Alert Digest No 5 of 2004

Tuesday, 24 May 2004

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Ambulance Services (Amendment) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Ambulance Services Act 1986 (the ‘Act’) to —

• enable the Minister to issue directions to ambulance services; and

• enable the Secretary to commission audits of ambulance services; and

• enable the Minister to appoint delegates to the boards of ambulance services; and

• require ambulance services to prepare strategic plans and statements of priorities; and

The Bill inserts a new offence in the Summary Offences Act 1966 in relation to the obstruction of operational staff members of ambulance services.

Content and Committee comment

[Clauses]

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

[7]. Repeals section 11 of the Act. The effect of this amendment is to remove the Secretary's duty to inspect the facilities of ambulance services from time to time.

[9]. Repeals section 14 of the Act. The effect of this amendment is to remove the requirement that a Director of Ambulance Services be employed under Part 3 of the Public Sector Management and Employment Act 1998.

[14]. Substitutes section 21 and 22 of the Act with new sections 21, 22 and 22A to 22H.

New section 22 provides that directors of ambulance boards are not personally liable for anything done or omitted to be done in the exercise of a power or discharge of a duty under the Act. Any liability that would ordinarily attach to a director, but for this immunity, will instead attach to the ambulance service.

[18]. Substitutes section 36 of the Principal Act, and inserts new sections 36, 37, 38, 38A and 38B.

Section 37 enables the Secretary to commission an audit of an ambulance service to determine whether the ambulance service is effectively using public funds, providing services of a high quality or meeting its objectives, priorities and key performance outcomes specified in its statement of priorities.

Privilege against self-incrimination

Section 38 provides for the appointment or engagement of auditors. New section 38A outlines the powers of auditors and makes it an offence to refuse or fail to give full and true answers to questions asked by an auditor, and to give information that is false or misleading. However, any answers given will not be admissible in any future criminal proceedings against the person, other than under this section. It is also an offence under this section to obstruct or hinder an auditor in the exercise of his or her powers.

Section 38B makes it an offence to inappropriately divulge information that has been acquired during the audit process.

[20]. Inserts sections 39AA and 39AB into the Act. Section 39AA establishes the new offence of giving a false report of an emergency to an ambulance service. Section 38AB authorises police, at the request of an operational staff member responding to a request to provide care or treatment, to remove any person who interferes or may interfere with the provision of care or treatment.

[23]. Inserts a new section 51 into the Summary Offences Act 1966. The new section makes it an offence to assault, resist, obstruct, hinder or delay an operational staff member in the course of attending to a patient.

The Committee makes no further comment.

Appeal Costs and Penalty Interest Rates Acts (Amendment) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the —

Appeal Costs Act 1998 (the ‘Act’) to —

• require a court to consider an order for costs before granting an indemnity certificate when a criminal proceeding is adjourned;

• introduce caps on payments in relation to adjournments in criminal proceedings;

• provide further for the powers of the Appeal Costs Board (the ‘Board’);

• provide that certain payments may not be made under the Appeal Costs Act 1998;

• provide time limits within which applications for payment must be made; and the

Penalty Interest Rates Act 1983 in relation to certain calculations of penalty interest.

Content and Committee comment

[Clauses]

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

[4]. Amends section 17 of the Act, which relates to payments for adjournments in criminal proceedings. The Court may only grant a certificate for the day that the proceeding is adjourned and, if appropriate, for the next sitting day and may only grant a certificate if it is satisfied that it is not appropriate to make a costs order against a party to that proceeding or another person in relation to that adjournment.

The amendment makes clear that where an adjournment has been caused by the fault of a party to a proceeding, it is that party which should bear the financial burden of the adjournment, rather than the Appeal Costs Fund.

The Attorney-General may by Order limit the amount which the Appeal Costs Fund will pay for adjournments in criminal proceedings.

[6]. Inserts new sections 35A to 35E into the Act to provide that the Board is not to make payments to corporations with a paid-up share capital of $200,000 or more, or to their subsidiary; to an insurer of a party whose rights have been subrogated to the insurer; or in respect of costs that are recoverable under an insurance policy (or would be but for any excess).

If an entity excluded by this provision successfully appeals a matter, the respondent to that appeal will still be entitled to a certificate in relation to any costs order against it, notwithstanding that the appellant is in an excluded class (unless the respondent also belongs to the excluded class).

New section 35C empowers the Board to require that costs that are the subject of an indemnity certificate be taxed by the taxing officer of the court concerned or by an assessor nominated by the Board.

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

Secondly, the Bill excludes certain classes of applicants from making application to the fund. Corporations with a paid-up share capital of $200 000 or more and their subsidiaries will not be able to claim against the scheme on the basis that they have sufficient resources to fund all the costs of litigation. Such corporations are predominately public companies with significant asset bases. Importantly the cap will not affect most family companies and small businesses, which typically have a very small paid-up share capital.

This exclusion is consistent with the position in the commonwealth, the territories, New South Wales and Western Australia.

Insurance companies that are litigants in subrogation of the rights of a policy holder will also not be able to make claims against the fund. These amendments will ensure that the fund's limited resources are directed towards those court users who are most in need of compensation to offset the financial burdens that may arise from the vicissitudes of litigation.

Validating provision

[8]. Inserts a new section 17 into the Penalty Interest Rates Act 1983 validating certain penalty interest rate calculations made under the provisions of the Act.

The Committee notes this extract from the explanatory memorandum –

A number of notices published in the Government Gazette under the Penalty Interest Rates Act 1983 have purported to fix new penalty interest rates from dates preceding the relevant gazettal publication dates. For example, a notice appeared in the Government Gazette dated 26 June 2003 which stated that a new interest rate commenced on 21 June 2003.

Pursuant to section 2 of the Penalty Interest Rates Act 1983, the earliest effective commencement date for a new rate is the date of gazettal. However, people may have relied on the dates stated in the notices. In order to confer certainty on transactions that have relied on these earlier dates, new section 17 provides that such calculations of penalty interest are not, by reason of that reliance alone, invalid.

Future calculations based on penalty interest rates gazetted prior to the commencement of the legislation should rely on the gazettal date as the effective commencement date of the new rates.

The Committee makes no further comment.

Appropriation (2004/2005) Bill

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

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund for the ordinary annual services of the Government for the 2004/2005 financial year.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on the day it receives Royal Assent.

[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2004/2005 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

Appropriation (Parliament 2004/2005) Bill

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

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund to the Parliament in respect of the 2004/2005 financial year. The amounts contained in Schedule 1 to the Bill provide for the ongoing operations of the Parliament, new output initiatives and new asset investment in so far as these are funded by way of annual appropriation.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on the day it receives Royal Assent.

[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2004/2005 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

Architects (Amendment) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Architects Act 1991 (the ‘Act’) to —

• provide for certain prohibited conduct;

• change the requirements for approval of partnerships and companies;

• enable the resolution of complaints by mediation;

• modify the eligibility criteria for membership of a Tribunal;

• provide for two additional members of the Architects Registration Board of Victoria; and

• require architects to be covered by insurance under the Act rather than under the Building Act 1993.

This Bill also amends the Building Act 1993 to provide for a member of the Architects Registration Board of Victoria to be a member of the Building Practitioners Board and to make consequential amendments to both the Building Act 1993 and the Domestic Building Contracts Act 1995 as a result of amendments to the Act.

Content and Committee comment

[Clauses]

[2]. The Bill comes into on proclamation but not later than by 1 July 2005.

[6]. Substitutes a new Part 2 concerning prohibited conduct. These new sections create offences for representing a natural person to be an architect (section 4); representing an unincorporated body to be an architect (section 5); representing a body corporate to be an architect (section 6); the use of certain terms such as "architectural services", "architectural design services" and "architectural design" in specified contexts (section 8); working as an architect without the required insurance (section 8B); representing to be insured when uninsured (section 8C); the provision of architectural services by an approved company or an approved partnership unless a registered architect partner or director is responsible for the carrying out of the services and they are carried out or supervised by a registered architect (section 8D).

[15]. Inserts a new Division 5 into Part 3 providing that the Minister may, by order published in the Government Gazette, require architects to be covered by insurance and specify the kind and amount of insurance required.

[16]. Inserts new sections 18, 18A to 18J dealing with disciplinary powers.

The Board, on its own initiative, or on the complaint of any person, may determine that an inquiry should or should not be held into an architect's fitness to practise or professional conduct (section 18); or the Board may refer a complaint to mediation if the Board considers it appropriate to do so and with the consent of the person making the complaint and the architect concerned (section 18A).

[22]. Inserts a new section 36A to provide that the Board may suspend an architect's registration, without holding an inquiry, if the architect is required to be covered by the required insurance and has not provided the required proof of insurance or the Board is satisfied that the person is not covered by the required insurance.

The Committee makes no further comment.

Crimes (Amendment) Bill

Introduced:11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Crimes Act 1958 (the ‘Act’) to –

• empower senior police officers to authorise the carrying out of non-intimate forensic procedures - including procedures to obtain a DNA sample - on persons who are held in custody and suspected of having committed a serious crime(s);

• validate forensic procedure orders made against offenders;

• clarify that offenders who are the subject of an application for a forensic procedure order do not have a right to be given notice, or to be heard, unless the offender is a child; and

• provide that fingerprints taken by Victoria Police using fingerscan technology may be admitted as evidence in court proceedings.

The Bill also amends the Metropolitan Fire Brigades Act 1958 to provide for the appointment of a Deputy President of the Metropolitan Fire and Emergency Services Board.

Content and Committee comment

[Clauses]

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

Fingerprints

[3, 4, 6 and 7]. Amends sections 464, 464N, 464O and 464P to allow fingerprints to be taken by means of a device to obtain a record of the fingerprint. The effect of the amendments is to allow fingerscans to be used as evidence in court proceedings.

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

Fingerscan technology enables the capture of digitised finger and palm print images (fingerscans) instead of using the traditional and messy method of ink-pad, roller and paper. Fingerscan technology was initially introduced into Victoria as part of the criminal justice enhancement project (CJEP) with the aim of improving the care and efficient custodial management of accused persons by enabling their rapid and reliable re-identification across various custodial settings. Because fingerscans taken for CJEP purposes were not intended to assist criminal investigations, a new section was inserted into the Crimes Act 1958 to provide that fingerscans could be taken for identification purposes only and are not admissible as evidence in court proceedings.

The Bill will amend the Crimes Act 1958 so that fingerprints taken from suspects using Livescan devices may be admitted as evidence in court proceedings. Existing cautioning and destruction requirements in the Crimes Act 1958 will apply to fingerprints regardless of the means by which they are collected, i.e.: whether by ink-pad and paper, or Livescan device.

Enhanced efficiency and utility

Livescan devices will be linked to the national automated fingerprint identification system (NAFIS), enabling the rapid identification of a suspect who is arrested if they are already known to police. Prompt identification of suspects will ensure that police are alerted to any outstanding warrants against the person or warning flags that may have a bearing on appropriate custodial management. This will minimise processing time and avoid the taking of messy ink-pad fingerprints.

Enhanced security and safeguards

Fingerprints captured using Livescan fingerscan technology will be instantaneously and securely relayed in digital form to the Victoria Police fingerprint branch. Details of the officer who takes the fingerprints are recorded, and hard copies may only be printed at the fingerprint branch, where they are automatically date and time stamped. This audit trail:

• facilitates timely and effective compliance with the destruction requirements in the Crimes Act 1958, by ensuring that records are kept of all copies generated;

• enhances the integrity of the chain of evidence;

• safeguards individual privacy by ensuring any unauthorised access to fingerprint information may be traced to the responsible officer(s); and

• generally strengthens accountability and provides a more transparent, secure system for the management of fingerprint data.

Compulsory forensic sample procedures (DNA samples)

[8 to 21]. Amend the Act in respect to compulsory DNA sample procedures and provides a validation of past compulsory procedure samples taken under the Act.

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

Senior police officer may authorise forensic procedure

The forensic procedure provisions in the Crimes Act 1958 enable forensic samples to be taken from suspects, offenders and volunteers. The Crimes Act 1958 also allows DNA information derived from such forensic samples to be included on a computerised database for comparison against unsolved crime scene evidence. A suspect may currently only be compelled to provide a forensic sample under a court order.

