Scrutiny of Acts and Regulations Committee

Alert Digest No 11 of 2005

Tuesday, 4 October 2005

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Defamation Bill

Introduced: 6 September 2005
Second Reading Speech: 7 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill enacts model provisions relevant to defamation law. The principle features of the Bill include the–

• retention (with some modifications) of the common law of civil defamation.

• abolition of the distinction at common law between slander and libel.

• creation of a statutory cap on the amount of damages for non-economic loss that may be awarded in civil proceedings for defamation.

• enactment of provisions to facilitate the resolution of civil disputes about the publication of defamatory matter without litigation.

• delineation of the respective roles of juries and judicial officers in the jury trial of civil proceedings for defamation by limiting the role of juries to the determination of whether a person has been defamed and leaving the award of damages to judicial officers.

• abolition of exemplary and punitive damages in civil proceedings for defamation.

• establishment of truth alone as a defence to a civil action for defamation.

• imposition of a limitation period for civil actions for defamation of 1 year, subject to an extension (in limited circumstances) to a period of up to 3 years following publication.

Background

Defamation law in Victoria is principally governed by the common law and partially by the provisions of Part I of the Wrongs Act 1958. Some States and Territories have codified their civil law of defamation and others have supplemented the common law with differing statutory provisions.

In November 2004, the Standing Committee of Attorneys General (SCAG) of the States and Territories agreed to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation (‘the model provisions’). The Bill enacts those agreed model provisions in Victoria.

As a consequence of the enactment of the model provisions the Bill will repeal a number of redundant provisions of the Wrongs Act 1958 relating to civil defamation.

Definition of ‘Defamation’

The tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person (including corporations) defamed in the eyes of the public at large. At common law defamatory imputations may exist in spoken form (slander) or in some permanent form (libel).Only living persons may be defamed. In assessing whether defamation has occurred, the intention of the defendant is irrelevant: it is the effect of the defendant’s actions which matter. [Concise Australian Legal Dictionary, Butterworths, Second Edition, page 117.]

Human Rights Principles concerned with defamation, privacy and freedom of expression.

The Committee notes the following International and domestic human rights instruments and Acts relevant to fundamental rights to reputation, privacy and freedom of expression.

United Nations Declaration of Human Rights

Article 12* – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

* Also identical provision is found in Article 17 of the International Covenant on Civil and Political Rights.

Article 19 – Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

International Covenant on Civil and Political Rights

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

European Convention on Human Rights

Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Human Rights Act 2004 (ACT)

Section 12 – Everyone has the right – (a) not have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily and, (b) not to have his or her reputation unlawfully attacked.

Section 16 – (1) Everyone has the right to hold opinions without interference. (2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

Second Reading Speech

The Committee notes these relevant extracts from the Attorney-General’s Second Reading Speech –

The Defamation Bill will continue to allow the common law to operate except to the extent that the Bill expressly or by necessary implication provides otherwise.

…

For the purposes of considerably simplifying actions in defamation, the Defamation Bill abolishes the traditional distinction between an action in libel and an action in slander.

...

The Defamation Bill amends the common law in Victoria by prohibiting corporate entities from suing for defamation. … However, the government recognises that certain corporate entities should be able to sue for defamation, particularly those that do not necessarily possess the resources that larger companies can call on to protect their business reputations. Accordingly, the Defamation Bill allows 'not for profit' companies and small businesses to sue for defamation. The Bill focuses on protecting genuine small businesses particularly where there is likely to be a strong connection between the identity of the individual(s) and that of the company. As a result, an exempt corporation is determined by whether or not it employs fewer than the full-time equivalent of 10 persons and also by ensuring that the corporation is not related to another corporation.

…

The Defamation Bill allows either a plaintiff or defendant to choose whether proceedings ought to be determined by judge alone or by judge and jury, unless a court orders otherwise...The Defamation Bill does, however, alter the position in Victoria by delineating the role of the judge and the jury in defamation proceedings. The key change in this respect is that while a jury will determine whether the defendant has published a defamatory matter and, if so, whether any defence has been established, the determination of the award of damages and any related question is solely a matter for the judge.

Defences

The overarching principle that underlies the availability of defences under the Defamation Bill is that these are additional to defences or other exclusions of liability that already exist under legislation or the common law and are not intended to supersede or limit the operation of those defences or exclusions of liability in any way. However, the provisions do signal important policy changes for certain jurisdictions.

