Alert Digest No 4 of 2004

Tuesday, 4 May 2004

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Alpine Resorts (Management) (Amendment) Bill

Introduced: 21 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Alpine Resorts (Management) Act 1997 (the ‘Act’) to provide –

• that the development, promotion, management and use of alpine resorts be included in the objects of the Act;

• provide for the amalgamation of the "Mount Buller Alpine Resort Management Board" and the "Mount Stirling Alpine Resort Management Board" and the creation of the Mount Buller and Mount Stirling Alpine Resort Management Board.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill, other than Part 3, come into operation on Royal Assent. Part 3 comes into operation on proclamation but not later than by 1 February 2005.

[3]. Inserts a new section 1A specifying the object of the Act in respect to the development, promotion, management and use of alpine resorts.

[6]. Amends section 17 of the Act to increase the number of persons to be appointed to the Alpine Resorts Co-ordinating Council ('the Council') by the Governor in Council, on the recommendation of the Minister, from 3 to 4 persons.

[12]. Inserts an additional regulation making power into section 57(1) of the Act to provide that the Governor in Council may make regulations with respect to the removal and impoundment of vehicles that obstruct roads, rights of way and other trafficable areas within alpine resorts. A fee may be charged to cover the reasonable cost of such removal.

[14]. Amends section 34 to provide for the establishment of the "Mount Buller and Mount Stirling Alpine Resort Management Board" to replace the "Mount Buller Alpine Resort Management Board" and the "Mount Stirling Alpine Resort Management Board".

[16]. Provides for transitional arrangements dealing with the transfer of property and staff from the former Boards to the Mount Buller and Mount Stirling Alpine Resort Management Board established by the Bill.

The Committee makes no further comment.

Births, Deaths and Marriages Registration (Amendment) Bill

Introduced: 20 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Births, Deaths and Marriages Registration Act 1996 (the ‘Act’) to provide for the recognition of the sex of persons who have undergone sex affirmation surgery.

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

The Bill amends the Births, Deaths and Marriage Registration Act 1996, to provide a mechanism for people with transsexualism to have their birth records amended and to be issued with a new birth certificate reflecting their affirmed sex. The Bill adopts the model used in most other Australian jurisdictions to enable transsexual people to have their birth records amended.

A person with transsexualism is a person who was born anatomically male or female but has a profound identification with the opposite sex. Transsexualism is not a lifestyle choice - it is an issue of personal identity which goes far beyond outward appearance.

Victoria is the only jurisdiction in Australia which does not provide a mechanism under which a person with transsexualism can apply to have the sex on their birth certificates changed to reflect their affirmed sex upon presentation of appropriate medical evidence of transition. This gives rise to the inequitable situation where an Australian transsexual person born in any state or territory other than Victoria can have a new birth certificate issued to reflect their affirmed sex following sex affirmation surgery. Internationally, numerous other jurisdictions make similar provisions, including New Zealand, Canada, almost all the United States and the European Union, and many parts of Asia.

The inability for Victorians with transsexualism to have a birth certificate issued in their affirmed sex has a significant negative impact on many lives. In addition to denying them the same right as all other Australians to a birth certificate which accurately reflects their personal details, it often leads to an increased risk of discrimination and even violence. For example, consider the situation where a man of transsexual background is required to show his birth certificate in order to gain employment. That person will present as a male and have a male name on the birth certificate, but the birth certificate would record his sex as female. This not only leads to the necessity for embarrassing explanations, it also makes the person's transsexual history evident. This, in turn increases the chances of unlawful discrimination and perhaps even violence against the person.

Content and Committee comment

[Clauses]

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

Recognition of Sex (Transsexualism) by amendment of birth certificate

[5]. Inserts a new Part 4A into the Act consisting of new sections 30A to 30H.

New section 30A provides that an unmarried person who is aged 18 years or over, and whose birth is registered in Victoria and who has undergone sex affirmation surgery, may apply to the Registrar of Births, Deaths and Marriages for the record of the person's sex in the person's birth registration to be altered. New section 30B provides for proof of sex affirmation surgery by way of statutory declarations of medical practitioners.

New section 30D provides that following alteration of the Register any new certificate which the Registrar issues to the applicant must state the person's sex in accordance with the record as altered and must not state that the record of the person's sex has been altered or any former name the person may have had.

