Scrutiny of Acts and Regulations Committee

Alert Digest No 8 of 2004

Tuesday, 5 October 2004

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Children and Young Persons (Age Jurisdiction) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Children and Young Persons Act 1989 (the ‘Act’) to increase the age jurisdiction of the Criminal Division of the Children's Court by one year from 17 years to 18 years; and makes consequential amendments to the Crimes Act 1958, the Crimes (Family Violence) Act 1987, the Sentencing Act 1991, the Evidence Act 1958 and the Parole Orders (Transfer) Act 1983.

The Committee notes these extracts from the Minister’s Second Reading Speech –

This Bill will bring Victoria into line with the United Nations Convention on the Rights of the Child. This convention defines a child as a person under the age of 18 for the purposes of criminal law.

…

The Bill will not alter the fact that the Children's Court does not have jurisdiction to hear charges of murder, attempted murder, manslaughter, arson causing death or culpable driving.

Those charges will continue to be heard in the Supreme or County courts. The Children's Court will also continue to have the power to decline to hear a charge in exceptional circumstances - referring the matter to the Supreme or County court.

…

The Bill will not affect the operation of Victoria's unique 'dual track' system, which allows adult courts to sentence vulnerable young offenders to detention in a youth training centre. While the Bill will transfer primary jurisdiction in respect of 17-year-old and some 18-year-old defendants from adult courts to the Children's Court, adult courts will continue to have the power to sentence offenders aged under 21 to detention in a youth training centre rather than to imprisonment.

Content and Committee comment

[Clauses]

[2]. The amendments made by the Bill come into force on proclamation but no later than 1 July 2005.

[3 to 22]. Amends the definition of "child" in section 3(1) of the Act, to mean in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years, but not including any person who is of or above the age of 19 years at the time of being brought before the Court. The Bill makes consequential substitutions of the respective age limits in a number of relevant sections of the Act. The effect of these amendments is to give the Criminal Division of the Children's Court the jurisdiction to hear and determine charges for offences alleged to have been committed prior to a child's 18th birthday so long as the child has been brought before the Court prior to his or her 19th birthday.

[24 to 32]. Make consequential amendments to the age limits relevantly found in the Crimes Act 1958.

[34 to 43]. Make consequential amendments to a number of Acts in respect to the age jurisdiction limits relevant to children.

The Committee makes no further comment

Dangerous Goods Legislation (Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill primarily implements national principles for the regulation of ammonium nitrate and to establish a framework to regulate any other substances subsequently identified as being of security concern. The Bill provides for a licensing regime to control access to High Consequence Dangerous Goods (HCDG), throughout its supply chain, from manufacture and import, to end use.

The Bill will amend the Dangerous Goods Act 1985 (the ‘Act’), the Terrorism (Community Protection) Act 2003 and the Road Transport (Dangerous Goods) Act 1995 to make the necessary legislative changes.

Content and Committee comment

[Clauses]

[2]. Other than sections 7 and 16 the provisions in the Bill come into operation on Royal Assent. Sections 7 and 16 will come into effect on proclamation but not late than by 1 December 2005.

[4]. Amends section 3, the definition section, of the Dangerous Goods Act 1985 to provide a definition for ‘high consequence dangerous goods’ (‘HCDG’).

[5]. Inserts new sub-sections into section 9B of the Act to provide for the declaration by Governor in Council Order of HCDG and the declaration of needs for access to HCDG that will be treated as lawful needs for obtaining a licence.

[12]. Inserts new sections 47A to 47D into the Act dealing with forfeiture, detention and disposal of explosives and HCDG.

[14]. Inserts new sections 55A to 55C into the Act to provide for the new Orders authorised by clause 5. Section 55C enables Parliament to disallow Orders relating to an HCDG or a later Order varying such an Order and allows the Scrutiny Committee to review such Orders and also recommend disallowance to the Parliament as though an Order were a statutory rule within the meaning of the Subordinate Legislation Act 1994.