The Bill will streamline the existing system and bring the Victorian forensic sampling regime into line with a number of other Australian jurisdictions by allowing a senior police officer to authorise the carrying out of a non-intimate forensic procedure against a person who is in custody and is suspected on reasonable grounds of having committed a serious crime. In deciding whether or not to authorise the conduct of a forensic procedure, the senior police officer must broadly be satisfied of the same matters that a magistrate must currently be satisfied of in order to grant a compulsory procedure order.

The Bill contains various safeguards intended to protect persons who are the subjects of compulsory procedures from unlawful and unfair treatment, to ensure the integrity of the DNA evidence obtained from the procedure and to reduce the possibility of this evidence being ruled inadmissible in subsequent criminal proceedings. These safeguards include:

• police will not be able to authorise the carrying out of a forensic procedure in respect of a person who is a child or incapable of providing consent due to mental impairment;

• the suspect or the suspect's legal practitioner (if any) must be given a reasonable opportunity to inform the senior police officer prior to authorisation being given of any reasons why the procedure should not be conducted;

• an authorisation must be in writing and a copy must be provided to the suspect prior to the conduct of the procedure; and

• information about police authorised forensic procedures must be included in the Chief Commissioner of Police's quarterly DNA reports to the Attorney-General.

[9]. Amends section 464B of the Act which provides for a process whereby an investigating official may apply to the appropriate court for an order that a person who is held in custody and who is reasonably suspected of having committed an offence other than the offence for which he or she is being held, be delivered into the custody of the investigating official for the purpose of questioning or investigation. A new paragraph (c) is inserted into section 464B(5G), providing that if a person was held in a prison or police gaol at the time of making the application for a court order, the person against whom the order is made must be informed that the making of the order for questioning or investigation does not prevent a senior police officer from authorising the conduct of a non-intimate compulsory procedure on the person under the new section 464SA (inserted by the Bill).

[10]. Amends section 464R of the Act to extend the operation of that section to cover the new process of authorisation by a senior police officer under new section 464SA. Section 464R(2) currently provides that a forensic procedure may be conducted on a person who has given consent, or is subject to a court order.

[11]. Amends section 464S of the Act. That section sets out a process of informed consent by a person to a request to undergo a forensic procedure. The amendment adds to the list of matters of which the person must be informed, by requiring that, in certain circumstances, he or she also be informed that where a refusal is made to undergo a procedure, a senior police officer may authorise the procedure under section 464SA.

[12]. Inserts new sections 464SA and 464SB into the Act.

New section 464SA provides that a senior police officer who is not involved in investigating the relevant offence may authorise the conduct of a non-intimate compulsory procedure for certain adults who have not consented to the procedure on request.

The procedure is defined to mean the taking of a non-intimate sample or the conduct of a physical examination of a non-intimate part of the body. In order to make the authorisation the senior police officer must be satisfied of a number of matters. These include—

• the person in respect of whom an authorisation may be made must be under lawful arrest or in custody pursuant to an order made under section 464B(5) of the Crimes Act 1958;

• an authorisation cannot be made in respect of a person who is under the age of 17 years or who is incapable of giving informed consent by reason of mental impairment;

• there are reasonable grounds to believe that the person has committed the offence in respect of which the authorisation is sought;

• in all the circumstances the giving of the authorisation is justified.

An authorisation must not be given where an application to a court for an order under Subdivision (30A) in respect of that person has been made in relation to the same matter and on the same grounds but has been refused or where a previous application for an authorisation under this section has been considered but has not been given.

[13]. Amends section 464Z of the Act by providing that a person in respect of whom an authorisation or a court order is made for taking a sample of hair (other than pubic hair) may elect instead to provide a scraping taken by the person from his or her mouth, if it is appropriate to provide a scraping.

[14]. Substitutes section 464ZA(1) of the Act to extend the video-recording of forensic procedures to those authorised by senior police officers. Other consequential amendments to the process set out in this section are also made.

[16]. Amends section 464ZF of the Act to clarify rights to notice and to be heard in relation to applications for a forensic procedure where a person has been convicted of a forensic sample offence (a serious offence specified in Schedule 8 of the Act). (Refer to Second Reading Speech under clause 21 (validation of orders)).

[19]. Amends section 464ZH(a) of the Act by extending the immunity provided for medical practitioners and other personnel assisting in the taking of samples.

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).

[20]. Inserts a new section 464ZI(2) and declares that it is the intention section 464ZH as amended by clause 19 of the Bill (above) to alter or vary section 85 of the Constitution Act 1975.

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

Clause 19 of the Bill substitutes section 464ZH(a) of the Crimes Act 1958 to extend the immunity from civil or criminal proceedings granted by that section to persons acting under an authorisation given by a senior police officer under section 464SA.

The reason for this extension of immunity is to ensure that medical practitioners and others assisting in the conduct of compulsory procedures in accordance with an authorisation under section 464SA have the same protection as in the case of other procedures conducted under the subdivision. That protection was originally inserted in order to ensure that persons with the necessary skills such as medical practitioners and nurses were not unwilling to carry out forensic procedures because of the fear of litigation by disgruntled persons. That unwillingness could undermine the objective of the legislation.

Validation of Orders

[21]. Provides for the validation of certain orders purporting to have been made under section 464ZF(2) and (3) of the Act. The amendments provide that such orders are not invalid only because the person was not given notice of the application or an opportunity to be heard. The validation provision is specified not to affect the decision known as Pavic v Magistrates' Court of Victoria and Chief Commissioner of Police (No. 1001 of 2002).

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

Orders against offenders

The Crimes Act 1958 sets out the procedure by which police may apply to the Magistrates or Children's courts for an order allowing the taking of a forensic sample from a person found guilty of a serious offence. The relevant provisions came into effect on 1 July 1998 and allow applications to be made to the court in respect of:

• offenders found guilty of a serious offence prior to 1 July 1998, provided they are serving a term of imprisonment or period of detention; and

• offenders found guilty of a serious offence after 1 July 1998, whether or not they are serving a term of imprisonment or period of detention.

Serious offenders found guilty prior to 1 July 1998 have generally not been given notice of an application for a forensic procedure order made against them or given a right to be heard by the court. An initial legal challenge to this procedure on the basis that it denied prisoners their natural justice rights to notice and a hearing was brought before the Supreme Court in December 2000 in the case of Lednar and Ors v. The Magistrates Court and Anor.

In that case the Supreme Court held that in the context of the relevant provisions of the Crimes Act 1958 the rules of natural justice did not require a prisoner to be given notice or a hearing in determining an application for an order for a forensic procedure.

However, a further legal challenge was brought before the Supreme Court on the same basis in April 2003 in the case of Pavic v. The Magistrates Court. In that case the Supreme Court quashed a forensic procedure order on the basis that it was not Parliament's intent to exclude the natural justice requirement to provide a prisoner with notice and a right to be heard. As a result it could be argued by other prisoners that orders made by the Magistrates Court without giving them notice or a hearing are invalid.

Since the same procedural requirements apply in relation to findings of guilt entered both before and after 1 July 1998, the Bill validates all orders made against serious offenders. If these orders are not validated, valuable DNA information may have to be removed from the DNA database, potentially jeopardising the investigation and prosecution of crimes and threatening the deterrent value of the DNA database against future offending. Furthermore, requiring police to apply for new orders would impose a significant financial and administrative burden on both Victoria Police and the courts, and may expose offenders to a further intrusion in their lives if an additional forensic sample was taken.

The Bill also provides that a serious offender who is the subject of an application by police for an order for a forensic procedure does not have a right to be given notice or a hearing. However, certain safeguards will continue to apply in relation to hearings for these orders:

• the applications will be heard in open court;

• the court must take into account the seriousness of the offence and must be satisfied that the making of the order is justified in all the circumstances; and

• the court may make such inquiries on oath or otherwise as it considers desirable. In this regard, the bill expressly provides that the prisoner or offender may address the court in response to any inquiry that the court considers appropriate to make.

The Bill also provides that child offenders have a right to be given notice and a limited right to be heard in respect of an application for an order allowing a forensic sample to be taken. This recognises the particular vulnerability and special needs of children.

The Committee makes no further comment.

Death Notification Legislation (Amendment) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Coroners Act 1985 to create a category of reviewable deaths to allow investigation of multiple child deaths in a family and in relation to the functions and powers of the Victorian Institute of Forensic Medicine with respect to reviewable deaths.

The Bill also amends the Births, Deaths and Marriages Registration Act 1996, the Health Act 1958, the Children and Young Persons Act 1989 and the Human Services (Complex Needs) Act 2003.

Content and Committee comment

[Clauses]

[2]. Parts 1 and 4 to 6 come into operation on Royal Assent. The remaining provisions of the Act come into operation on proclamation but not later than by 1 January 2005.

Coroners Act 1985

Delegation

[5]. Inserts new section 10A to provide that the State Coroner may, by instrument, delegate to a coroner any power or duty of the State Coroner other than a prescribed power or the power of delegation contained in the section.

Obligation to report reviewable death

[6]. Inserts a new section 13A to create an obligation for a person to advise the State Coroner if he or she becomes aware of the existence of a ‘reviewable death’ which is defined in section 3 to include the death of a second or subsequent child of a parent.

[9]. Inserts a new section 15A to provide that the State Coroner must investigate reviewable deaths. The State Coroner can delegate that jurisdiction to another coroner and can direct a coroner to investigate a reviewable death and the manner of conducting the investigation.

[13]. Inserts a new sections 30A to 30F to provide for coronial powers in relation to the investigation of reviewable deaths.

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

The key aspect of the bill is the creation of a new category of 'reviewable' deaths by the coroner. At present, a range of 'reportable' deaths must be reported to the coroner for investigation.

These include deaths that appear to be unexpected, unnatural or violent, and also deaths that occur to a person who is under the control or care of the secretary to the Department of Justice, the Secretary to the Department of Human Services or a member of Victoria Police.

Under the current arrangements not all deaths of children are reportable. To ensure that greater system-wide focus is given to child deaths, the bill provides that all second or subsequent deaths of children in a family will be made reviewable deaths. The effect of the bill is to give the coroner the same powers with respect to reviewable deaths as he currently has with respect to reportable deaths. Medical practitioners and members of the police force will be required to report identified reviewable deaths to the coroner.

The bill gives the coroner the discretion to investigate reviewable deaths as appropriate. The coroner will also have the power to refer the case to the Victorian Institute of Forensic Medicine for consideration and investigation. The Victorian Institute of Forensic Medicine will then investigate such cases using new powers given to it under the bill.

However, it is important to note that nothing in the bill alters the coroner's existing powers and duties with respect to reportable deaths. Some child deaths will be both reportable deaths and reviewable deaths. This means that the coroner may investigate the death as he or she would with any other reportable death. However, the coroner may also refer the same death to the Victorian Institute of Forensic Medicine.

Births, Deaths and Marriages Registration Act 1996

[17]. Amends section 6 to provide that it is one of the functions of the Registrar to provide the coroner with information with respect to reviewable deaths on living siblings of the deceased child and known or registered subsequent child deaths, including neonatal deaths.

[18]. Amends section 42(1) to provide that the Registrar has a specific power to search the register established under the Act in the case of the death of a child, to determine whether a reviewable death has occurred or, if a reviewable deaths has occurred, whether there are any living siblings of the deceased child.

[19]. Inserts new sections 49A and 49B to provide that where the Registrar has received a notice of the death of a child the Registrar must search the register to determine whether the death is a second or subsequent death in a family and, if the death is a second or subsequent death has occurred, whether there are any living siblings of the deceased child. The new section also provides that the Registrar may cause a search to be undertaken on an equivalent register established in another State or Territory.

The Committee makes no further comment.

Domestic Building Contracts (Amendment) Bill

Introduced:11 May 2004
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

This Bill amends the Domestic Building Contracts Act 1995 (the ‘Act’) to provide that certain contracts for the sale of land "off the plan" are not "domestic building contracts" as defined in the Act. The amendment is retrospective to 1 May 1996 and is intended to be declaratory of the law as at that date.

Content and Committee comment

[Clauses]

[2]. Provides that the amendment to the Act is deemed to come into operation on 1 May 1996, the date the relevant provisions of the Act commenced.

[3]. Inserts a new sub-sections (4) and (5) in section 3 of the Act.