The first change is the national adoption of the defence of justification. This reflects the existing common law position in Victoria that 'truth alone' is a complete defence to an action in defamation. At common law it has been recognised that truthful statements define a person's reputation rather than damage it … While 'truth alone' has been the position at common law in Victoria, South Australia, Western Australia and the Northern Territory, jurisdictions such as New South Wales, Queensland, Tasmania and the Australian Capital Territory have an added statutory element that a statement be 'true and in the public interest' or 'true and for the public benefit', before the defence applies.

The public interest element was designed to protect the privacy of individuals in the public sphere. This policy is inconsistent with the purpose of defamation law which protects reputation. The adoption of 'truth alone' as a defence reflects an agreement at the national level that privacy concerns do not belong in the realm of defamation law.

…

Consistent with the policy of capping general damages for personal injury claims as part of the tort law reforms implemented across jurisdictions in 2002 and 2003, the Defamation Bill caps damages awarded for non-economic loss in defamation actions at $250 000.

…

The Bill also amends the common law in Victoria by removing a plaintiff's ability to be awarded exemplary and punitive damages.

..

The continued ability of the courts to award aggravated damages to a plaintiff where the conduct of the defendant has been either unreasonable, or unjustified, or lacking in good faith, negates the need for exemplary or punitive damages.

…

The model Bill amends the common law in Victoria by reducing the limitation period for defamation actions from six years to one year. …However, as there may be circumstances where it was not reasonable for a plaintiff to be able to commence an action within the one-year limit, the Bill provides for a court to extend the limitation period up to a maximum of three years.

Content and Committee comment

[Clauses]

[2]. The Act will come into operation on 1 January 2006.

[4]. Definition of published ‘matter’ - Defines certain terms used in the proposed Act. In particular the term ‘matter’ is defined to include published material (printed and electronic media), a picture, gesture or oral utterance; and any other thing by means of which something may be communicated to a person.

[6]. Common law cause of action essentially preserved - Declares that the Act does not affect the operation of common law and equity (the general law) in relation to the tort of defamation except to the extent that the proposed Act provides otherwise (whether expressly or by necessary implication).

[7]. Distinction between libel and slander - Abolishes the general law distinction between libel and slander.

[9]. Only exempt corporations may bring action in defamation - A corporation does not have a cause of action for defamation of the corporation except in circumstances where the objects for which the corporation was formed did not include obtaining financial gain for its members or corporators; or the corporation employed fewer than 10 (full-time equivalent) persons and was not related to another corporation and the corporation was not a public body.

The Committee notes that the Bill prohibits corporations, other than exempt corporations, from commencing an action in defamation.

[10]. Deceased cannot be defamed - Defamation cannot be asserted, continued or enforced by a person in relation to the publication of defamatory matter about a deceased person.

[12 to 20]. Provides for the resolution of disputes without litigation.

[21]. Election of trial by jury except in certain circumstances - Enables a plaintiff or defendant in defamation proceedings in the Supreme Court or the County Court to elect to have the proceedings determined by a jury unless the court orders otherwise. The grounds on which a court may order otherwise include (but are not limited to), (a) the trial requires a prolonged examination of records; or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

[22]. Damages to be determined by judicial officer - Provides that the jury is to determine whether the defendant has published defamatory matter and, if so, whether any defence raised by the defendant has been established. However, the judicial officer is to determine the amount of damages (if any).

The Committee notes that the proposed section alters the position at general law in Victoria by withdrawing from the jury the determination of damages.

Defences

[24]. The Defences in the Bill are in addition to any other defence or exclusion of liability available to the defendant apart from the proposed Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion or liability.

[25]. Truth - It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. Note: ‘Substantially true’ means true in substance or not materially different from the truth.

[27]. Absolute Privilege – Parliaments and the Judiciary - It is a defence to the publication of defamatory matter if the defendant proves that the matter was published on an occasion of absolute privilege. The publication of matter listed include –

• the publication of matter in the course of the proceedings of a parliamentary body of any country; and

• the publication of matter in the course of the proceedings of an Australian court or Australian tribunal; and

• the publication of matter on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to the proposed section; and

• the publication of matter by persons or bodies in any circumstances specified in Schedule 1 (additional publications to which absolute privilege applies).

[28]. Public document - It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a public document or a fair copy of a public document; or a fair summary of, or a fair extract from, a public document.