[15]. Amends the regulation-making powers contained in Schedule 2 to provide for regulation of, and licences and permits for, explosives and HCDG.

[17]. Amends the Terrorism (Community Protection) Act 2003 and adds attempted theft and discrepancies in quantities to the existing mandatory reporting requirements for prescribed chemicals and substances. It also creates specific reporting requirements for the theft, attempted theft, loss and discrepancies in quantities of prescribed HCDG.

The Committee makes no further comment

Drugs, Poisons and Controlled Substances and Therapeutic Goods (Victoria) Acts (Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the ‘Act’) –

• in relation to the scheduling of poisons;

• to amend certain licence permit and warrant provisions;

• to repeal the licensing requirements in relation to Schedule 5 and 6 poisons.

The Bill also amends the Therapeutic Goods (Victoria) Act 1994 to provide for Codes of Practice in relation to therapeutic goods.

Content and Committee comment

[Clauses]

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

[4]. Amends section 20 of the Act to provide that a licence is no longer required to manufacture and sell or supply by wholesale or retail Schedule 5 or 6 poisons.

[5]. Provides that licence holders are to be refunded a proportion of the relevant licence fee relating to a Schedule 5 poison or a Schedule 6 poison.

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

The Bill will repeal licences to manufacture and sell or supply by wholesale or retail any Schedule 5 or 6 poison; and sell or supply by wholesale any Schedule 5 or 6 poison. Schedule 5 poisons include household poisons such as methylated spirits and turpentine with a relatively low potential for causing harm. Schedule 6 poisons include agricultural and industrial chemicals such as strong acids and pesticides with a moderate potential for causing harm. The national competition policy review considered that the costs of the Schedule 5 and 6 licensing provisions for industry and government were not justified and recommended that they be repealed.

[9]. Repeals section 12M which dealt with making amendments to Schedule Eleven of the Act containing drugs of addiction. Changes to Schedule Eleven will hereafter not be made by regulation but by amendment to the Act.

[19]. Adds "Buprenorphine" into the list of drugs of dependence in Part 3 of Schedule Eleven of the Act and specifies the traffickable quantity of that drug in the Schedule.

The Committee notes the Minister’s Second Reading Speech –

The Bill will repeal section 12M of the Act, which allows the drugs and poisons regulations to add, delete, substitute or alter an item in Schedule 11. It is not appropriate that the addition of a poison to Schedule 11 be undertaken by regulation, due to the high level of penalty that is imposed. Changes to schedule 11 will in future need to be made by amendment to the Act.

Amendments to the Therapeutic Goods (Victoria) Act 1994

[23]. Substitutes a new Part 5 containing sections 45 to 52. The substituted Part empowers the Secretary to make and adopt Codes of Practice and provides that the Minister must approve a Code of Practice before it is made or adopted.

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

Part 5 of the Therapeutic Goods (Victoria) Act 1994 currently provides for the licensing of wholesalers of therapeutic goods. However, no application fee has ever been determined and no licence granted. An in-house national competition policy review of the Act recommended the repeal of the licensing provisions for wholesalers of therapeutic goods, which is in accord with the national position on this issue. The Bill repeals these provisions.

The national competition policy review of drugs and poisons legislation recommended that State and Territory drugs and poisons legislation be amended to make compliance with the code of good wholesaling practice a condition of licence for wholesalers. In response to this recommendation, the 1991 code of good wholesaling practice is being updated nationally. It is proposed to be developed by stakeholders including pharmaceutical and medical devices industries and all levels of government.
Rather than amending drugs and poisons legislation, the Bill will allow the code to be adopted through therapeutic goods legislation so that it will apply to wholesalers of all therapeutic goods (not merely medicines).

In this respect, the Bill sets up a generic process for adopting or making codes of practice in Victoria that relate to therapeutic goods. This will allow Victoria to adopt the code of good wholesaling practice once it has been updated, and implement any other relevant codes that may be developed in the future. In order to ensure sufficient Parliamentary oversight, the Bill sets out the process for making and approving a code, for publicising it so that stakeholders are aware of it and can comply with it, and for the tabling of codes in Parliament.

