Scrutiny of Acts and Regulations Committee

Alert Digest No 6 of 2004

Tuesday, 24 August 2004

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Building (Amendment) Bill

Introduced: 1 June 2004
Second Reading Speech: 3 June 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Building Act 1993 (the ‘Act’) –

• to improve the regulation of domestic building work in relation to owner-builders;

• to require that authorised officers produce identification before exercising powers under that Act or the regulations;

• to provide powers for the inspection of safety or emergency installations, equipment or services in buildings and places of public entertainment and the inspection of records relating to their operation and maintenance;

• to empower a reporting authority to fix certain fees;

Content and Committee comment

[Clauses]

[2]. Sections 1 and 21 come into operation on the day after Royal Assent and the remaining provisions come into operation on proclamation but not later than by 1 July 2005.

[18]. Substitutes section 229 of the Act to provide that an authorised person may enter any building or land for the purpose of carrying out any inspection, authorised or required by the Act or the regulations under the Act, of –

• the building; or

• a place of public entertainment; or

• any equipment, installation, service, records or reports relating to the building or to the place of public entertainment; or

• building work or plumbing work.

[19]. Amends section 262(f) of the Act to increase the penalties for contravention of the regulations from a maximum of 10 penalty units to 20 penalty units.

The Committee makes no further comment

Crimes (Dangerous Driving) Bill

Introduced: 1 June 2004
Second Reading Speech: 3 June 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 –

• create an offence of dangerous driving causing death or serious injury;

• provide that driving while fatigued may constitute culpable driving causing death; and

• make a change to the elements of the offence of handling stolen goods and deal with the procedure on the trial of alternative counts of theft and handling stolen goods.

The Bill amends the Sentencing Act 1991 to provide for mandatory driver licence cancellation and a period of disqualification for the offence of dangerous driving causing death or serious injury.

The Bill also amends the Magistrates' Court Act 1989 to clarify that certain arson offences are triable summarily.

Content and Committee comment

[Clauses]

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

Crimes Act 1958

[3]. Amends section 88(1) of the Act to remove the words "otherwise than in the course of the stealing" from the offence of handling stolen goods.

The Committee notes the extract from the Explanatory Memorandum –

This provision is intended to address a problem with the current law identified by the Victorian Court of Appeal in R v Marijancevic (2001) 3 VR 611. In that decision, the accused was charged with theft and handling stolen goods. The Court of Appeal held that, even if the jury were satisfied beyond reasonable doubt that the accused had committed either theft or handling stolen goods, they must acquit the accused of both charges if jurors could not agree as to which of the two offences had been committed.

By removing the words "otherwise than in the course of the stealing", the jury does not need to be satisfied that the accused is not a thief, when considering whether the accused is guilty of handling stolen goods. As a result, it is less likely that jurors will disagree about whether an accused is guilty of theft or guilty of handling stolen goods.

[4]. Inserts a new section 88A in the Act regarding alternative counts of theft and handling stolen goods. This provision is intended to complement the amendment to section 88(1) in clause 3 of the Bill. The new section 88A provides that, if the jury are satisfied beyond reasonable doubt that the accused is either guilty of theft or guilty of handling stolen goods but are unable to agree on which offence the accused should be found guilty of, the jury must acquit the accused of handling stolen goods and return a guilty verdict for theft. In such circumstances, the accused would be liable to the maximum penalty for theft, which is 10 years' imprisonment. This provision is designed to address the problems identified by the Victorian Court of Appeal in R v Marijancevic (2001) 3 VR 611.

[5]. Amends section 318 of the Act (culpable driving) by inserting a new section 318(2A) to provide that negligence within the meaning of section 318(2)(b) may be established by proving that a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep or of losing control of the vehicle; and by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. This section provides one way of establishing negligence but does not limit the ways in which negligence may be established under section 318(2)(b).

[6]. Amends the Act to insert a new offence of dangerous driving causing death or serious injury in new section 319. A person will be guilty of the new offence where he or she drives a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all of circumstances of the case and, by doing so, causes the death of, or serious injury to, another person.

Sentencing Act 1991

[9]. Amends section 89(1) of the Act to provide that when a person is found guilty of dangerous driving causing death or serious injury, the court must, if the offender holds a driver licence, cancel that licence and, whether or not an offender holds a driver licence, disqualify him or her from obtaining one for a period of at least 18 months.

