Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2004

Tuesday, 3 November 2004

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Commonwealth Powers (De Facto Relationships) Bill

Introduced: 12 October 2004
Second Reading Speech: 14 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill refers certain financial matters arising out of the breakdown of de facto relationships to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth so as to enable the Commonwealth Parliament to make laws about those matters.

Note: Section 51 (xxxvii) of the Constitution provides that the Commonwealth Parliament has power to make laws with respect to "matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law."

Content and Committee comment

[Clauses]

[2]. Provides for the commencement of the proposed Act on proclamation.

The Committee notes the commencement by proclamation provision and accepts that this is desirable given that complementary Commonwealth legislation is necessary and a simultaneous commencement of both Acts is desirable.

[4]. Refers the following matters to the Parliament of the Commonwealth (1) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes; (2) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex.

[5]. Enables the State to terminate the references with 3 months' notice, by proclamation by the Governor in Council published in the Government Gazette.

The Committee makes no further comment

Construction Industry Long Service Leave (Amendment) Bill

Introduced: 5 October 2004
Second Reading Speech: 7 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Construction Industry Long Service Leave Act 1997 (the ‘Act’) with respect to the administration of the Construction Industry Long Service Leave Fund.

Content and Committee comment

[Clauses]

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

[4]. Amends section 4 of the Act to substitute a new sub-section (1) to provide specifically that an employer must pay a long service leave charge in respect of every worker employed to perform construction work in the construction industry.

[6]. Inserts a new sub-section (2)(c) in the Act which provides that the trustee will be able to determine the amount of benefits payable from the Construction Industry Long Service Leave Fund without the approval of the Governor in Council.

The Committee makes no further comment

Electoral Legislation (Amendment) Bill

Purpose

The Bill amends –

the Electoral Act 2002 to clarify the eligibility of homeless people to enrol as itinerant electors.
the Electoral Boundaries Commission Act 1982 to improve the operation of that Act.
section 45 of the Constitution (Parliamentary Reform) Act 2003 so that when that section comes into operation it will amend section 5 of the Electoral Boundaries Commission Act 1982, to enable the Electoral Boundaries Commission to establish quotas to be used as a basis for a redivision of Victorian State electorates; and to specify the conditions when the Electoral Boundaries Commission must conduct a redivision.

Content and Committee comment

[Clauses]

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

[3]. Inserts new section 3A into the Electoral Act 2002 to clarify the entitlement of homeless people to enrol to vote as itinerant electors in accordance with section 22(4) of the Electoral Act 2002.

The Committee notes the explanatory memorandum –

Section 3A(1), when read with section 22(4), will provide that if a homeless person's name appears on the Commonwealth electoral roll in respect of an address in a Commonwealth subdivision in Victoria with which the person has established a connection under section 96 of the Commonwealth Electoral Act 1918 and that roll is annotated to indicate that the elector is an itinerant elector under section 96 of the Commonwealth Electoral Act 1918, the homeless person is entitled to be enrolled on the register of electors for that address.

New section 3A(2) defines "homeless person" for the purpose of section 3A of the Electoral Act 2002. "Homeless person" means a person living in crisis accommodation or transitional accommodation, or any other accommodation provided under the Supported Accommodation Assistance Act 1994 of the Commonwealth or a person who has inadequate access to safe and secure housing within the meaning of section 4 of the Supported Accommodation Assistance Act 1994 of the Commonwealth.

[7]. Amends section 12 of the Electoral Boundaries Commission Act 1982 to provide that the Electoral Boundaries Commission, rather than the Minister, shall provide statements of a redivision as prepared under section 11 of the Act to the Central Plan Office (now as amended within the Department of Sustainability and Environment), to the Victorian Electoral Commission, to each House of Parliament and to each Member of Parliament.

[9]. Inserts new sub-section (3A) into Constitution (Parliamentary Reform) Act 2003 which substitutes a new section 5(3) of the Electoral Boundaries Commission Act 1982 and which will come into operation on the dissolution of the current Parliament. Section 5 of the Electoral Boundaries Commission Act 1982 will then become entrenched and, from that point, any further amendments proposed to section 5 relating to the functions of the Electoral Boundaries Commission will require a referendum. The substitute sub-section (3) deals with periodic electoral redistributions and what must occur to trigger such a review.

The Committee makes no further comment

Electricity Industry (Wind Energy Development) Bill

Introduced: 12 October 2004
Second Reading Speech: 13 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Minister for Energy Industries

Purpose

The purpose of the Bill is to amend the Electricity Industry Act 2000 to –

facilitate the development and construction of wind energy generation facilities in the State; and
require certain retailers to publish the prices at, and terms and conditions on, which they will purchase electricity supplied to them from certain generators in certain circumstances.

The Bill will also amend the Essential Services Commission Act 2001 and the Energy Legislation (Regulatory Reform) Act 2004 to make consequential amendments to those Acts.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (other than section 4) come into operation on Assent. Section 4 commences on proclamation but not later than by 1 July 2005.

[3]. Amends the Electricity Industry Act 2000 to insert a new Division 2A into Part 2 of the Act to modify pricing principles to facilitate the development and connection of relevant wind energy generation facilities within Victoria.

New section 15E empowers the Governor in Council to, by Order published in the Government Gazette, specify pricing principles to apply to the making of a determination under the Essential Services Commission Act 2001 regulating the charges for connection to, and use of, a relevant distribution system. An Order under this section will prevail over the Tariff Order to the extent of any inconsistency. The purpose of this Order is to require the Essential Services Commission to apply modified pricing principles in relation to distributions systems to which there or is proposed to be a relevant augmentation.

The Committee makes no further comment

Liquor Control Reform (Underage Drinking and Enhanced Enforcement) Bill

Purpose

This Bill amends the Liquor Control Reform Act 1998 (the ‘Act’) to –

make various changes concerning underage drinking;
enhance the enforcement powers of members of the police force under the Act;
increase the penalties that apply to a number of the offences under the Act and
widen the categories of infringement notice offences; and to make a number of technical changes to improve the operation of the Act.

The Bill also amends the Business Licensing Authority Act 1998 to make minor changes to the constitution and operation of the Business Licensing Authority.

Content and Committee comment

[Clauses]

[2]. Part 3 and section 37 come into operation on proclamation. The remaining sections of the Bill come into operation on the day after Assent.

[4]. Amends sections 120(1)(b)(i) and 123(1)(c)(v) of the Act to provide that a minor may be present on licensed premises if he or she is in the company of a responsible adult. It also provides that the test to be used when there is an issue about whether a person is a responsible adult is whether a reasonable person would be justified in assuming that the accompanying person was a responsible adult.

[5]. Amends section 22(1) of the Act to insert an additional category of premises that must not be licensed. They are premises that, in the opinion of the Director of Liquor Licensing, are intended by the occupier of the premises to be primarily used by people under the age of 18 years.

[7]. Substitutes a new section 125 of the Act to insert 2 new offences relating to falsely procuring a proof of age card.

[8]. Amends section 128 of the Act to provide that the Court has a power to order forfeiture or destruction of liquor seized from minors where there has been a successful prosecution under the section.