Section 50 provides that Codes of Practice must be tabled in Parliament.

Section 51 that provides a defence to liability for non-compliance with a Code of Practice if it is proved that notice of the Code had not been published in the Government Gazette or a copy of the Code was not available for inspection.

Section 52 makes it an offence not to comply with a Code of Practice when carrying out an activity to which the Code relates and imposes a penalty of 10 penalty units.

The Committee makes no further comment

Essential Services Commission (Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Minister for Finance

Purpose

The Bill amends the Essential Services Commission Act 2001 (the ‘Act’) to ensure the independence of the Essential Services Commission and to enable the Chairperson to engage in other employment; and makes amendments to specified Acts to clarify which decisions made by the Essential Services Commission under those Acts are determinations for the purposes of the Act.

Content and Committee comment

[Clauses]

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

[3]. Substitutes section 12 of the Act to provide that the Commission is not subject to the direction or control of the Minister except as provided by the Act.

[4]. Substitutes section 18(4) of the Act so as to enable the Chairperson to engage in other paid employment with the consent of the Governor in Council. The Second Reading Speech notes that this amendment will bring the Act in line with the Electoral Commission Act 2002.

[6 to 76]. Make amendments to the Electricity Industry Act 2000, Energy Legislation (Regulatory Reform) Act 2004, Port Services Act 1995, the Grain Handling and Storage Act 1995, the Water Industry Act 1994, the Gas Industry Act 2001.

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

These amendments are sought, as currently there is a lack of clarity for regulated industries around what is a decision and what is a determination under the ESC Act.

This is important as determinations made under the ESC Act have a particular status requiring specific procedures for consultation and appeal processes.

The Committee makes no further comment

Limitations of Actions (Adverse Possession) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Limitation of Actions Act 1958 (the ‘Act’) to exempt land of which a Council is the registered proprietor from claims of adverse possession and to provide transitional arrangements.

Content and Committee comment

[Clauses]

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

[3]. Inserts a new section 7B into the Act to provide that the title of a Council to council land is not affected by adverse possession. An exemption is provided where an application for title by adverse possession of over 15 years is made within 12 months of the commencement of the new provision.

The protection from adverse possession provided by this Bill will extend to land registered in the name of a former Council.

The Committee makes no further comment

Parliamentary Superannuation Legislation (Reform) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Parliamentary Salaries and Superannuation Act 1968 (the ‘Act’), The Constitution Act Amendment Act 1958 and various relevant superannuation Acts to —

• close the Parliamentary Contributory Superannuation Fund to new members;

• establish superannuation arrangements for new Members of Parliament;

• clarify the privileges of certain Members of Parliament;

• enable Victoria's exempt public sector superannuation schemes to accept Commonwealth Government co-contribution payments.

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

The primary purpose of the Bill is to close the parliamentary contributory superannuation scheme to new members. The Bill also deals with a range of downstream and miscellaneous superannuation issues.

From the commencement of this Bill, all new members of Parliament will receive employer contributions at a rate of 9 per cent as required by the superannuation guarantee. This is consistent with the superannuation arrangements that apply to the vast majority of the Victorian work force.

The Bill provides that the 9 per cent employer contributions will be paid into a complying superannuation fund or retirement savings account nominated by the member. Where a member does not nominate a superannuation fund or retirement savings account, the employer superannuation contribution will be paid into a default fund chosen by the Minister for Finance in consultation with the presiding officers of both houses.

Importantly, given that the new parliamentary superannuation arrangements will be less generous, the Bill provides that new MPs will be able to make additional contributions to an accumulation fund by way of salary sacrifice. Salary sacrifice is widely available in the general community and entails no additional cost to the employer.

Content and Committee comment

[Clauses]

[2]. Other than section 8 the provisions in the Bill come into operation on Royal Assent. Section 8 is deemed to have commenced operation on 1 January 1987.