Magistrates' Court Act 1989

[10]. Amends clause 35 of Schedule 4 to the Magistrates' Court Act 1989 to clarify that offences of destroying or damaging property under section 197(1) and (3) of the Crimes Act 1958, including those charged as arson, can be heard and determined in the Magistrates' Court if the amount or value of the property alleged to be destroyed or damaged does not in the judgment of the Court exceed $25,000.

The Committee makes no further comment

National Parks (Additions and Other Amendments) Bill

Introduced: 1 June 2004
Second Reading Speech: 3 June 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The purposes of the Bill are amend the Crown Land (Reserves) Act 1978 to –

• create several nature conservation reserves; and

• make further provision in relation to the boundaries of several box-ironbark reserves

The Bill also amends the National Parks Act 1975 to –

• To make several additions and excisions to various parks;

• To make further provision in relation to advisory bodies; and

• To repeal certain spent provisions

The Bill makes minor amendments to the Forests Act 1958, the Mineral Resources Development Act 1990 and the National Parks (Amendment) Act 1989.

Content and Committee comment

[Clauses]

[2] is the commencement provision. Clause 2 contains a delayed commencement provision in respect of Division 2 of Part 3. The relevant date is 27 February 2012. The reason for the delayed commencement provision is set out in the Second Reading Speech –

The Bill provides for several eucalyptus oil harvesting areas to be added to the Wychitella Reserve by 2012. The delayed reservation of these areas is in accordance with the ECC’s recommendations and the date decided in 2002 for the phase-out of this activity from areas of greater Bendigo National Park…

Amendments to the National Parks Act 1975

[3]. Substitutes a new section 10 which specifies the membership of the National Parks Advisory Committee and the criteria for selecting particular members.

[4]. Repeals section 11(1)(b). Currently section 11(1)(b) specifies that the National Parks Advisory Council may, as one of its functions, act as a committee of management for certain lands. This function is no longer required.

[6]. Amends section 25B by substituting a revised section to enable the licensing of the harvesting of a pine plantation in Lake Eildon National Park, subject to conditions. The amendment removes references to parks for which the provision is spent or no longer required.

[10]. Substitutes a new section 32AE(3) which specifies the membership of the Alpine Advisory Committee and the criteria for selecting particular members.

[11]. Amends section 32B by consolidating in that section the provisions relating to tenancies for surf lifesaving purposes. In particular, sub-clause (2) inserts sub-section (1A) to enable the Minister to grant tenancies of land in Mornington Peninsula National Park, Port Campbell National Park and Cape Liptrap Coastal Park for surf lifesaving purposes. This new provision enables a tenancy to be granted at Sorrento Ocean Beach (Mornington Peninsula National Park), where there was no surf lifesaving operation prior to 1978 (a precondition of a tenancy under the current sections 32A and 32B), and at Venus Bay in Cape Liptrap Coastal Park.
[15]. Repeals sections 44(3) and 44(4), which are spent. These sections enabled the lawful carriage or use of spear guns in four marine national parks and part of one marine sanctuary until 1 April 2004 (when fishing was prohibited in those areas). (The carriage of spear guns in a park may be authorised under section 37AA.)

[18, 19 and 20]. Make provision for the excision of various pieces of land. The Committee notes the comments from the Second Reading Speech –

The bill also makes small additions to Chiltern-Mt Pilot and Heathcote-Graytown national parks, Beechworth Historic Park, Tungamah and Youarang natural features reserves and Eldorado Historic Reserve. Generally these are areas that have been identified since the box-ironbark legislation was passed in 2002. A road will be excised from Eldorado Historic Reserve, and the plans of the Tungamah and Youarang reserves amended to remove three areas of freehold and to define several roads which have recently been surveyed.

There are also the following small excisions from or boundary corrections to parks under the National Parks Act 1975:

• from Tarra-Bulga National Park - a cleared paddock of 0.