The proposed section provides that the defence is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

[29]. It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report, summary or extract of any proceedings of public concern such as parliamentary or court proceedings. The clause defines ‘proceedings of public concern’.

[30]. Special interest recipient of information - Provides for a defence of qualified privilege in respect to the publication of defamatory matter to a person (the recipient) if the defendant proves that the recipient has an interest or apparent interest in having information on some subject; and the matter is published to the recipient in the course of giving to the recipient information on that subject; and the conduct of the defendant in publishing that matter is reasonable in the circumstances.

As the defence created by the proposed section is a defence of qualified privilege, it can be defeated on the same grounds as the defence of qualified privilege at general law. For example, the proposed section makes it clear that the defence may be defeated if the plaintiff proves that the publication was actuated by malice.

It requires the court to take into account whether it was in the public interest in the circumstances for the matter published to be published expeditiously. Secondly, it requires a court to take into account the nature of the business environment in which the defendant operates.

[31]. Honest opinion - Provides for a number of defences relating to the publication of matter that expresses an opinion that is honestly held by its maker rather than a statement of fact.

This defence will be defeated only if it is proved that the opinion was not honestly held by the defendant at the time the defamatory matter was published.

[32]. Distributor – agent – no editorial control – lack of knowledge and absence of negligence - It is a defence to the publication of defamatory matter if the defendant proves that the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

[33]. Trivial matter - It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (the defence of triviality).

The Committee notes that the defence does not currently exist under the general law in Victoria.

Damages

[35]. Non-economic loss capped - Provides a limit on the amount of damages for non-economic loss imposed of $250,000 and this amount will be indexed annually.

The Committee notes that whilst non-economic damages will now be capped a court may award aggravated damages in certain circumstances.

[36]. The state of mind of the publisher is not relevant to the award of damages for defamation.

[37]. Exemplary or punitive damages may not be awarded - A court cannot award exemplary or punitive damages for defamation.

The Committee notes that the Bill prohibits a court awarding exemplary or punitive damages.

[38]. Lists some factors (non-exhaustive) that a court may take into account in mitigation of damages.

[43]. Self-incrimination for criminal defamation – use limitation - A person in civil proceedings for defamation is not excused from answering a question, or discovering or producing a document or thing, on the ground that the answer may tend to incriminate the person of an offence of criminal defamation. However, the answer, document or thing is not admissible in evidence in proceedings for criminal defamation.

[45]. Regulations may be made for the purposes of the Act.

[46]. The proposed Act will apply to defamatory matter that is published after the commencement of the proposed Act except in certain circumstances.

[47 and 48]. Limitation of actions - Amends the Limitation of Actions Act 1958 to provide that, generally, a civil action for defamation must be commenced within 1 year following the date of publication of the matter of which the plaintiff complains. However, a court must extend this limitation period to a period of up to 3 years if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the 1 year period.

The Committee notes that under the current law in Victoria the limitation period is generally 6 years.

[49]. Amends certain Acts specified in Schedule 4 including the removal of sections 3A, 5, 5A, 6 to 8 and 12 in the Wrongs Act 1958 relevant to civil defamation now covered by provisions of the Act.

Section 5A (crime reports privileged) is re-enacted as section 124A of the Police Regulation Act 1958.

Section 91 (proof of convictions in a defamation proceeding) of the Evidence Act 1958 is repealed. This provision is essentially reflected in section 42 of the proposed Act.

The Committee makes no further comment.

Fair Trading (Telephone Marketing) Bill

Introduced: 14 September 2005
Second Reading Speech: 14 September 2005
House: Legislative Council
Private Member’s Bill: Hon. Peter Hall MLC
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the Fair Trading Act 1999 (the ‘Act’) to regulate telephone marketing.

Committee comment

[2]. The amendment will comes into force on the day after Royal Assent.

[3]. Substitutes 5 pm for 8 pm in section 67C(c)(ii) of the Act to prohibit telephone marketing after 5 pm on all days. The amendment will thus restrict telephone marketing to the hours of 9 am and 5 pm. Note: Telephone marketing is currently prohibited on public holidays.

The Committee makes no further comment.

Land Tax Bill

Introduced: 6 September 2005
Second Reading Speech: 8 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill makes provision for land tax and repeals the current Land Tax Act 1958. The Bill amends the Taxation Administration Act 1997 so that it will apply to the administration and enforcement of land tax.

Committee comment

[Clauses]

[2]. The Act will come into operation on 1 January 2006.