[3]. Substitutes section 14A of the Act to provide for the closure of the "existing" benefits scheme. New section 14A provides that the "existing" scheme of the Parliamentary Contributory Superannuation Fund does not apply to members to whom either the "new" benefits scheme or Parliamentary Accumulation Superannuation Arrangements applies.

[7]. Inserts a new Part 4 (sections 26 to 43) that sets out rules for new Parliamentary Accumulation Superannuation Arrangements.

Amendments to The Constitution Act Amendment Act 1958

[8]. Amends the definition of "public service" in section 30 of Act to include any employee within the meaning of section 3(1) of the Emergency Services Superannuation Act 1986.

[10]. Inserts new section 30A to provide privileges for members elected after the commencement of the Bill.

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

The Constitution Act Amendment Act 1958 provides certain former members with a right of return to the public service and their former superannuation scheme. This right of return is exercisable where the former member leaves Parliament but has not qualified for a parliamentary pension. Following the closure of the current Parliamentary scheme, no new MP will ever qualify for a Parliamentary pension.
Therefore, failure to qualify for a Parliamentary pension is no longer a suitable criteria to determine eligibility to exercise these rights.

Therefore, the Bill amends The Constitution Act Amendment Act 1958 to clarify these rights of return, and to ensure that an appropriate time limit for the exercise of these rights applies to new MPs. That time limit is five years from the date of entry to the Parliament. The amendments also rectify a number of definitional and technical issues.

The Committee makes no further comment

Planning and Environment (General Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill makes amendments to the Planning and Environment Act 1987 (the ‘Act’) to improve the State planning system.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on proclamation but not later than by 1 January 2006.

[3 to 44]. Makes amendments to the Act concerning the planning system in Victoria.

[42]. Amends the regulation-making powers under section 202 of the Act.

[45 to 52]. Make consequential amendments to eight Acts.

The Committee makes no further comment

Primary Industries Legislation (Further Miscellaneous Amendments) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill amends the —

• Fisheries Act 1995 to strengthen the enforcement powers under that Act;

• Domestic (Feral and Nuisance) Animals Act 1994 to provide for the establishment of a register of dangerous and menacing dogs and dogs that have been declared to be restricted breed dogs under that Act;

• Dairy Act 2000 to provide for the payment of licence fees by instalments;

• Impounding of Livestock Act 1994 to provide for liens over horses in respect of which agistment fees are owed;

• Livestock Disease Control Act 1994 to provide for the refund of duty paid by interstate producers of sheep; and

• Prevention of Cruelty to Animals Act 1986 to make changes in relation to inspectors' powers.

The Bill also amends other Acts and repeals the Barley Marketing Act 1993.

Content and Committee comment

[Clauses]

[2]. Provides for most provisions of the Bill to come into operation on the day after Royal Assent. Some clauses come into operation on proclamation with a forced commencement date. The longest forced commenced provision is on 20 December 2005.

Amendments to the Fisheries Act 1995

[6]. Amends section 103 of the Act to provide that a search warrant may be issued in respect of land or premises (not just a dwelling house as is currently provided) and to ensure that the items that may be seized under a warrant are consistent with the items included in the powers of seizure under section 105 of the Act.

[14]. Inserts new sections 118A and 118B into the Act to make it an offence to sell abalone unless it is packaged and marked or labelled in accordance with the regulations or to remove, destroy or deface the packaging, marking or labelling.

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

The Bill makes a number of amendments that will strengthen the enforcement powers under the Fisheries Act 1995. These amendments include:

• providing that conspiracy and attempts to commit offences against the Fisheries Act will trigger the automatic forfeiture provisions in the Confiscation Act 1997 if the export value of the fish is $50,000 or more;

• providing that conspiracy, incitement and attempts to commit offences against the Fisheries Act will invoke the Fisheries Act enforcement, seizure and forfeiture provisions;

• providing that the money laundering provisions of the Crimes Act 1958 also invoke the Fisheries Act enforcement, seizure and forfeiture provisions where the proceeds of crime are from an applicable fisheries offence; and

• enabling restrictions to be made on the scope and purpose for which confidential information may be released, providing an offence for breach of those restrictions, and better integrating confidentiality provisions with other privacy principles.