[11]. Amends section 5 of the Act to establish a new body called the Liquor Control Advisory Council to advise the Minister on problems of alcohol abuse and on any other matters referred to it by the Minister. The Co-ordinating Council established under the Act before the commencement of this section is abolished and the members of that Council cease to hold office.

[23]. Amends section 91(1)(b)(iv) to increase the maximum fine that VCAT may impose upon a licensee or permittee and also amends a number of sections to increase the penalties applicable to various offences under the Act.

[32]. Amends section 130(1) to clarify that the power to seek a warrant to enter and search premises applies to premises which are required under the Act to hold a liquor licence in order to supply liquor.

[35]. Inserts new sections 133A to 133E which set out the requirements that an authorised person must comply with when executing a seizure warrant under section 130, or when exercising the search and seizure powers conferred by section 133.

[37]. Amends Schedule 3 of the Act to allow voting in Dry area polls to be conducted by way of postal voting. The applicants for the licence are liable for the reasonable expenses incurred by the Electoral Commissioner in conducting a vote.

The Committee makes no further comment

Major Crime (Investigative Powers Bill

Introduced: 16 September 2004
Second Reading Speech: 5 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

See also Extract from the Proceedings in relation to this Bill.

Purpose

The Act makes provision for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences and to amend a number of Acts, including the Ombudsman Act 1973, the Police Regulation Act 1958, the Sex Offenders Registration Act 2004, and the Whistleblowers Protection Act 2001 to make further provision for the Director, Police Integrity.

Submissions

The Committee thanks the following organisations and persons for making submissions to the Committee concerning this Bill. The submissions are reproduced in Appendix 4.

Law Institute of Victoria,
Victorian Privacy Commissioner,
Victorian Aboriginal Legal Services Co-operative Limited.

Content and Committee comment

[Clauses]

[2]. Provides that (except sections 75, 97 and 130) the provisions in the Bill come into operation on proclamation but not later than 1 July 2005. Sections 75 and 97 come into operation on Royal Assent. Section 130 is deemed to have commenced on the day on which the Major Crime Legislation (Office of Police Integrity) Act 2004 received Royal Assent (*The Act received Assent on 12 October 2004).

[3]. Provides definitions for the purpose of the Act including for ‘organised crime offence’ which means an offence involving more than 2 offenders, involving substantial planning and organisation, forming part of systemic and continuing criminal activity with the purpose of obtaining profit, gain, power or influence.

Coercive powers order (CPO) and witness summonses

[5]. With the approval of the Chief Commissioner or the Chief Commissioner's delegate (a senior police officer of or above the rank of Assistant Commissioner) a member of the police force may apply to the Supreme Court for a CPO if that member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed. The CPO application must be supported by an affidavit (except in certain circumstances of urgency) setting out the grounds of the application. An application made must be heard in private.

[6]. Provides for remote applications for a CPO by telephone, fax or e-mail, or by any other means of communication if the member believes it is impractical to make an application in person.

[7]. Publication of a report of a proceeding in respect of an application for a CPO or any information derived from such a proceeding is an offence unless the Supreme Court orders otherwise.

[8]. The Supreme Court may make a CPO if satisfied that there are reasonable grounds for the suspicion founding the application and that it is in the public interest to make the order having regard to the nature and gravity of the alleged organised crime offence and the impact of the use of coercive powers on the rights of members of the community.

[9]. States what details a coercive powers order must specify.

[10 to 12]. Deal with extensions, variations, discontinuance and revocation of CPO’s.

Supreme Court may issue witness summons

[14]. A member of the police force may apply to the Supreme Court for a witness summons to attend an examination and state if the applicant suspects or knows that the person to whom the summons is to be directed is under the age of 18 years or has a mental impairment. The Supreme Court must not issue a summons to a person known to be under 16.

The Supreme Court may issue a summons for immediate attendance before the Chief Examiner if the Court reasonably believes that a delay in the person's attendance could result in evidence being destroyed or lost, the commission of an offence, the escape of an offender, or could result in serious prejudice to the conduct of the investigation of the organised crime offence.

Chief Examiner may issue a witness summons on own motion or on application by police

[15]. Describes the process for issue of a witness summons by the Chief Examiner if a coercive powers order is in force in respect of an organised crime offence. The Chief Examiner may issue a witness summons on his or her own motion or on the application of a member of the police force. Similar restrictions apply to such a summons as are found in clause 14 in respect to age and mental impairment.

A summons must be served a reasonable time before the date on which the person is required to attend however the Chief Examiner may issue a summons for immediate attendance if the Chief Examiner reasonably believes that a delay in the person's attendance could result in evidence being destroyed or lost, the commission of an offence, the escape of an offender, or could result in serious prejudice to the conduct of the investigation of the organised crime offence.

Summons to a child under 16 of no effect

[16]. Provides that a witness summons directed to a person under 16 has no effect.

[17]. A witness summons directed to a natural person must be served on a person personally. A summons directed to a body corporate must be served by registered post to the registered or other office of the body corporate. The Supreme Court may order substituted service if it appears that service cannot be effected promptly.

[18]. If a person to whom the witness summons is directed is held in prison or police gaol, a member of the police force may apply to the Supreme Court or to the Chief Examiner for an order that the person be delivered into the custody of the police officer for the purpose of attending before the Chief Examiner to give evidence at an examination.

Witness expenses

[19]. Provides that a person attending before the Chief Examiner is entitled to be paid the same allowances and expenses that would be payable to a Crown witness in a criminal proceeding in the Magistrates' Court.

Witness summons to be confidential document except where disclosure otherwise permissible

[20]. Empowers the Chief Examiner or the Supreme Court to give to any person to whom a witness summons is issued or in respect of whom an order under clause 18 is made, a written notice advising that the summons or order is a confidential document and disclosure of it or the organised crime(s) to which its issue relates, without reasonable excuse, is an offence punishable by a maximum of 120 penalty units or 12 months imprisonment or both.

Such a notice is mandatory where the safety, reputation or fair trial of any person would be prejudiced by disclosure of the summons.

It is a reasonable excuse to disclose the issue of the summons or order or the organised crime(s) to which its issue relates if the disclosure is made for the purposes of seeking legal advice; or obtaining information in order to comply with the summons or order; or administration of the Act; and the person advises the person to whom the disclosure is made that it is an offence to disclose the issue of the summons or order or the organised crime offence(s) to which its issue relates to anyone else without a reasonable excuse for disclosure.

Appointment of Chief Examiner and Examiners

[21 to 28]. Provides that the Governor in Council may appoint a Chief Examiner and as many Examiners as are necessary for the purposes of this Act and provides for eligibility criteria, remuneration, terms of office and other like administrative provisions. An Examiner must not be a member of an Australian Parliament and must be a person with legal qualifications.

Place where examination to be conducted

[30]. An examination must not be conducted at a police station or a police gaol.

Information to witness before questioning may commence

[31]. Before any questions are asked at an examination or documents or other things are produced, the Examiner must –

confirm the age of the witness (if the Chief Examiner suspects he or she is under the age of 18 years);
release the witness from all compliance with the summons or order under section 18 if he or she is under the age of 16 years;
inform the witness that the privilege against self-incrimination is not available, but that there are restrictions on the use that can be made of evidence given or documents produced at an examination;
inform the witness that legal professional privilege applies, but, subject to that privilege, it is an offence not to answer questions or produce documents;
inform the witness of any confidentiality requirements applying to the evidence or the issue of the summons to attend;
where applicable, inform the witness of his or her right to legal representation, an interpreter or to have a parent, guardian or an independent person present;
inform the witness of his or her right to complain to the Special Investigations Monitor.

