Alert Digest No 12 of 2005

Introduced: 5 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Sherryl Garbutt MLA
Portfolio responsibility: Minister for Children

Purpose

Content and Committee comment

The Committee notes the explanation provided by the Department of Human Services concerning the desirability of providing a delayed commencement provision.

The Committee notes the Bill is closely related to the Children, Youth and Families Bill which also provides a commencement provision not later than by 1 October 2007.

The Committee thanks the Department for its detailed advice concerning the commencement of this Act.

[4]. Declares that the principles established by section 5 are for guidance in developing policy and do not give rise to any legally enforceable right or action.

[5]. Set out the guiding principles for the development and provision of services for children and families.

[6]. Provides for the role of the Minister in promoting the co‑ordination of Government programs that affect the safety and well-being of children and provides that the Minister may establish any advisory committee as considered appropriate to assist in the administration of the Bill.

[7]. The Secretary must work with Aboriginal communities to establish a Victorian Aboriginal Child Wellbeing Charter.

[8 to 12]. Provides for the establishment of the Victorian Children's Council, its constitution, functions and procedures.

[13 to 16]. Establishes the Children's Services Co-ordination Board and provides for its constitution, functions and procedures.

[17 to 41]. Provides that the object of the Part is to promote continuous improvement and innovation in policies and practices relating to child safety and the provision of out of home care services for children. The Part provides that there is to be a Child Safety Commissioner (the ‘Commissioner) and sets out the powers and functions of the Commissioner.

[21]. Allows the Commissioner to delegate his or her powers and functions to any person employed under Part 3 of the Public Administration Act 2004, except the power of delegation.

[22]. Makes provision for the Child Safety Commissioner to authorise any person to assist the Commissioner to carry out his or her functions provided that the Commissioner is satisfied that the person is appropriately qualified or trained. An authorisation may be general or limited to specific functions.

[24]. Provides for the Commissioner to have functions to review and report on the administration of the Working with Children Act 2005 and, in consultation with the Secretary of the Department of Justice, to educate and inform the community about that Act.

[27]. Defines a "relevant person" as a person who is or has been the Commissioner or a delegate of the Commissioner or an authorised person and creates an offence, except under certain specified circumstances, for a relevant person to disclose information acquired under the Act to any person. Sub-clause (3) sets out the circumstances in which the prohibition on the disclosure of information does not apply.

[33 and 34]. Sets out the functions of the Commissioner in relation to child deaths in relation to a child who has died and who was a child protection client at the time of his or her death. The inquiry must relate to the services provided or omitted to be provided to the child before his or her death. The Department of Human Services and an out of home care service must give the Commissioner or a person authorised under clause 22 access to information, documents or records that the Commissioner or authorised person reasonably requires.

[35]. Allows the Commissioner or an authorised person to request a health professional or a welfare practitioner to provide such information as the Commissioner or authorised person reasonably requires in relation to a child whose death is the subject of a child death inquiry. The clause provides that a health professional, a welfare practitioner or a health service may disclose information relating to the death of a child who is the subject of an inquiry to the Commissioner or a person authorised under clause 22.

[36]. A disclosure made under section 35 does not amount to unprofessional conduct or a breach of professional ethics and does not render a health professional to any legal liability nor is it a contravention of other health records privacy legislation.

[37]. Provides for protection against self-incrimination for persons who refuse or fail to give information or do any other thing under this Division.

[38]. The Commissioner may disclose information acquired in carrying out functions under sections 33 to 35 to the Minister or the Secretary and the Commissioner must give a copy of any report of an inquiry under these sections to the Minister and the Secretary and, at the request of the Minister, to give a copy of any report of an inquiry to an advisory committee established by the Minister (the Victorian Child Death Review Committee).

The Commissioner may disclose any information acquired as a result of conducting a child death inquiry to a person authorised under clause 22.

[39]. A person authorised under clause 22 may disclose any information acquired as a result of conducting a child death inquiry to the Commissioner.

[40]. Prohibits relevant persons from disclosing any information acquired by reason of being a relevant person to any other person, except to the extent necessary to carry out functions or to exercise powers under the Act.

[42 to 46]. Re-enacts with amendments, provisions that are currently contained in Part IX (sections 158 to 162) of the Health Act 1958.

The re-located Part requires all births to be reported to the Chief Executive Officer of a council or to the Secretary (if the mother usually lives outside Victoria ) and makes it an offence to fail to give notice of a birth.

Children, Youth and Families Bill

Purpose

The Bill provides for community services to support children and families, provide for the protection of children, makes provision for children who have been charged with or found guilty of offences and continues the Children's Court of Victoria.

Content and Committee comment

[2]. Sections 1, 2 and 603 (which amends the Children and Young Persons Act 1989 in relation to the Criminal Division) commence on the day after Royal Assent.

The remaining provisions commence on proclamation but not later than by 1 October 2007.

The Committee notes the advice from the Department of Human Services concerning the desirability of including a delayed commencement provision.

The Committee recognises that regulations will need to be made concerning a number of complex areas and that there needs to a reasonable implementation phase for new policy initiatives such as those concerning therapeutic treatment orders.

The Committee thanks the Department for its detailed advice concerning the commencement of this Act.

[10]. Sets out the best interests principles. The fundamental principle is that the best interests of the child must always be paramount in making any decision or taking any action under the Bill. [12 to 14]. Provides for additional decision-making principles for Aboriginal children.

[17]. T he Secretary may, with specified exceptions, delegate to any employee (or a class of employees) who is, under the definition of employee in clause 4, a person employed under Part 3 of the Public Administration Act 2004 in the Department, any function or power of the Secretary under the Bill.

The Committee notes that by instrument the Secretary can delegate to an executive within the meaning of the Public Administration Act 2004 who is employed at the level of EO-2 or above to approve a period of isolation of more than 24 hours of a person detained in a remand centre, youth residential centre or youth justice centre under clause 488(3).

[28]. A person who has a significant concern for the wellbeing of a child may make a report to the Secretary.

[29]. A person who has a significant concern before the birth of a child for the wellbeing of a child after the child's birth may make a report to the Secretary.

[37, 40 and 41]. Provides that certain disclosures concerning children in need of protection are confidential and protected (no liability) and do not constitute unprofessional conduct.

[42]. Provides for applications for review by the Victorian Civil and Administrative Tribunal (VCAT) to be made by a child or the parent of a child of a decision relating to the recording of information about the child or parent by a community-based child and family service under clause 39.

[72]. Declares that the Information Privacy Act 2000 applies to a registered community service as if the service were an organisation within the meaning of that Act. The Health Records Act 2001 may also apply to a registered community service.

[118]. A person may make an application for review of certain findings or determinations of the Suitability Panel in respect to ‘out of home carers’ such as a foster parent (Part 3.4), by the VCAT.

[121 and 122]. Establishes the offences of a disqualified person knowingly applying for approval, employment or engagement by an out of home care service as an out of home carer or failing to disclose certain relevant investigations.

[140]. Provides that an agreement is valid regardless of the fact that a party entering into the agreement is a minor. A short term child care agreement (section 135) is made between a parent and a service provider and this provision, then, relates to the parent of the child being a minor.

[153]. Provides for long-term child care agreements and as with section 140 is relevant in respect to an agreement being made with a parent who is a minor.

[162]. Stipulates the grounds for a suspicion, belief or finding that a child is in need of protection. These grounds repeat, with additional clarifications, the grounds in the current Children and Young Persons Act 1989.

[182]. Establishes who is a mandatory reporter for the purposes of the Bill. The categories of persons who are mandated to report to the Secretary is exactly the same as that contained in section 64(1C) of the Children and Young Persons Act 1989.

[183]. Provides for a report to the Secretary by any person who believes that a child is in need of protection.

[184]. Provides that a mandatory reporter must report a belief that a child is in need of protection to the Secretary.

[185]. Provides for a report to the Secretary by any person who believes that a child, aged ten or over but under fifteen, is in need of therapeutic treatment.

[198]. Provides a protection against self-incrimination to any person who has been directed to give information or to do any other thing where the Secretary has authorised a direction to disclose.

[199]. Provides a protection in respect of legal professional privilege to a person who has been directed to give information or to do any other thing where the Secretary has authorised a direction to disclose.

[200]. Provides that the ground of medical professional privilege may not be used (see mandatory reporting in sections 182 and 184) as a basis to fail to give information or to do any other thing where the Secretary has authorised a direction to disclose.

[233]. If a medical practitioner or psychologist is of the opinion that a child has sufficient understanding to give or refuse consent and the child does refuse to consent, a practitioner must not examine the child.

[234]. Preserves, in respect of temporary assessment orders, the privileges in relation to self incrimination and legal professional privilege and requires the Secretary to advise persons of these privileges prior to commencing an interview.

[244 to 258]. Provides the grounds for a finding that a child is in need of therapeutic treatment. These are, the child is ten years of age or above but under the age of fifteen years; and the child has exhibited sexually abusive behaviours.

As well as strengthening and clarifying the existing functions of child protection, the bill provides a new basis for intervening earlier with young people who exhibit sexually abusive behaviour to help prevent ongoing and more serious sexual offences. For children aged 10-14, the criminal justice system does not provide a reliable pathway into treatment. For this age group, it is often difficult to prove the necessary mental intent to secure a conviction.

The bill therefore provides two new Children's Court orders for children aged 10-14 years old who are exhibiting sexually abusive behaviour. The court will be able to order a child into therapeutic treatment and, where necessary for that treatment, place the child in out-of-home care. This is an important early intervention if we are to stop these children from becoming adult offenders. This reform is intended to supplement, not replace, voluntary access to treatment. It will always be preferable for parents to connect a child exhibiting sexually abusive behaviour to treatment voluntarily and avoid exposing them to any court process.

[323]. Provides that the Court must not make a permanent care order to place an Aboriginal child solely with a non-Aboriginal person or persons unless certain conditions are met. This is one of the functions that may not be delegated by the Secretary (refer to section 17).

[328]. Provides for orders of the Court to be appealed to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court and re-enacts section 116 of the Children and Young Persons Act 1989 which sets out the findings and orders which may be appealed from the Family Division of the Court. The clause also sets out additional orders included in the Bill that may be appealed (Refer to section 85 statement below).

[333]. Re-enacts with modifications section 122 of the Children and Young Persons Act 1989 and provides for the review by the VCAT, upon the application by a child or a child's parent, of a decision contained in a case plan or any other decision made by the Secretary concerning the child or a decision relating to the recording of information in the central register.

[344]. Re-enacts section 127 of the Children and Young Persons Act 1989 which provides a conclusive presumption that children under 10 years of age cannot be held criminally responsible.

[347]. Re-enacts section 130 of the Children and Young Persons Act 1989 regarding the process for remanding a child in custody and the specific entitlements of a child who is remanded in a police gaol. A child is entitled to be kept separate from adult prisoners and are also to be separated according to their sex in a remand situation.

[348]. Re-enacts section 131 of the Children and Young Persons Act 1989 which provides that a child arrested for breach of bail under the Bail Act 1977 must not be remanded for longer than 21 days.

[357]. Re-enacts section 135 of the Children and Young Persons Act 1989 regarding the need to prove guilt beyond reasonable doubt on the hearing of a criminal charge.

[360 to 423]. Deal with sentencing orders available to the Court and re-enacts the sentencing hierarchy the Court must observe as in the Children and Young Persons Act 1989.

[424]. Re-enacts (with minor modifications) section 197 of the Children and Young Persons Act 1989 regarding appeals to the County Court or Supreme Court. (Refer to section 85 statement below).

[488]. Re-enacts (with minor modifications) section 256C of the Children and Young Persons Act 1989 regarding the power to place a person in isolation.

[493 to 503]. Essentially re-enact the offence sections in sections 261 to 264 of the Children and Young Persons Act 1989 in respect to intentional physical injury, sexual abuse, emotional harm, psychological harm, harm to the child's physical development or harm to the child's health, or the inaction of a person who has a duty of care in respect of a child that has resulted in, or appears likely to result in, significant harm to the child. Other offences include leaving a child unattended, harbouring or concealing a child and others.

[504 to 592]. Deal with the continued establishment of the Children's Court of Victoria (including the Koori Division of that Court) and provide for its jurisdiction, procedures, powers, officers, staff and permits court rules to be made.

Sections 525 and 526 re-enact sections 21 and 22 of the Children and Young Persons Act 1989 to set out the proceedings in which a child is required to be legally represented in both the Family Division and the Criminal Division of the Children's Court and provides that the Court cannot hear and determine a proceeding without an interpreter if a child, parent or any other party does not speak sufficient English to understand or participate in the proceedings.

Sections 588 to 589 provide for the making of rules relating to the prescribing of forms and certain other matters for the Family Division of the Children's Court and in relation to the Koori Court (Criminal Division).

Section 591 re-enacts section 280C of the Children and Young Persons Act 1989, which provides that rules of court may be disallowed by a House of Parliament in accordance with the Subordinate Legislation Act 1994.

[598]. Re-enacts section 256 of the Children and Young Persons Act 1989 to set out the circumstances in which a child may be taken into safe custody and provides for a magistrate to issue a search warrant for the purpose of having the child taken into safe custody. The provision also sets out responsibilities in relation to executing that warrant.

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)

[599]. Declares that it is the intention of clauses 328 and 424 of the Bill to alter or vary section 85 of the Constitution Act 1975, which has the effect of limiting the jurisdiction of the Supreme Court.

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

Clause 599 of the Bill provides that it is the intention of clauses 328 and 424 of the Bill to alter or vary section 85 of the Constitution Act.

Clause 328 provides for rights of appeal to the County Court and in some circumstances the Trial Division of the Supreme Court against various decisions of the Children's Court in relation to child protection matters. Clause 328(5) of the Bill provides that if a person appeals to the Supreme Court under the Bill on a question of law the person is deemed to have abandoned any right under that clause to appeal to the trial division of the Supreme Court.

Clause 424 makes similar provision in relation to appeals against sentencing orders by the Children's Court.

These sections re-enact sections 116 and 197 of the Children and Young Persons Act 1989.

The reason for limiting the jurisdiction of the Supreme Court is to prevent a proliferation of lengthy proceedings in relation to decisions of the Children's Court under the Act. The Act provides for a clear process for appeals and it is clearly to the benefit of a child to have matters relating to them dealt with expeditiously.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, – ‘jurisdiction of the Supreme Court’.

The Committee having reviewed the comments made in the Minister’s Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum, is of the view that the proposed section 85 Constitution Act 1975 provisions are appropriate and desirable in all the circumstances.

[600]. Regulations may be made to give effect to the purposes of the Act. Essentially the regulation power re-enacts section 280 of the Children and Young Persons Act 1989.

[602]. Provides for the amendment and repeal of various provisions in the Community Services Act 1970. It is intended that the Act will ultimately be completely repealed.

[603]. Provides for the amendment of certain provisions of the Children and Young Persons Act 1989, pending the repeal of that Act.

The Schedules re-enact the relevant schedules in the Children and Young Persons Act 1989 and provide for transitional and savings provisions as a consequence of the Bill.

Congestion Levy Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill introduces a levy on parking spaces in certain inner city areas of Melbourne, including the CBD, Southbank, St Kilda Road, Docklands and East Melbourne. The levy is designed to reduce traffic congestion in Melbourne's inner city by acting as a financial deterrent to drivers who arrive and leave during commuter peak hours and park all day in city car parks. It aims to encourage suburban commuters to use public transport to travel into the city and car park owners/operators to convert long stay car parking spaces, which will attract the levy, into short stay parking spaces, thereby creating more parking options for shoppers and visitors.

The Bill will also amend the Taxation Administration Act 1997 so that the taxation administration and enforcement regime provided in that Act apply to the levy.

Content and Committee comment

[4]. Defines a “long stay parking space” to be a parking space in a private car park; or a parking space in a public car park that is set aside or used for ongoing parking by the owner of the space or by another person under a lease, licence or other arrangement with the owner; or used for the parking of a motor vehicle for a period of at least 4 hours on a working day, commencing at or before 9.30 a.m. and ending at or after 9.30 a.m.

[6]. The Act is to be read together with the Taxation Administration Act 1997, which deals with matters of administration and enforcement of taxation laws. The Bill intends that collection of the levy will be subject to the same administrative and enforcement provisions as the other taxation laws administered by the State Revenue Office.

[8]. Imposes a levy each calendar year in respect of each leviable parking space.

[10]. Sets the amount of the levy for 2006 at $400 per leviable parking space and for 2007 at $800 per leviable parking space and provides that the amount of the levy for 2008 and subsequent years is the CPI adjusted levy for that year per leviable parking space.

[32]. An unpaid levy is a charge on the land on which the leviable parking space is located.

[36]. Amends section 3 of the Taxation Administration Act 1997 to expand the definition of “tax” to now include a “levy” and to provide that the Congestion Levy Act 2005 is a taxation law for the purposes of that Act.

[37]. Amends section 135 of the Taxation Administration Act 1997 to provide a limitation on the jurisdiction of the Supreme Court. The section declares that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of that Act, as they apply on and after the commencement of section 37 of the Bill, to alter or vary section 85 of the Constitution Act 1975.

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 37 of the Bill inserts a new subsection (4) into section 135 of the Taxation Administration Act 1997 to provide 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 37, 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 Congestion Levy Act 2005 is a ‘taxation law’.

A central purpose of this bill is to bring the levy under the Taxation Administration Act 1997. The intent of clause 37 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 the congestion levy. 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 the congestion levy.

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 the congestion levy.

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 the congestion levy 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 the congestion levy 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 the congestion levy under this Bill

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, – ‘jurisdiction of the Supreme Court’.

[Schedule 1]. Provides a map of the relevant zone referred to in the definition section as the ‘levy area’.

Crimes (Homicide) Bill

Introduced: 5 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill also amends the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to provide that in certain circumstances a jury need not be empanelled where evidence supports a verdict of not guilty by reason of mental impairment.

Content and Committee comment

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

[3]. Inserts a new section 3B into the Act, the effect of which is to abolish the common law rule that provocation reduces the crime of murder to manslaughter.

The courts developed the partial defence of provocation at a time when murder carried a mandatory death penalty. The partial defence is outdated now that provocation can simply be taken into account, if relevant, alongside a range of other factors in the sentencing process.

The commission found that the law of provocation has failed to evolve sufficiently to keep pace with a changing society. By reducing murder to manslaughter, the partial defence condones male aggression towards women and is often relied upon by men who kill partners or ex-partners out of jealousy or anger.

The Committee notes that the amendment overturns a long established common law partial defence of provocation reducing the crime of murder to manslaughter.

The Committee notes however that provocation can be taken into account in the sentencing process.

The question of the appropriateness of abrogation of the common law partial defence of provocation is a question for Parliament to determine.

[4]. Inserts a new section 4 into the Act to provide that a verdict of guilty of the offence of defensive homicide (created by the section 9AD - see below) is available as an alternative verdict on a trial for murder.

[5]. Substitutes a new section 6 (Offence of Infanticide) of the Act and reacts the offence to refer to situations where the accused person's balance of mind was disturbed because of "a disorder" consequent on her giving birth. The existing section 6 refers to "the effect of lactation". The amended offence extends the application of infanticide from 12 months to 2 years. The maximum penalty for infanticide remains at 5 years imprisonment.

The amended offence retains the power of a jury to return a finding of not-guilty on the grounds of mental impairment.

The Bill removes that part of the existing restrictive legal limitation which operates to link a disturbance of the mind to the effect of lactation. The Bill replaces it with a provision that infanticide applies where the balance of the woman's mind was disturbed either because she had not fully recovered from the effect of giving birth to that child or because of a disorder consequent on her giving birth to that child.

Having also found that the vast majority of deaths in these circumstances occur in the first two years, the commission further recommended that the age limit be raised from 12 months to two years. The government agrees that the current 12-month age limit needs to be changed. The present requirement that the child be under the age of 12 months is increased by this Bill to two years.

[6]. Inserts a new subdivision (1AA) (Exceptions to Homicide Offences) into Division 1 (Offences against the Person) in Part 1 (Offences) of the Act.

New section 9AC creates an exception to the offence of murder and provides that a person is not guilty of murder if he or she carries out conduct (which could include an act or an omission) that would otherwise constitute murder if he or she believes the conduct to be necessary to defend himself, herself or another person from the infliction of death or really serious injury.

The new offence has been created to prevent any confusion in murder trials where the issues to be considered by the jury include both—

The new offence of defensive homicide will make it clear in such trials that, if a jury returns a verdict of manslaughter, it will have been on the basis that the jury found that the prosecution had not proved that the accused killed intentionally or recklessly.

If the jury returns a verdict of defensive homicide, it will be clear that the jury had found that the prosecution had proved that the accused did intend to kill or was reckless as to the killing, but had not proved that the accused did not believe that it was necessary to do what he or she did in self-defence or defence of another person.

New section 9AE creates an exception to the offence of manslaughter. The elements of the exception are based on the elements of self-defence stated in Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645 at 661–662. Under this section, a person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary for any of the reasons specified in the section and if there are reasonable grounds for that belief.

Self-defence not to apply in case of lawful conduct by deceased person (e.g. police arrest).

New section 9AF provides that the exceptions to murder (section 9AC) and manslaughter (section 9AE) do not apply if the accused person is responding to lawful conduct which the accused person knows is lawful conduct: for instance, if the accused person kills a member of the police force who is using lawful force against the accused person in order to arrest him or her.

New section 9AG provides that a person is not guilty of a relevant offence (defined in section 9AB) in respect of conduct carried out by him or her under duress.

Under this Bill, a person will not be guilty of murder if he or she acts under duress. A person is acting under duress if the person reasonably believes that:

The Committee notes that under current Victorian law duress does not extend to murder and the new section removes that limitation.

New section 9AH contains some explanatory provisions dealing with family violence.

The section affirms a number of court decisions or comments (including Osland v. The Queen (1998) 197 CLR 316 and R v. Portelli [2004] VSCA 178 that have acknowledged that in some cases, particularly those involving family violence, a lack of immediacy will not necessarily mean that the accused did not believe that his or her actions were necessary and based on reasonable grounds.

However, section 9AH, which is inserted by clause 6 of the bill, affirms the court decisions that have acknowledged that in some cases, particularly those involving family violence, a lack of immediacy will not necessarily mean that the accused did not believe that his or her actions were necessary and based on reasonable grounds.

Section 9AH also highlights the types of relationship and social context evidence that may be relevant in such cases. In such cases a jury may well ask themselves: why didn't she just leave the relationship or call the police? Fortunately many members of the community have not been placed in such a predicament.

However, that can also mean that when they serve as jurors they can find it hard to fully appreciate the complexity of such situations and the difficulties that a person might actually face.

Sometimes a perpetrator of family violence may kill the victim, and then claim that they were acting in self-defence because the victim attacked him first. Similar relationship and social-context evidence may also be relevant in such cases to counter false claims of this nature.

The Bill moves beyond the traditional notion that the family unit is comprised only of married couples. Through the adoption of a more inclusive definition of family violence, the Bill reflects the government's strong commitment to ensuring that the criminal law remains relevant and responsive to a diverse community.

New section 9AI provides that a person is not guilty of a relevant offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency. This is to remove uncertainty about whether, under current Victorian law, there is an exception to murder when a person acts in response to a sudden or extraordinary emergency.

A sudden or extraordinary emergency exists if the person reasonably believes that:

This provision recognises that a person might find themselves in the position where they have no realistic choice to act in another way but their conduct does lead to the death of another person. It is not appropriate to hold such a person responsible for the offence of murder.

New section 9AJ sets out how, if at all, a person's intoxication may be taken into account when applying various tests involving reasonableness of belief or reasonableness of grounds or reasonableness of response relevant to an offence, or a defence to an offence.

The test to be applied is that regard must be had to the standard of a reasonable person who is not intoxicated.

It distinguishes between intoxication that is self-induced and intoxication that is not self-induced.

The Bill expressly provides that when considering the reasonableness of a person's belief or response in relation to murder, manslaughter or defensive homicide, regard must be had to the standard of a reasonable person who is not intoxicated.

The community is right to expect that the reasonableness or otherwise of the belief or response of a person who is intoxicated, for example, as a result of voluntarily consuming alcohol or ingesting some other drug and who then kills, must be measured against that of a person who is not so affected.

[7]. Provides for the transitional effect of the changes to the Act made by the Bill. The amendments made by clauses 3 to 6 regarding the abolition of provocation, the creation of the offence of defensive homicide and other defences apply only to offences alleged to have been committed on or after the commencement of this Act.

International Covenant on Civil and Political Rights – Article 15

‘ …If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby’.

The Committee considers that ‘lighter penalty’ in the Covenant may be interpreted as encompassing the availability of a defence or the possibility of an alternative lesser charge being available.

The Committee notes that certain provisions in the Bill such as the amended offence of infanticide, the defence of duress for murder, the defence of sudden or extraordinary emergency and the family violence defence provide new defences or make provision for lesser charges.

In light of the general principle established in International Law the Committee will seek further advice whether certain laws that may provide an opportunity for either a lesser offence or an acquittal should not apply to offences committed before the commencement of the Act (if any) but where that charge or proceedings have not yet been finalised.

Pending the Attorney-General’s response the Committee draws attention to those provisions.

[10]. Amends the Act to deal with situations where the mental impairment of an accused person is not in dispute. The clause allows the trial judge to hear expert evidence about whether the accused was mentally impaired at the time of the killing, without a jury being empanelled, and to direct that a verdict of not guilty because of mental impairment be recorded. This process will be available only if both the defence and the prosecution agree that the defence of mental impairment is established. If the judge is not satisfied that the defence of mental impairment is established, the judge must direct that the accused be tried by a jury.

At present, even where the prosecution and defence agree that a person is not guilty of an offence by reason of mental impairment, a jury trial must be conducted. Such trials are usually quite short. Most of the evidence is accepted by both parties and several medical experts will usually be called to give evidence. The jury is then asked by the judge to return its verdict. The jury is not directed that it must return a verdict of not guilty by reason of mental impairment, but is given very strong indications about what it should do. Sometimes the jury is asked to consider and return its verdict whilst sitting in the courtroom, without retiring to consider its verdict.

The commission recommended that this type of hearing be conducted before a judge alone.

It concluded that where the prosecution, defence and the judge agree that the evidence supports a verdict of not guilty by reason of mental impairment, to then empanel a jury is both unnecessary and inappropriate. The government agrees. In the circumstances, the bill provides for a judge alone to hear and determine such cases. If there is any disagreement about such a verdict, the trial will be conducted before a jury, as is currently the case.

The Committee notes that the right to trial by jury is a fundamental common law right. The Committee is of the opinion that the amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 do not prejudice any person in respect to that right.

Environment Effects (Amendment) Bill

Purpose

The Bill amends the Environment Effects Act 1978 (the ‘Act’) to improve the operation of that Act. The reforms made by the Bill do not impact on any current projects such as channel deepening.

Content and Committee comment

[2]. The Bill comes into effect on proclamation but not later than 1 January 2007 .

[10]. Inserts a new section 11, which is a transitional provision for works that have been declared to be public works for the purposes of the Act or works in respect of which the Minister has given advice under section 8(2) of the Act. The amendments made by the Bill do not apply to those works.

Firearms (Further Amendment) Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

Content and Committee comment

[2]. Clauses 1 and 2 of the Bill will come into operation on the day after Royal Assent. Clauses 64 and 65 come into operation on 1 July 2008. The remainder of the Bill comes into operation on proclamation but not later than by 1 October 2006.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee notes that no explanation is given in the explanatory memorandum or the second reading speech concerning the need or desirability for the delayed commencement of clauses 64 and 65.

The Committee shall seek further advice from the Minister.

Pending the Minister’s response the Committee draws attention to the provision.

[4]. Creates a new offence for the possession, carriage or use by a non-prohibited person of a paintball marker without a paintball marker licence.

[5]. Creates a new offence for the possession, carriage or use by a non-prohibited person of an unregistered paintball marker.

[17]. Inserts a new section 21B in the Act, which creates an antique handgun collectors licence and sets out the requirements that must be satisfied by an applicant for an antique handgun collectors licence in order to obtain such a licence.

[33]. Replaces the existing probationary permit provision in the Act with a provisional licence that allows the holder to carry or use the classes of handguns specified in the provisional licence at approved handgun target shooting matches and handgun target shoots.

[52]. Inserts a new section 127(1A) in the Act to make it an offence for a person who possesses a paintball marker to allow that firearm to be carried or used by any person who is not authorised under the Act to do so or exempt from the requirement for such authorisation.

[53]. Inserts a new section 135(4) in the Act to make it an offence for a person to own a paintball marker unless licensed to do so under the Principal Act.

[57]. Inserts a new section 179A in the Act to provide that the Chief Commissioner may approve handgun target shooting matches if an application is made by an approved handgun target shooting club to have such a match approved, if the Chief Commissioner is satisfied that the matches will be conducted by the approved club at an approved shooting range.

[63]. Amends item 3(2) of Schedule 4 of the Act to change the storage requirements for firearms collectors so that in the case of antique handgun collectors who store more than 15 antique handguns on the same premises as an antique handgun stored under his or her antique handgun collectors licence; or in the case of firearms collectors other than antique handgun collectors, more than 5 firearms are stored on the same premises as a firearm stored under his or her collectors licence the premises must be fitted with an effective alarm system of a class approved by the Chief Commissioner.

[64]. Inserts a new section 15(4)(c) in the Act to provide that the Chief Commissioner may not, unless he or she reasonably believes there is an exceptional and legitimate reason, issue a handgun security guard licence for a handgun that is a semi-automatic handgun with a calibre of more than ·40 inch; or a revolver or single shot handgun with a calibre of more than ·38 inch.

[65]. Inserts a new section 57A in the Act to provide that handgun security guard licensees must obtain a permit to possess, use or carry restricted ammunition. Before granting a permit, the Chief Commissioner must reasonably believe that there is an exceptional and legitimate reason for the applicant to possess, use or carry restricted ammunition.

[66]. Is a transitional provision providing that on commencement of clause 66 of the Bill any holder of a handgun security guard licence that was in force before that commencement; and any holder of a handgun security guard licence issued on or after that commencement and before 1 July 2008 will not be authorised to possess, carry or use a semi-automatic handgun with a calibre of over ·40 inch or a single shot handgun with a calibre of more than ·38 inch or restricted ammunition unless the licence holder has obtained an authority to do so from the Chief Commissioner. This regime will apply until 1 July 2008, when the licensing requirement in clause 64 will commence.

In relation to firearms in the security industry, the Bill will implement the majority of the 2004 resolutions of the Australasian Police Ministers' Council on the regulation of firearms in the private security industry. In particular, firearms used in the security industry will be restricted to those used by Australian police services and all ammunition will need to be factory manufactured or loaded. The Chief Commissioner will, however, retain a discretion to issue 'once off' approvals for over-calibre handguns for use in the security industry where she is satisfied that there is a genuine need.

Further, all handguns used for private security purposes will need to be owned by, or registered in the name of, an employer (rather than an employee).

[67]. Amends the Control of Weapons Act 1990 to clarify that an exemption granted by the Governor in Council under section 8B of that Act authorising the possession etc. of a prohibited weapon must not be granted in respect of prohibited persons, and if granted to a class of persons, does not apply to a person within that class who is a prohibited person.

Major Events (Crowd Management) and Commonwealth Games Arrangements Acts (Crowd Safety Amendment) Bill

Introduced: 4 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Minister responsible: Hon. Justin Madden MLC
Portfolio responsibility: Minister for Sport and Recreation and
Minister for Commonwealth Games

Purpose

Major Events (Crowd Management) Act 2003 (the ‘Act’) to extend the application of the Act to —

The Bill also amends the Commonwealth Games Arrangements Act 2001 with respect to bag search powers.

Content and Committee comment

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

[5]. Amends section 4 of the Act to add Bob Jane Stadium in South Melbourne to the list of “managed venues” under the Act.

[7]. Inserts section 5A in the Act to enable the Minister to declare additional venues to be managed venues as long as the Minister is satisfied it is in the public interest and the venue meets the criteria specified in the clause, including having the capacity to host major events.

[8]. Inserts section 6A in the Act to specify that venue managers must erect signs or notices to identify managed access areas declared under the Act.