Recognition of Sex Transsexualism by issue of document acknowledging identity for residents born overseas

New section 30E and 30F will allow an unmarried Victorian resident who has undergone sex affirmation surgery, who is 18 years or over and who is born overseas to acquire a document acknowledging identity.

Access to information on the registry

[6]. Section 48 of the Act provides that the Registrar may grant a person access to the Register of Births, Deaths and Marriages taking into account a number of considerations, including the sensitivity of the information which the person is seeking to access. The clause amends section 48(2)(b) of that Act to provide that where the Registrar is considering whether or not to grant access to the Register, the Registrar must take particular account of the sensitivity of an entry in the Register which relates to records altered under the Part 4A inserted by the provisions in the Bill.

The Committee makes no further comment.

Courts Legislation (Funds in Court) Bill

Introduced: 20 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the –

• Supreme Court Act 1986 by creating a new ‘Common Fund No. 3’.

• County Court Act 1958, the Magistrates' Court Act 1989 and the Victims of Crime Assistance Act 1996 by providing that moneys awarded to persons under disability are to be paid to the Senior Master of the Supreme Court to hold on behalf of those persons.

• Trustee Act 1958 and the Transfer of Land Act 1958 by providing that moneys to be paid into court pursuant to those Acts may be paid only to the Senior Master of the Supreme Court.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 1 July 2004.

[4]. Inserts section 113A into the Supreme Court Act 1986 establishing the ‘Common Fund No. 3’ which allows the Senior Master to invest funds held on behalf of persons under disability in securities listed on a prescribed financial market.

The new section provides that income and any capital gain arising from the Fund is to be apportioned between the Fund's beneficiaries.

[5]. Inserts section 39C into the County Court Act 1958 which provides for the transfer of funds held by the County Court on behalf of persons under disability to the Senior Master.

[6]. Inserts section 101B into the Magistrates' Court Act 1989 and provides for the transfer of funds held by the Magistrates' Court on behalf of persons under disability to the Senior Master.

[9]. Inserts a new section 70A into the Victims of Crime Assistance Act 1996 and provides for the transfer of funds held by the Victims of Crime Assistance Tribunal on behalf of persons under disability to the Senior Master.

The Committee makes no further comment.

Courts Legislation (Judicial Appointments) Bill

Introduced: 20 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Magistrates' Court Act 1989 (the ‘Act’) and the Judicial Remuneration Tribunal Act 1995 to enable magistrates to work on a part-time basis; and to amend the Supreme Court Act 1986, the County Court Act 1958 and the Magistrates' Court Act 1989 to alter the eligibility criteria for certain judicial officers.

Content and Committee comment

[Clauses]

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

[4]. Inserts a new sub-section (1A) into section 7 of the Act to permit magistrates (other than the Chief Magistrate) to be appointed on a part-time basis and sets out the powers, duties, protection and immunity of part-time magistrates, including restrictions on engaging in legal practice during the term of appointment of a part-time magistrate.

[6]. Inserts a new 13(3) to allow magistrates to be appointed on a full-time basis by written agreement with the Chief Magistrate.

[7]. Amends clauses 2 and 3 of Schedule 1 to the Act to provide that part-time magistrates, including part-time Deputy Magistrates, be paid a pro-rata salary. The clause also amends clause 9 of Schedule 1 to the Act to provide that, apart from clauses 2 and 3 of the Schedule allows the salaries or allowances of magistrates to be reduced.

[10]. Inserts section 8(1A) in the County Court Act 1958 to alter the eligibility criteria for the appointment of judges, including the Chief Judge.

[11]. Substitutes section 17A(3) of the County Court Act 1958 to alter the eligibility criteria for the appointment of masters to the County Court.

[12]. Substitutes section 104(3) of the Supreme Court Act 1986 to alter the eligibility criteria for appointment as a Master, Senior Master, Registrar of the Court of Appeal, Listing Master, Registrar of Criminal Appeals or Taxing Master.

The Committee makes no further comment.

Energy Legislation (Regulatory Reform) Bill

Introduced: 20 April 2004
Second Reading Speech: 21 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the –

• Electricity Industry Act 2000 to replace the existing Victorian electricity supply industry Tariff Order with a more limited Order, to clarify when a generation company is liable to be rated in respect of land used for generation functions and to improve generally the operation of that Act.