Amendments to the Domestic (Feral and Nuisance) Animals Act 1994

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

The Bill also provides for the establishment of a central register for dangerous, menacing, and restricted breed dogs under the Domestic (Feral and Nuisance) Animals Act 1994.

This register will provide councils with the ability to determine whether a dog that has changed ownership or been moved to a new municipality has been previously declared as dangerous, menacing or a restricted breed with one query.

Currently, if a council declares a dog to be dangerous, menacing or a restricted breed, only the municipal council making the declaration records the declaration. If a dog is moved to a new municipality, the new municipal council is not able to rely on its own records to determine the status of the dog. To establish whether another municipal council has made a declaration in relation to the dog, the new council would currently need to contact all other councils in Victoria seeking access to their records.

The amendments contained in the bill will introduce new mandatory reporting requirements for owners of dangerous, menacing, and restricted breed dogs and the municipal councils in which such dogs are located.

Municipal councils will be required to forward on information regarding dangerous, menacing, and restricted breed dogs for inclusion in the central registry. Under the new requirements, the owners of such dogs will be required to notify municipal councils of changes to their address or to the location of the dog, in addition to their existing reporting requirements. This information will also be forwarded on to maintain the currency of the registry.

The establishment of this central registry will allow municipal councils to easily verify the status of dogs and will provide an important resource for the compilation of statistics regarding these dogs.

The Bill also makes an amendment to the Domestic (Feral and Nuisance) Animals Act to reduce the age at which dogs and cats must be registered with a municipal council from six months to three months.

[23]. Amends section 10(1) of the Act to reduce the mandatory registration age for cats and dogs from 6 months to 3 months.

[24]. Amends section 34(1)(c) to permit councils to declare a dog to be a dangerous dog if it has been declared to be dangerous under a corresponding law of another State or Territory of the Commonwealth. New section 34(4) provides that a declaration that a dog is a dangerous dog that is made by a Victorian municipal council will apply throughout Victoria and be irrevocable.

[25]. Substitutes section 37(1C) of the Act which requires the owner of a dog under investigation by a municipal council for attacking a person or animal to notify that council of any changes to the owner's address, changes to the location at which the dog is kept changes in the custody or ownership of the dog, or if the dog is missing. This clause also amends section 37(2) of that Act by requiring the owner of a dangerous dog to notify the municipal council in which the dog is kept of any change to the owner's address or the place where the dog is kept and replaces the graduated penalty with a penalty of 10 penalty units.

[27]. Amends section 41A of the Act to permit a municipal councils to declare a dog to be a menacing dog if it has been declared to be menacing under a corresponding law of another State or Territory of the Commonwealth. New section 41A(6) provides that a declaration that a dog is a menacing dog that is made by a Victorian municipal council will apply throughout Victoria.

[28]. Amends section 41D of the Act by requiring the owner of a menacing dog to notify the municipal council in which the dog is kept of any change to the owner's address or the place where the dog is kept.

[29]. Amends section 41F(1) of the Act by requiring the owner of a restricted breed dog to notify the municipal council in which the dog is kept of any change to the owner's address or the place where the dog is kept.

[30]. Inserts new Part 3A into the 1994 to establish a register of dangerous, menacing and restricted breed dogs. New section 44AD makes it an offence to inspect, or attempt to inspect, the register unless the person is authorised to do so under section 44AC.

Amendments to the Dairy Act 2000

[41]. Amends section 26(2) of the Act to insert an additional ground on which the Authority may refuse to issue, renew or transfer a dairy industry licence or cancel or suspend a dairy industry licence in cases where the applicant or the licensee has defaulted on any debt owed to the Authority.