• 6 hectares which is isolated from the rest of the park and was purchased and included in the park in 1981 as the site for a visitor centre - this has been built elsewhere in the park and the area is no longer required for park purposes;

• from Greater Bendigo National Park - an area of 0.1 hectares which includes part of a road;

• from Beechworth Historic Park - two cleared paddocks totalling 6.7 hectares with no value for park purposes, and several sections of road forming part of the road network maintained by the local council; and

• in relation to Chiltern-Mt Pilot and Heathcote-Graytown national parks, Arthurs Seat State Park and Castlemaine Diggings National Heritage Park - the plans are corrected to exclude several areas of freehold and other land.

The National Parks Advisory Council has been consulted over the proposed amendments and has provided advice in accordance with section 11 of the National Parks Act 1975 for tabling in both houses of Parliament.

Amendments to the Crown Land (Reserves) Act 1978

[30]. Inserts a new Division 2 into the Crown Land (Reserves) Act 1978. Proposed new sections 44-47 deem various areas of land to be reserved for specified public purposes. Proposed sections 48 and 49 are transitional provisions relating to the creation of several reserves.

[31]. Amends the Act as set out in Schedule 2 to the Bill. This inserts the proposed Fifth Schedule, which contains the descriptions of various reserves.

Amendment to other Acts

[34]. Amends the definition of restricted Crown land in Schedule 3 to the Mineral Resources Development Act 1990. The Committee notes the comments in the Second Reading Speech:

Land is restricted Crown land if it is subject to an accepted recommendation of the environment conservation council or Victorian environmental assessment council that it be reserved for one of several specified purposes, or, if there is no accepted ECC or VEAC recommendation of any kind applying to the land, the land is subject to an accepted recommendation of the land conservation council that it be reserved for one of those specified purposes.

Schedule 1 amends the National Parks Act 1975 by inserting proposed Schedule One A. This proposed schedule includes the standard provisions relating to native title.

Schedule 2 amends the Crown Land (Reserves) Act 1978 by inserting the proposed Fifth Schedule. This enables the descriptions of various reserves created by amendments to the Act to be consolidated.

The Committee makes no further comment.

Sentencing (Superannuation Orders) Bill

Introduced: 1 June 2004
Second Reading Speech: 3 June 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Sentencing Act 1991 (“the Act”) to enable a court to impose a new sentencing option where a public sector employee is convicted of an indictable offence involving abuse of office, corruption or perversion of the course of justice. The new option is the making of an order (“superannuation order”) for payment of an amount as a fine determined by reference to superannuation benefits which the offender has received or to which the offender will be entitled in the future.

Content and Committee comment

[Clauses]

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

[3]. Inserts a new Part 3A (sections 83B to 83K) into the Act.

The purpose of the new Part is to enable a court to make a superannuation order as a sentencing option where a public sector employee is convicted of an indictable offence involving abuse of office, corruption or perversion of the course of justice. The new Part applies in respect of an offender convicted on or after 3 June 2004, the date of the Second Reading of the Bill. A superannuation order may be made in addition to, or instead of, any other sentencing option.

The section also provides that a superannuation order is not to be taken into account in relation to the imposition of a fine (section 49) as a sentence.

New section 83I enables the authorised officer (Director of Public Prosecutions or Chief Commissioner of Police) to obtain information from administrators of superannuation schemes to the extent necessary for the making of applications for superannuation orders. The section also provides that the administrators comply sufficiently with the request if they provide information so far as they are able to do so from information to which they have access.

New section 83J provides that administrators are not in breach of trust or of any governing instrument by complying with a request for information under section 83I.

New section 83K makes it an offence for an authorised person, or an employee of agent of an authorised person to disclose information obtained for the purpose of responding to a request under section 83I.

The Committee makes no further comment

Sex Offenders Registration Bill

Introduced: 1 June 2004
Second Reading Speech: 3 June 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Corrections

Purpose

The purpose of the Bill is to –

• require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time;

• reduce the likelihood that they will re-offend;

• facilitate the investigation and prosecution of any future offences that they may commit;

• prevent registered sex offenders working in child-related employment;

• empower the Police Ombudsman to monitor compliance with certain provisions of the Act.

Outline of the Act

The Act will provide for the establishment of a Register of Sex Offenders; and will require certain offenders who are sentenced for registrable offences on or after 1 October 2004 to report specified personal details for inclusion in the Register (and extends this requirement to certain offenders sentenced for registrable offences before that date).

The Act will enable a sentencing court to order juvenile offenders and offenders who commit certain sexual offences against adult victims to comply with the reporting obligations of the Act; and requires those offenders to keep those details up to date, to report those details annually and to also report certain of their travel plans.