• Gas Industry Act 2001 to replace the Victorian gas industry Tariff Order with a more limited Order, to repeal certain provisions regulating significant producers of gas and to improve generally the operation of that Act.

• Electricity Industry (Residual Provisions) Act 1993 in relation to the regulation of charges for electricity purchased under the National Electricity Code.

• Electricity Safety Act 1998 in relation to electricity safety management schemes.

Content and Committee comment

[Clauses]

[2]. Other than sections 3-5, 10-12, 21 and 24 the provisions in the Bill come into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than by 30 June 2005.

[17]. Repeals Part 5 of the Gas Industry Act 2001, which prohibited a significant producer from engaging in anti-competitive conduct. The Trade Practices Act 1974 (Cth) prohibits anti-competitive conduct by corporations, including significant producers.

The Committee makes no further comment.

Justice Legislation (Sexual Offences and Bail) Bill

Introduced: 21 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon.Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the –

• Crimes Act 1958 to create offences in relation to sexual servitude and sexual performances involving a minor; and to amend offences in relation to child pornography.

• Evidence Act 1958 in relation to the giving of evidence in cases for sexual servitude offences.

• Sentencing Act 1991 to classify sexual servitude offences as serious offender offences.

• Bail Act 1977 in respect of failure to answer bail and extension of bail

• County Court Act 1958 to give a registrar or a deputy registrar the power to extend bail in certain circumstances.

Content and Committee comment

[Clauses]

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

Part 2 amends the Crimes Act 1958 to create a series of offences relating to sexual servitude, deceptive recruiting for commercial sexual services and sexual performances involving a minor. It amends offences in the Crimes Act 1958 relating to child pornography. It also amends the Evidence Act 1958 to apply a number of evidentiary and procedural rules to the new sexual servitude and deceptive recruiting offences. It amends the Sentencing Act 1991 to enable the application of Part 2A of that Act to sexual servitude offences.

Crimes Act 1958

[3]. Inserts a new sections 60AB to 60AE relating to offences of sexual servitude.

New section 60AB(2) creates a new offence relating to sexual servitude.

New section 60AB(3) creates an offence to induce or cause a person to provide commercial sexual services, knowing or being reckless about whether the person will not be free to stop providing those services because of the use of force, threat, unlawful detention, fraud or misrepresentation or a manifestly excessive debt.

New section 60AB(4) creates an offence of conducting a business that involves providing commercial sexual services, knowing or being reckless as to whether the persons providing those services are not free to stop providing those services because of force, threats, unlawful detention, fraud or misrepresentation or a manifestly excessive debt.

New section 60AC creates an offence of aggravated sexual servitude where a person commits an offence against section 60AB(2), (3) or (4) and intended to commit, or was reckless about committing, the offence against a person under 18 and the person was in fact under 18 years of age.

New section 60AD creates a new offence of deceptive recruiting for commercial sexual services.

New section 60AE creates an offence of aggravated deceptive recruiting for commercial sexual services where a person commits an offence against section 60AD and the person intended to commit, or was reckless as to committing, the offence against a person under 18 and the person was in fact under 18 years of age.

[4]. Amends the definition of "child pornography" in section 67A by removing the words "under 16". The effect of this amendment is to include in the definition depictions of minors aged 16 and 17.

[5]. Amends section 69 (Procurement of a minor for child pornography) to make it an offence to cause or to offer a minor (under 18) to be in any way concerned in the making or production of child pornography.

Section 69 already makes it an offence to invite a minor to be in any way concerned in the making or production of child pornography, or to procure a minor for the purpose of making or producing child pornography.

[6]. Amends sections 70(2)(c) and 70(3) in respect to the possession of child pornography, to raise the age threshold to 18 years for certain defences in relation to possession of child pornography.

[7]. Inserts new section 70AB to 70AC in respect to sexual performances involving a minor.

New section 70AC prohibits a person from inviting, procuring, causing or offering a minor to be in any way concerned in a sexual performance in circumstances where there is payment or reward to the minor or to any other person in respect of the performance.

Evidence Act 1958

[8]. Amends section 37B and 37C of the Act to apply special evidentiary rules to the sexual servitude and deceptive recruiting offences. This will mean that the rules relating to the use of recorded evidence-in-chief in a legal proceeding and for alternative arrangements for giving evidence will also apply to the sexual servitude and deceptive recruiting offences.