[32]. If during an examination it appears that a person is under 16 years, the Chief Examiner must immediately release them from all compliance with the witness summons.

[33]. A legal practitioner assisting the Chief Examiner, or representing a witness at an examination has the same protection and immunity from legal proceedings as if he or she were representing a party in proceedings in the Supreme Court. A witness before the Chief Examiner has the same protection as if he or she were appearing before the Supreme Court.

Legal representation permitted but discretion to exclude particular legal adviser exists

[34]. A witness may be represented by a legal practitioner. The Examiner may refuse to permit a particular legal representative to appear if he or she concludes on reasonable grounds and in good faith that to allow the representation will, or may, prejudice the examination. The witness may still be represented by another legal practitioner of his or her choice.

This clause also sets out a witness's right to a competent interpreter (where the witness's understanding of English is limited).

In the case of a child, the Chief Examiner must direct that a parent, guardian or independent person be present at an examination and also permit the witness to confer with their parent, guardian or independent person before giving any evidence.

In the case of a mentally impaired person, the Chief Examiner must direct that an independent person be present at an examination and also permit the witness to confer with the independent person before giving any evidence.

Examination is private

[35]. Examinations are to be conducted in private. The Chief Examiner (subject to a witness's right to legal representation, an interpreter, or to have his or her parent, guardian or independent person present) may direct the persons who are to be present during an examination. It is an indictable offence for any person to be present, not authorised to attend an examination.

[36]. A witness may be examined by the Chief Examiner, the witness's legal representative or any other person authorised by the Chief Examiner. The Chief Examiner may also require that evidence at an examination be given under oath or affirmation and may administer an oath or affirmation for that purpose. It is an indictable offence with a maximum penalty of 5 years' imprisonment for any witness to refuse to take an oath or make an affirmation if directed to do so by the Chief Examiner.

Failure to co-operate or answer questions an offence

[37]. It is an indictable offence for any person summonsed to attend an examination to fail to attend; or refuse or fail to answer a question when required to do so by the Chief Examiner; or refuse or fail to produce a document or other thing that the witness was required to produce.

However it will not be an offence if the Chief Examiner withdraws the requirement to produce and the witness seals the document in accordance with clause 41.

[38]. It is an indictable offence for any witness to knowingly give false or misleading evidence at an examination.

Abrogation of privilege against self-incrimination – direct use immunity other than in certain circumstances provided - no derivative use immunity

[39]. Expressly abrogates the privilege against self-incrimination for any witness answering a question or producing a document at an examination and the Chief Examiner must advise the witness of the effect of this provision before an examination starts.

Clause 39(3) provides a "use immunity" in respect of answers given or documents or other things produced. The answers given or material produced cannot be used as evidence against the person who gave or produced them in subsequent proceedings, except in certain proceedings as set out in clause 39(3)(c)–(e) including proceedings under the Act, proceedings for the falsity of evidence or documents provided and proceedings under the Confiscation Act 1997.

The Committee notes this extract from the explanatory memorandum –

However, this does not prevent information that is derived from an answer given or a document or thing produced by the witness being admissible against the witness in any proceeding. That is, the person will not have what is referred to as a "derivative use immunity". The answer given or document or thing produced (which cannot be used as evidence against the witness in subsequent proceedings) may lead to other information that incriminates the witness (which may be used as evidence against the witness in subsequent proceedings). A court could admit derived information, subject to the court's general discretions and the rules of evidence.

Legal professional privilege

[40]. Preserves the capacity of a legal practitioner not to answer a question or produce a document that would reveal a privileged communication with a client unless the client has waived that privilege.

However, in such circumstances, the Chief Examiner may require the legal practitioner to provide the name and address of the client. Sub-clause (2) enables a person to refuse to answer a question at an examination or produce a document to the Chief Examiner on the basis that the answer or document would disclose a communication subject to legal professional privilege. Where such a refusal relates to oral communications, the Chief Examiner will be required to determine the claim. However, where the refusal relates to a document or thing, the procedure in clauses 41 and 42 will apply.

[41]. Details the procedure for determining claims of legal professional privilege in respect of documents or things. [42]. Details the procedure for the Magistrates' Court to determine a claim to legal professional privilege in a document.

Evidence given not to be published

[43]. The Chief Examiner may give directions restricting the publication of any evidence given at, or related information derived from, an examination.

Video-recording of evidence given at examination

[45]. The Chief Examiner must ensure examinations of a witness are video-recorded. Unless an examination is video-recorded in its entirety, no evidence from it is admissible as evidence against any person in any proceedings except in exceptional circumstances.

Warrant to arrest witness

[46]. Empowers the Supreme Court to issue a warrant to arrest a person summoned to attend an examination where it is satisfied upon application from a police member of certain matters including a likelihood that the witness may abscond or fail to appear. If a person is detained under such a warrant they must be detained in accommodation comparable to that provided to jurors.

[47]. Deals with the Chief Examiner’s powers to make documents available to the police.

[48]. A proceedings in the Magistrates' Court under section 42 or 47 must not be conducted in open court.

Contempt of Chief Examiner

[49]. It is a contempt of the Chief Examiner for a person who attends an examination and fails to cooperate. The contempt is to be dealt with before the Supreme Court. The Supreme Court deals with the matter as if it were contempt of an inferior court. The clause also provides for a person to apply for bail in circumstances where they are in custody but cannot be brought before the Supreme Court forthwith. This clause sunsets 42 months after its commencement.

No double jeopardy for offence under Act and contempt

[50]. A non-cooperative witness may not be punished for both contempt of the Chief Examiner and an offence where both sanctions arise from the same act or omission. This clause sunsets 42 months after its commencement.

Oversight by Special Investigations Monitor

[51]. Provides that the role of the Special Investigations Monitor (SIM) under this Part is to monitor compliance with the Act by the Chief Examiner, Examiners, the Chief Commissioner of Police and other members of the police force; to assess the relevance of questions asked during an examination or documents required to be produced to the investigation of the organised crime offence in relation to which the coercive powers order was made; to investigate any complaints made to the SIM under this Part; and formulate recommendations and make reports.

Complaint to Special Investigations Monitor (SIM)

[54 to 60]. A person who has been examined may complain to the SIM within 3 days after the examination and sets out the grounds on which a person who has been examined under the Act may make a complaint to the SIM and the SIM may investigate the complaint if it is not frivolous or vexatious.

The SIM may make recommendations, at any time, to the Chief Examiner or the Chief Commissioner of Police as to the taking of any action that the SIM considers should be taken. The SIM has powers of entry and access.

The SIM may issue a written notice requiring the Chief Examiner, an Examiner or a member of the police force to attend the SIM and answer questions or provide information or produce any document or thing relevant to the SIM's functions.

[61 and 62]. The SIM is to report to Parliament annually in relation to the performance of his or her functions under this Act during that period and must report on the operation of the oversight provisions of the Act between 2 and 3 years after its commencement.