[42]. Amends section 27 of the Act to provide that a person whose interests are affected by a decision of the Authority to refuse to grant an exemption from the requirement to hold a dairy industry licence may apply to the Victorian Civil and Administrative Tribunal for review of the decision.

Amendments to the Impounding of Livestock Act 1994

[45]. Inserts new Part 3A into the Act consisting of new sections 24A to 24J Act to permit a lien* to be created over a horse where money is owed under an agistment agreement in respect of the horse and for the procedure by which a lien holder may sell, exchange or dispose of the horse where the debt remains unpaid at the end of a period of notice. This Part also provides for an offence of removing or retaining custody of a horse that is subject to a lien.

*the right to hold the property of another as security for the performance of an obligation, such as the payment of a debt.

Amendments to the Prevention of Cruelty to Animals Act 1986

[48]. Amends section 6 of the Act to make scientific procedures conducted under an authorisation under the Wildlife Act 1975 subject to Part 3 of the Act and a consequence a person conducting a scientific procedure as defined in the Act will be required to obtain the appropriate licence under that Act to conduct those procedures.

[52]. Amends sections 21A, 21B and 21C of the Act to allow for the issue of search warrants to enable an inspector to enter premises (including a person's dwelling) in which an inspector believes on reasonable grounds there is an abandoned, diseased, distressed or disabled animal, or an animal in respect of which a contravention of section 9 or the regulations is occurring.

[59]. Amends Schedule 2 to the Confiscation Act 1997 to provide that the automatic forfeiture provisions of that Act apply if a person commits one of the following offences under the Crimes Act 1958 in respect of an indictable offence under the Fisheries Act 1995 (sections 111A, 111B and 111C) where the export value of the fish is $50,000 or more for a single offence or $75 000 or more for greater than one offence —

• dealing with the proceeds of crime (sections 194(1), (2) and (3));

• conspiracy to commit;

• attempt to commit.

[61]. Repeals the Barley Marketing Act 1993.

The Committee makes no further comment

State Sport Centres (Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Sport and Recreation

Purpose

The Bill amends the State Sport Centres Act 1994 (the ‘Act’). The explanatory memorandum notes that the purpose of the Bill is to streamline land management arrangements at the Melbourne Sports and Aquatic Centre in Albert Park by consolidating land used for the Melbourne Sports and Aquatic Centre under the management of the State Sport Centres Trust, by ensuring that all Melbourne Sports and Aquatic Centre land is reserved as part of Albert Park.

The Bill also makes consequential amendments to the Australian Grands Prix Act 1994.

Content and Committee comment

[Clauses]

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

[10]. Inserts a new Division 4 into Part 3 of the Act to permanently reserve certain Melbourne Sports and Aquatic Centre land as part of Albert Park.

[12]. Substitutes a new plan for the Melbourne Sports and Aquatic Centre land in Schedule 1 to the Act.

[20]. Makes consequential amendments to section 34 of the Australian Grands Prix Act 1994 relating to restoration of the declared area.

Sub-clause (2) inserts a new section 34(3A) to provide that if there is a dispute between the State Sport Centres Trust and the Australian Grand Prix Corporation about the restoration of Melbourne Sports and Aquatic Centre land, the Trust or the Corporation may refer the matter to the Ministers administering the State Sport Centres Act 1994 and the Australian Grands Prix Act 1994 for a joint decision. The decision of the Ministers is final.

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)

[23]. Inserts a new section 50A into the Australian Grands Prix Act 1994 to declare that it is the intention of new section 34(3A) as inserted by clause 20 to alter or vary section 85 of the Constitution Act 1975.

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

New section 50A of the Australian Grands Prix Act 1994, to be inserted by clause 23 of the Bill, states that it is the intention of new section 34(3A), to be inserted by clause 20 of the Bill, to alter or vary section 85 of the Constitution Act 1975.