Sentencing Act 1991

[9]. Inserts the sexual servitude and deceptive recruiting offences into Schedule 1 to the Sentencing Act 1991 to apply special sentencing rules to the new offences. The sexual servitude and deceptive recruiting offences will be classified as sexual offences for the purposes of the Sentencing Act 1991.

Bail Act 1977

[10]. Repeals section 4(2)(c) of the Act which applies where a defendant has been released on bail to appear in court on a specified date, fails to appear in court on that date, is arrested for failing to appear and then again applies for bail. In this situation the section requires the court to refuse bail unless the defendant satisfies the court that the failure to appear was due to causes beyond his or her control.

The repeal will enable a court to balance the full range of considerations in deciding whether to grant bail to a defendant.

[11]. Amends section 16(3) to broaden the basis on which a court can extend a person's bail in their absence. Currently the section allows a court to extend a person's bail where it is satisfied that the person is by reason of illness or accident or other sufficient cause unable to appear personally in response to bail. The amendment will broaden the basis on which a court can extend a person's bail in their absence. The section will now provide that a court can extend a person's bail where it is satisfied that the accused is not present for sufficient cause.

The effect of the amendment is that a court will now be able to extend bail in the absence of a defendant not only when the defendant is unable to attend because of illness or accident but in any circumstance where the court is satisfied that the defendant is not present for sufficient cause.

The Committee makes no further comment.

Primary Industries Legislation (Miscellaneous Amendments) Bill

Introduced: 21 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill amends the Agricultural and Veterinary Chemicals (Control of Use) Act 1992, the Dairy Act 2000, the Fisheries Act 1995, the Fisheries (Further Amendment) Act 2003, the Plant Health and Plant Products Act 1995 and the Stock (Seller Liability and Declarations) Act 1993; and repeals the Australian Food Industry Science Centre Act 1995.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill, except clauses 22 to 26, 28 and 29 to come into operation on the day after Royal Assent. The remaining provisions come into operation on a day or days to be proclaimed but not later than by 1 January 2005.

[3]. Amends the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 by inserting a new section 54(1A) which expands the range of things that may be sampled by an authorised officer in order to ascertain possible sources of agricultural spraying or the cause of stock or agricultural produce being contaminated or in order to monitor compliance with the Act and regulations and Orders made under the Act.

[4]. Repeals section 66(5) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 so that a person aged 72 years or more is eligible for appointment or re-appointment as a member of the Agricultural Chemicals Advisory Committee.

[10]. Amends section 9(4) of the Plant Health and Plant Products Act 1995 to refer to used packages, used agricultural equipment and soil in addition to plants and plant products. This means that it will also be an offence to move any of those things into or out of a control area past a sign on a highway indicating that such movement is prohibited.

[12]. Inserts a new section 28A into the Plant Health and Plant Products Act 1995. Under new section 28A(1) the Minister is able to certify by an order in writing that an outbreak of an exotic pest or disease exists in Victoria, or in a part of Australia outside Victoria and that it is necessary or expedient to take action to prevent or reduce the risk of the spread of the pest or disease to Victoria.

Section 28A(2) provides that when an order under section 28A(1) is made by the Minister, no court proceedings can be taken or continued against the Minister, the Secretary, an inspector or other person that would stop, prevent or restrain the Minister, the Secretary or an inspector or other person from taking action under the Plant Health and Plant Products Act 1995 in relation to or in consequence of an outbreak or suspected outbreak of an exotic pest or disease within Victoria or another part of Australia.

Section 28A(3) provides that an order under new section 28A comes into effect on publication in the Government Gazette.

Section 28A(4) provides that nothing in section 28A prevents the institution or continuation of proceedings to recover damages for any loss or damage resulting from an act or omission in the negligent exercise of a power or authority conferred by or under the Act.

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).

[13]. Inserts new section 71E into the Plant Health and Plant Products Act 1995 and declares that it is the intention of new section 28A(2) to alter or vary section 85 of the Constitution Act 1975.