The Act will impose reporting obligations for a period of between 4 years and life, depending on the number, severity and timing of the offences committed, and the age of the offender at the time an offence was committed.

The Act provides for the recognition of the period of reporting obligations imposed under laws of foreign jurisdictions.

The Act makes it an offence for registered sex offenders to work in child-related employment.

The Act will empower the Police Ombudsman to monitor compliance with the Act.

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

Registrable offences

The Bill provides that only those found guilty of what are termed 'registrable' offences will be required to report to Victoria Police. The list of registrable offences when committed against children includes serious sex offences involving, for example, sexual penetration, assault with intent to rape, indecent assault and possession or production of child pornography.
In relation to registrable offences when committed against adults, the offender must already be a 'serious sex offender', which means someone who has been convicted of two or more sex offences or at least one sex offence and one violent offence for which a custodial sentence was imposed and who is then found by the courts to have committed another sex offence, for example, rape or indecent assault.

Under this Bill, therefore, the requirement to report to police will fall upon those sex offenders found guilty of a defined registrable offence, for which a custodial sentence was imposed or for which they were otherwise made subject to a supervisory order, such as parole.

These reporting obligations will also to apply to sex offenders who immediately before the commencement of the proposed legislation are in a correctional facility (for example, prison or youth training centre) as a result of having committed a registrable offence.

Juvenile sex offenders

That persons otherwise found guilty of what would be a registrable offence are therefore required to report to police is subject to one exception. Juvenile sex offenders will not be obligated to do so unless ordered by a court. In this context the government readily acknowledges the need to retain discretion when dealing with young offenders.

Non-registrable offences

As an added community protection measure the Bill provides that the courts be empowered to impose a new form of sentencing order to be known as a 'sex offender registration order'. To be made concurrently with other sentencing orders, this order may be made if, following a finding of guilt in respect of a non-registrable offence which has a sexual element, the court, after taking into account those matters which it considers appropriate, is satisfied that the offender poses a risk to the sexual safety and protection of the community.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on 1 October 2004.

[6]. Defines a registrable offender for the purposes of the Bill.

[7]. Defines the meaning of registrable offence.

[11]. Sets out when a sex offender registration order may be made and the reporting obligations of a person subject to such an order. The court may only make the order upon an application by the prosecution.

[12]. Sets out the period within which a registrable offender must report his or her personal details to the Chief Commissioner of Police.

[14]. Sets out the details which must be initially reported by the registrable offender. The information includes current and former name(s); names and ages of any children who generally reside in the same household or with whom the registrable offender has regular unsupervised contact; details of affiliation with any club or organisation which has child membership or participation; tattoos or permanent distinguishing marks, and travel plans.

[16]. Provides that a registrable offender must report annually.

[17]. Provides that a registrable offender must report changes to personal details within 14 days after that change occurs.

[18]. Applies to registrable offenders intending to leave Victoria to travel elsewhere in Australia or overseas.

[19]. Sets out the obligations of a registrable offender who changes his or her travel plans while out of Victoria.

[20]. Sets out the obligations of a registrable offender to report his or her return to Victoria or decision not to leave.

[21]. Sets out the obligations of a registrable offender to report other absences from Victoria.

[22]. Sets out where a report is to be made.

[23]. Sets out how a registrable offender must report.

[24]. Provides that there is a right to privacy and support when reporting. A person making a report at a police station or a place approved by the Chief Commissioner of Police is entitled to make the report out of the hearing of members of the public; and be accompanied by a support person and, in the case of a child, must be accompanied by a parent or guardian or, if neither is available, an independent person.

[26]. Sets out additional matters to be provided when reporting in person. If a report is required to be made in person, the person making the report must also present for inspection the registrable person's driver licence (if any) or any other form of identification or other document specified by the regulations; and provide a photograph of the registrable offender's head and face of a type suitable for use in an Australian passport; and if not the registrable offender, present for inspection his or her driver licence (if any) or other form of identification specified by the regulations.

The section empowers the police member receiving the report to waive the requirement for an identification document or a photograph if the member takes the fingerprints or a fingerscan of the registrable offender immediately before or after the report is made and, in the case of a child, does so in the presence of a parent or guardian of the child or, if neither is available, an independent person or is otherwise satisfied as to the registrable offender's identity.