New section 3(4) provides that a contract for the sale of land on which a home is being constructed or is to be constructed that provides or contemplates that the construction of the home will be completed before the completion of the contract of sale is not, and is not to be taken to form part of, a domestic building contract if the home is being constructed, or the contract provides for it to be constructed, under a separate "major domestic building contract".

Existing legal proceedings protected

New section 3(5) provides that new section 3(4) does not apply to proceedings commenced before 16 March 2004 (the date of the Government's announcement of its intention to amend the Act).

The Committee makes no further comment.

Fair Trading (Consumer Contracts) Bill

Introduced: 11 May 2004
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

This Bill amends the Fair Trading Act 1999 (the ‘Act’) to enable regulations to be made to prescribe classes of consumer credit contract to which the provisions of Part 2B of the Act will apply.

The Bill also amends new Division 2A of Part 4 of the Act to increase the threshold for the application of the telephone marketing agreement provisions to agreements exceeding $100.

Content and Committee comment

[Clauses]

[2]. Sections 1 to 3 come into operation on the day after Royal Assent. Sections 4 and 5 will commence on 30 August 2004.

[3]. Amends section 32V(a) of the Act to provide that regulations may be made prescribing classes of consumer credit contract to which Part 2B of the Act (Unfair Terms in Consumer Contracts) will apply.

[4]. Amends section 67A(1)(d)(ii) of the Act to substitute $100 for $50 and thereby increases the threshold amount for telephone marketing agreements.

[5]. Removes a reference to a repealed Act and replaces it with a reference to the new Gambling Regulation Act 2003.

The Committee makes no further comment.

Financial Management (Amendment) Bill

Introduced: 11 May 2004
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Financial Management Act 1994 (the ‘Act’) to provide for greater flexibility in budgeting and reporting by the Government, and update the Act to reflect current financial management practices.

Content and Committee comment

[Clauses]

[2]. The amendments made by the Bill come into operation on the day after Royal Assent.

[12]. Substitutes a new section 27D in the Act and establishes new procedures for the transmission and release of the audited annual financial report, the mid-year report, a quarterly financial report, a budget update, and the financial policy objectives and strategies statement prepared in association with a budget update.

It also corrects the current anomaly contained in the existing section which allows reports only to be tabled whilst Parliament is sitting, or otherwise on the relevant due date, by introducing an out of session tabling provision which allows the above documents to be tabled whilst Parliament is in recess.

The new section provides for advance notice to be given to the Clerk of each House of the intention to transmit a document when Parliament is in recess, and that the Clerks must notify and provide copies to all members of the House.

The report must also be published on an appropriate Government internet website as soon as practicable after it has been given to the Clerks. New section 27DA also provides that the report is covered by parliamentary privilege in these circumstances.

The Committee makes no further comment.

Health Services (Governance and Accountability) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

This Bill contains amendments to the Health Services Act 1988 (the ‘Act’) to –

• introduce a new class of public hospital to be known as "public health services" which is to apply to public hospital services provided in the metropolitan area and also to certain large regional public hospitals, for the purpose of enabling consistent governance and accountability arrangements to apply to all of these services;

• clarify the roles and responsibilities under the Principal Act of the boards and the chief executive officers of public health services, the Minister and the Secretary to the Department of Human Services; and

• enable the re-organisation of public hospital services to ensure that these services are provided effectively and efficiently and in accordance with the other objectives of the Principal Act; and

• amend the Act to ensure that no new privately operated hospitals can be established in Victoria for the treatment of public patients.

Content and Committee comment

[Clauses]

[2]. Other than sections 52 and 53(2) the provisions in the Bill will come into operation on the day after Royal Assent. Sections 52 and 53(2) come into operation on 1 July 2004.

[12]. Inserts a new immunity provision into the Act in relation to members of boards of public hospitals. It provides that a member is not personally liable in certain circumstances for anything done or omitted to be done in good faith in relation to his or her powers and duties under the Act. It also provides that any liability that does not attach to a member as a result of this provision attaches instead to the public hospital of which the person is the member of the board.

[19]. Inserts a new Division 8A into Part 3 of the Act regarding audits of public hospitals, public health services, multi purpose services and denominational hospitals.

[43]. Inserts a new immunity provision into the Act in relation to members of boards of multi purpose services. It provides that a member of such a board is not personally liable in certain circumstances for anything done or omitted to be done in good faith in relation to his or her powers and duties under the Act. It also provides that any liability that does not attach to a member as a result of this provision attaches instead to the multi purpose service of which the person is the member of the board.

[48]. Amends section 141 of the Act to provide that a person appointed as a delegate to the board of a public hospital or a public health service is subject to the requirements of section 141, if in the course of acting as a delegate, he or she becomes aware of patient information; and it enables the bodies that are subject to section 141 (such as public hospitals, public health services and denominational hospitals) and the staff and the directors or members of the boards of such bodies, to give information to an auditor appointed under new Division 8A of Part 3 (which is to be inserted by clause 19). For example, if an auditor is assessing the standard of clinical care, the auditor may need to inspect relevant patient records.

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).

[49]. Inserts a new section 157H to declare that it is the intention of new sections 243 and 270 (as inserted by clause 51- below) of the Bill to alter or vary section 85 of the Constitution Act 1975. (Refer to notes on sections 243 and 270 which are inserted by clause 51 of the Bill).

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

Clause 51 inserts new sections 243 and 270 into the Health Services Act 1988. Sections 243 and 270 respectively provide that nothing done under proposed new Part 12 or 13 gives rise to any cause or right of action or application before any court or tribunal.

Clause 49 inserts a new section 157H which provides that it is the intention of sections 243 and 270 to alter or vary section 85 of the Constitution Act 1975.

The reason for altering or varying section 85 is to ensure that nothing done under Part 12 or 13, including the following -

• the reclassification (change of status) of metropolitan health services and designated public hospitals as 'public health services';

• the creation of new public health services or public hospitals;

• the reorganisation of public health services or public hospitals;

• the allocation of property, rights and liabilities and trusts and the transfer of staff;

• the appointment of an administrator to a public health service or public hospital; or

• the cancellation of incorporation of a public health service or public hospital is delayed or prevented by legal proceedings.

  This provision is considered necessary to enable the change of entity status or reorganisation of public health services or public hospitals to proceed in an effective and coordinated manner, and without disruption to the provision of health services.

[51]. Inserts new Parts 12 and 13 into the Act. The new Parts consist of sections 232 to 273.

Part 12 concerns transitional provisions relating to public health services and the re-organisation of public hospitals and public health services.

Part 13 includes provisions to enable the re-organisation of public hospitals and public health services. The general effect of this Part is to create the flexibility to allow health services to be provided in the future by the appropriate agencies, whilst guaranteeing the continuity of legal rights and responsibilities with the appropriate agencies. A transferring agency under this Part may have multiple successors, in respect of its property, rights, liabilities and in relation to trusts.

New section 243 provides that nothing done under Part 12 gives rise to any cause or right of action or application before any court or tribunal. This includes the making of an Order under section 239 establishing a public health service. (Refer to section 85 of the Constitution Act 1975 statement above)

New section 270 provides that nothing done by or under Part 13 gives rise to any cause or right of action or application before any court or tribunal. This includes the preparation of a report or the making of a recommendation under this Part, the making of an Order under section 248, 266 or 271, or anything done under sections 262 to 264 in relation to the transfer of staff. (Refer to section 85 of the Constitution Act 1975 statement above)

[52]. Amends Schedule 1 to remove the names of the following hospitals: Ballarat Health Services, Barwon Health, Bendigo Health Care Group, Goulburn Valley Health and Latrobe Regional Hospital. When this section comes into effect on 1 July 2004, these bodies will cease to be public hospitals, they will thereafter become public health services under clause 53(2) of the Bill.

[53]. Removes the heading "Metropolitan Health Services" in Schedule 5 and replaces it with ‘Public Health Services’ and inserts the names of the following hospitals into Schedule 5: Ballarat Health Services, Barwon Health, Bendigo Health Care Group, Goulburn Valley Health and Latrobe Regional Hospital. By virtue of this Bill, these bodies will become public health services on 1 July 2004.

The Committee makes no further comment.

Interpretation of Legislation (Amendment) Bill

Introduced: 26 February 2003
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Interpretation of Legislation Act 1984 (the ‘Act’) to –

• provide for the interpretation of references in Acts to a portion of an Act where all of the portion does not come into operation on the one day;

• clarify the status of headings within court or tribunal rules;

• facilitate the use of examples and notes within Acts and subordinate instruments;

• further shorten Acts and subordinate instruments by expanding the range of definitions of commonly-used terms.

Content and Committee comment

[Clauses]

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

Retrospective application

[4]. Inserts a new section 36(2B) to clarify that headings to court rules form part of the order or rule if they were made after 1 January 2001 or the heading is inserted in an existing rule or order after that date.

The Committee notes this extract from the explanatory memorandum in respect to the operative date of 1 January 2001–

This is the same date as applies to other headings within Acts and subordinate instruments. The amendment will operate retrospectively. This is considered necessary to promote consistency in the application of this rule of interpretation to headings to Orders and Parts of rules of court and other headings within Acts and subordinate instruments.

[5]. Inserts new section 36B in the Act to permit more than one legislative item to be placed at the foot of a section.

[6]. Inserts definitions in section 38 of the Act. The terms "statutory rule", "subordinate instrument" and "VCAT" will be defined in section 38 for the purposes of all Acts and subordinate instruments unless the contrary intention appears.

The Committee makes no further comment.

Judicial Salaries Bill

Introduced: 11 May 2004
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill removes the function of the Judicial Remuneration Tribunal to make salary and allowance determinations for judicial officers; and makes fresh provision with respect to judicial salaries, allowances and remuneration.

Content and Committee comment

[Clauses]

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

[4]. Sets out the salaries of judicial officers for the period 11 May 2004 to 30 June 2005 inclusive.

[5]. Sets out a formula for calculating the salaries of Supreme Court judges for the 2005/06 and 2006/07 financial years. Clause 5(4) provides that from 1 July 2007, the salary of a Supreme Court judge will be the same as that paid from time to time to a Federal Court judge.

[6]. Provides that the salaries of other judicial officers will be paid at the same rate relative to Supreme Court judges after 1 July 2005. The Attorney-General will be required to issue a certificate specifying the salary adjustments as soon as practicable after the adjustments take effect.

The Committee makes no further comment.

Mental Health Legislation (Commonwealth Detainees) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Mental Health Act 1986 (the ‘Act’) and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to provide for persons detained in approved mental health services under section 20BJ(1) or 20BM of the Crimes Act 1914 (Cth) to be treated as forensic patients in all respects except access to extended leave.

Content and Committee comment

[Clauses]

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

Mental Health Act 1986

[4]. Amends section 18(1)(b) of the Act to provide that the statement of patient's rights provided to a person who is detained in an approved mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 (Cth) must include information as to that person's legal rights and other entitlements under that Act.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Warrant to arrest federal forensic patient absent without leave

[7]. Amends section 30B of the Act to create a power to obtain a warrant to arrest a federal forensic patient who leaves Victoria and who is also absent without leave from an approved mental health service. The power is based on the existing power in the Act to arrest Victorian patients who leave the State without permission.

[8]. Amends section 48 of the Act to provide that Division 1 of Part 7 also applies to federal forensic patients. This means that a federal forensic patient may apply to, and be granted leave by, the Forensic Leave Panel.

[9]. Amends sections 49 and 56 of the Act so as to provide that a federal forensic patient is not eligible to apply for, or be granted, extended leave (extended leave being inconsistent with the Federal legislation).

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

The Bill amends the Crimes (Mental Impairment and Unfitness to be Tried) Act to provide that the forensic patient leave regime in Victoria will apply to federal forensic patients, except for extended leave. The exclusion of extended leave avoids inconsistency with the Commonwealth Act.

The Committee makes no further comment.

Mitcham-Frankston Project Bill

Introduced: 11 May 2004
Second Reading Speech: 12 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill –

• empowers the State to enter into an Agreement for the design, construction, operation, maintenance and management of the Mitcham-Frankston Freeway;

• provides for the collection and enforcement of tolls in relation to the use of the Mitcham-Frankston Freeway;

• confers powers on the Southern and Eastern Integrated Transport Authority in relation to the land required for or affected by the Project;

• provides procedures to deal with the interface between Utilities and the Freeway Corporation in relation to Utility infrastructure and the Project; and

• confers other powers on the Minister, the Southern and Eastern Integrated Transport Authority and the Freeway Corporation and other persons for the purposes of the Project.