[64]. It is an offence to obstruct, hinder, threaten or abuse the SIM in the performance of his or her functions.

Delegation by Chief Commissioner to senior positions

[65]. The Chief Commissioner may delegate, by instrument, to a police officer of a designated rank powers under the Act.

The Chief Examiner may delegate, by instrument, to an Examiner, any function duty or power under this Act other than the duty to make reports under clauses 52 or 53 or the power of delegation.

Information sharing with other law enforcement agencies

[67]. Permits the Chief Commissioner to allow information sharing with other law enforcement agencies (including overseas agencies) and allows the Chief Commissioner to disclose security information to ASIO.

[68]. Imposes secrecy obligations on the Chief Examiner, an Examiner, the SIM, any employee of the SIM and a member of the police force in relation to information acquired in the course of, or by reason of the performance of functions, under this Act.

Information held by SIM not amenable to disclosure under Freedom of Information Act

[69]. Exempts documents in the possession of the SIM or an officer of the SIM from the Freedom of Information Act 1982, to the extent the document discloses information relating to an examination under the Act.

[70]. Provides is a general regulation making power.

Amendments to other Acts

Ombudsman Act 1973

[73]. Amends the Ombudsman Act 1973 to provide that the Ombudsman may report to Parliament when it is not in session, consistent with similar provisions applying to the Director, Police Integrity (see clause 95).

Police Regulation Act 1958

[75]. Inserts a sub-section (6) in section 86J of the Act. Section 86J currently concerns protection of the Police Ombudsman and the Ombudsman and officers of the Ombudsman from civil and criminal liability. The new sub section (6) extends the definition of "officers of the Ombudsman" beyond members of staff to any person who has taken an oath or made an affirmation as provided for by the Ombudsman Act 1973. The protection will therefore cover persons engaged by the Ombudsman who were not employees. This clause also inserts a sub-section (7) providing that the protection of such persons (who have taken an oath or made an affirmation) is to have applied since 11 May 1988 (when the Ombudsman's office assumed responsibility for police complaints). Both of these current sub-sections in the Act, are to be repealed by clause 76(3) of the Bill. (refer to section 85 Constitution Act 1975 statement and report below).

The Committee notes that the provision is retrospective providing an immunity to person engaged from 11 May 1988 onwards. The Committee will request advice from the Minister whether the provision is likely to effect any person known to have a case in pending proceedings.

[76]. Substitutes new sub-sections (2) and (3) for the existing sub-sections in section 86J of the Act. The existing sub-sections had prevented persons bringing civil or criminal proceedings against the Police Ombudsman without leave of the Supreme Court. The Police Ombudsman is to be replaced by the Director, Police Integrity. The new sub-sections reproduce this protection but extend it to members of staff of the Director and other persons who have taken an oath or affirmation. This clause also substitutes a new sub-section (5) for the existing sub-section (5). The existing sub-section (5) prevents the Police Ombudsman from being called to give evidence while the new sub-section extends this protection to members of staff of the Director and other persons who have taken an oath or affirmation. This clause also repeals sub sections (6) and (7) of section 86J (inserted by clause 75 of this Bill) because officers of the Ombudsman will not have an ongoing role in investigating police. (refer to section 85 Constitution Act 1975 statement and report below).

[77]. Inserts a new section 86JA in the Act. This new section provides protection and immunity to lawyers and witnesses involved in the Director's investigations.

[79]. Inserts new sections 86KA, 86KB, 86KC and 86KD in the Act to allow the Director, Police Integrity discretion to make a summons confidential.

New section 86KB provides that where a person attends a Director's investigation and fails to cooperate, that failure will be contempt of the Director.

New section 86KC prevents a non-cooperative witness being punished for both contempt of the Director and an offence where both sanctions arise from the same act or omission.

Section 86KD provides that the contempt provisions in sections 86KB and 86KC sunset 42 months after they commence.

[83]. Inserts a new section 86PB in the Act providing that the Director must video tape a person's attendance on the Director in the course of an investigation.

Inserts a new section 86PC in the Act providing that the Director must not summons a person under the age of 16 years and must excuse a person from attendance if they are under 16 years of age. If a person is believed to be under 18 years of age, then a parent, guardian or independent person must be present and the person must be allowed to confer with the parent, guardian or person before producing evidence or answering a question. If a person is believed to have a mental impairment, then an independent person must be present and the person must be allowed to confer with the independent person before producing evidence or answering a question.

Inserts a new section 86PD providing for the arrest of recalcitrant witnesses. Where a witness has been served with a summons but failed to appear before the Director, the Director may apply to a Magistrate for the issue of a warrant to arrest the witness and bring him or her before the Director. Where overnight detention of a witness is to occur, the witness is to be accommodated to the same standard as that provided to jurors.

[87]. Inserts new sections 86VA through to 86VH in the Act. These sections concern the Director's power to enter public premises, copy and seize documents without a warrant.

[89]. Inserts a new Division 4 in Part IVA in the Act concerning oversight by the Special Investigations Monitor of the Director's questioning of persons attending the Director in the course of an investigation under the Act.

[94]. Amends section 102F of the Police Regulation Act 1958 concerning the Director's power to delegate his or her powers. This clause enables the Director to delegate powers to a member of staff or a person who has taken an oath. It prevents the Director delegating powers under section 86KB(2) of the Police Regulation Act 1958 or section 61H(2) of the Whistleblowers Protection Act 2001 (both concern the Director's power to charge a witness with contempt and issue a warrant directed to police to bring the witness before the Supreme Court forthwith). It clarifies that the Director may delegate any of his or her powers under the Evidence Act 1958. These powers are 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 Director of Public Prosecutions for possible prosecution if a witness fails to attend) and 20A (summons to require continuous attendance).

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).

[97]. On Assent the clause inserts a new sub-section (4) in section 129A of the Act to declare that it is the intention of section 86J of the Act as amended by clause 75 to alter or vary section 85 of the Constitution Act 1975.

The amended section 86J of the Act expands the definition of officers of the Ombudsman who enjoy immunity from legal action. This expansion (to persons who have taken an oath) limits the jurisdiction of the Supreme Court by removing those persons from the Court's jurisdiction to hear proceedings against them.

[98]. On proclamation the clause substitutes a new sub-section (4) for the sub-section that is inserted by clause 97 (new sub-section 4 of section 129A) above and declares that it is the intention of section 86J as amended by clause 76 of the Bill to alter or vary section 85 of the Constitution Act 1975. The further amended section 86J of the Act protects the Director, Police Integrity, members of staff and persons who have taken an oath from civil and criminal proceedings where they act in good faith. This provision therefore limits the jurisdiction of the Supreme Court.

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

Clause 97 of the Bill states that it is the intention of section 86J of the Police Regulation Act, as amended by section 75 of the Major Crime Legislation (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.

Section 86J of the Police Regulation Act confers immunity from criminal and civil proceedings on the Police Ombudsman or any officer of the Ombudsman in respect of any act purported to be done under the Police Regulation Act.

Clause 75 of the Bill inserts a new definition of 'officer of the Ombudsman' into the Act to mean 'a person who has taken an oath or made an affirmation under section 10(2) of the Ombudsman Act 1973'. This section is to be taken to have applied since 11 May 1988.