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

New section 28A(1), to be inserted by clause 12 of the Bill, will enable the Minister to certify that an outbreak of an exotic pest or disease exists in Victoria, or that an outbreak of an exotic pest or disease exists in a part of Australia outside of Victoria and it is necessary or expedient to take action, including making an order under the Plant Health and Plant Products Act 1995, to prevent or reduce the risk of the spread of the pest or disease to Victoria.

New section 28A(2) will prevent the institution or continuation of court proceedings that may stop, prevent or restrain the Minister, the secretary, an inspector or any other person from taking any action under the act, including making an order or authorisation under the Act, in response to certification by the Minister that an outbreak of an exotic pest or disease exists in Victoria or in any part of Australia outside Victoria.

The reason for preventing the institution or continuation of any proceedings in the Supreme Court that would seek to stop, prevent or restrain action taken in response to an outbreak or suspected outbreak of an exotic pest or an exotic disease in Victoria or in any part of Australia outside Victoria, is that any preventive action to be taken following such an outbreak must be put in place immediately. Delays in taking such action caused by proceedings before a court, even by a matter of hours, could result in the rapid spread of a pest or disease, adding significantly to the impact and costs of any eradication response.

If there is an outbreak of an exotic pest or disease, such as lupin anthracnose, in another state, Victoria would have to take immediate response actions such as imposing bans on the movement of plants until the situation and the risks to Victoria were fully evaluated.

It is clear from Exercise Minotaur that immediate response actions are required when an exotic pest or disease is confirmed or suspected to be present in any part of Australia.

[19]. Inserts a new Part 4A into the Stock (Seller Liability and Declarations) Act 1993 to provide for a review by the Victorian Civil and Administrative Tribunal of a decision by the Secretary to refuse to register, to suspend or to cancel the registration of an ongoing declaration.

[21]. Amends the regulation-making powers in section 38(1)(g), (i) and (j) of the Stock (Seller Liability and Declarations) Act 1993 to enable a disease to be prescribed for the purpose of a declaration under the Act.

[23]. Repeals the Australian Food Industry Science Centre Act 1995.

The Committee makes no further comment.

Private Security Bill

Introduced: 20 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

The Bill provides for the –

• licensing of businesses that provide the services of other persons to act as investigators, bodyguards, crowd controllers or security guards.

• licensing of individuals who act as investigators, bodyguards, crowd controllers or security guards.

• registration of business that provide the services of other persons to act as security equipment installers or security advisers.

• registration of individuals who act as security equipment installers or security advisers.

The Committee notes the following points from the Second Reading Speech –

• This Bill will amend the Private Agents Act 1996 so that it only regulates commercial agents and subagents (debt collectors.

• The Bill will regulate the other occupational categories currently regulated by the Act (security guards, security firms, crowd controllers and inquiry agents), as well as the additional categories of bodyguards, security equipment installers and security consultants.

• The Bill will require bodyguards to be licensed and will introduce registration requirements for security equipment installers and security advisers. The types of security equipment to be regulated will be prescribed in regulations and will include alarm and CCTV equipment.

• The Bill establishes a system of business and individual security licences and registrations. A business licence or registration will be necessary where the holder seeks to carry on the business of providing the services of other persons to carry out security activities

• The Bill will make it an offence to practise without a licence or registration; as a business licence or registration holder, provide the services of another person to carry on a security activity if that person is unlicensed or unregistered; and employ an unlicensed or unregistered person.

• If the identity of the applicant or other relevant person in relation to the application is unable to be confirmed by normal means, the Chief Commissioner of Police may require the person to be fingerprinted. Such fingerprints may only be used for the purposes of confirming identity for application purposes and must be destroyed within 28 days after they are no longer needed in relation to the application, or no later than six months from the date taken.

• Current licence-holders who are found to have committed a mandatory disqualifying offence within the prescribed period will have their licence cancelled.

• The Bill also establishes a formal complaints process whereby members of the community negatively affected by the actions of a licence or registration holder can lodge a complaint with the chief commissioner.

Content and Committee comment

[Clauses]

[2]. Clauses 1 and 2 and Division 2 of Part 12 come into operation on the day after Royal Assent. The remaining provisions commence on proclamation but not later than 1 July 2005.

[4]. Sets out the categories of persons who are exempted from the requirement to hold a licence, registration or temporary permit under the Bill. These categories include the current exemptions under the Private Agents Act 1966.