The Bill amends the Road Management Act 2004 –

• to modify its operation in relation to the Mitcham-Frankston Freeway;

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

• in relation to rights of review of decisions under that Act;

• to amend section 85 of the Constitution Act 1975 in relation to certain of the amendments made by this Act to the Road Management Act 2004.

Content and Committee comment

[Clauses]

[2]. Some provisions commence operation on the day after Royal Assent. Clause 259 comes into operation on 1 July 2004. The remaining provisions of the Bill to come into operation on proclamation but not later than on 1 July 2005.

[7]. Provides for the Governor in Council to vary, by Order published in the Government Gazette, the Project area by either adding land in the vicinity of the Project area or decreasing the Project area.

Delegations

[12]. Empowers the Freeway Corporation to delegate any of its powers and functions under this Act or the Road Management Act 2004, or the regulations under either of them, to one or more approved persons approved by the Governor in Council.

[13]. The Minister may delegate any of the powers of the Minister under this Act or the Agreement to any person. Sub-clause (2) provides for sub-delegation of powers, where sub-delegation is authorised by the instrument of delegation. Sub-clause (3) applies sections 42 and 42A of the Interpretation and Legislation Act 1984.

The Agreement – Tabling - Disallowance

[15 to 33]. Makes provision for the Minister, after consultation with the Treasurer to enter into the agreement, and to make amendments or variations to the agreement.

The agreement, amendment to the agreement or variation, must be tabled by the Minister before each House of Parliament within 6 sitting days of that House following the making of the Agreement or amendment.

The agreement, amended agreement or variation may be revoked wholly or in part by resolution of each House of Parliament passed within 6 sitting days of that House after a copy of the Agreement or amendment is laid before that House.

A provision of the Act prevails over an inconsistent provision in the agreement

[30]. Deems the Agreement to be a State contract for the purposes of the Information Privacy Act 2000.

Acquisition of Land in the Project Area

[34]. Empowers the Authority to acquire an interest in land (other than a native title interest) in the Project area by agreement or by a compulsory process for the purposes of the Project or any purpose connected with the Project.

[35]. States that the Land Acquisition and Compensation Act 1986 applies to this Act.

[45]. Allows the Authority to require a person to take adjoining land as compensation for land compulsorily acquired for the Project. Any disputes as the valuation of such land is to be governed by the same provisions for compensation provided by the Bill.

Compulsory acquisition of Native Title Rights and Interests to be on just terms

[47]. Enables the compulsory acquisition by the Authority of native title rights and interests in land in the Extended Project area for the purposes of the Project or any purpose connected with the Project. The provisions of the Land Acquisition and Compensation Act 1986 apply to such an acquisition.

[49]. Provides that, for the purposes of the compulsory acquisition of native title rights and interests in land, the Authority is authorised to comply with any relevant procedure under the Native Title Act 1993 (Cth) for a valid acquisition of those rights and interests.

[50 and 51]. Provides for the referral of objections under the Native Title Act 1993 (Cth) to a proposed compulsory acquisition of native title rights and interests to the Victorian Civil and Administrative Tribunal and sets out the kinds of determinations a Tribunal may make in respect to an objection.

[52]. The compensation payable to a person in respect of the compulsory acquisition of native title rights and interests in land under this Division to be on just terms.

Acquisition of public and Council land

[55 to 84]. Empowers the Governor in Council to require a public authority or Council to surrender land in the Project area or to divest land in the Project area from a public authority or Council.

Compensation for Surrendered or Divested or Reserved Land

[79]. Provides for the giving of compensation pursuant to the Land Acquisition and Compensation Act 1986 to any person who has a legal or equitable interest in land that is surrendered, divested or in respect of which a reservation has been revoked.

[80]. Provides that a Council has a right to compensation where the Council has sustained any pecuniary loss or incurred any expense as a direct, natural and reasonable consequence of the Order.

[82]. Empowers the Authority, as compensation to a Council under clause 80, to require the Council to take land that adjoins land owned by the Council, and which is owned by the Authority or is surplus land. Any disputes as the valuation of such land is to be governed by the same provisions for compensation provided by the Bill in clause 80.

[83]. No compensation is payable by the Crown or the Authority except as provided in this Division in respect of anything done or arising out of this Part. (Refer to section 85 statement below).

[87]. Makes the Authority liable to compensate any person who has sustained pecuniary loss or incurred any expense as a result of the entry onto or occupation of or the carrying out of works on public land by or on behalf of the Authority. The provisions of the Land Acquisition and Compensation Act 1986 apply. The section does not apply to Utilities.

[117]. Empowers the Authority to issue a warrant to the sheriff where the Authority is entitled to enter into possession of land and the person in occupation of the land refuses to give up possession, or hinders the Authority from entering and taking possession of, the land. A warrant authorises the sheriff to enter the land and deliver possession of the land and to use such force as is reasonably necessary to execute the warrant. The costs incurred in the issuing and execution of a warrant must be paid by the person refusing to give up possession.

[127]. Provides for planning compensation to apply as though the Project area had been reserved for a public purpose under a planning scheme and the Authority was liable to pay compensation.

[138]. Empowers the Authority to temporarily close a road to traffic if the Authority considers it necessary so that works on the road or neighbouring land can be carried out.

[140]. Provides that nothing in this Act permits the Authority or the Freeway Corporation to close a road to traffic or to discontinue a road for the purpose of increasing traffic on the Freeway.

[141]. Provides for the determination of compensation payable where the effect of a decision is to discontinue, realign or relocate a road is that existing access to land is denied. A modified version of the provisions in the Land Acquisition and Compensation Act 1986 is to apply to the determination of compensation as if the claim were a claim under section 37* of that Act. *Section 37 provides for a claim of compensation where no offer is made by the relevant Authority.

No Review of Determination or Direction

[193]. Provides that a decision concerning an approval or a direction (made under certain provisions of the Act) are final and binding on the Freeway Corporation and the Utility. No appeal may be made to a court in respect of the decision. However nothing prevents the Freeway Corporation from challenging the validity of a decision if the Freeway Corporation believes compliance with the decision would place it in breach of the Agreement. (Refer to section 85 statement below).

Tolls

[194]. Empowers the Freeway Corporation to fix, charge and collect tolls and toll administration fees only in accordance with this Act and the Agreement.

[197]. Makes the driver of a vehicle used in a toll zone liable to pay the toll and the relevant toll administration fee. Unless clause 199 applies the owner of the vehicle is deemed to be the driver of that vehicle.

[199]. Exempts the owner of a vehicle from liability to pay a toll or toll administration fee if, within the period of 14 days after a demand for payment is made, the owner nominates another person as the driver of the vehicle at the relevant time, or provides a statement that the vehicle was a stolen vehicle at the relevant time or the number plates displayed on the vehicle were stolen at the relevant time.

Tolling device not subject to Surveillance Devices Act 1999

[203]. Exempts a prescribed tolling system from the meaning of surveillance device in the Surveillance Devices Act 1999 when installed, used or maintained for the purpose of collecting information on tolling, road management or traffic management and sets out the purposes for which information collected by means of a prescribed tolling system may be used, including for provision to the State, a public authority or a Council in compliance with the requirement under any enactment or the Agreement and to any person who is authorised by law or under the Agreement to have access to, or request provision of, that information.

Tolling Offences

[204]. Makes it an offence for a person to drive on the Freeway without paying the relevant toll and toll administration fee within 14 days after service of a demand on that person.

[205]. Limits a person's liability under clause 204 in relation to the use of a vehicle on the freeway to only one offence on one day regardless of the number of trips the person makes in the vehicle on the Freeway during the course of that day.

[207 to 225]. Provides enforcement provisions including enforcement by way of infringement penalty notice.

[232]. Confers on an Independent Reviewer powers to make emergency orders in relation to the Project works.

[235]. Makes it an offence not to comply with an emergency order.

[236]. Prohibits any appeal or review of a decision by the Independent Reviewer to make an emergency order or failure by the Independent Reviewer to cancel an emergency order. (Refer to section 85 statement below).

[242]. Empowers the Authority to require a Project party to provide information or answer questions put to it by the Authority.

[246]. Deals with rights of authorised officers to enter the offices of a Project party to inspect and take copies of records.

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).

[257]. Declares that sections 83, 193 and 236 are intended to alter or vary section 85 of the Constitution Act 1975 which limit the jurisdiction of the Supreme Court in relation to certain matters.

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

Clause 83 of the Bill provides that no compensation is payable by the Crown or the authority in respect of anything done or arising out of Part 4 of the Bill (provision of public land and council land), except as provided in that Part.

Part 4 of the Bill enables a Governor in Council order to be made which requires public authorities and councils to surrender land in the project area to the Crown (or which divests them of such land) or which declares that any interests in unreserved Crown land held by public authorities or councils is surrendered to the Crown. Similarly, any Crown land permanently or temporarily reserved under the Crown Lands (Reserves) Act 1978 may have its reservation revoked.

When land is surrendered or divested or has its reservation revoked, it is deemed to become unalienated land of the Crown freed and discharged from all trusts, reservations, estates and interests. If the land was a road or river, all rights easements and privileges held by any person are extinguished.

Division 4 empowers the authority to enter into possession of certain land. Notice periods are provided for, but in some circumstances early entry into the land is permitted. Compensation is payable under Division 5 for the abridgement of the notice periods.

Division 5 of Part 4 provides for compensation to be payable pursuant to the Land Acquisition and Compensation Act 1986 for private interests in public land acquired where land is surrendered, divested or has its reservation revoked under Part 4 of the Bill. No compensation is payable in relation to estates or interests of public authorities that are extinguished. Councils are entitled to compensation for the acquisition of an estate in fee simple and pecuniary loss or expense (not including the value of the land) in respect of other acquisitions.

The reason for the exclusion of claims for compensation is that the compensation provisions in the Bill have been designed to provide a statutory compensation scheme to provide compensation in appropriate cases. In relation to public authorities, it is considered inappropriate to pay compensation for the acquisition of land vested in such bodies where it is to be used by the authority for a public purpose.

* * *

Clause 193 of the Bill provides that certain decisions made or purporting to be made under the Bill are final and binding and are not subject to appeal or other review by a court or tribunal.

These decisions are: an approval by the authority of a utility agreement under section 157, a direction given by the minister to a utility or to the freeway corporation under sections 165, 166, 173, 174 or 175 to carry out works or a determination made by the Minister and the relevant utility minister or their appointee on referral of a matter for dispute resolution. The matters that can be referred for dispute resolution are set out in sections 151, 153, 164, 184, 186 and 187.

Clause 193 does not prevent the freeway corporation from challenging the validity of a decision if the freeway corporation believes that compliance with the decision would place it in breach of the agreement.

Utility agreements only come into effect on approval by the authority under section 157.

The direction process provides a rapid mechanism enabling utility works to be undertaken in the circumstances specified in sections 165, 166, 173, 174 and 175. These are: where an approved utility agreement, a determination made under Part 8 or a direction has not been complied with or to deal with unnotified utility infrastructure (where the owner of the unnotified utility infrastructure is not identified or does not respond to a notice within the prescribed time).

The determination process provides a rapid mechanism to deal with the matters specified in sections 151, 153, 164, 184, 186 and 187. These are: a dispute between the authority and a utility regarding the utility's access to land in the extended project area that is not licensed land and a dispute between the freeway corporation and a utility regarding the utility's access to licensed land; a failure by the freeway corporation and a utility to reach a utility agreement within the prescribed time; a dispute between the freeway corporation and a utility regarding the costs of relocation or rectification of utility infrastructure; and certain aspects of the process of certification by the utility of works undertaken by the freeway corporation.

The reason for excluding review or appeal of the specified decisions is that it ensures that once the relevant decision is made there are no additional delays and associated costs in undertaking the relevant utility works permitted by that decision. The determination and direction mechanisms provide a balance between the interests of the utilities and the project. If authority decision to approve or not to approve a utility agreement were subject to appeal or review, that process could delay the date on which such agreements come into effect and utility works commence. Similarly, if a direction or determination were subject to review or appeal, delays could be experienced in undertaking the utility works.