The reason for limiting the jurisdiction of the Supreme Court in this instance is to ensure that all persons who assist, or have assisted, the Deputy Ombudsman (Police Complaints) or the Police Ombudsman in the exercise of their functions under this act are immune from suit, not only employees. 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.

Police Regulation Act

Clause 98 of the Bill states that it is the intention of section 86J of the Police Regulation Act, as amended by section 76 of the Major Crime Legislation (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.

Clause 76 substitutes new sections 86J(2) and (3) of the Police Regulation Act to provide that no civil or criminal proceedings can be brought against a person to whom the immunity provisions apply without the leave of the Supreme Court.

The reason for limiting the jurisdiction of the Supreme Court in this instance is to ensure that all persons who assist the DPI in the exercise of his functions under this act are immune from suit, not only employees. 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.

To ensure the effectiveness of the expanded investigative powers this legislative package confers on the Office of Police Integrity, it is important that its investigations are not impeded or thwarted by legal proceedings on any grounds possible. Such challenges could include allegations that the DPI's staff and persons assisting him have acted in bad faith. The Supreme Court will consider whether such allegations have any merit before determining whether they may proceed.

Sex Offenders Registration Act

Clause 103 of the Bill states that it is the intention of section 71 of the Sex Offenders Registration Act 2004, as amended by section 102 of the Major Crime Legislation (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.

Section 71(2) of that Act 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 that Act.

The Major Crime (Office of Police Integrity) Act 2004 abolishes the position of police ombudsman and replaces it with the DPI. It establishes a separate Office of Police Integrity and provides for the DPI to employ members of staff. This Bill provides for the DPI to carry out all of the functions conferred on the police ombudsman by part 7 of the Sex Offenders Registration Act.

The reason for limiting the jurisdiction of the Supreme Court 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.

As the DPI and persons assisting him in the exercise of his functions will assume responsibility for the functions previously conferred on the Police Ombudsman by part 7 of the Sex Offenders Registration Act, it is important that they have the same protection in carrying out the functions given to them by this bill as they have in carrying out their other functions.

Whistleblowers Protection Act

Clause 129 of the Bill states that it is the intention of section 107 of the Whistleblowers Protection Act, as it applies on or after the commencement of part 10 of the Major Crime (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.

Section 107 of the Whistleblowers Protection Act 2001 currently provides for the protection of the Police Ombudsman in relation to legal proceedings in a similar manner to that of the Police Regulation Act 1958. The Bill amends the Whistleblowers Protection Act 2001 to confer additional powers on the DPI in relation to investigations under that Act. This Bill amends section 107 to provide for the DPI, members of staff, and persons or bodies assisting the DPI to have the same level of immunity as currently applies in relation to their performance of the existing functions under the Act.

The reason for limiting the jurisdiction of the Supreme Court is to ensure that people administering the Act 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.

The Committee is of the view that the proposed section 85 Constitution Act 1975 provisions are appropriate and desirable in all the circumstances.

Amendments to the Sex Offenders Registration Act 2004

[101]. Inserts new provisions in the Act providing for the Director, Police Integrity to monitor compliance by the Chief Commissioner of Police with requirements in relation to keeping the Register of Sex Offenders.

[102]. Amends section 71 of the Act which applies the immunity in section 86J of the Police Regulation Act 1958 to cover acts done by the Director, members of his staff or persons engaged to assist him in performance of the Director's functions under the Sex Offenders Registration Act 2004. (refer to section 85 Constitution Act 1975 statement and report above). [103]. Declares that it is the intention of section 71 of the Sex Offenders Registration Act 2004, as amended by clause 102, to limit the jurisdiction of the Supreme Court.

Amendments to the Whistleblowers Protection Act 2001

[105]. Adds the Chief Examiner and Examiners to the list of persons in section 4(2)(j) of the Act who are not public officers for the purpose of that Act.

[110]. Inserts sub-sections (2) and (3) in section 61 of the Act making it discretionary whether the Ombudsman gives a member of the force an opportunity to be heard before making an adverse comment in a report. It also makes it discretionary whether the Ombudsman sets out the member's defence in the report.

[113]. Inserts new sections 61BA through to 61BH in the Act. These sections concern the video-recording of examinations, underage and impaired witnesses, and the Director's power to enter public premises, copy and seize documents without a warrant.

[115]. Inserts new sections 61G through to 61N in the Act concerning confidentiality of summonses issued by the DPI.

Section 61H provides that where a person attends a Director's investigation and fails to cooperate, that failure will be contempt of the Director.

Section 61I prevents a non-cooperative witness being punished for both contempt of the Director and an offence where both actions would arise from the same act or omission.

Section 61J provides for the sunset of the contempt provisions in sections 61H and 61I, 42 months after their commencement.

Section 61K provides for the arrest of recalcitrant witnesses.

Section 61L provides for witnesses who are already held in custody.

Section 61M requires the Director to give the Chief Commissioner the opportunity to comment where the Director believes there may be grounds for a report adverse to the force.

[126]. Inserts a new Part 9A in the Act consisting of new sections 105A to 105M dealing with oversight by the Special Investigations Monitor.

Section 105A provides that the Special Investigations Monitor's role is to monitor the Director's compliance with this Act, assess the Director's questioning of persons, to investigate complaints under this Division and to formulate recommendations and reports.

[129]. Inserts a new sub-section (4) in section 110 in the Act to declare the intention of section 107 (as it applies after these amendments) in the Bill to alter or vary section 85 of the Constitution Act 1975.

Section 107 of the Act provides immunity from suit for the Director and his or her staff and as the Bill provides the Director new powers under these amendments the immunity needs to extend to the exercise of those powers. (refer to section 85 Constitution Act 1975 statement and report above).

[131]. Inserts the Chief Examiner, other examiners and the Special Investigations Monitor in the definition of "law enforcement agency" in section 3 of the Information Privacy Act 2000. The effect of the insertions is that it is unnecessary for law enforcement agencies to comply with parts of the Information Privacy Act 2000 if the agency believes that non-compliance is necessary for the purpose of its functions and activities.

Committee Comments

Trespass unduly upon rights and freedoms – Parliamentary Committees Act 2003, section 17(a)(i)

1. Right to silence and the privilege against self-incrimination – Clauses 37, 39 and 49 – The Committee notes that the right to silence is a fundamental common law right available to any person suspected of having committed a criminal offence. The right to silence involves the privilege of a person to decline to answer any questions in the face of questioning by persons in authority, other than the statutory requirements of providing the persons name and address.

The Committee also notes the associated but distinct common law right, in the form of the privilege against self-incrimination. This common law privilege means that any person, not necessarily charged with an offence but a person giving information to authorities (perhaps under a statutory requirement) may decline to answer a question or questions that may incriminate them.

The Committee notes the provisions in clauses 37(2)(a), 39(3)(d) and 49(1)(b) provide penalties that may abrogate the right to remain silent in the face of questioning and the privilege against self-incrimination.

Clause 37(2)(a) provides that a person attending a summons as a witness must not, without reasonable excuse refuse or fail to answer a question required to be answered by the Chief Examiner (penalty up to 5 years imprisonment). Clause 39(3)(d) provides that a persons answers may be used against them in confiscation proceedings. Clause 49(1)(b) provides that a witness commits a contempt of the Chief Examiner if he or she refuse to be sworn or refuses or fails, without reasonable excuse, to answer any question.

The Committee notes that under the proposed Act a person will be compelled to give evidence that may subject that person to a pecuniary penalty under the Confiscation Act 1997 or to give evidence that is not protected by the privilege against self-incrimination (derivative use) which may lead to further evidence, independently obtained inculpating that person with an offence. The Committee also notes that the provisions (with certain safeguard provision) apply to children between 16 and 18 years.

The Committee is of the opinion that the provisions may abridge the right to silence and the privilege not to give self-incriminatory evidence to a person in authority.

The Committee also notes the Second Reading Speech makes it clear that there is no immunity for ‘derivative use’ of information obtained in the course of an examination. The Committee will seek clarification from the Minister whether that fact will be clearly communicated to a witness in language capable of understanding by a reasonable person as part of the preliminary requirements before questioning commences as may be contemplated by clause 33.

The Committee will seek further advice from the Minister concerning the possible abrogation of long standing common law rights and why these provisions are justified in the context of the objectives of the proposed legislation.

2. Length of time of questioning – Clauses 30, 35 and 36 – The Committee notes that there does not appear to be any clear legislative guidelines as to the length of time questioning may take place and it is unclear whether indefinite questioning may take place. The Committee will seek further advice why there is no legislative minimum standards provided for in the Bill itself prescribing minimum standards of conduct for the treatment of persons subject to compulsory interrogation by the State.

3 Immediate attendance on Examiner – Legal assistance – Clauses 14(10) and 15(9) – The Committee notes that there are provisions in the Bill for a summons to be issued requiring immediate attendance for examination (clauses 14(10) and 15(9)). It is unclear to the Committee whether an Examiner would be obliged to defer questioning until a witness has had adequate time to consult with a legal adviser. The Committee will seek further advice from the Minister concerning a witnesses rights to consult with a legal adviser prior to a summons for immediate attendance for examination.

4. Issue of summons by Examiner – Clause 15 – The Committee notes that the provisions of the Bill will permit the Chief Examiner to issue a summons on his or her own motion or on the application of a member of the police force. The Committee notes that normally a summons is issued by an independent body (a judge or registrar) and directs a person to appear before a judicial body. The Committee will seek advice from the Minister whether it is appropriate to permit the examining body to hold a summonsing power or whether the power should remain the exclusive preserve of an independent court.

5. Legal aid or assistance at examination and costs – Clause 19 – The Committee notes that the Bill imposes significant penalties, including contempt provisions for various forms of non-compliance, and may expose persons to significant criminal sanctions for evidence they do give in the course of an examination. The Committee notes that whilst legal representation is permitted there is no provision for legal aid for persons unable to pay for legal assistance. The Committee will seek advice whether legal aid will or should be provided. Further the Committee will seek advice whether a person mistakenly summoned and who is immediately or at some later time cleared of being a suspect or in any way implicated with the organised crime should be reimbursed any legal expenses in complying with the summons.

6. Examination of children between 16 and 18 years of age – Clauses 14, 15, 31 and 34 - The Committee notes the Bill makes particular provisions in clause 34 for the examination of children between 16 and 18 years of age. The Committee notes that there may be serious consequences arising from the coercive powers orders and the possible abrogation and or abridgment of common law rights, the Committee will seek further information from the Minister concerning the justification to include children between 16 and 18 years within the coercive powers regime provisions proposed by the Bill.

7. Qualifications and independence of Examiners – Clause 21 – The Committee notes that under proposed section 21(2)(b) the only disqualification for appointment as an Examiner is not to be a Member of an Australian Parliament. The Committee is concerned that it may be possible for a member or former member of a police force or an officer or former officer of the DPP, Ombudsman’s Office or the Office of the Director Police Integrity or some other prosecuting authority to be appointed as an Examiner. The Committee will seek further advice from the Attorney-General whether the appointment of such persons may unduly compromise or diminish the independence and integrity of the office of Chief Examiner or Examiner.

8. Legal representation of witness at examination – Clauses 34 and 35 – The Committee notes the Bill permits legal representation of a witness at an examination. The Committee also notes that the Chief Examiner is not bound by the rules of natural justice and may regulate the conduct of proceedings as they think fit and give directions as to who may be present at an examination (clauses 34 and 35). The discretion to regulate proceedings may in circumstances mean that an examiner may prevent a particular lawyer from appearing at an examination, if allowing that lawyer to appear may prejudice the effectiveness of the investigation. For example when a legal practitioner seeks to appear for multiple witnesses and thereby possibly compromise the inquiry. The Committee notes the competing interests of the right to representation of choice on the one hand and on the other hand the need for efficacious examination procedures. The Committee considers that the question of the desirability or otherwise of the provisions abridging the right to legal representation of choice is a matter for Parliament to consider.

The Committee draws attention to the provision.

9. Legal professional privilege – Clauses 40 to 42 – The Committee notes that legal professional privilege is provided by the Bill and that in the course of an examination questions arising in respect to the claim of legal professional privilege are to be determined, in the case of oral evidence, by the Examiner, and by the Magistrates Court in respect to documents and things (clauses 41 and 42). The Committee notes that notwithstanding the claim of privilege clause 40(2) requires a legal practitioner, when required by the Examiner, to divulge the name and address of the person to whom or by whom the claimed privileged communication was made.

(a) In respect to the requirement for a practitioner to divulge a clients name and address the Committee notes the following extract (footnotes edited) from the 6th Edition of Cross on Evidence [25225] at pages 706-707.

The name (295) of a lawyer’s client is not privileged since it must be revealed if the retainer necessary to establish the privilege is to be proved and since it is usually a fact observed while acting as distinct from a confidential communication necessary for obtaining of legal advice. A client’s address is normally not privileged (296) unless it was communicated confidentially, of its disclosure would operate as a real deterrent to the seeking of professional advice. However, a client’s name may be privileged where so much has been divulged with regard to the legal services rendered or the advice sought that to reveal the client’s name would be to disclose confidential communications (297).

295 Southern Cross Commodities Pty Ltd v Crinis[1984] VT697; Cf Cook v Leonard[1954] VLR 591 296 Ex parte Campbell; Re Cathcart (1870) 5 Ch App 703; All ER Rep 469 (CA) 297 Commissioner of Taxation (Cth) v Coombes (1999) 164 ALR 131 (Fed C of A FC)

The Committee notes that the requirement to give name and address may in certain circumstances abridge the right to legal professional privilege and will seek advice from the Minister whether clause 40 is intended to displace the case law allowing a discretion not to divulge the name and address of a client where to do so would effectively disclose confidential communications.

The Committee further notes that the claim for legal professional privilege, is in the context of legal proceedings, a shield preventing confidential communications passing between a client and a legal adviser from disclosure in those proceedings. In contrast the exercise of executive powers under the Bill, the disclosure of the name and address of the person to whom the privilege applies may subject that person to examination involving a requirement to answer questions and, as it would seem self-incriminate, liability under the Confiscation Act and the prospect of a pecuniary penalty under that Act.
The Committee notes that the provision may be an undue trespass to the right of legal professional privilege and the right of confidential communication with a legal practitioner and will seek further advice from the Minister.