Offences relating to unlicensed or unregistered activity by businesses or individuals

[5 to 12]. Provides for various offences related to unlicensed or unregistered activity by either a body corporate or individuals in respect to providing private security services including investigators, bodyguards, crowd controllers or security guards unless those persons holds the appropriate private security business licence or registration.

Licensing of persons providing the services of others acting as investigators, bodyguards, crowd controllers or security guards

[14 to 70]. The Chief Commissioner may licence a person to carry on a business of providing persons to act as investigators, bodyguards, crowd controllers or security guards. There are provisions for fees, renewal and cancellation of licences, temporary permits, investigation of complaints and disciplinary proceedings

[14]. Provide for licensing of businesses carrying on the activities of providing the services of others who act as investigators, bodyguards, crowd controllers or security guards.

[15]. Concerns the licensing of individuals carrying on activities as investigators, bodyguards, crowd controllers or security guards.

[22]. In conducting an investigation or making an inquiry the Chief Commissioner may require a full set of fingerprints to provide proof of identity of the applicant and, in the case of an application for a business registration, a close associate of the applicant or the nominated person or an officer of an applicant that is a body corporate. Such fingerprints can only be requested where there is reasonable doubt as to identity and proof of identity cannot be ascertained by other reasonably available means. If any fingerprints are provided they must be destroyed within 28 days after they are no longer required or no later than 6 months from the date they were provided, whichever is the later. The person must be notified of the destruction as soon as practicable. Fingerprints that are provided under this clause are not admissible as evidence in any proceedings.

Registration of persons providing the services of others as security equipment installers or security advisers

[71 to 123]. Provides that the Chief Commissioner may register a person to carry on a business of providing other people to act as security equipment installers or security advisers. There are provisions for fees, renewal and cancellation of licences, temporary permits, investigation of complaints and disciplinary proceedings.

[71]. Provide for licensing of businesses carrying on the activities of providing the services of others who act as security equipment installers or as security advisers.

[72]. Concerns the licensing of individuals carrying on activity as security equipment installers or as security advisers.

[79]. Provides that, in conducting an investigation or making an inquiry the Chief Commissioner may require a full set of fingerprints to provide proof of identity of the applicant (see clause 22 above).

Bar to recovery of debts involving unlicensed or unregistered activity

[127]. Provides that a person is not entitled to sue for, recover or retain any commission, fee, gain or reward for providing services of others to carry on activities or for performing any activity for which a licence or registration is required under the Bill, unless the person was so licensed or registered at the time of providing the services or performing the activity. (Note: clause 179 of the Bill and the section 85 of the Constitution Act 1975 declaration and statement below).

Offence to employ unlicensed or unregistered persons

[131]. The holder of a private security business licence must not provide the services of a person to carry on the activities of an investigator, a crowd controller, a bodyguard or a security guard if the person is not licensed to carry on that activity. This clause further provides that a person must not employ or engage another person to carry on any of those activities unless the person reasonably believes that the other person is licensed to carry on that activity.

[132]. The holder of a private security business registration must not provide the services of a person to carry on the activities of a security equipment installer or a security consultant if the person is not registered to carry on that activity. This clause further provides that a person must not employ or engage another person to carry on either of those activities unless the person reasonably believes that the other person is registered to carry on that activity.

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).

[179]. Declares that it is the intention of sections 127(1) and (2) to alter or vary section 85 of the Constitution Act 1975.

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

Sections 127(1) and 127(2) provide that a person is not entitled to sue for any commission, fee, gain or reward for providing the services of persons to carry on any activity, or for carrying on any activity, for which the person requires a licence or registration under the act, unless that person holds such a licence or registration.

This provision mirrors section 20 of the Private Agents Act 1966, except that it extends the prohibition to the new categories covered by the licensing and registration regime under the Private Security Bill. The rationale for the prohibition is a simple one - providing services without a licence or registration is illegal and such illegal practices should not be rewarded.

Crowd controllers – additional provisions

[138]. Provides that the holder of a licence under the Bill to act as a crowd controller, while acting as such, must wear identification in accordance with the regulations.

[139 to 149]. Sets out the duties of the manager of an activity at a public place for which a crowd controller is employed or retained. The manager must make a register available and ensure that each crowd controller enters the required information in the register and keep that information for 5 years from when it was entered.