An authorised police member receiving a report to copy any document presented to him or her for inspection.

[27]. Sets out the power to take fingerprints or a fingerscan where there is doubt as to identity. A police member cannot take the fingerprints or a fingerscan of a child unless the child is accompanied by a parent or guardian or, if neither is available, an independent person.

[28]. Provides that reasonable force may be used to obtain fingerprints or a fingerscan.

[29]. Enables photographs to be taken with the consent of the registrable offender. A police member cannot require a registrable offender who is to be photographed to expose specified parts of his or her anatomy. Any police member present in a place while a photograph is being taken must be of the same sex as the registrable offender and the registrable offender who is to be photographed is entitled to be accompanied by a support person and, in the case of a child, must be accompanied by his or her parent or guardian or, if neither is available, an independent person.

[30]. Provides that the Chief Commissioner of Police may, during the reporting period of a registrable offender, retain for law enforcement, crime prevention or child protection purposes, any of the following taken from or relating to the registrable offender. At the end of the reporting period, the Chief Commissioner of Police must cause them to be destroyed.

[34]. Sets out the length of the reporting period.

[35]. Sets out a reduced period for juvenile registrable offenders.

[39]. Empowers the Supreme Court to exempt, in certain circumstances (including the expiration of 15 years since last being sentenced or released from government custody in respect of a registrable offence) certain registrable offenders where that person is required to report for life.

[40]. Sets out the sort of considerations a court making an order under section 39 must take into account.

[46]. It is an offence for a registrable offender to fail to comply with his or her reporting obligations without a reasonable excuse. A maximum penalty of 240 penalty units or imprisonment for 2 years applies to a registrable offender who, without reasonable excuse, fails to comply with his or her reporting obligations.

[48]. Provides that a prosecution for an offence may be commenced at any time.

[49]. Provides that a registrable offender is not to be prosecuted for a failure to report his or her intended absence from Victoria as required by clause 18, if such person is found guilty of failing to report his or her presence in a foreign jurisdiction.

[50]. Provides when and by whom a written notice is to be given to a registrable offender setting out his or her reporting obligations and the consequences which may arise for failure to comply with those obligations.

[56-61]. There are special provisions for reporting in respect to any registrable offender who is a participant in a Victorian witness protection program (as defined in the Witness Protection Act 1991).

[62]. The Chief Commissioner of Police is to establish and maintain a Register.

[63]. The Chief Commissioner of Police must ensure that the Register is only accessed by those whom he or she authorises; and personal information in the Register is only disclosed for law enforcement functions or activities and then only to a government department or public statutory authority or as otherwise required by or under any Act or law.

[64]. It is an offence, punishable by a maximum penalty of 240 penalty units or imprisonment for 2 years, for a person with authorised access to the Register to disclose personal information in the Register except as provided.

[66]. Sets out the access and amendment rights of a registered offender in respect to information concerning the offender kept on the Register.

[68]. Provides that a registered sex offender is to be excluded from child-related employment (defined by the Act). It is a defence to the charge for the accused to prove that he or she did not know that the employment was child-related employment.

[69]. Sets out a number of offences in respect of a person engaged in child related employment or seeking such employment, who fails to disclose the fact that he or she has been charged with a registrable offence to their employer or prospective employer.

[70]. Provides that it is an offence punishable by a maximum penalty of 60 penalty units for a person to give another person any information acquired under clause 69. The clause further provides a number of exceptions, including the giving of such information to a court or tribunal in the course of legal proceedings or to enable the investigation or the enforcement of a law.

[71]. Provides for the exclusion of liability under the Bill in respect of acts or omissions by a person in good faith in the administration or execution of the Act does not subject the person personally to any action, liability, claim or demand.

The section also provides that section 86J of the Police Regulation Act 1958 (which deals with the protection of the Police Ombudsman and officers of the Police Ombudsman), extends to any act purporting to be done by the Police Ombudsman or officers of the Police Ombudsman in pursuance of the Police Ombudsman's functions under Part 4 of this Bill. (Note: Section 85 of the Constitution Act 1975 declaration and statement below).