[5]. Declares that the Act is to be read together with the Taxation Administration Act 1997, which deals with matters of administration and enforcement of taxation laws.

[7]. Provides that land tax is imposed on all taxable land in Victoria and [8] provides that an owner of taxable land is liable to pay land tax on the land.

[24]. Provides for the imposition of land tax on transmission easements.

[52 to 88]. Provides for exemptions and concessions in respect to the liability for Land Tax. These include principal places of residence, land for primary production, mines, agricultural shows, residential care and rooming houses, caravan parks and retirement villages, charities, sporting and recreational organisations, public authorities and municipal and public land.

[89 to 95]. Provides the mechanisms for dealing with circumstances where taxpayers are unable to meet their land tax liability, including relief provided by the Commissioner of State Revenue (where a land tax liability does not exceed $1000) and the Hardship Relief Board (where a land tax liability exceeds $1000).

[96 to 102]. Provides for the mechanism for enforcing a liability for land tax, by providing the mechanisms for security for land tax (by making it a first charge on land and allowing the registration of a charge on title), recovery of land tax (where there is a tax default), prohibiting the passing on of land tax (in certain circumstances) and anti-avoidance provisions.

[107]. Provides for regulations to be made to give effect to any matter necessary under the Act.

[108 to 115]. Amends the Taxation Administration Act 1997 so that the Act will also apply to land tax as provided in the Land Tax Act 2005.

Section 85 Report to the Parliament pursuant to section 17(b) 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)

[115]. Amends section 135 of the Taxation Administration Act 1997, (jurisdiction of the Supreme Court). The clause declares that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997 (limiting the jurisdiction of the Supreme Court) to apply to the Land Tax Act 2005.

The respective sections of the Taxation Administration Act 1997 provide –

5. Meaning of non-reviewable in relation to certain decisions

If a provision of this Act provides that a decision is a non-reviewable decision no court or administrative review body, including the Tribunal, has jurisdiction or power to entertain any question as to the validity or correctness of the decision.

12. Compromise assessment

(4) An assessment or reassessment made under this section with the agreement of a taxpayer is a non-reviewable decision.

18. Application of Part

(1) Proceedings for the refund or recovery of tax paid or purportedly paid under a taxation law, whether before or after the commencement of this section, must not be brought, whether against the Commissioner or otherwise, except as provided in this Part.

96. Objections

(2) No court or administrative review body, including the Tribunal, has jurisdiction or power to consider any question concerning an assessment or decision referred to in sub-section (1), except provided by this Part.

100. Objections lodged out of time

(4) A decision by the Commissioner under this section to refuse permission or to impose conditions on permission is a non-reviewable decision.

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

Clause 115 of the Bill provides that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997, as those sections apply after the commencement of clause 115, to alter or vary section 85 of the Constitution Act 1975. These provisions preclude the Supreme Court and VCAT from entertaining proceedings of a kind to which these sections apply, except as provided by those sections.

This Bill provides that for the purposes of the Taxation Administration Act 1997, the Land Tax Act 2005 is a 'taxation law'. A central purpose of this Bill is to bring land tax under the Taxation Administration Act 1997. The intent of clause 115 is to ensure that the current limitations of the Supreme Court referred to in section 135 of the Taxation Administration Act 1997 will apply to land tax. In this sense the same reasons will apply as to why the provisions referred to in section 135 of the Taxation Administration Act 1997 alter or vary section 85 of the Constitution Act 1975 as did apply when the Taxation Administration Act 1997 was first enacted.

Section 5 of the Taxation Administration Act 1997 defines the meaning of non-reviewable in relation to the Taxation Administration Act 1997 which now also applies to land tax.

The reasons for limiting the jurisdiction in relation to a compromise assessment under section 12 of the Taxation Administration Act 1997 are that agreement has been reached between the commissioner and the taxpayer on the taxpayer's liability, and the purpose of the section would not be achieved if the decision were reviewable, and this provision now applies to land tax.

Section 18 of the Taxation Administration Act 1997 establishes a procedure, the adherence to which is a condition precedent to taking any further action for recovering refunds. The refund provisions replicate those existing in the current taxation Acts. The purpose of the provisions is to give the commissioner the opportunity to consider a refund application before any collateral legal action can be taken. The purpose of these provisions would not be achieved if the commissioner's actions were subject to judicial review. This provision will apply to land tax under this Bill.

Section 96 of the Taxation Administration Act 1997 establishes an exclusive code for dealing with objections and appeals, and this provision will also apply to land tax under this Bill. This code establishes the rights of objectors in a statutory framework and precludes any collateral actions for judicial review. The objections and appeals provisions of the Taxation Administration Act 1997 establish that review of assessments is only to be undertaken in accordance with an exclusive code identified in that particular Division. The purpose of these provisions would not be achieved if the commissioner's consideration of an objection were subject to judicial review.

A power is provided to the commissioner under section 100 of the Taxation Administration Act 1997 which provides the commissioner with discretion to allow an objection to be lodged even though out of time. This decision is non-reviewable to ensure the efficient administration of the Act and to enable outstanding issues relating to assessments to be concluded expeditiously.

This provision will apply to land tax under this Bill.

[116]. Repeals the Land Tax Act 1958.

The Committee makes no further comment.

Primary Industries Acts (Further Amendment) Bill

Introduced: 6 September 2005
Second Reading Speech: 8 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill amends the Domestic (Feral and Nuisance) Animals Act 1994 to –

• provide for the de-sexing and the permanent identification of dogs and cats; and

• prohibit the keeping of restricted breed dogs; and

• prohibit the sale of dogs and cats unless they are permanently identified; and

• require Councils to prepare domestic animal management plans; and

• generally improve the administration and enforcement provisions of that Act.

The Bill amends the Prevention of Cruelty to Animals Act 1986 to –

• amend the provisions relating to the issue of permits for rodeos and rodeo schools; and

• generally improve the administration and enforcement provisions of that Act.

Committee comment

[2]. Provides that clause 7 will come into operation on 1 May 2007. Clauses 6, 8, 9(2), 21(6), 22, 24 and 29 will come into operation on proclamation but not later than by 1 July 2006. All other provisions will come into operation on the day after Royal Assent.

Domestic (Feral and Nuisance) Animals Act 1994

[5]. Inserts new sections 10A and 10B to provide that a Council may resolve that it will not after a specified date register or renew the registration of a dog or cat unless the animal is desexed or exempted from the requirement to be desexed.

[6]. Inserts new section 10C to provide that a Council must not register or renew the registration of a dangerous, menacing or restricted breed dog unless that dog has been implanted with a permanent identification device. This provision is re-enacted at a later commencement time as new section 10C(6) inserted by clause 7.

[7]. Commencing 1 May 2007 a new section 10C and 10D are inserted and deal with permanent identification of dogs and cats permitting Councils the power to make local laws (with certain exemptions) not to register a dog or a cat unless a prescribed permanent identification device is implanted on the animal.

[8]. Inserts section 12A and substitutes section 13 to provide that the proprietor of a domestic animal business must not sell or give away a dog or cat unless the animal has been implanted with a permanent identification device.

In order to allow pet owners time to arrange for microchipping, the Act will only require that animals be microchipped for new registrations from 1 May 2007. Therefore, registration of an animal that is not microchipped may be renewed where that animal has been previously registered, unless the Council makes an order requiring all cats and dogs to be microchipped. (2nd Reading).

[12]. Amends section 17 to refer to registration of restricted breed dogs as well as dangerous dogs. The section will also be amended to insert a provision prohibiting the registration of a restricted breed dog unless the Council is satisfied that the dog was in Victoria prior to commencement of clause 12 and the owner of the dog reasonably held the opinion at that commencement that the dog was not a restricted breed dog.

[15]. Inserts new section 41EA to prohibit the keeping of a restricted breed dog unless the person acquired the dog before the commencement of the section.

[21]. A dangerous or restricted dog may be seized by the Council where it has refused to register the dog or the dog cannot not be registered under the Act or where the owner has not paid an infringement penalty in respect to a relevant offence concerning a dog or cat.

Prevention of Cruelty to Animals Act 1986

[27]. Amends a number of the cruelty offences in section 9.

Section 9(1)(b) is substituted to include confinement of an animal (as well as crowding and overloading) and that an offence will only occur if the activity causes or is likely to cause unreasonable pain or suffering to an animal.

Section 9(1)(c) and 9(1)(e) are substituted to remove the requirement to prove the offender's knowledge or negligence in relation to an act or omission to act, for the offences in those sections – after the amendments take effect the offences will be made out where the act or omission results in unreasonable pain or suffering being caused to an animal.