Section 34(3) of the Australian Grand Prix Act 1994 currently provides that if there is a dispute between the Committee of Management of Albert Park and the Australian Grand Prix Corporation about the standard of restoration in the 'declared area' in Albert Park land, the committee or the corporation may refer the matter to the Ministers administering the Crown Land (Reserves) Act 1978 and the Australian Grand Prix Act 1994 for a joint decision, and the decision of the Ministers is final.

New section 34(3A), to be inserted by clause 20 of the Bill, will similarly provide that if, in relation to the part of Albert Park that is Melbourne Sports and Aquatic Centre land, there is a dispute between the State Sport Centres Trust and the Australian Grand Prix Corporation about the standard of restoration of that land, the trust or the corporation will be able to refer the matter to the ministers administering the State Sport Centres Act 1994 and the Australian Grands Prix Act 1994 for a joint decision, and the decision of the ministers will be final.

New section 34(3A) is therefore inserted to prevent the institution or continuation of court proceedings by the State Sport Centres Trust or the Australian Grand Prix Corporation that would review a joint decision of Ministers in respect of any dispute between these authorities about the standard of restoration of Melbourne Sports and Aquatic Centre land.

The reason for preventing the institution or continuation of such proceedings in the Supreme Court is that it is not appropriate for statutory authorities funded by the government and subject to ministerial direction to seek a judicial review in the Supreme Court of a decision by Ministers in relation to the standard of restoration of public park land.

Court action could also lead to delays in the restoration of land in Albert Park following the formula one grand prix. The ability of the ministers to make a final decision under section 34(3A) ensures that any disputes between the trust and the corporation can be resolved in the most efficient and expeditious manner possible.

It is also important that in relation to Melbourne Sports and Aquatic Centre land, the State Sport Centres Trust has the same powers, rights and obligations under the Australian Grands Prix Act 1994 as Parks Victoria to ensure that the status quo for land management in Albert Park with regard to the formula one grand prix is maintained.

The Bill amends other sections of the Australian Grands Prix Act 1994 which, when originally enacted, also had section 85 statements made in relation to them. Those sections are set out in section 50 of the Act. The government has obtained legal advice from the Solicitor-General and the Chief Parliamentary Counsel which states that it is not legally necessary for section 85 statements to be made in relation to those sections, and that the previous statements were made out of an abundance of caution. Accordingly the Bill does not include a statement of intention to vary section 85 of the Constitution Act 1975 in relation to those provisions.

The Committee makes no further comment

State Taxation Acts (Amendment) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill amends the –

• Accident Compensation Act 1985

• Duties Act 2000

• First Home Owner Grant Act 2000

• Land Tax Act 1958

• Pay-roll Tax Act 1971

• Valuation of Land Act 1960

Content and Committee comment

[Clauses]

[2]. Provides that the provisions in the Bill (other than Parts 2 and 7) come into operation on the day after Royal Assent. Part 2 is deemed to come into operation on 1 July 1994. The explanatory memorandum explains that this is the date on which the definition of "remuneration" in section 5(9) of the Accident Compensation Act 1985 was amended to include fringe benefits, as defined in the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.

Part 7 will come into operation on the day the Act receives Royal Assent.

[3]. Amends the definition of "remuneration" in section 5 of the Accident Compensation Act 1985 to clarify the original policy intention of the section that fringe benefits should be included within the definition of "remuneration" for the purposes of calculation of WorkCover premium payable by employers.

This amendment is deemed to have come into effect on 1 July 1994 which is the date on which section 5(9) of the Accident Compensation Act 1985 was originally amended to include fringe benefits as defined by the Commonwealth Fringe Benefits Tax Assessment Act 1986.

[17]. Inserts new sections 57A to 57F into the Duties Act 2000 concerning alternative property finance arrangements for housing purchases such as Shariah or Islamic Law compliant transactions.

[29]. Inserts new paragraph section 50(4)(ca) into the First Home Owner Grant Act 2000 to allow the Commissioner to disclose information to a member of the police force, a member of the Australian Federal Police, the Director of Consumer Affairs Victoria and to the Director of Housing.

[32]. Inserts new secrecy provisions (new sections 5 and 5A to 5D) into the Land Tax Act 1958, bringing the Act more into line with the secrecy provisions of the other taxing Acts dealt with by the Taxation Administration Act 1997.

[42]. Amends section 16 of the Valuation of Land Act 1960.

Clause 42(2) substitutes a new section 16(4) to state clearly that any person given a notice of valuation may object to the valuation. This has the effect that either an owner or an occupier may object to a valuation.

The Committee makes no further comment

Teaching Service (Conduct and Performance) Bill

Introduced: 14 September 2004
Second Reading Speech: 16 September 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education and Training

Purpose

The Bill amends the Teaching Service Act 1981 (the ‘Act’) to reform procedures for taking action against officers and employees for misconduct, inefficiency or physical or mental incapacity and to establish Disciplinary Appeals Boards.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 1 January 2005.

[4]. Inserts a new section 3A in the Act that sets out the employer powers of the Secretary. The Secretary has all the rights, powers, authorities and duties of an employer and may assign duties to officers and employees and transfer officers.

Termination for physical or mental incapacity

[5]. Substitutes the existing section 45 to provide that the Secretary may terminate the employment of an officer or employee where an employee is incapable of performing his or her duties on account of physical or mental incapacity.

The provisions require that the officer or employee be notified in writing of the matters to be considered by the Secretary and be given an opportunity to respond in writing to the Secretary, the nominated person or the Board of Review, as the case may be. The Secretary must give the officer or employee an opportunity to make submissions on the grounds on which the officer or employee is alleged to be incapable of performing his or her duties, and on whether a termination of employment should occur. The Secretary must advise the officer or employee in writing of the determination of the Secretary and the right to appeal to a Merit Protection Board.

New section 45A provides that an employee or officer may appeal to a Merit Protection Board in relation to a determination under section 45.

Misconduct and inefficiency

[6]. Substitutes the existing Part 5 dealing with misconduct and inefficiency.

New section 66 sets out the grounds on which the Secretary may take action against an officer or employee for misconduct or inefficiency. New section 67 sets out the action that the Secretary may take against an officer or employee.

New section 69 reflects the current section 67 by imposing an obligation on the Secretary to reinstate an officer or employee if his or her conviction or finding of guilt is subsequently quashed or the officer or employee receives a pardon or the conviction or finding of guilt is otherwise nullified.

New section 70 empowers the Secretary to suspend from duty with or without pay an officer or employee if the Secretary reasonably believes that there may be grounds under section 66 for taking action or if an officer or employee is charged with a criminal offence.

New section 72 requires the Secretary to provide the officer or employee with an opportunity to make submissions on the alleged grounds and any action that may be taken, prior to making a decision.
New section 73 enables the Secretary to make a determination without holding an oral hearing.

New section 74 provides an officer or employee with a right to appeal to a Disciplinary Appeals Board against a decision of the Secretary under section 67.

New section 75 provides that the Disciplinary Appeals Board may order that an officer or employee be re-instated in the teaching service or paid an amount not exceeding six months salary.

New section 75C establishes one or more Boards to be known as Disciplinary Appeals Boards and provides that their function is to hear and determine appeals in relation to decisions of the Secretary made under section 67.

New section 75K sets out the conduct of proceedings before a Disciplinary Appeals Board, namely, that an officer or employee may appear personally or by legal or other representative and that proceedings must be conducted without regard to legal formalities and must be directed by the best evidence available.

[7]. Inserts a new section 75L empowering the Secretary to direct an officer or employee to submit to a medical examination by a qualified medical practitioner nominated by the Secretary for the purposes of ascertaining the fitness of an officer or employee to perform his or her duties or to participate in any procedures under the Act relating to the officer or employee.

[8]. Amends section 48 to confer the privileges and immunities set out in section 21A of the Evidence Act 1958 on certain persons conducting investigations or proceedings under the Act, and includes reference to a Disciplinary Appeals Board.

The Committee makes no further comment

Scrutiny of Acts and Regulations Committee
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