of the definition of "relevant offence", prescribe SES positions in the Australian Crime Commission to be senior officers, and prescribe new kinds of surveillance devices.

[18]. Inserts necessary transitional provisions into the Act to cover existing and outstanding warrants and authorisations and installed devices that are necessary to preserve as a consequence of the adoption of the model law.

The Committee makes no further comment.

Transfer of Land (Electronic Transactions) Bill

Introduced: 31 March 2004
Second Reading Speech: 1 April 2004
House: Legislative
Minister introducing Bill: Hon. Mary Delahunty MP
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Transfer of Land Act 1958 (the ‘Act’) to provide for the lodgement and registration of electronic land transactions and to empower the Registrar to require verification of identity before registering an instrument under the Act and to amend the Instruments Act 1958 to remove any doubt as to the application of the Electronic Transactions (Victoria) Act 2000 to instruments affecting land.

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

The electronic conveyancing system will not replace the traditional paper-based conveyancing system, it will simply provide an alternative means of conducting conveyancing transactions, from settlement through to the registration of the instruments supporting the transaction. Those in the community who wish to continue using the paper-based conveyancing system will not be disadvantaged by the introduction of an electronic conveyancing system. Care has been taken to ensure that the government guarantee of title continues in the electronic title legislation system, but it has not been extended to the prelodgment component of conveyancing, particularly financial settlement and exchange of funds.

Content and Committee comment

[Clauses]

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

[4]. Inserts a new section 27AB to provide the Registrar with a clear power to refuse to register an instrument under section 27A unless the Registrar is satisfied as to the identity of any person by or on behalf of whom the instrument was executed. The Registrar may approve, by notice published in the Government Gazette, a person or body or class of persons or bodies as verifiers.

[6]. Inserts a new Part IIIA consisting of new sections 44A to 44N.

New section 44A provides the Registrar with the power to refuse to accept an electronic instrument for registration unless the electronic instrument contains the information required by the Registrar.

New section 44B provides the Registrar with the power to provide or cause to be provided an electronic lodgement network for the purpose of lodging electronic instruments for registration.

New section 44H provides that the Registrar may amend the Register to correct errors and supply entries or recordings omitted to be made in the Register if the error or omission resulted from a malfunction of the electronic lodgement network.

New section 44K provides that the Registrar, by notice published in the Government Gazette, may specify any matters relating to an electronic instrument that must be certified under this Part; and the method of electronic certification required for those matters; and the class or classes of person who may certify those matters.

[7]. Inserts new sub-paragraphs (ff) and (fg) in section 120(2) of the Act to provide the Governor in Council with the power to make regulations in relation to requirements for electronic instruments for the purposes of new Part IIIA; requirements for the electronic lodgement network.

[9]. Inserts a new sub-section (2) into section 126 (dealings in land to be evidenced in writing) of the Instruments Act 1958 to declare that the requirements of section 126 may be met in accordance with the Electronic Transactions (Victoria) Act 2000.

[10]. Inserts a new sub-section (3) into section 75 of the Property Law Act 1958 to provide that the right to attestation provided in section 75(1) does not apply to an electronic instrument within the meaning of the Act.

The Committee makes no further comment.

Committee Room
19 April 2004

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria