Alert Digest No 10 of 2005

Introduced: 17 August 2005
Second Reading Speech: 17 August 2005
House: Legislative Council
Minister introducing Bill: Hon. Peter Hall MLC
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the definition of ‘intention’ in Division 4 of Part I (contamination of goods) of the Crimes Act 1958 (the ‘Act’).

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

This Bill amends a deficiency in the Crimes Act 1958 which presently exposes Victoria's agricultural industries to harm arising from the wilful contamination of goods.

Section 249 provides that a person must not contaminate goods with the intention of (a) causing public alarm or anxiety; or (b) causing economic loss through public awareness of the contamination.

This Bill inserts into the Crimes Act a new section 253 which provides an extended meaning of 'intention' within sections 249, 250 and 251.It will enable courts in future such cases to take into account not only an individual's knowledge of the damage his actions are likely to cause but also to have regard to what that person in the particular circumstances ought to have understood would be the consequences of his conduct.

Content and Committee comment

[2]. The amendment to the Act will come into force on the day after Royal Assent.

[3]. Inserts a new section 253 in the Act to provide an extended meaning of ‘intention’ in sections 249, 250 and 251 of the Act.

For the purposes of this Division, a person who engages in conduct referred to in section 249, 250 or 251 also has the intention of –

(a) causing public alarm or anxiety; or
(b) causing economic loss through public awareness of the contamination of goods if the person

knows, or in all the particular circumstances the person ought to have understood, that engaging in the conduct would be likely to cause public alarm or anxiety or cause economic loss through public awareness of the contamination of goods.

Groundwater (Border Agreement) (Amendment) Bill

Introduced: 9 August 2005
Second Reading Speech: 11 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Water

Purpose

The Bill amends the Groundwater (Border Agreement) Act 1985 (the ‘Act’) to approve and give effect to the Border Groundwaters Agreement Amendment Agreement.

Content and Committee comment

Commencement by proclamation

The Committee notes that the provision is necessary to enable the timing of the commencement of the Act to coincide with the commencement of the corresponding South Australian Act.

[4]. Inserts new section 5A into the Act to provide that the Amending Agreement is approved.

[7]. Inserts Schedule 2 after Schedule 1 of the Act and contains the Border Groundwaters Agreement Amendment Agreement as signed by the Premiers of Victoria and South Australia.

Local Government (Further Amendment) Bill

Introduced: 16 August 2005
Second Reading Speech: 17 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Candy Broad MLC
Portfolio responsibility: Minister for Local Government

Purpose

The purpose of the Bill is to dismiss the Glen Eira City Council and set a date for a general election and to amend the Local Government Act 1989 (the ‘Act’) to allow an order for the suspension of the councillors of a Council to expire at the end of a specified period that is less than one year.

Content and Committee comment

[5]. Provides that the Glen Eira City Council is to be dismissed and for the continuity of the administrator appointed under Order in Council.

[6 to11]. Specifies that the general election for the Glen Eira City Council must be held on 26 November 2005 and that the entitlement date for the general election is 7 October 2005 and deals with issues relevant to the voters roll to be used at the election.

[12]. Requires the Chief Executive Officer to summon a meeting of the Council within 14 days of the declaration of the election result.

[14]. Amends section 219(7) of the Act to provide that an Order in Council to suspend all the councillors of a council may expire on a date specified in the Order that is less than one year after the date the Order is published.

Melbourne Lands (Yarra River North Bank) (Amendment) Bill

Introduced: 16 August 2005
Second Reading Speech: 17 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Melbourne Lands (Yarra River North Bank) Act 1997 (the ‘Act’) to provide for additional land (3965m2) to be included in the Melbourne Aquarium site and to make further provision for leasing powers.

In November 1997, a lease for an initial term of 50 years was granted to Melbourne Underwater World Pty Ltd for the purpose of the Melbourne Aquarium.

To facilitate the expansion of the Melbourne Aquarium, it is necessary to provide for additional land to be included in the aquarium site and for the lease relating to the Aquarium to be varied for that purpose.

Content and Committee comment

[10]. Substitutes a new Schedule 1 to the Act containing a plan of the aquarium site land.

Pipelines Bill

Introduced: 9 August 2005
Second Reading Speech: 11 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Minister responsible: Hon. Theo Theophanous MLC
Portfolio responsibility: Minister for Resources

Purpose

The Bill repeals the Pipelines Act 1967 replacing it with a new Act dealing with all aspects of the planning, development and use of major pipeline infrastructure.

Content and Committee comment

[2]. The Act comes into operation on proclamation but not later than by 1 July 2007.

[9]. The Act applies to a pipeline for the conveyance of petroleum, oxygen, carbon dioxide, hydrogen, nitrogen, compressed air, sulphuric acid or methanol through the pipeline; and any pipeline declared under section 11 to be a pipeline to which the Act applies.

[10 and 12]. The Act does not apply to certain pipes shown in Schedule 1 of the Act and those pipelines declared by the Minister as published in the Government Gazette.

[11]. The Minister may by order published in the Government Gazette declare any pipeline or proposed pipeline to be a pipeline to which the Act does apply.

[14 and 15]. It is an offence to construct or operate a pipeline unless a licence to construct or operate that pipeline has been issued under the Act.

[19 and 20]. A proponent must give written notice to each owner and occupier of land, including the Crown Land Minister if the land is Crown land, of the proponent's intention to enter that land for the purpose of conducting a survey and take all reasonable steps to reach agreement with each owner and occupier of land in relation to the proponent's entry onto the land for the purpose of conducting a survey.
[28 to 85]. Makes provision for a pipeline licensing process including transfer, variation, revocation and surrender of licences.

[50]. A licence must not be granted for the construction or operation of a pipeline on or under wilderness Crown land.

[84]. Deals with revocation of pipeline easements and provides that no compensation is payable on the revocation of an easement.

[96]. A licensee may compulsorily acquire an easement if the Minister has consented to the application made under clause 95. This clause also outlines the provisions of the Land Acquisition and Compensation Act 1986 that apply to a compulsory acquisition of an easement by a licensee.

[98]. A licensee may enter any private land or Crown land in an emergency to ensure public safety, to repair a pipeline or to repair damage to the environment resulting from an incident involving the pipeline.

[140 to 154]. Deals with rehabilitation bonds and compensation. The owner and occupier of land is entitled to compensation from a proponent who carries out a survey on the land or a licensee who carries out a pipeline operation or gains emergency access to the land. The amount of compensation should cover deprivation or impairment of the use and enjoyment of the land, damage to the land, damage to any business or other activity on the land, and consequential loss. The amount of compensation may be determined by agreement and provides that owners and occupiers of land may apply to VCAT to determine a disputed compensation claim or to refer a disputed claim to the Supreme Court. The relevant provisions of the Land Acquisition and Compensation Act 1986 apply to compensation under the Act.

[161]. Deals with emergency entry and permits an inspector to exercise any monitoring power under the Act where he or she reasonably believes it is necessary because of an immediate serious risk to health, safety or the environment.

[164]. An inspector may apply to a magistrate for a search warrant if he or she believes on reasonable grounds that evidence of an offence under the Act will be found on a premises within 72 hours. The forms and procedures under the Magistrates Court Act 1989 apply.

[172]. The Minister must pay compensation for any damage caused by an inspector exercising or purporting to act under a power conferred by the Act. However, the Minister is not liable if the inspection reveals the Act has been contravened.

[177]. Provides protection against self-incrimination for a natural person where he or she is required to do something or give information under the Act. The privilege does not apply where a person refuses or fails to produce a document required to be produced under the Act.

[180 to 182]. Deals with improvement and prohibition notices and provides that a person may apply to VCAT for review of an inspector’s decision to issue an improvement or prohibition notice.

[184].The Minister may delegate any of his or her powers to a member of the public service, or an employee of Energy Safe Victoria. The Minister cannot not delegate powers under sections 53 and 95 or his or her power of delegation.

[185]. The Secretary may delegate any of his or her powers or functions (other than his or her power of delegation) under the Act to a person or office holder of the public service.

[190]. The Governor in Council may make regulations for the purposes of the Act.

[191 to 212]. Provides for transitional arrangements covering existing pipelines licensed under the Act to be repealed.

Minor House amendment

[194]. The Committee notes that in sub-section (2) the word ‘be’ should be inserted after ‘is deemed to’
[213]. The Pipelines Act 1967 is repealed.

Radiation Bill

Introduced: 9 August 2005
Second Reading Speech: 11 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The purpose of this Act is to provide a regulatory regime, consistent with national directions to protect the health and safety of persons and the environment from the harmful effects of radiation.

The Bill is based upon the National Directory for Radiation Protection developed by the National Radiation Health Committee of the Australian Radiation Protection and Nuclear Safety Agency

The Radiation Bill is also consistent with the recommendations of the National Competition Policy review of the radiation protection legislation completed in 2001.

[2]. Sections 1, 2 and 146 commence operation on the day after Royal Assent. The remaining provisions commence operation on 1 September 2007.

[4]. The Secretary to the Department of Human Services (“the Secretary”) may make declarations in relation to certain radioactive materials and apparatuses such that those materials and apparatuses are not included in the definitions of "radioactive material", "sealed source apparatus" and "ionising radiation apparatus" in section 3(1). The Secretary may only make such declarations if the Secretary is satisfied that the ionising radiation either emitted by the relevant material or class of material, or produced by the apparatus or class of apparatus, does not pose a significant risk to the health or safety of any person or the safety of the environment. Such a declaration must be published in the Government Gazette.

[5]. The Minister must ensure that a copy of any declaration made by the Secretary for the purposes of clause 4 is laid before each House of Parliament, and the declaration may be disallowed in whole or in part by either House. A failure by the Minister to table a declaration made under clause 4 does not affect the operation or effect of the declaration but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament.

[7]. Declares the Radiation Principle being the protection of persons and the environment from unnecessary exposure to radiation.

[8]. In interpreting a provision of the Act or the regulations, a construction that would promote the Radiation Protection Principle is to be preferred to a construction that would not promote the Principle.

[12 to 23]. Deals with licensed activities and makes it an offence for a person to conduct a radiation practice, use a radiation source or construct a radiation facility, without being licensed. The Secretary may exempt prescribed persons from the need to hold a licence.

[20]. It is an offence for a management licence holder to not immediately notify the Secretary if a radiation source that was in their possession is lost or has been stolen.

21. Abandonment of radiation source
22. Cause a person to receive a higher radiation dose than prescribed
23. Cause serious harm to the environment

[21]. It is an offence for a management licence holder to knowingly, recklessly or negligently abandon a radiation source that is in their possession.

[22]. It is an offence for a person, when conducting a radiation practice, to knowingly, recklessly or negligently cause another person to receive a radiation dose that is greater than the dose limit that is prescribed.

Sub clause (2) makes it an offence for a person, when using a radiation source, to knowingly, recklessly or negligently cause another person to receive a radiation dose that is greater than the dose limit that is prescribed.

[23]. It is an offence for a person to knowingly, recklessly or negligently cause serious harm to the environment when conducting a radiation practice in relation to a radiation source.

Sub-clause (2) makes it an offence for a person to knowingly, recklessly or negligently cause serious harm to the environment when using a radiation source.

The Committee notes that sections 21, 22 and 23 will permit an indictable offence to be proven against a person on the basis of negligence. The Committee notes that in the ordinary course the prosecution is required to prove intent as an element of the offence. Intent is made out as an element where the person knew or was reckless to the consequences of his actions. The proof of negligence is a lower threshold test for the prosecution to meet in proving the necessary elements of the offence.

The Committee also notes the strict liability offence provided in section 115 concerning tampering with radiation source seals without a reasonable excuse.

The Committee accepts that the subject matter of the sections and the licensing regime introduced by the Act with its clear objective to protect the health and safety of persons and the environment make these provisions justifiable or necessary.

The question whether the lower threshold to prove the offence is necessary or desirable is a matter for Parliament to determine.

The Committee draws attention to the provisions.

[24 to 36] Makes provision for approved testers and testing and use of prescribed radiation sources.

[37 to 67]. Deal with the issue of authorities (licences), application processes, information required to be provided, conditions, renewals, variations, and suspensions of licences and other like matters.

The provisions deal with the appointment of authorised officers and their inspection, search and seizure powers. Search and seizure procedures and powers either with the occupiers consent, in special emergency situations or with a search warrant issued in accordance with the provisions of the Magistrates Court Act 1989.

The entry powers of authorised officers apply to any place including a residence. However a residential premises may only be entered by consent, by search warrant or in an emergency situation (‘a radiation event’).

[78]. Provides a power for an authorised officer to direct a person to produce documents, operate equipment or answer questions.

[92 to 99]. Make special provision for authorisation of emergency powers where there is a ‘radiation event’ (emergency).

The Secretary may give an authorisation to an authorised officer in relation to a radiation event if the Secretary believes on reasonable grounds that the radiation event has occurred and poses a serious risk to the health or safety of persons or safety of the environment; or the Secretary believes on reasonable grounds that the radiation event may occur, and if it did, it would pose a serious risk to the health or safety of persons or to the safety of the environment.

The authorisation may permit an authorised officer [96] to require a person remain or not depart from a place, the detention of a person, entry into a place and decontamination of persons and places and the disposal or destruction of radiation sources and contaminated materials. An authorised officer may use reasonable force [98] in giving effect to these emergency provisions.

A person may seek compensation [99] as a result of the giving of an emergency authorisation if there are insufficient grounds for the making of the authorisation.

[100 to 102]. Makes provision for the review of certain decisions by the Secretary (‘reviewable decisions’) by VCAT.

[103 to 111]. Establishes the Radiation Advisory Committee and provides for its composition, functions and reporting responsibilities.

Clause 112 provides that the Secretary may appoint a person as a radiation analyst if the Secretary considers that the person has the necessary expertise or experience to be a radiation analyst.

[115]. Makes it an offence for a person to open, alter, break or remove any seal placed on a radiation source by an authorised officer unless the person has a reasonable excuse. The offence carries a maximum penalty of 600 penalty units (3000 for corporations) (also refer to Committee comment at [23] above).

The Committee notes that this is a strict liability offence. The Committee accepts that such offences are justifiable in cases –

Where a regulatory regime is established, particularly those relevant to protection of public health and the environment where the interests of the public are paramount.
Where it is difficult for the prosecution to prove a fault element because a matter is peculiarly within the knowledge of the defendant.
Where an appropriate defence (mistake of fact on the balance of probabilities) is available.

[118 to 126]. Provides for infringement notices to be served for prescribed offences.

[127]. A natural person is not excused from complying with a direction of an authorised officer under section 78 or Part 8 (emergency powers) on the ground that to do so would incriminate the person.

However, any information given by that person in complying with such a direction is not admissible in evidence against the person in criminal proceedings other than in proceedings regarding the provision of false information. Despite the general use-limitation any information provided by a person in complying with an authorisation that is contained in any document that the law requires that person to keep, is admissible in criminal proceedings against that person.

The Committee notes the provisions abridges the privilege against self-incrimination in that a natural person is not excused from complying with a direction of an authorised officer on the ground that to do so would incriminate the person. However the Committee notes that any information given by that person in complying with such a direction is not admissible in evidence against the person in criminal proceedings other than in proceedings regarding the provision of false information.

The Committee also notes that despite the general use-limitation any information provided by a person in complying with an authorisation that is contained in any document required to be kept under the Act is admissible in criminal proceedings against that person.

The Committee draws attention to the provision.

[132]. Sets out the circumstances where a court may make an order against a person under section 86 of the Sentencing Act 1991 in respect of an offence under the Act or the regulations, which allows the applicant to recover compensation for the loss suffered by the applicant as a result of the commission of the offence.

[136]. The Secretary may disclose information collected or received under the Act or regulations to a number of specified bodies, including the Health Services Commissioner, a relevant practitioner registration board and the Environment Protection Authority, or similar bodies in other jurisdictions in Australia or overseas.

[139]. Provides that regulations may be made with respect to a number of matters necessary to be prescribed to give effect to the Bill.

Royal Victorian Institute for the Blind and other Agencies (Merger) Bill

Purpose

The purpose of the Bill is to provide that any bequests, gifts or trusts in favour of any of the three merged organisations that had not vested before the merger do not fail but have effect as if made in favour of Vision Australia Ltd.

Three charitable organisations that provided services for the blind and vision impaired merged their activities into a single organisation under a scheme of arrangement approved by the Federal Court in July 2004.

The three organisations were the Royal Victorian Institute for the Blind, the Royal Blind Society of New South Wales and Vision Australia Foundation. Under the scheme, all the property, undertakings and liabilities of those bodies were vested in a new combined agency, Vision Australia Ltd.

Content and Committee comment

[4]. Provides for the saving of bequests, gifts, dispositions and trusts expressed to be in favour of any of the merged agencies.

Sentencing and Mental Health Acts (Amendment) Bill

Introduced: 16 August 2005
Second Reading Speech: 17 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

Content and Committee comment

The Bill addresses the findings of the Vincent Review in a number of ways. First, hospital orders will not be able to be made for persons found guilty of a 'serious offence'.

Secondly, hospital orders will no longer be of indefinite duration. A court will be permitted to make a hospital order for up to a maximum of two years.

These amendments strike an appropriate balance by ensuring that hospital orders are not made for people guilty of serious offences, and patients are not detained under these orders for prolonged periods.

The term 'hospital order' will be replaced, as it does not accurately describe the situation of patients living in the community subject to restricted community treatment orders. Hospital orders will now be known as 'restricted involuntary treatment orders', which mirrors the 'involuntary treatment orders' which apply to civil involuntary patients.

The Bill will clarify this issue by providing that a person subject to a hospital security order, who is discharged to prison, can later be transferred back to an approved mental health service on a hospital security order.

The Adult Parole Board will be given the power to grant parole to a patient subject to a hospital security order without the person having to first return to prison.

Amendments are also proposed to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to ensure that forensic patients and residents who are on remand are able to apply for special leave or to be granted leave by the forensic leave panel.

Content and Committee comment

[2]. Sections 1 and 8 of the Bill will come into operation on the day after Royal Assent; and the remaining provisions of the Bill will come into operation on proclamation but not later than by 1 October 2006.

[5]. Substitutes section 93 and inserts a new section 93A to provide for restricted involuntary treatment orders, which replace hospital orders.

[10]. Substitutes section 15A with new provisions for the making of restricted community treatment orders.

[16]. Substitutes section 36B and inserts a new section 36BA to provide for powers of the Board on the appeal or review of a patient detained in an approved mental health service under a restricted involuntary treatment order.

[26]. Inserts new section 74(8A) and amend section 74(9) so that the Adult Parole Board may make a parole order for a person detained in an approved mental health service under a hospital security order. The parole order does not take effect until the person is discharged as a security patient under the Mental Health Act.

[27]. Amends relevant sections in Part 5 of the Act in order that all forensic patients and forensic residents may be granted special leave of absence, on-ground leave and limited off-ground leave, but preserves the current restrictions on which forensic patients and forensic residents may apply for extended leave.

Sports Anti-doping Bill

Introduced: 16 August 2005
Second Reading Speech: 17 August 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Justin Madden MLC
Portfolio responsibility: Minister for Sport and Recreation

Purpose

The Bill re-enacts with amendments the law relating to anti-doping in sport; and confers functions on the Australian Sports Drug Agency ("ASDA established under Commonwealth legislation"). The Bill repeals the Sports Drug Testing Act 1995.

The objects of the Bill include ensuring ASDA is able to fulfil its anti-doping obligations in relation to Victorian athletes and to provide for the development of a Victorian sports anti-doping policy.

Content and Committee comment

[6 to 8]. Establishes the Victorian anti-doping policy and provides that the policy must be published on an appropriate government Internet website. The guidelines are also required to be published in the Victorian Government Gazette.

[9 to 11]. Specifies the functions of ASDA under the Act including providing information about the use of drugs or doping methods in sport and testing procedures and consequences if a Victorian athlete returns a positive result or does not comply with a request to provide a sample. ASDA may only perform its functions or exercise its powers under the Bill in relation to a Victorian athlete when there is an agreement in place between ASDA and the athlete's Victorian sporting organisation.

[12]. Provides that the Commonwealth Administrative Appeals Tribunal and its members and officers have the same jurisdiction under the Act in relation to a Victorian athlete as they have under the Commonwealth Act in relation to a competitor (within the meaning of the Commonwealth Act). (Also refer to section 9A of the Australian Sports Drug Agency Act 1990 (Cth)).

(1) If a law of a State or Territory confers a power or function on the Agency, the Agency may, with the written approval of the Minister, exercise that power or perform that function, as the case may be.

(1A) This Act does not prevent the Minister from giving an approval under subsection (1) in relation to a law of a State or Territory that requires or authorises the Agency to:

(a) make an entry on a Register; or
(b) in a case where an entry on a Register was made in accordance with such a law—remove that entry.

(2) If the Agency is authorised to exercise a power, or perform a function, under a law of a State or Territory, and that law confers a power or function on:

(a) the Administrative Appeals Tribunal; or
(b) a member or officer of that Tribunal; or
(c) a member or officer of the Federal Court of Australia;

then, subject to the regulations, that Tribunal, member or officer may exercise the power, or perform the function, conferred by that law.

(3) If the Agency is authorised to exercise a power, or perform a function, under a law of a Territory, and that law confers jurisdiction on the Federal Court of Australia, then, subject to the regulations, that Court may exercise that jurisdiction.

Sustainability Victoria Bill

Purpose

The Bill establishes Sustainability Victoria and provides for it to be the successor of the Sustainable Energy Authority Victoria and EcoRecycle Victoria. The Act also amends the Environment Protection Act 1970 to repeal the provisions relating to EcoRecycle Victoria and transfers the functions and powers of EcoRecycle Victoria to Sustainability Victoria.

The Bill repeals the Sustainable Energy Authority Victoria Act 1990 and makes consequential amendments to certain other Acts.

Content and Committee comment

[2]. Sections 1 and 2 come into operation on the day after Royal Assent. The remaining provisions of the Act come into operation on proclamation but not later than by 1 July 2006.

[5 to 13]. Establishes a body corporate called Sustainability Victoria and sets out its objectives, functions, powers, membership and provides for machinery and other like procedural requirements.
[14]. Sets out the powers of delegation of Sustainability Victoria to the Chairperson, CEO or to an employee under the Public Administration Act 2004.

[16]. Sets out the powers of delegation of the Chief Executive Officer to an employee under the Public Administration Act 2004.

[22]. Provides for the protection of the entitlements of EcoRecycle employees during the transition to the new organisational structure on the same terms and conditions.

[27]. Repeals the Sustainable Energy Authority Victoria Act 1990 and also provides for appropriate savings provisions.

Scrutiny of Acts and Regulations Committee

Alert Digest No 10 of 2005

Tuesday, 6 September 2005

<Back to Table of Contents>

Crimes (Contamination of Goods Offences) Bill

Purpose

Content and Committee comment

Groundwater (Border Agreement) (Amendment) Bill

Purpose

Content and Committee comment

Local Government (Further Amendment) Bill

Purpose

Content and Committee comment

Melbourne Lands (Yarra River North Bank) (Amendment) Bill

Purpose

Content and Committee comment

Pipelines Bill

Purpose

Content and Committee comment

Radiation Bill

Purpose

Royal Victorian Institute for the Blind and other Agencies (Merger) Bill

Purpose

Content and Committee comment

Sentencing and Mental Health Acts (Amendment) Bill

Purpose

Content and Committee comment

Content and Committee comment

Sports Anti-doping Bill

Purpose

Content and Committee comment

Sustainability Victoria Bill

Purpose

Content and Committee comment