* * *

Clause 236 provides that no proceedings may be brought against the independent reviewer seeking administrative review or the grant of declarations or injunctions in respect of his or her decision or purported decision to make (or cancel) an emergency order, or in respect of any other matter incidental to his or her decision.

An emergency order may be made where the independent reviewer believes there is a danger to life or property arising from the carrying out of works for the project on licensed land during the construction phase of the project. The decision may require any person to evacuate, to halt the carrying out of works on, to require the carrying out of works on, or to make safe and secure, licensed land or access to that land.

This clause provides that there is to be no appeal or review of a decision by the independent reviewer to make, fail to make (or cancel) an emergency order.

The reason for excluding rights of appeal or review is to ensure that the independent reviewer is free to act quickly in an emergency in the public interest without fear of litigation. In such cases it is clearly not appropriate to permit any person to instigate proceedings to argue about whether such an emergency order should have been made or whether it should continue to operate.

[258]. Confers powers on the Governor in Council to make regulations for the purposes of the Act.

Constitution Act 1975

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).

Direct amendments to section 85 of the Constitution Act 1975

[259(1)]. Inserts new section 85(12) of the Constitution Act 1975 to provide that section 129 (as inserted by clause 272 of the Bill) and Divisions 2 and 3 of Part 6 of the Road Management Act 2004 (as inserted by clause 270 of the Bill) alter or vary section 85 and have effect as direct amendments of that section. (See the notes to clause 270).

[259(2)] Inserts new section 85(13) of the Constitution Act 1975 to provide that section 52(4) of the Victorian Civil and Administrative Tribunal Act 1998 (as amended by section 167(1) of the Road Management Act 2004 as that Act is now amended by clause 276 of the Bill) alter or vary section 85 and have effect as direct amendments of that section. (See the notes to clause 276).

[270]. Inserts new Divisions 2 and 3 into Part 6 of the Road Management Act 2004. The insertion of these provisions fulfils a commitment given by the Government to the Legislative Council on 5 May 2004. The third reading of that Bill had been passed by the Legislative Council on 4 May 2004 by a simple majority but not an absolute majority. Consequently, certain provisions of that legislation are ineffective by operation of section 18(2A) of the Constitution Act 1975. To rectify this situation, sub-clause (1) inserts new Divisions 2 and 3 into Part 6 of the Road Management Act 2004. These correspond to provisions of that Act that are ineffective. Sub-clause (2) states that the provisions are inserted in substitution for the existing provisions. It should be noted that new section 101 contains a new sub-section (2) relating to the civil liability of the Mitcham-Frankston Freeway Corporation.

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

Honourable Members will be aware that the Legislative Council passed the third reading of the Road Management Bill on 4 May, but not by an absolute majority. The government understands that the lack of an absolute majority means that, by operation of section 18(2A) of the Constitution Act 1975, certain provisions of the Road Management Act 2004 have no legal effect.

Honourable members will also be aware that the government gave a commitment on 5 May to introduce legislation that will rectify this situation. In fulfilment of that commitment, this Bill will amend the Road Management Act 2004. This Bill will repeal the affected provisions of the Road Management Act 2004 and insert corresponding provisions that will be legally effective.

Specifically this Bill will insert new Divisions 2 and 3 of Part 6 and sections 129 and 167(1) into the Road Management Act 2004, in substitution for the existing ineffective provisions.

Part 6 and section 129 deal with civil liability in relation to the management of roads. Section 167(1) deals with the handling of planning disputes under the Road Management Act 2004 by the Victorian Civil and Administrative Tribunal. I refer Honourable Members to the second-reading speech for the Road Management Bill for a more detailed explanation of the provisions that will be replaced.

This Bill will also amend section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court to the extent necessary to give full legal effect to these amendments.

[272]. Inserts a new section 129 into the Road Management Act 2004 New section 129 partially abrogates the common law "ratione tenure" rule, under which an owner of land may have a duty to maintain a public highway over that land by reason of his or her tenure of the land. The new section provides that neither the Crown nor a road authority is liable for the maintenance of a road only because of ownership of the road. The duty of road authorities to maintain roads is set out in section 40 of that Act. New section 129 does not affect these duties of road authorities. New section 129 is inserted in substitution for the existing section 129 of the Road Management Act 2004. See the notes on clause 270 for explanation of the reasons for the substitution.

[276]. Inserts new section 167(1) into the Road Management Act 2004. New section 167(1) amends the Victorian Civil and Administrative Tribunal Act 1998. The effect of the amendments is to treat appeals to the Tribunal as appeals under "planning enactments" for the purposes of that Act. This maintains consistency with the current position, as appeals against decisions under regulations under section 56 of the Transport Act 1983 are presently treated as appeals under "planning enactments".

The Committee makes no further comment.

Ombudsman Legislation (Police Ombudsman) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill amends the –

Ombudsman Act 1973 to create the office of Police Ombudsman and abolish the office of Deputy Ombudsman (Police Complaints);

Police Regulation Act 1958 and the Whistleblowers Protection Act 2001 to broaden the powers of investigation into police by, among other things –

• giving the Police Ombudsman powers to investigate police conduct, policies, practices and procedures on his or her own motion; and

• giving the Police Ombudsman power to demand answers and other information regardless of self-incrimination; and

• giving the Police Ombudsman powers of entry, search and seizure upon obtaining a search warrant.

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 6A in the Ombudsman Act 1973 establishing the office of Police Ombudsman and provides that the Ombudsman shall hold the office of Police Ombudsman.

Police Regulation Act 1958

[12]. Inserts a new section 86NA to permit the Police Ombudsman to conduct investigations on his own motion. The investigation may concern the conduct of a member of the force or the policies practices or procedures of the police force.

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

The Police Regulation Act 1958 will set out the powers of the Police Ombudsman. Currently the Ombudsman has the power to instigate an investigation in his general jurisdiction, but not in relation to police. The investigative powers of the deputy ombudsman (police complaints) are only triggered by an official complaint from the public.

This Bill amends the Police Regulation Act 1958 to enable the Police Ombudsman to conduct an investigation on his or her 'own motion'. The investigation may be into the conduct of a member of the force or any of the policies, practices or procedures of the force.

[14]. Substitutes a new section 86P and inserts a new section 86PA.

Section 86PA provides for the Police Ombudsman to have some of the Evidence Act 1958 powers of a Commission issued by the Governor in Council. Sections 17 (power to send for witnesses and documents), 18 (power to examine upon oath), 19 (penalty for refusing to give evidence), 19A (application of the powers to certain persons), 19B (power to exclude the public), 20 (report to law officer for possible prosecution if a witness fails to attend) and 20A (summons to require continuous attendance) of the Evidence Act 1958 apply to investigations by the Police Ombudsman.

The Police Ombudsman may take a statutory declaration from a witness.

Privilege against self-incrimination

If the Police Ombudsman certifies in writing that, in his or her opinion, the obtaining of information is necessary in the public interest, then it is not a reasonable excuse for a person to fail to provide that evidence on the grounds of self-incrimination.

Information, documents or evidence obtained from a person where the Police Ombudsman has certified that it is in the public interest are inadmissible in evidence against that person in court except for a prosecution for failing to give the evidence, or failing to comply with section 86Q of the Act, or a breach of discipline or for false information.

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

It is the intention of the Bill to abrogate the protection against self-incrimination in certain circumstances. This reform is consistent with the provisions applicable to royal commissions under section 19C of the Evidence Act.

Where the Police Ombudsman certifies in writing that the provision of information in relation to an investigation is necessary in the public interest, it will not be a reasonable excuse for a person to fail to provide that information on the ground that it may tend to incriminate that person. The Police Ombudsman's certification will be conclusive.

In determining whether to provide a certification, the Police Ombudsman may take into account whether the investigation involves the review of established procedures of the police force. He may also consider whether it is unlikely that the information could be obtained by other means.

Any information provided in circumstances where the Police Ombudsman has issued a certificate is inadmissible in judicial proceedings against the person providing the information, except for offences relating to the provision of that information, such as perjury.

[18]. Inserts a new Division 3 in Part IVA (new sections 86W to 86Z) of the Act.

New section 86W enables the Police Ombudsman to apply for a search warrant concerning particular premises upon the belief, on reasonable grounds, that entry is necessary for an investigation and empowers a magistrate to issue a warrant to enter and search premises, to copy documents and to seize documents or things. The rules and procedures in the Magistrates’ Court Act 1989 apply to such warrants.

New section 86X imposes certain requirements on the execution of warrants under this Division.

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).

[19]. Inserts a new section 129A(2) of the Police Regulation Act 1958 declaring that it is the intention of section 86J of that Act (which protects the Police Ombudsman from civil and criminal liability) as that section applies after the commencement of the provisions in the Bill to alter or vary section 85 of the Constitution Act 1975.

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

Section 86J of the Police Regulation Act 1958 currently limits the liability of the Deputy Ombudsman (Police Complaints) and the capacity for any person to bring proceedings against the Deputy Ombudsman, to those acts that are done in bad faith. It also limits the scope of orders that may be made by a court in relation to the Deputy Ombudsman and prohibits the Deputy Ombudsman from being called to give evidence.

The Bill will make consequential amendments to section 86J by replacing the references to the office of Deputy Ombudsman with references to the office of Police Ombudsman. As the Police Ombudsman will be performing the current functions of the Deputy Ombudsman it is necessary that the protection afforded to the Deputy Ombudsman under the current law, also be provided to the Police Ombudsman.

By extending the investigative powers of the Police Ombudsman and the circumstances in which he or she can obtain information, the Bill will also indirectly extend the application of section 86J. In order to be effective, the broader investigative scope contained in the Bill must be covered by the protection offered under section 86J. The exercise of the Police Ombudsman's broader jurisdiction may otherwise be prohibited by numerous legal challenges and proceedings on grounds other than that currently provided in the legislation.

Whistleblowers Protection Act 2001

[24]. Inserts a new Division 3A in Part 5 of the Act consisting of new sections 61A to 61F.

New section 61A provides that sections 19A and 19B of the Evidence Act 1958 (powers provided to Commissions issued by the Governor in Council) apply to Police Ombudsman investigations.

Privilege against self-incrimination

New section 61B provides that if the Police Ombudsman certifies in writing that, in his or her opinion, the obtaining of information is necessary in the public interest, then it is not a reasonable excuse for a person to fail to provide that evidence on the grounds of self-incrimination.

In determining whether to certify that evidence is in the public interest, the Police Ombudsman may take into account whether the investigation involves the review of police force practices, procedures or policies and whether it is likely that the evidence could be obtained by other means.

Information, documents or evidence obtained from a person where the Police Ombudsman has certified that it is in the public interest are inadmissible in evidence against that person in court, except for a prosecution for failing to give the evidence, or failing to comply with section 55(1), or a breach of discipline or for false information. (Refer to Second Reading Speech and Committee comment in respect to clause 14 above).

The Police Ombudsman can apply for a search warrant. The rules and procedures in the Magistrates’ Court Act 1989 apply to such warrants.

New section 61D imposes certain requirements on the execution of warrants.

[25]. Substitutes "Police Ombudsman" for "Deputy Ombudsman" throughout sections 62, 63, 102 and 106 to 109 of 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).

[26]. Inserts a new section 110(2) in the Whistleblowers Protection Act 2001 stating the intention of section 107 (which protects the Police Ombudsman from civil and criminal liability) 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 –

It will provide that it is the intention of section 107 of the Whistleblowers Act, as amended by clause 25 of the Bill, to alter or vary section 85 of the Constitution. Section 107 of the Whistleblowers Act currently provides for the protection of the Deputy Ombudsman (Police Complaints) in relation to legal proceedings in a similar manner to that of the Police Regulation Act 1958.

The Bill will make consequential amendments to the Whistleblowers Act by replacing the references to the office of Deputy Ombudsman with references to the office of Police Ombudsman. It is necessary therefore that the Police Ombudsman be protected in the same manner as the Deputy Ombudsman has been, as he or she will be performing the same functions as the Deputy Ombudsman.

The Bill will also indirectly extend the application of the protection afforded in relation to legal proceedings under section 107 by extending the investigative powers of the Police Ombudsman and the circumstances in which he or she can obtain information. In order to be effective, the Police Ombudsman's use of the broader investigative provisions in the bill must be covered by the protection offered by section 107. The exercise of the Police Ombudsman's broader powers may otherwise be significantly hindered by numerous legal challenges and proceedings on grounds other than that currently provided in the Whistleblowers Act.