(b) In respect to the split decision process the Committee will seek additional advice from the Minister why it is considered necessary to distinguish between the claim for privilege for oral evidence and the production of documents and other things. The Committee will seek further advice from the Minister whether, given the serious consequences which may arise from divulging privileged communications it may be more appropriate to have all claims to legal professional adjudicated independently by the judiciary.

10. Contempt of Examiner – imprisonment for indefinite period until contempt purged – Clause 49 – The Committee notes that punishment for contempt is ordinarily an incident of the exercise of judicial power (but note also contempt of Parliament). The Committee notes that the powers given by the Bill may involve the judiciary in imprisoning a witness for an indefinite period for a contempt for failure to comply or co-operate with an evidence gathering function of the executive.

Further the Committee has previously noted that under the Bill a person may be required to self-incriminate and subject themselves forfeiture and to a pecuniary penalty.

The Committee is concerned that in such circumstances the judiciary may be seen to be an agent of the executive by enforcing the coercive questioning powers provisions of the Bill by the indefinite imprisonment of a person in order to compel a witness to give evidence which may self-incriminate that person.

Whilst the Committee notes that the provisions will sunset after an initial trial period of 42 months the Committee is concerned that the contempt provisions may be inappropriate or infringe the separation of judicial and executive powers and may constitute an undue trespass to rights and freedoms.

11. Right of complaint to Special Investigations Monitor (SIM) – Clause 54 – The Committee notes that a person summoned and examined may complain to the SIM within 3 days after the completion of the examination. The Committee is concerned that the provision of 3 days in which to make a complaint may be an inadequate allowance and will seek further information from the Minister concerning the adequacy of this limitation.

Unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000 – Parliamentary Committees Act 2003, section 17(a)(iv)

12. Protecting personal privacy rights – Information Privacy Act 2000 – In respect to the oversight role of the Special Investigations Monitor (SIM) the Committee notes the submission made by the Victorian Privacy Commissioner (paragraph 16 to 26). To the extent that the submission may raise issues concerning an adverse impact on personal privacy and or a trespass to rights and freedoms pursuant to the terms of reference of the Committee the Committee refers the submission to the Attorney-General for any comment.

The Committee makes no further comment

Major Crime Legislation (Seizure of Assets) 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 Confiscation Act 1997 (the ‘Act’) to —

to re-classify forfeiture offences as Schedule 1 offences and to re-classify automatic forfeiture offences and civil forfeiture offences as Schedule 2 offences;
to provide for the making of a restraining order on suspicion that property is tainted property in relation to a Schedule 2 offence;
to reform the basis on which civil forfeiture orders are made;
to give the Director, Police Integrity, the power to apply for a monitoring order under Part 13 of the Act; and
to make consequential and other minor amendments.

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

This Bill is part of a package of measures to strengthen Victoria’s capacity to deal with organised crime and police corruption.

…

This Bill will make significant changes to the current civil forfeiture scheme. First, the scheme will be broadened to apply to a much wider range of serious, profit-motivated crimes.

…

The civil forfeiture schemes in other jurisdictions (such as New South Wales and Queensland) apply to a much broader range of offences. The range of offences in those jurisdictions is comparable to the range of 'automatic forfeiture' offences in Victoria's Confiscation Act. Those offences, which were expanded in 2003, include the existing civil forfeiture offences; however, they apply to lower quantities. For example, the quantity for impure heroin is 30 grams. The list of automatic forfeiture offences also includes other profit-motivated offences such as extortion, theft, robbery, obtaining financial advantage by deception, handling stolen goods, bribery and running a brothel in breach of a licence.

This Bill will enable Victoria's civil forfeiture scheme to apply in relation to the same range of offences as the automatic forfeiture scheme.

The second key change is that it will no longer be necessary for a person to be charged with an offence.
Instead, the Bill will make it possible to apply for an order to restrain property if a member of the police force suspects, on reasonable grounds, that the property is 'tainted' with respect to a relevant offence.

…

If property is restrained, the Bill will enable any person claiming an interest in the property to apply to a court for an order to have the property excluded.

The court may make an exclusion order if the court is satisfied that the property is not tainted property.
If the court is not satisfied that the property is not tainted property, it may still make an exclusion order if it is satisfied of other matters, such as that the person seeking to have the property excluded was not involved in the commission of the offence that tainted the property and that he or she was not aware of certain issues relating to the tainting of the property.

The person seeking to have the property excluded must prove these matters on the civil standard of proof, which is the balance of probabilities.

If the person claiming an interest in the property is unable to exclude it, the property can be forfeited. It will no longer be necessary to prove that a person committed any offence.

The Bill also amends section 115 of the Confiscation Act to enable the director, police integrity, to apply for monitoring orders. These are orders requiring a financial institution to give information to a particular law enforcement agency about a person's financial transactions for a specified period.

Content and Committee comment

[Clauses]

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

[5]. Amends the definitions section of the Act. The Act currently defines three categories of offence. The offences contained in each category are set out in three schedules to the Act. The Bill replaces those three categories with two categories.

The new category "Schedule 1 offence" contains the same offences as the present category "forfeiture offence".

The new category "Schedule 2 offence" contains the same offences as the present category "automatic forfeiture offence". The present category "civil forfeiture offence" has been absorbed into the new category "Schedule 2 offence".

The effect of these amendments is to make the amended civil forfeiture scheme apply in relation to a much broader range of offences than the current civil forfeiture scheme.

[8]. Makes a series of amendments to the Act with respect to applications for restraining orders. Proposed section 16(2) deals with applications relating to Schedule 2 offences.

Proposed sub-section (2)(a) enables an application to be made if a member of the police force suspects on reasonable grounds that the property sought to be restrained is tainted property in relation to a Schedule 2 offence. This provision has no analogue in the existing section 16. Tainted property is defined in section 3 of the Principal Act. An application under new sub-section (2)(a) must be supported by an affidavit.

[9]. Inserts a new sub-section (2) into section 18 to provide that the court hearing an application under new section 16(2)(a) (member of the police force suspects on reasonable grounds that property is ‘tainted property’) must make a restraining order if it is satisfied that the deponent of the affidavit supporting the application does suspect that the property is tainted property in relation to a Schedule 2 offence and that there are reasonable grounds for that suspicion.

[15]. Amends section 37 which deals with applications for civil forfeiture orders. The new section 37(1) enables an application to be made to the Court for a civil forfeiture order in respect of property if a restraining order is made under proposed new section 18(2) in respect of the property. In contrast to the existing section 37(1), it will no longer be necessary for a person to have been charged.

[16]. Amends section 38 of the Act dealing with the determination of applications for civil forfeiture orders.

Section 38(1) currently provides that, on an application under section 37, the Supreme Court must order the property to be forfeited to the Minister if it finds on the balance of probabilities that the defendant committed the civil forfeiture offence with which the defendant was charged.