Section 9(1)(d) is amended to clarify that the offence to fail to provide an animal with proper and sufficient food, drink and shelter applies if there is a failure to provide any one of those things.

Section 9(1)(i) is substituted and will now apply if the owner or person in charge of a sick or injured animal unreasonably fails to provide veterinary or appropriate treatment or attention to the animal—the requirement to prove that the owner knowingly or negligently failed to treat or attend to the animal has been removed.

[29]. Deals with amendments for a permit to operate a rodeo or a rodeo school.

[31 to 36]. Makes amendments to inspectorial, warrant and seizure powers.

The Committee makes no further comment.

Property (Co-ownership) Bill

Introduced: 13 September 2005
Second Reading Speech: 14 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Property Law Act 1958 (PLA) to provide for the transfer of jurisdiction for co-ownership disputes from the Supreme and County Courts to the Victorian Civil and Administrative Tribunal (VCAT) and set out the remedies available to determine these disputes. The Bill also makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 and the Transfer of Land Act 1958.

Committee comment

[Clauses]

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

[3]. Limits the operation of section 187 of the PLA which deals with the power to direct the division of chattels (non-fixtures or land). Section 187 gives a tenant in common with a half or greater share in any chattel the right to make application to the Court for an order for the division of the chattel and the Court may make orders or give directions as it sees fit.

The amendments provide that a person must make application under Part IV (as substituted by the Bill) which has the effect of removing jurisdiction over disputes between co-owners over certain types of chattels from the Supreme Court and County Court and gives that jurisdiction to the VCAT. The new subsection (3) declares that it is the intention of the new subsection (2) to alter or vary the jurisdiction of the Supreme Court. (refer to section 85 provision below).

[4]. Inserts section 187A and provides that section 187 continues to apply in respect of any proceeding commenced in the Supreme or County Courts immediately before the commencement of clause 3.

[5]. Inserts a new Part IV to replace the existing Part IV of the PLA. The purpose of the new Part IV is to provide a statutory mechanism for terminating the co-ownership of land and goods when the co-owners fail to agree on the manner in which the co-ownership should be terminated or a co-owner can not agree to sell because he or she is not an adult or lacks legal capacity.

New section 221 provides that the new Part will apply to all land in Victoria, whether or not the land is registered under the Transfer of Land Act 1958.

New section 225 provides that a co-owner of land or goods may apply to VCAT for an order for the sale of the land or goods and the division of the proceeds between the co-owners; the physical division of the land or goods between the co-owners; or a combination of the first two options.

Where there are proceedings under the –

• Family Law Act 1975 (Cth) or

• Part IX of the PLA (division of property on the breakdown of a domestic relationship).

VCAT may adjourn an application to permit a co-owner of property to commence proceedings under these provisions.

New section 228 sets out the remedies available to VCAT under the new Part IV. VCAT may order –

• sale of the land or goods and the division of the proceeds between the co-owners;

• the physical division of the land or goods between the co-owners; or

• a combination of the first two options.

New section 232 sets out the other matters that VCAT may order.

New section 234C excludes the jurisdiction of the Supreme and County Courts (also see section 85 statement below) to hear an application under Part IV unless –

• the matter which is the subject of the application relates to a proceeding under –

  • Part IX of the PLA, or

  • Part IV of the Administration and Probate Act 1958 (testator family maintenance claims); or

  • the Partnership Act 1958; or

• in any proceeding which has commenced in the Supreme or County Courts the issue of co-ownership of land or goods arises in the course of that proceeding; or

• in the opinion of these Courts special circumstances exist which justify the Courts hearing the application. The phrase "special circumstances" is defined for the purposes of this section as –

  • the matter which is the subject of the application is complex; or

  • the matter which is the subject of the application, or a substantial part of that matter, does not fall within the jurisdiction of VCAT.

VCAT does not have jurisdiction to hear an application where the subject of the application relates to Part IX of the PLA, Part IV of the Administration and Probate Act 1958 or the Partnership Act 1958.

New section 234D provides that, without limiting the powers of any court to make orders, where a court has jurisdiction over any proceeding in relation to the co-ownership of land or goods a court may make any order that VCAT could make under this Part.

Section 85 Report to the Parliament pursuant to section 17(b) 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)

New section 234G declares that it is the intention of section 234C to alter or vary section 85 of the Constitution Act 1975.