Review by Victorian Civil and Administrative Tribunal

[150]. Sets out the types of decisions made by the Chief Commissioner in relation to which a person whose interests are affected by the decisions may apply to the Victorian Civil and Administrative Tribunal for review of the decision. This clause does not apply where the relevant decision is a refusal to grant an application because one of the relevant persons in relation to the application is a prohibited person (defined in clause 13 as an offence under Part 5 (trafficking a drug of dependence or cultivation in a commercial quantity) of the Drugs, Poisons and Controlled Substances Act 1981 or an assault punishable by a term of imprisonment of 6 or more months.

Inspection and enforcement

[152 to 162]. Provides that the Chief Commissioner may appoint any person employed in the administration of the Act to be an authorised person for the purposes of this Bill. The Chief Commissioner must give an identity card to each authorised person and the card must contain certain details.

[154]. Provides that a member of the police force may apply to a magistrate for a search warrant in relation to particular premises if the member believes that an offence against the Bill or regulations is being or is about to be committed. The issue of such warrants is governed by the forms and procedures in accordance with the Magistrates’ Courts Act 1989.

Infringement notices

[163 to 170]. Provides that a member of the police force or an authorised person may serve an infringement notice on a person in relation to certain offences specified in the clause or that may be prescribed in the regulations.

Delegation

[171]. Provides that the Chief Commissioner may, by instrument, delegate any of his or her functions under this Bill or the regulations, other than the power of delegation, to various specified persons or classes of persons.

Notification requirement for criminal charges against licence or registration holder

[176]. Provides that if at any time during the course of a private security licence or registration, the holder or a close associate of the holder, or the nominated person or an officer of the body corporate (that is a holder) is charged, in the case of a licence, with a particular indictable offence or a disqualifying offence within the meaning of Part 3, or in the case of a registration, with an indictable offence, the holder, close associate, nominated person or officer (as the case may be) must notify the Chief Commissioner in writing of details of the alleged offence and the date and place of the hearing.

Minister to review Act

[178]. Provides for the Minister to review the Bill as soon as possible after the period of 3 years from the date of Royal Assent of the Bill and to table a report of the review in each House of Parliament within 12 months after the end of the 3 year period.

Regulations

[180]. Provides for the Governor in Council to make regulations on a range of matters relating to the administration of the private security licensing and registration regime under the Bill.

Consequential amendments to the Private Agents Act 1966 and other Acts

[186 to 206]. Makes amendments to the Private Agents Act 1966 and removes the definitions of and references to "crowd controller", "deputy registrar", "inquiry agent", "public place", "registrar", "security firm" and "security guard", as these will be obsolete and no longer regulated by the Act due to the new provisions in this Bill.

[205 to 211]. Makes amendments to other Acts consequential to the licensing and regulatory scheme introduced by the provisions in the Bill. The Acts amended are the – Major Events (Crowd Management) Act 2003, Melbourne and Olympic Parks Act 1985, Firearms Act 1996, Casino Control Act 1991, Gaming Machine Control Act 1991, Gaming No. 2 Act 1997, Gambling Regulation Act 2003.

The Committee makes no further comment.

Victorian Qualifications Authority (National Registration) Bill

Introduced: 21 April 2004
Second Reading Speech: 22 April 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Victorian Qualifications Act 2000 (the ‘Act’) to provide for a national scheme of registration for training organisations and for vocational education and training courses and qualifications.

The Committee notes this extract from the explanatory memorandum –

The main purpose of the Act is to provide for Victoria to participate in a national scheme of registration for organisations that provide training and assessments in vocational education and training and further education. The national scheme also provides for accreditation of vocational education and training and further education courses and qualifications. The Victorian Qualifications Authority will be required to investigate all applications for registration and accreditation for vocational education and training and further education having regard to the national standards. The Authority will continue to register those matters on the existing State Registers and also arrange for the details of those courses and qualifications to be recorded on the National Register.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 16 come into operation on the day after Royal Assent. The remaining provisions will come into operation on proclamation but not later than by 1 July 2005.

[6]. Inserts new section 21 (5), (6) and (7) in the Act to provide for applications to have a vocational education and training or further education course registered on the State and National Register and the conditions to be met for the Authority to consider those applications.

[11]. Inserts a new section 33A in the Act to enable the Authority to disclose information to other registering authorities and to provide protection to its officers in so doing.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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