The Committee makes no further comment.

Pharmacy Practice Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The The main purposes of the Bill are to —

• provide for the registration of pharmacists and investigations into the professional conduct, professional performance and ability to practise of registered pharmacists;

• provide for the registration of pharmacy students and investigations into the conduct and ability of pharmacy students to undertake clinical training;

• regulate the operation of pharmacies, pharmacy businesses, pharmacy departments and pharmacy depots;

• regulate the advertising of pharmacies, pharmacy businesses and pharmacy services;

• establish the Pharmacy Board of Victoria (the ‘Board’) and the Pharmacy Board Fund; and

• repeal the Pharmacists Act 1974.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 147 come into operation on Royal Assent. The remaining provisions come into operation on proclamation but not later than by 1 July 2005.

[4 to 24]. Deal with registration as a pharmacist and sets out the requirements for applications for registration.

[25 to 37]. Sets out the restrictions on ownership of pharmacy businesses, and lists the persons who may own or have a proprietary interest (defined in the Act) in a pharmacy business.

[38 to 85]. Deal with notification of complaints and investigations of pharmacists.

A person may notify the Board about a matter if the person believes that a pharmacist's ability to practise as a pharmacist may be affected by the pharmacist's physical or mental health or incapacity or if the pharmacist is an alcoholic or drug-dependent person, or if the pharmacist may have engaged in unprofessional conduct or their professional performance is unsatisfactory. A notification may be made about the conduct of a pharmacist who has subsequently ceased to be registered.

The Board may accept a complaint made under the Health Records Act 2001 that relates to a registered pharmacist and must treat it as if it were a notification under the Act.

The Act provides for preliminary investigations into ability or professional performance of a pharmacist or pharmacy student and may also proceed to a more formal hearing.

The Board may suspend the registration of a pharmacist at any time if the Board believes it is necessary to do so because there is a serious risk to public health and safety because the pharmacist's ability to practise as a pharmacist is affected or the pharmacist has engaged in unprofessional conduct or his or her professional performance is unsatisfactory. The Board may also suspend the registration of a student where the Board believes there is a serious risk to public health and safety because the student's ability to undertake clinical training is affected.

The Board may alternatively enter into an agreement with the pharmacist or student to alter the way in which he or she practises as a pharmacist or undertakes clinical training.

A pharmacist or pharmacy student under investigation may be examined by a registered medical practitioner, agreed to by the pharmacist or student and the Board, or by the Secretary in the absence of agreement and the Board may refer a matter to a formal hearing if the pharmacist or student under investigation does not agree to undergo a medical examination.

Sections 14 to 16 and 21A of the Evidence Act 1958 concerning summonses to give evidence and to produce documents apply to a formal hearing panel.

It is an offence to publish or broadcast any identifying information about a notifier, or to publish or broadcast any identifying information about a witness, pharmacist or pharmacy student that is contrary to a determination by a panel, unless the person has consented.

Appeal

[86 and 87]. A person whose interests are affected by a decision, finding or determination may apply to the Victorian Civil and Administrative Tribunal for the review of various decisions.

[88 to 103]. Create offence provisions in respect to registration. It is an offence for unregistered persons to use certain protected titles, for pharmacists to claim to have registration of a different type to that actually held or to wrongly claim to have registration that is endorsed, and for pharmacists whose registration is subject to a condition to claim otherwise.

It is an offence for any person to direct or incite a registered pharmacist to do anything in the course of providing pharmacy services that is unprofessional conduct.

Register of prohibited persons

The Board must keep and publish a register of all persons prohibited from owning or having a proprietary interest in, or from carrying on a pharmacy business, which must be available during office hours for inspection or for a copy or extract to be obtained without charge.

A person must not advertise pharmacy services, pharmacy businesses or pharmacies in a misleading or inappropriate way and the Board may formulate guidelines about the minimum standards for advertising pharmacies, pharmacy businesses and pharmacy services, to be issued by the Governor in Council on the recommendation of the Minister, and to be circulated throughout Victoria by various publications. A Court may require corrective advertising, in a specified manner and at the expense of the person in contravention, where a person has advertised pharmacy services, pharmacy businesses or pharmacies in a misleading or inappropriate way.

Board established

[104 to 119]. Provides for the establishment of the Pharmacy Board of Victoria, as a corporate body and sets out its membership, functions, powers, and other like matters.

No personal liability attaches to Board members, the Registrar and panel members appointed by the Board for acts and omissions done in good faith in the exercise of powers or discharge of duties under this Act, and that any liability resulting from such acts or omission attaches instead to the Board.

Delegation

[119]. Provides that the Board may delegate to a member of the Board or the staff of the Board certain of its powers and functions under the Act. It may not delegate functions such as a decision to refuse to approve registration or renewal of registration, the power to impose, vary or revoke conditions, the power to refuse or to revoke approvals under Part 3 (in respect of the ownership of and right to carry on a pharmacy business, department or depot) and determinations under Part 4 (Investigations), or the power to delegate.

Enforcement

[124 to 138]. Makes provision for enforcement of the Act including the appointment of authorised persons to exercise powers of entry and search.

An authorised person has powers of entry to premises, without a warrant, where medicines are supplied, compounded or dispensed during business hours, in order to ascertain a person's compliance with the Act and regulations. The authorised person may enter, examine any room, stocks and equipment including prescriptions, and make copies of documents. A person must not refuse to admit an authorised person under this clause.

The Board may require a registered pharmacist or a person who carries on a pharmacy business to produce documents for examination at its offices, and may direct the copying of or retention of documents by the Registrar.

A person appointed by the Board may apply to a magistrate for the issue of a search warrant in relation to particular premises in specified circumstances. The forms and procedures contained in the Magistrates’ Court Act 1989 are to apply to such warrants. An announcement of authority is required before entry to premises for the execution of a search warrant, unless the authorised person believes on reasonable grounds that this will frustrate the purpose of the warrant.

Privilege against self-incrimination

Provides that the privilege against self-incrimination will apply to a natural person who is required to give information or do any other thing by or under the Act, but that it does not apply to the production of a document that the person is required to produce by law and it does not apply to a person who is required to give information or produce documents in respect of their proprietary interest in a pharmacy business under clause 25(7).

Regulations

[139]. The Governor in Council may make regulations with respect to the administration of the Act.

[141]. Repeals the Pharmacists Act 1974.

[142]. Provides that the new Board succeeds the old Board which is abolished, and outlines the effects of that succession including that the new Board is substituted as a party in any proceedings, contract or agreement made by or against the old Board, that the new Board may continue any matter commenced by the old Board, and that the new Board assumes the rights, assets, liabilities and obligations of the old Board.

[147]. Provides that the members of the Pharmacy Board of Victoria appointed under the old Act who held office immediately before the day on which this Act receives the Royal Assent continue to hold office subject to the old Act until the members of the new Board are appointed and take office under this Act.

The Committee makes no further comment.

Racing and Gaming Acts (Amendment) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill amends the –

Racing Act 1958 to –

• expressly require Harness Racing Victoria and Greyhound Racing Victoria to consult with, and facilitate consultation among, relevant harness racing and greyhound racing industry participants, and to report on these consultations in their respective reports of operations;

• further provide for appeals to the Racing Appeals Tribunal;

• enable the Racing Appeals Tribunal to receive evidence not on oath, or by way of affirmation or declaration;

Lotteries Gaming and Betting Act 1966 to remove the requirement that bookmakers obtain the Minister's approval before printing or posting notices indicating provisional betting odds in respect of certain combinations of races.

Gambling Regulation Act 2003 to –

• make statute law revision amendments;

• in respect of the Community Support Fund, change the amount to be paid into the Community Support Fund for the financial year commencing 1 July 2004 and each of the following 4 financial years, and alter the order of priority of payments out of the Community Support Fund;

• remove the requirement that bookmakers obtain the Minister's approval before publishing or disseminating a notice indicating provisional betting odds in respect of certain combinations of races;

• alter the period of time within which a person may claim a lottery prize from a public lottery licensee under the Act, and the method by which unclaimed lottery prizes are dealt with under the Act.

Confiscation Act 1997 to repeal the item in Schedule 2 to that Act which listed certain offences under the Gaming and Betting Act 1994 as automatic forfeiture offences for the purposes of the Confiscation Act 1997.

ANZAC Day Act 1958 to make minor changes of a statute law revision nature.

Content and Committee comment

[Clauses]

[2]. Part 1 and 4 (except section 15) come into operation on Royal Assent.

Section 15 is deemed to have come into operation on 17 December 2003.

Part 5 comes into operation on the day on which section 12.1.1(b) of the Gambling Regulation Act 2003 comes into operation. Part 6 comes into operation on the day on which section 12.1.1(f) of the Gambling Regulation Act 2003 comes into operation.

The remaining provisions in the Bill come into operation on proclamation but not later than by 1 July 2005.

[15]. Contains a statute law revision to section 1.2(1) of the Gambling Regulation Act 2003 to replace an incorrect reference to "Part". Chapter 1 does not consist of Parts and the reference there should have been to ‘This Chapter’ and not ‘This Part’

The Committee makes no further comment.

State Taxation Acts (Tax Reform) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the –

Duties Act 2000 to –

• provide an increase in thresholds for eligible pensioner exemptions and concessions;

• introduce general anti-avoidance provisions;

• reform the taxation of acquisitions of interests in land-rich entities;

• extend the valuation provisions;

First Home Owner Grant Act 2000 to increase the amount of the grant in certain circumstances;

Land Tax Act 1958 to revise the rates of tax and tax thresholds;

Pay-roll Tax Act 1971 with respect to employment agent contracts;

Taxation Administration Act 1997 regarding the valuation of property.

Content and Committee comment

[Clauses]

[2]. Other than Part 3, Part 5 and sections 3, 8, 9, 10, 12, 16 and 17 the provisions in the Bill come into operation on the day after the day on which it receives the Royal Assent.

Part 3 and sections 8, 9, 10 and 16 are deemed to have come into operation on 1 May 2004.

In respect to the retrospective commencement of these provisions the Committee notes this extract from the explanatory memorandum –

This is because the Treasurer announced in the Budget that the additional first home owner grant and the changes to the eligible pensioner concession and first home owner concession in the Duties Act would have effect from this date.

Sections 3, 12 and 17 come into operation from the date of the Minister’s Second Reading Speech.

Part 5 comes into operation on 1 January 2005.

[8 and 9]. Amends the eligible pensioner exemptions and concessions contained in the Act.

[11]. Inserts new sections 69A to 69D (new Part 6) into Chapter 2 which includes a definition of ‘taxation avoidance schemes’ for the purposes of the Chapter and contains an anti-avoidance provision allowing the Commissioner to disregard an avoidance scheme.

[12]. Substitutes new Parts 1 and 2 in Chapter 3 of the Act. The main purpose of the amendments are to replace the provisions in Chapter 3 of the Act that impose duty on the acquisition of interests in certain companies and unit trusts (known as "the land-rich provisions").

First Home Owner Grant Act 2000

Part 3 of the Bill makes two amendments to the Act. The amendments entitle Victorian first home buyers to an additional $5,000 for home purchases up to $500,000.

Land Tax Act 1958

Part 4 of the Bill amends the land tax minimum payment, thresholds and rates.

Pay-Roll Tax Act 1971

Part 5 of the Bill substitutes the employment agency provisions of the Act, changing liability for pay-roll tax in respect of agency labour from the end user to the employment agency.

Taxation Administration Act 1997

Part 6 makes amendments to this Act including to section 100A(1) by specifying that the Commissioner may now refer a matter where there is an objection concerning the value of property to not just the Valuer-General but to another competent valuer for valuation.

The Committee makes no further comment.

Surveying Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill –

• provides for the annual registration of licensed surveyors to perform cadastral surveying in Victoria;

• provides for investigations into the professional conduct of licensed surveyors;

• establishes the Surveyors Registration Board of Victoria ("the Board");

• provides for the establishment of the Surveyors Registration Board of Victoria Fund;

• repeals the Surveyors Act 1978 and make consequential amendments to other Acts; and

• provides for fees for the maintenance of the survey control network.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on proclamation but not later than by 1 January 2005.