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

Clause 3 of the Bill proposes to insert new section 187(3) into the Property Law Act 1958. Section 187(3) states that it is the intention of new section 187(2) to alter or vary section 85 of the Constitution Act 1975. New section 187(2) provides that if the chattels that are the subject of an application are goods that come within the meaning of Part IV of the Property Law Act 1958 the person must make their application under Part IV. The effect of subsection (2) is to remove jurisdiction over disputes between co-owners over certain types of goods from the Supreme Court and give jurisdiction to VCAT.

The reason for removing this jurisdiction from the Supreme Court is to ensure that applications that relate to both land and goods can be dealt with in VCAT under Part IV of the Property Law Act 1958.

Disputes may arise as to whether certain items are fixtures, and so form part of the land, or are chattels to be dealt with under section 187. As VCAT will have jurisdiction in relation to both land and goods, it will not be necessary to determine whether the chattel is a fixture or goods and whether VCAT has the jurisdiction to deal with it. This will allow co-ownership disputes over land and goods to be dealt with at the same time without the need to determine whether the goods in dispute are a fixture or a chattel. Providing VCAT with the jurisdiction to hear co-ownership disputes over goods ensures that co-owners have access to an accessible and affordable dispute resolution mechanism.

Clause 5 of the Bill proposes to insert new section 234G into the Property Law Act 1958. Section 234G states that it is the intention of section 234C to alter or vary section 85 of the Constitution Act 1958. New section 234C limits the jurisdiction of the Supreme Court to hear an application under part IV unless the matter which is the subject of the application relates to a proceeding under –

• Part IX of the PLA (division of property on the breakdown of a domestic relationship); or

• Part IV of the Administration and Probate Act 1958 (testator family maintenance claims); or

• the Partnership Act 1958; or

in any proceeding which has commenced in the Supreme or County courts the issue of co-ownership of land or goods arises in the course of that proceeding.

The effect of section 234C is to remove jurisdiction of the Supreme Court to hear an application under part IV for the sale or division of land or goods or an application for accounting in accordance with section 28A of the Property Law Act 1958 that does not come within these specified categories or unless the special circumstances referred to in section 234C(4)(b) and (5) exist.

The reason that the Supreme Court's jurisdiction to hear disputes between co-owners is limited is to ensure that these disputes can be dealt with in a more accessible and affordable forum for dispute resolution.

New section 234G is a transitional provision. This section provides that old Part IV will continue to apply to any proceedings commenced under this Part before the commencement day of the new part IV as if Part IV of the PLA had not been amended by this Act.

[6]. Is a consequential amendment to Schedule 1 to the Victorian Civil and Administrative Act 1998.

[7]. Is a consequential amendment to sections 103, 104 and 116A of the Transfer of Land Act 1958 to allow VCAT to have the same powers as the Supreme Court to direct the Registrar to make alterations to the Register and require the production of documents in relation to proceedings under Part IV of the PLA.

The Committee makes no further comment.

Serious Offenders Monitoring Bill

Introduced: 7 September 2005
Second Reading Speech: 7 September 2005
House: Legislative Council
Private Member’s Bill: Hon. Richard Della-Riva MLC
Portfolio responsibility: Attorney-General

Purpose

The Bill repeals the Serious Sex Offenders Monitoring Act 2005 and amends the Sentencing Act 1991, the Bail Act 1977 and provides for the continuing supervision of offenders convicted of serious crimes.

Note: The Committee notes that the Bill was introduced as a Private Member’s Bill in the Legislative Council on 7 September 2005 and defeated in the Legislative Council on 14 September 2005.

Committee comment

[Clauses]

[1]. The purpose clause states that, amongst other objectives, the Bill intends to repeal the Serious Sex Offenders Monitoring Act 2005. Clause 1(2)(b) empowers a court to make an extended supervision order (an Order) on the application of the Secretary of the Department of Justice.

[2]. The Act commences on proclamation.

[4]. Defines who is an eligible offender for the purposes of the Act and refers to the offences in the Schedule.

[5]. The Director (DPP) may apply for an extended supervision order (‘an Order’).

[6 and 7]. An application for an order must be accompanied by at least one assessment report. An assessment report can only be made by a psychologist; or a psychiatrist; or any other health service provider of a kind prescribed for the purposes of this section following a personal examination of the offender.

[11]. A court may only make an Order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order. The Director has the onus of proving the existence of the likelihood of re-offending.

[12 to 20]. Makes provision for the making of an Order, its commencement, duration, content, expiry, revival and suspension.