[72]. Provides that the fact that an offence in respect of which a registrable offender has been found guilty becomes spent, does not affect either the status of the offence as a registrable offence for the purposes of the Bill or the reporting obligations of the registrable offender.

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).

[74]. Declares that it is the intention of section 71 of the Act 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 71(1) states that a person who does or omits to do an act or omission in good faith in the administration or execution of this Bill is not liable to any action, liability, claim or demand.

The reason for limiting the jurisdiction of the Supreme Court by this subclause is to ensure that people administering the Bill in good faith are immune from suit.

These people are acting in the public interest and it is important for the administration of justice that they are free to act without threat of legal proceedings.

Clause 71(2) provides that section 86J of the Police Regulation Act 1958 extends to any act purporting to be done by the Police Ombudsman or an employee referred to in section 7 of the Ombudsman Act 1973 in pursuance of the Police Ombudsman's functions in relation to Part 4 of this Bill.

Section 86J of the Police Regulation Act 1958 protects the Police Ombudsman and the officers of the police ombudsman from liability to civil or criminal proceedings in respect of acts purporting to be done under that Act in good faith. Part 7 of this Bill confers on the Police Ombudsman and the officers of the Police Ombudsman new functions in monitoring compliance with Part 4 of this Bill.

The reason for limiting the jurisdiction of the Supreme Court is that it is important to ensure that the police ombudsman and the officers of the Police Ombudsman have the same protection in carrying out the functions given to them by this Bill as they have in carrying out their other functions.

[76]. Provides for an amendment to the Ombudsman Act 1973 to include that the Police Ombudsman is to also monitor compliance with Part 4 of the Bill by the Chief Commissioner of Police and other persons authorised to access the Register. Clauses 77 and 78 also amend that Act in respect to the Police Ombudsman’s powers and monitoring role.

Schedule 1 to 4 list Class 1 to 4 offences.

The Committee makes no further comment

Victorian Civil and Administrative Tribunal (Amendment) Bill

Introduced: 26 May 2004
Second Reading Speech: 27 May 2004
House: Legislative Council
Minister introducing Bill: Hon. Justin Madden MLC
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Victorian Civil and Administrative Tribunal Act 1998 in relation to the powers of the Minister for Planning to call in certain proceedings from the Victorian Civil and Administrative Tribunal (“VCAT”).

Content and Committee comment

[Clauses]

[2]. Provides that the Act comes into operation on the day in which it receives Royal Assent.

[3]. Inserts a new clause 58 which sets out the Minister’s call-in power in respect of a proceeding which is before the Tribunal. The new clause is similar to the previous provision. Where the Minister considers that a proceeding raises a major issue of policy and its determination may have a substantial effect on the achievement or development of planning objectives, he or she may exercise the call-in power. The Committee notes the comments in the Second Reading Speech –

The Minister …. may call in a proceeding by written notice to the principal registrar, rather than directing the principal registrar to refer a proceeding to the Governor in Council. As in the existing clause 58, the Minister may also invite the Tribunal to either decline to hear or continue hearing the proceeding and refer it to the Governor in Council, or hear the proceeding and without determining it, refer it to the Governor in Council for determination.

Any notice or invitation must be given before the final determination and no later than 7 days before the day fixed for the hearing of the proceeding. Hearing as defined in subclause (5) does not include a directions hearing, preliminary hearing or interlocutory hearing. Subclause (4) provides that if the Minister calls in a proceeding under sub-clause (2)(a), the Tribunal must not commence or continue to hear the proceeding and the principal registrar must refer the proceeding to the Governor in Council for determination.

The Committee notes that pursuant to subclause (6) the new provisions apply to a proceeding existing on or after the commencement of the Victorian Civil and Administrative Tribunal (Amendment) Act 2004.

New clause 59 makes similar changes to the power of the Minister for Planning to call in a proceeding under any planning enactment other than the Planning and Environment Act 1987.

The Minister administering the relevant planning enactment may request the Minister for Planning to issue the same notice or invitation described above. The Minister for Planning must comply with such a request.

[4]. amends clause 61 of Schedule 1. It sets out the effect of referral of a proceeding to the Governor in Council. It retains the old provision which provides that the Governor in Council may determine the proceeding and make any orders that could have been made by the Tribunal. In addition, the Governor in Council is not bound by any decision, determination or order made by the Tribunal in the proceeding.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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