[4 to 17]. Sets out the application process for registration as a licensed surveyor and the qualifications a person needs for registration as a licensed surveyor. The Part also sets out the circumstances under which the Board must grant registration and when the Board may refuse to grant registration.

[18 to 32]. Provides that a person may make a complaint to the Board about the professional conduct of a licensed surveyor or a person who was a licensed surveyor if the complaint relates to conduct when he or she was a licensed surveyor. The provisions cover the investigation of complaints and the conduct of related hearings.

[33]. Provides that a person whose interests are affected by a decision of the Board may apply to the Victorian Civil and Administrative Tribunal for a review of a Board decision.

[35 to 39]. Creates an offence for a person who is not registered as a licensed surveyor to take or use the title of licensed surveyor, claim to be registered, carry out any act which is required to be carried out by a licensed surveyor or claim to be qualified to practise as a licensed surveyor; creates an offence of interfering with survey pegs or marks; and prohibits the wilful obstruction of a licensed surveyor, or a person acting under the direction of a licensed surveyor, in the performance of their work.

[40 to 42]. Provides for the appointment, functions and powers of the Surveyor-General.

[43]. Enables the Surveyor-General to delegate to any licensed surveyor, or class of licensed surveyors, employed under Part 3 of the Public Sector Management and Employment Act 1998 any power or function of the Surveyor-General relating to the certification of plans.

[44 to 56]. Establishes the Surveyors Registration Board of Victoria and provides that the Board is a body corporate and sets out the functions of the Board and provides that a member is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or duty under the Act or the regulations. Liability attaches instead to the Board.

Entry onto land

[58]. Sets out the circumstance under which a licensed surveyor, or a person acting under the direction and supervision of a licensed surveyor, may enter land for the purpose of conducting a cadastral survey. A person must not enter a residence under this clause without first obtaining the written consent of the occupier. A licensed surveyor is liable for damage caused by him or her and any other person acting under his or her direction and supervision in exercising the power of entry under this clause.

[63]. Sets out the various regulation-making powers including a power to impose penalties for a contravention of the regulations not exceeding 10 penalty units.

[65]. Repeals the Surveyors Act 1978.

[68]. Provides that a person who was a licensed surveyor under the repealed Act immediately before the commencement of the Bill is deemed to be registered under the new Act.

The Committee makes no further comment.

Sustainable Forests (Timber) Bill

Introduced: 11 May 2004
Second Reading Speech: 13 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob. Cameron MLA
Portfolio responsibility: Minister for Environment

Purpose

The The Bill provides a framework for sustainable forest management and sustainable timber harvesting in State forests.

The Bill also amends the Forests Act 1958 and the Conservation, Forests and Lands Act 1987.

Content and Committee comment

[Clauses]

[2]. A number of sections come into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 July 2006.

[5]. Sets out the principles of ecologically sustainable development to which regard must be had in undertaking sustainable forest management and the objectives guiding ecologically sustainable development.

Managed Licences

[25 to 38]. Deals with the transfer of licences from the Secretary to VicForests. From the commencement of the provisions, the management, administration and enforcement of a transferred licence (east and west) is transferred from the Secretary to VicForests. These are existing licences for the supply of timber which relate to the east of the State. The licences are specified in Schedules 1 and 2 of the Bill. The clause further provides that any rent, fee, royalty or charge payable to the Secretary becomes payable to VicForests and may be collected and recovered by VicForests.

No compensation and no proceedings may be brought on expiry of licence

[27 and 30]. Provides a transferred licence expires at the end of its term, that any entitlement or right to renewal or reissue of that licence ceases and that VicForests has no power to renew or reissue such a licence or to grant any further licences or permits in relation to that licence. The clauses further provide that no proceedings can be taken in respect of any loss, damage or injury from or arising out of these changes and that no compensation is payable either for any loss, damage or injury from or arising out of these changes or the enactment of Division 1 of Part 4. (Refer to section 85 Constitution Act 1975 report below).

[50 to 52]. Makes it an offence to carry out certain prescribed activities associated with timber harvesting operations without being the holder of a timber harvesting operator's licence, whether as a supervisor or an operator and makes it an offence to engage, contract with or employ unlicensed timber harvesting operators. It is an offence to direct the holder of a timber harvesting operator's licence to contravene a condition of that licence or to contravene the regulations.

[53 to 59]. Makes provision for a person to apply to the Secretary for a timber harvesting operator's licence.

[60]. An applicant for a timber harvesting operator's licence or for the renewal of a timber harvesting operator's licence may apply to the Victorian Civil and Administrative Tribunal for review of a decision of the Secretary.

[84]. Gives an authorised officer the power to ask a person to state his or her name and ordinary place of residence or business if the authorised officer believes on reasonable grounds that the person has committed or is committing an offence against the Act or the regulations. An authorised officer must identify themselves when exercising a power.

[88]. Gives an authorised officer who believes on reasonable grounds that a person has committed or is committing an offence against the Act or the regulations, the power to seize any item used or being used by that person in the commission of the offence.

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).

[95]. Declares that it is the intention of clauses 27 and 30 to alter or vary section 85 of the Constitution Act 1975.

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

Clause 95(1) of the Bill states that it is the intention of section 27 to alter or vary section 85 of the Constitution Act 1975. Clause 95(2) of the Bill states that it is the intention of clause 30 to alter or vary section 85 of the Constitution Act 1975. Clause 125 inserts new section 98 into the Forests Act. New section 98 states that it is the intention of section 52AA of the Forests Act to alter or vary section 85 of the Constitution Act 1975.

As I have already noted, the Bill transfers the management, administration and enforcement of certain existing licences and permits (defined as transferred licences (east) and transferred licences (west)) from the Secretary to VicForests and VicForests will manage, administer and enforce these transferred licences until their expiry.

Clauses 27 and 30 of the Bill provide that any entitlement, right or purported right a holder of a transferred licence (as defined) may have for that licence to be renewed or reissued, or to have a further licence or permit granted, ceases to exist and that no proceedings may be taken in respect of any loss, damage or injury from or arising out of the loss of that entitlement, right or purported right. Further, the clauses provide that no compensation is payable in respect of any loss, damage or injury from or arising out of the loss of any such entitlement, right or purported right, or as a result of the enactment of the clauses dealing with each type of licence.

Proposed new section 52AA is being inserted into the Forests Act by clause 108 of the Bill and relates to the secretary's powers under section 52(6) of the Forests Act, which are being repealed by clause 107 of this Bill. At present, section 52(6) enables the Secretary to write informing a holder of a licence or permit referred to in section 52(6) of the period for which a further licence or permit will be granted.

Proposed new section 52AA of the Forests Act operates in a similar way to clauses 27 and 30 of the Bill. It takes away any entitlement, right or purported right of a holder of a licence or permit referred to in section 52(6) to have their licence or permit renewed or reissued. The proposed section further provides that no proceedings may be taken in respect of any loss, damage or injury from or arising out of the loss of such an entitlement, right or purported right or as a result of the enactment of that section, and that no compensation is payable in respect of any loss, damage or injury from or arising out of the loss of any such entitlement, right or purported right, or as a result of the enactment of the section.

Clauses 27 and 30 of the Bill and proposed new section 52AA of the Forests Act (as inserted by clause 108 of the Bill) are necessary to give effect to the changed policy position as reflected in the Bill, that is, to put an end to the current licence system in relation to timber harvesting.

As members will have noted, VicForests will be managing transferred licences until their expiry. The government supports a sustainable timber harvesting industry, and VicForests will continue to meet the terms of existing licence commitments to current licence-holders for the remainder of their current licence periods. In line with its functions, VicForests will then progressively move to new commercial arrangements of its own making. Beyond meeting these existing commitments the government does not wish VicForests to be hampered with questions about any ongoing obligation to further extend licences. Any ongoing question about the renewal or reissue of licences under the current provisions of the Forests Act will jeopardise this key element of the reforms. The government is firm about the introduction of a new system for the pricing and sale of timber resources. The government wishes the licensing system to end in a clear and orderly manner, and it wishes to provide VicForests with a clean slate for its new system.

[96]. Provides for the matters for or with respect to which the Governor in Council may make regulations.

Forests Act 1958

[98]. Inserts a new section 4 into the Act to specify that all forest produce in State forest is the property of the Crown and that property in forest produce only passes from the Crown to another person in accordance with that Act.

[107]. Repeals section 52(6) of the Act (granting of licences)

[108]. Inserts a new section 52AA into the Act specifying that no compensation is payable and no proceedings can be taken consequent on the repeal of section 52(6) of that Act by clause 107 (Refer to section 85 Constitution Act 1975 report below).

[112]. Inserts new sections 62A to 62C empowering the Secretary to apply and use fire for land and resource management purposes.

[122]. Inserts new sections 95A to 95J to deal with the requirement to give name and address in certain circumstances to an authorised officer.

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).

[125]. Inserts a new section 98 into the Forests Act 1958 declaring that it is the intention of section 52AA of that Act to alter or vary section 85 of the Constitution Act 1975.

Conservation, Forests and Lands Act 1987

[128]. Substitutes a new Part 5 of the Act to provide for a more simplified and modern process for the making of Codes of Practice by the Minister. New section 35 provides that a code of practice must be tabled in the Parliament and may be disallowed by the Parliament.

Schedule 1 and 2 respectively list the transferred licences (east) and (west) which are to be transferred to VicForests.

The Committee makes no further comment.

Transport Legislation (Miscellaneous Amendments) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon.Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the –

Marine Act 1988 to specify certain states of affairs or circumstances that do not prevent a person being convicted or found guilty of a refusal to comply with certain requirements made in relation to offences involving alcohol or other drugs.

Melbourne City Link Act 1995 to —

• support interoperability arrangements between tollway operators;

• make miscellaneous amendments relating to the disclosure and use of restricted tolling information and the enforcement of the payment of tolls; and

• abolish the office of Director, Melbourne City Link and transfer the Director's functions and powers to the Roads Corporation.

Public Transport Competition Act 1995 to —

• require all road transport passenger services to be accredited;

• expressly confer on the Secretary the discretion to refuse to give an accreditation if an applicant for accreditation or the applicant's directors or managers nominated in the application have been found guilty of, or charged with, certain offences.

Rail Corporations Act 1996 to —

• facilitate the inclusion of civil penalty provisions in certain contracts for the provision of public transport services; and

• repeal the provisions of that Act which impose certain cross-ownership restrictions on train and tram operators.

Road Safety Act 1986 to —

• provide for the granting of rights to registration numbers and the making of regulations concerning those rights;

• provide for the issue of non-standard number plates and the making of regulations concerning those plates;

• validate certain past transactions relating to the sale of registration number rights, the issue of number plates and the assignment of registration numbers;

• extend the scope of offences with respect to which alcohol interlock conditions may be imposed under that Act and require the police to be notified of applications for the removal of such conditions;

• specify certain states of affairs or circumstances that do not prevent a person being convicted or found guilty of a refusal to comply with certain requirements made in relation to offences involving alcohol or other drugs;

• make miscellaneous amendments relating to the enforcement of "owner onus" offences;

• expand the period within which an infringement notice may be withdrawn; and

• enable the sub-delegation of certain powers.

Road Safety (Drug Driving) Act 2003 to provide new penalties for the offence of refusing to provide a sample of oral fluid for drug testing.

Road Transport (Dangerous Goods) Act 1995 to update a reference to a Commonwealth Act.

Sentencing Act 1991 to extend the scope of offences with respect to which alcohol interlock conditions may be imposed under that Act and require the police to be notified of applications for the removal of such conditions.

Transport Act 1983 to —

• confer on the Secretary the power, by instrument, to delegate his or her power to issue driver instructor authorities under section 33 of the Road Safety Act 1986; and

• specify certain states of affairs or circumstances that do not prevent a worker being convicted or found guilty of a refusal to comply with certain requirements made in relation to offences involving alcohol or other drugs; and

• broaden the regulation-making powers relating to the carrying on of railway safety work.

Content and Committee comment

[Clauses]

[2]. Other than sections 9, 10 and 12(5) and (6) and Part 8 the provisions in the Bill come into operation on the day after Royal Assent. Part 8 comes into effect on 15 January 2004. The remaining provisions will come into force on proclamation but not later than by 4 January 2005.