[21 to 23]. Makes provision for the review of an Order at 3 year intervals.

[24 and 25]. Make provision for the renewal of an Order.

[26 to 35]. Make provisions for regulating proceedings (such as, directions hearings, adjournments, attending examinations, execution of warrants and legal representation) concerned with an Order. If an offender fails to attend a hearing an arrest warrant may be issued.

[36 to 39]. Makes provision for appeals by the offender and the Director (DPP) in respect to the making, renewing or revoking of an Order, and prescribes the procedure for such appeals and the powers of the Court of Appeal on hearing an appeal.

[40 and 41]. Provides that the breach of an Order is an offence.

[42]. The court may make a suppression order concerning the publication of any relevant evidence or information concerning a proceedings if it is satisfied that it is in the public interest to do so.

[44]. Deals with restriction on disclosure of personal information by the Adult Parole Board unless it is only disclosed by it for law enforcement or judicial functions or activities and then only to a government department, public statutory authority or court or as otherwise required by or under this or any other Act or any law.

[46]. The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

[47]. Makes a consequential amendment to the Sentencing Act 1991.

[48]. Amends section 4(2) of the Bail Act 1977 to provide that a person who is charged with a breach of an Order must satisfy the court that exceptional circumstances exist which would justify the grant of bail.

Schedule – The Schedule lists the offences referred to in clause 4.

The Committee makes no further comment.

Treasury Legislation (Miscellaneous Amendments) Bill

Introduced: 13 September 2005
Second Reading Speech: 14 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Financial Management Act 1994 and the State Owned Enterprises Act 1992.

Committee comment

[Clauses]

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

[3]. Amends section 27D of the Financial Management Act 1994 to enable the Government to release a financial report on any day before the due date, irrespective of whether or not Parliament is sitting.

[4 and 5]. Inserts a new section 86A in the State Owned Enterprises Act 1992, which provides for authorisation for the purposes of Part IV of the Trade Practices Act 1974 (Cth).

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

This amendment is necessary to enable VicForests to implement a sawlog pricing and allocation model. The model involves a phased-in transition from the current administered licence system for allocating timber supply to a fully competitive market auction system, in line with Victorian government policy articulated in Our Forests Our Future. Two key elements of the model are –

• a requirement that buyers process timber domestically,

• and the preclusion of companies and directors of companies (for a period of two years) who completely relinquished their sawlog licences under the voluntary licence reduction program (VLRP) from participating in the initial auctions of timber.

…

VicForests has, however, expressed concerns that such exclusion of parties from tenders could be seen to be inconsistent with Part IV of the Trade Practices Act 1974. Consequently, the Bill inserts a new section 86A in the State Owned Enterprises Act 1992, which provides for authorisation for the purposes of Part IV of the Trade Practices Act 1974 of any act or thing done by VicForests and its directors and officers in connection with the allocation and sale of timber resources, if the relevant act or thing is done with the consent of the Treasurer.

The Committee makes no further comment.

Treasury Legislation (Repeal) Bill

Introduced: 6 September 2005
Second Reading Speech: 8 September 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill repeals a number of redundant Acts and redundant provisions from the Gas Industry (Residual Provisions) Act 1994 and makes consequential amendments to that Act and other Acts.

There are a number of historic Acts to be repealed by this Bill they include the –

• Miner’s Phthisis Acts of 1936 and 1938

• Mint Act 1958 (first enacted in September 1867)

• Statistics Act 1958

• Unemployment Relief Acts from 1932 to 1939

• State Electricity Commission (Newport Power Station) Act 1977

• Victorian Government Stock Acts from 1898 to 1905

Committee comment

[Clauses]

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

[3]. The Acts listed in Schedule 1 are repealed. The Explanatory Memorandum provides information in respect to each of the Acts to be repealed.

Note: If there are any residual effects of the provisions in the repealed Acts section 14 of the Interpretation of Legislation Act 1984 will act to ensure their continued operation.

[4]. The Acts listed in Schedule 2 are to be amended as set out in that Schedule.

Accident Compensation Act 1985 – This Act is amended to include a saving provision in respect of persons in receipt of allowances under the Miners' Phthisis (Treasury Allowances) Act 1938 which is to be repealed.

Financial Management Act 1994 – This Act is amended to include a saving provision in relation to the residual obligations to the United Kingdom under the Mint Act 1958 which is to be repealed by the Bill.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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