This is replaced with a provision that requires the Supreme Court or the County Court to order the property to be forfeited if it is satisfied that –

the requirements of section 37 as to notice of the application have been complied with (that section requires the applicant for a civil forfeiture order to notify every person who the applicant has reason to believe has an interest in the property);
not less than 30 days have elapsed since the last notice given in accordance with proposed section 37; and
there are no pending applications under section 20 (exclusion applications) in relation to the restrained property (that section provides for applications to exclude property from a restraining order).

Trespass unduly upon rights or freedoms – Parliamentary Committees Act 2003, section 17(a)(i)

The Committee notes that the Bill make significant changes to the application of the civil forfeiture regime by broadening the scope of the offences that attract civil forfeiture and also by lowering the threshold of matters that the State must prove to confiscate assets.

The Committee notes that tainted property in respect to a Schedule 2 offence may be restrained on the application of a member of the police (new sections 16(2)(a) and 18(2)) without a charge or conviction being made against any person, and pursuant to amended section 37 the DPP may apply to a court for civil forfeiture in respect to that property. Further, amended section 53 will provide that a ‘suspected person’ will be barred from making a forfeiture exclusion application.

The Committee notes that under both types of order (section 20 (restraining order) and 53 (forfeiture order) ) there is a reverse onus of proof on the balance of probabilities applying, with the applicant bearing the burden of proof to show certain matters as to why property should not be restrained or forfeited. The Committee notes that under the new provisions property may be forfeited without proof by the prosecution of any liability on either the criminal or civil standard of proof, in circumstances where a person is designated a ‘suspect’ based on the reasonable belief of a member of the police force.

Reverse onus of proof applying to persons ‘suspected’

The Committee notes that a reverse onus of proof exists at both the exclusion from an restraining order and for civil forfeiture where the applicant must prove on the balance of probabilities certain matters to prevent an order being made against them. The Committee notes the provision permits significant police powers compelling persons who are mere ‘suspects’ to prove entitlement to their property. The Committee notes the competing interests of law enforcement and individual property rights. The Committee will write to the Attorney-General to seek further advice concerning the desirability of such a reverse onus provision applying to persons who are neither convicted, acquitted or charged with any offence.

The Committee draws attention to the provisions.

Denial of right to make application on question of forfeiture based on being a ‘suspect’

It appears to the Committee that persons who are either ‘charged’ with, ‘convicted’ or ‘acquitted’ of an offence are readily identified by the engagement of a form of judicial process, whereas under the provisions of the Bill, an undefined number of persons may be ‘suspected’ of an offence and thereby be denied an appeal right by the characterisation of being ‘suspected’ by a member of the police force.

The Committee will write to the Attorney-General seeking further clarification concerning the legal procedure by which persons are to be declared or prescribed to be ‘suspected persons’ for the purposes of disqualification from the exclusion from forfeiture provisions within the meaning of proposed new section 53(1A).

The Committee is of the view that the provisions may be an undue trespass to a person’s property rights.

Pending the Attorney’s response the Committee draws attention to these provisions.

[21]. Amends section 115 of the Act to enable the Director, Police Integrity (an office to be established by the Major Crime Legislation (Office of Police Integrity) Bill) to apply for a monitoring order (financial institution transactions).

The Committee makes no further comment

Petroleum Products (Terminal Gate Pricing) (Amendment) Bill

Purpose

The Bill amends the Petroleum Products (Terminal Gate Pricing) Act 2000 (the ‘Act’) to –

make changes concerning the temperature at which declared products are measured to determine a terminal gate price,
allow regulations to exempt a supplier from the requirement to supply petroleum products in the event of a shortfall in the availability of a declared product or where the customer is unable to pay, and
make a number of technical changes to improve the administration and operation of the Act.

Content and Committee comment

[Clauses]

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

[8]. Amends section 9 of the Act to allow a declared supplier to refuse to supply declared petroleum products where the regulations exempt the supply because there is a shortfall in the availability of that product or where the customer is unable to pay for the product.

[9]. Inserts new section 10(2) into the Act to make it an offence with a penalty of 60 penalty units to refuse or fail to comply with a requirement of the Director of Consumer Affairs Victoria to produce documents or answer questions.

[11]. Amends section 13 of the Act to insert a power to make regulations to prescribe the notification arrangements where there is a shortfall in the availability of declared product and to introduce penalties of not more than 20 penalty units for contraventions of the regulations.

The Committee makes no further comment

State Concessions Bill

Introduced: 12 October 2004
Second Reading Speech: 14 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Sherryl Garbutt MLA
Portfolio responsibility: Minister for Community Services

Purpose

The Bill consolidates legislative responsibility for concessions and creates a flexible framework by empowering the Minister to specify the structure and level of available concessions by Ministerial Order.

The Bill repeals the State Concessions Act 1986 and makes consequential amendments to other Acts.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on a day to be proclaimed but not later than by 1 March 2005.

[4]. The Minister, by Order, may declare a person or class of persons to be an "eligible beneficiary" within the meaning of the Act and may declare a charge to be a "user cost" within the meaning of the Bill.

[5]. Sets out the power of the Minister to make a "concession order" determining the level of concessions available in relation to one or more "user costs". The orders are to be published in the Government Gazette.

[6]. Provides that a "concession order" must be published in a daily newspaper generally circulating throughout Victoria.

[7]. Provides that a "concession order" must be laid before each House of Parliament within 7 sitting days after publication in the Government Gazette.

[9 and 10]. The Minister must ensure that an agency, person or body that has an obligation to grant concessions in accordance with a "concession order" is reimbursed for the concessions granted and may enter into an agreement or arrangement with an agency, person or body to grant concessions in accordance with a "concession order". An agreement or arrangement operates for the period determined by the parties and is subject to conditions agreed by the parties.

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

[12]. Repeals the State Concessions Act 1986.

The Committee makes no further comment

Transport Accident (Amendment) Bill

Introduced: 12 October 2004
Second Reading Speech: 14 October 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Transport Accident Act 1986 to —

enable the Transport Accident Commission to enter into individual funding agreements with people who suffer severe injuries in transport accidents;
change the way pre-accident weekly earnings are calculated for compensation purposes;
increase the benefits paid under that Act;
otherwise improve the operation of that Act.

The Bill also makes a minor amendment to the Accident Compensation Act 1985.

Content and Committee comment

[Clauses]

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

[5]. Amends section 4 of the Act to change the method of determining the amount of pre-accident weekly earnings of an earner under the Act.

[6]. Re-enacts in a revised form the provisions that apply to trainees and apprentices. The clause provides that incremental increases in the amounts payable to the apprentice or trainee are to be taken into account in determining the pre-accident weekly earnings of the person.

[9]. Inserts a new section 45AC into the Act to deal with the calculation of loss of earnings benefits of seasonal earners. The new section will provide the choice to a seasonal earner to receive loss of earnings benefits at a variable rate depending on the losses sustained from seasonal activities or receive an average rate based on their average earnings in the 12 months before the accident.

[10]. Amends section 46A of the Act to change the process for the determination of impairment under the Act.

[11]. Amends section 47 of the Act to introduce revised and increased impairment benefits payable to a person whose impairment is determined at 11% or more after the provision takes effect.

[35]. Inserts a new section 131A into the Act which enables the Commission to refer misconduct by service providers to a regulatory body and to suspend payments to service providers consequent on the referral.

The Committee makes no further comment