Retrospective commencement

Marine Act 1988

[3]. Inserts new sections 28(1A) and 28(1B) to provide that a person may be convicted or found guilty of refusing to undergo a preliminary breath test, blood test even though the prescribed device or registered medical practitioner was not present at the time of the making of the requirement to undergo the test or provide the sample.

Melbourne City Link Act 1995

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

The Bill introduces a number of amendments to the Melbourne City Link Act 1995 to improve the enforcement system in relation to taxis, support interoperability between CityLink and interstate toll roads, abolish the statutory office of director, Melbourne CityLink, confer the director's functions and powers on VicRoads and permit the disclosure and use of restricted tolling information for the purpose of investigating and prosecuting certain road safety offences.

Police will be able to issue an infringement notice directly to the driver of a taxi instead of to the owner, although that option will still be available. As most owners do not drive their own taxis, the amendment will facilitate the efficient working of the tolling enforcement system in relation to taxis.

A driver who has an arrangement with an interstate toll road operator for the payment of tolls will be able to drive in a CityLink toll zone without having to have an account with CityLink Melbourne Limited and without committing an offence under the Melbourne City Link Act. Interoperability agreements between toll road operators permit tolls so accumulated to be debited to the motorist's existing toll road account.

The Bill amends the restricted tolling information regime in the Melbourne City Link Act to permit disclosure of restricted tolling information to protect the safety of workers on the link and public safety. Restricted tolling information may be disclosed to the police or to authorised VicRoads officers as is reasonably necessary for the purposes of investigation and enforcement of offences committed on the link relating to dangerous and careless driving, overdimensional heavy vehicles, improperly secured loads and affixing of numberplates.

[9]. Amends section 77 to provide that where the vehicle involved in the offence is a taxi-cab the relevant corporation may request the enforcement agency to serve an infringement notice on either the owner of the taxi-cab or the person who was driving the taxi-cab at the time of the offence.

[15]. Allows the disclosure to and use by the police and the Roads Corporation of restricted tolling information for the purposes of investigating and enforcing certain road safety offences. The road safety offences are those of dangerous driving, careless driving, non-compliance with overhead lane control devices, travel by an oversized vehicle, travel by an overheight vehicle, failure to properly secure a load and failure to properly affix and display number plates.

[16]. Inserts a new section 90CA into the Act to establish a regime in relation to the keeping of records of disclosure and use of restricted tolling information by authorised Roads Corporation officers.

Public Transport Competition Act 1995

[19]. Inserts a new section 9(1) into the Act to give the Secretary to the Department of Infrastructure power to refuse to grant accreditation to operate a bus service if the applicant (or one of its directors or nominated managers) has been found guilty of a disqualifying offence or has been charged with a disqualifying offence and the charge has not been finally determined.

Road Safety Act 1986

[24]. Amends the functions of the Roads Corporation to allow it to sell registration number rights, and issue non-standard number plates and replacement number plates.

[26]. Inserts new sections 5AC, 5AD and 5AE to provide for the sale of registration number rights, non-standard number plates and replacement number plates, and sets out the rights enjoyed by a person who owns registration number rights.

[29]. Amends Schedule 2 of the Act to allow for regulations to be made regarding number plates and registration number rights.

[31 to 33]. Make amendments to the alcohol interlock conditions in the Act.

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

The Bill removes the restrictions that prevented drivers who had lost their licence as a result of a drink-driving offence committed prior to 13 May 2002 from having a licence restoration order made subject to an alcohol interlock condition. This is expected to improve the prospects of drivers seeking to regain their licence and hence access better employment opportunities.

The Bill will also provide for the notification of the Victoria Police when a driver is making application for removal of an alcohol interlock condition. Under the act at present, police already have the right to put any matters regarding the person's suitability to have the condition removed before the court hearing the application. However, they need to be informed of upcoming cases so that they have an opportunity to exercise that right.

[34]. Inserts new sections 49(1A) and (1B) into the Act to provide that a person may be convicted or found guilty of refusing to undergo a preliminary breath test, urine or blood test even though the prescribed device or registered medical practitioner by which the test could be conducted or carried out was not present at the time of the making of the requirement to undergo the test or provide the sample.

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

The Bill also makes changes to the drink-driving and drug-driving provisions of the Road Safety Act.

One of the most important of these is to address a recent court ruling by making it clear that a person who refuses to provide a blood sample required under this act has committed an offence even if he or she is not in the presence of a person who can actually take that sample, or at the place where the sample can be taken.

For consistency, the proposed amendments cover the other refusal offences within Part 5 of the Road Safety Act. These deal with refusals to provide breath samples, refusals to undergo the standard impairment assessment or provide urine or blood samples under the provisions dealing with driving whilst impaired by a drug, and refusals to provide a sample of oral fluid under the roadside drug screening provisions introduced in the Road Safety (Drug Driving) Act 2003. The bill also amends corresponding provisions of the Marine Act 1988 and the Transport Act 1983. In all these cases police will be able to accept that when the driver says 'No', he or she means 'No'.

This avoids the need to call out a doctor, set up testing equipment or make similar arrangements when it is clear from the outset that this will be a waste of time and resources because the person to be tested has made it clear that he or she will not cooperate.

The Bill also provides for penalties to be imposed on drivers who refuse to comply with a requirement to undergo testing for illicit drugs imposed under the Road Safety (Drug Driving) Act 2003.

[39]. Inserts transitional provisions into the Act including amendments to the alcohol and drug testing provisions in clause 34 do not affect the rights of the parties in the proceeding in the Supreme Court case which identified the problems that are being addressed in those amendments, namely Halepovic v Sangston.

Road Safety (Drug Driving) Act 2003

[41]. Inserts new sections 7(4A) and (4B) into the Act to provide that a person may be convicted or found guilty of refusing to undergo an oral fluid test or provide a blood sample even though the prescribed device, or authorised officer or registered medical practitioner by which the test could be conducted or undertaken was not present at the time of the making of the requirement to undergo the test or to provide the sample, and was not available at the place or vehicle where the requirement was made at the time it was made. (Refer to Second Reading Speech under clause 34 above).

Sentencing Act 1991

[43]. Expands the circumstances in which a court which grants an application for re-licensing at the end of a period during which a person has been disqualified from obtaining a driver licence or permit because of certain serious driving offences to which alcohol was a contributing factor may direct the Roads Corporation that it can only grant the driver licence or permit subject to an alcohol interlock condition.

[44]. Amends section 89B(3) of the Act to require a person making an application for removal of an alcohol interlock condition at the end of the period specified by the Magistrates' Court to give 28 days written notice of the application and of the venue of the Court at which it is to be made to the Chief Commissioner of Police.

Transport Act 1983

[47]. Inserts new sections 94(1A) and (1B) into the Act to provide that a worker may be convicted or found guilty of refusing to undergo a preliminary breath test, drug impairment test or to provide a sample of blood or urine even thought the prescribed device, authorised officer or registered medical practitioner by which the test could be conducted or undertaken was not present at the time of the making of the requirement to undergo the test or to provide the sample. (Refer to Second Reading Speech under clause 34 above).

[48]. Amends section 129X of the Act to insert additional regulation-making powers with respect to the competence and health and fitness of railway safety workers who perform railway safety work.

The Committee makes no further comment.

Treasury and Finance Legislation (Amendment) Bill

Introduced: 4 May 2004
Second Reading Speech: 6 May 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Accident Compensation (WorkCover Insurance) Act 1993 –

• to place a time limit on the ability of an employer to recover amounts purportedly paid as premium for past policy years;

• to replace the grouping provisions with provisions equivalent to the Victorian pay-roll grouping provisions contained in the Pay-roll Tax Act 1971;

• to reintroduce a joint and several liability provision for employers who are members of a group as a means of strengthening the enforcement provisions of the Act; and

• to enable the Victorian WorkCover Authority to exercise a discretion to partially waive an employer's liability for reimbursement of uninsured claims costs.

The Bill amends the Professional Standards Act 2003 so that the Act will apply to liability for damages arising from a breach of fiduciary duty.

The Bill amends the Victorian Managed Insurance Authority Act 1996 to enhance the prudent management of risk across the public sector.

Content and Committee comment

[Clauses]

[2]. Other than sections 4, 10 and 15 the amendments come into operation on the day after Royal Assent. The remaining provisions, which relate to workers' compensation, come into effect on 6 May 2004 (the Minister’s Second Reading Speech).

Accident Compensation (WorkCover Insurance) Act 1993

[4]. Amends section 22 of the Act to place a time limit on the subject of a review under that section. Proposed sub-section (1A) limits an employer's right to seek review under section 22 of the Act for past payments of premium or amounts purportedly paid as premium to the current policy year in which the application for a review is made plus the four previous policy periods.

[5]. Inserts a new section 22A into the Act which sets out the application process for refunds of premium. The new section provides that an application may only be made in relation to premium for the current policy period in which the application is made plus the four previous policy periods. The new section applies to all claims other that where a written request for a refund of premium received by the Authority before the commencement date. (Refer to section 85 Constitution Act 1975 report below)

[13]. Inserts a new section 66A into the Act to re-introduce a joint and several liability provision for employers who are members of a group for the premium and penalties payable by the members of the group for that period. The provision does not apply to a premium or penalty payable by the group before the commencement of the new section.

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

In order to address premium avoidance and to protect the revenue base of the WorkCover scheme, the Bill reintroduces a joint-and-several liability provision for group members, equivalent to that in payroll tax legislation, into the Accident Compensation (WorkCover Insurance) Act. This measure will strengthen the enforcement provisions of the Act, improve the administrative efficiency of the WorkCover scheme and further harmonise relevant WorkCover and payroll tax legislative provisions.

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).

[15]. Inserts a new section 77(2) into the Act to declare that it is the intention of section 22A to alter or vary section 85 of the Constitution Act 1975. The new section 22A inserted by clause 5 limits the rights of employers to bring proceedings for the refund or recovery of premium.

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

Proposed section 22A will preclude an employer from commencing proceedings, including in the Supreme Court, for recovery of amounts paid or purportedly paid as premium (as defined in proposed section 22(3) of the Accident Compensation (WorkCover Insurance) Act 1993, which is being inserted by clause 4 of the Bill) other than in accordance with the provisions of proposed section 22A.

The reason for this limitation on the jurisdiction of the Supreme Court is to implement the policy intention that there should be a time limit on the period within which employers can make refund claims. Without these amendments the Victorian WorkCover Authority will remain exposed to the possibility of reopening many matters.

Emergency Services Superannuation Act 1986

[16]. Amends section 20E of the Act to enable death benefits to be paid to the estate of a contributor that was an operational staff member aged between 55 and 60.

Government Superannuation Act 1999

[18]. Inserts new sub-sections (9) to (15) into section 42 of the Act concerning the availability of salary sacrifice for certain government employees.

Professional Standards Act 2003

[19]. Amends section 5 of the Act by deleting the reference to breach of fiduciary duty in section 5(1)(c). The effect of this amendment is that breach of fiduciary duty by a professional will no longer be an exclusion under the Act.

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

The Professional Standards Act 2003 allows for limitation of liability for damages for financial or property losses by professionals who are subject to a formally approved professional standards scheme. The act also provides that limited liability does not apply where there is a breach of fiduciary duty.

Exclusion of limited liability for breach of fiduciary duty is unique to the Victorian legislation and does not feature in New South Wales or Western Australian professional standards legislation. Following consultation with professional organisations, the government is concerned to ensure that, as far as possible, there is nationally consistent professional standards legislation to minimise the difficulties faced by professionals who operate in more than one jurisdiction. For this reason the bill removes breach of fiduciary duty as grounds for exclusion of limited liability.

State Superannuation Act 1988

[28 to 38]. Provides for the introduction of salary sacrifice options for members of the State Superannuation Fund.

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

Importantly the Bill provides for the introduction of salary sacrifice for members of the State Superannuation Fund. The proposed amendments will enable the Minister for Finance to offer salary sacrifice to designated groups of State Superannuation Fund members on a case-by-case basis. This will be done via a Ministerial declaration.

Salary sacrifice is available to a large number of Australian workers (subject to their employer's agreement) and forms an integral part of the strategy to encourage Australians to save for their own retirement.

Transport Superannuation Act 1988

[41 to 46]. Provides for the introduction of salary sacrifice options for members of the Transport Superannuation Fund.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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