[9]. Amends section 9(1)(a) of the Act to enable authorised officers to search bags on request. Officers may request persons to empty their bags or pockets for inspection when they enter, or have entered, a managed venue or managed access area. The person may request that the search be conducted in provate.

[10]. Substitutes section 10 of the Act with new sections 10, 10A, 10B and 10C. The new sections make it an offence to possess certain prohibited items in a managed venue or managed access area without written authorisation.

[14]. Inserts sections 14A to 14I in the Act to introduce a new set of offences for disruptive and unacceptable conduct at major event venues, and to set penalties for those offences. Some of these offences are infringement offences as identified under clause 18.

Section 14A makes it an offence to throw or kick projectiles such as stones and bottles in a managed venue or managed access area.

Section 14B makes it an offence to damage or deface any building, fence or structure in a managed venue or managed access area.

Section 14C makes it an offence to damage trees or plants in a managed venue or managed access area.

Section 14D makes it an offence to block stairs, aisles, entries or exits in a managed venue or managed access area without reasonable excuse.

Section 14E makes it an offence, without reasonable excuse, to climb on a fence, barrier or barricade that is situated in a managed venue or managed access area, or that delineates the boundaries of a venue or access area.

Section 14F makes it an offence in a managed venue or managed access area, without reasonable excuse, to stand in a way that deliberately obstructs the view of others seated in the immediate vicinity.

Section 14G makes it an offence to climb on a roof or parapet of any building in a managed venue or managed access area without written authorisation.

Section 14H makes it an offence to throw a lit distress signal or lit fireworks in a managed venue or managed access area without written authorisation.

Section 14I enables an authorised officer to direct a person to leave a venue or not enter a venue if he or she believes on reasonable grounds that the person has committed any of the offences in new sections 14A to 14H; and has informed the person of that belief; and before making the direction, has asked the person to leave or not enter, and the person has refused to leave or not enter.

[17]. Inserts new section 17A in the Act to provide courts with an additional sentencing option whereby they can ban offenders, including first time offenders, from venues and major events for a period of up to 5 years.

[18]. Amends section 18(1) of the Act to specify new infringement offences under the Act.

[20]. Amends section 57AI(1) of the Commonwealth Games Arrangements Act 2001 to expand bag search powers by allowing authorised officers and police to ask people to open their bags so that they can be searched, as well as inspected, by an authorised officer or police member or to request people to empty their bags or to turn out their pockets for inspection when they enter, or have entered, a ticketed venue.

Mineral Resources Development (Brown Coal Royalties) Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 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 amends the Mineral Resources Development Act 1990 (the ‘Act’) to specify a new rate for royalties for lignite (brown coal) taken by any holder of a mining licence.

Content and Committee comment

[4]. Inserts a new section 12A into the Act establishing specific arrangements that will apply for the payment of royalties for lignite under the Act. The holder of a mining licence that mines lignite must pay royalties for that lignite in accordance with the prescribed rate.

[6]. Inserts new section 132 into the Act and states that the amendments made by the Bill will not apply to the rate at which royalties are paid for any lignite produced before 1 January 2006 (the commencement date). As royalties are collected in arrears the transitional provision ensures that there can be no retrospective application of the rate to lignite produced before 1 January 2006.

Mines (Aluminium Agreement) (Brown Coal Royalties) Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 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 amends the Mines (Aluminium Agreement) Act 1961 (the ‘Act’) and specifies a new rate for royalties for lignite (brown coal) taken by Alcoa under an agreement between it and the State.

Content and Committee comment

The Committee notes this extract from the explanatory memorandum –

‘Alcoa and the State of Victoria, as the parties to the Agreement, will agree the commencement date for this legislation. Because the Bill affects the operation of the Agreement it is not possible at this time to determine a commencement date.’

The Committee accepts that a commencement by proclamation in the circumstances is appropriate.

[3]. Inserts new sections 11 and 12, that introduce new arrangements for the calculation and setting of coal royalties for Alcoa. New section 11 states that Alcoa is required to pay royalties for lignite in accordance with the prescribed rate. This section will apply despite anything to the contrary in the Act or the Agreement or any other Act.

New section 12 states that the amendments made by this Bill will not apply to the rate at which royalties are paid for any lignite produced before the commencement of the Bill. This transitional provision ensures that there can be no retrospective application of the rate to lignite produced before the commencement of the Bill for which payment falls due following the commencement of the Bill.

Motor Car Traders and Fair Trading Acts (Amendment) Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible: Hon. Marsha Thomson MLC
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the Motor Car Traders Act 1986 (the ‘Act’) to facilitate the use of an electronic dealings book and to simplify record keeping requirements and evidentiary procedures; and amends the Fair Trading Act 1999 to clarify the orders a court can make under that Act.

Content and Committee comment

[2]. Sections 1 and 2 and Part 3 commence on Royal Assent the remaining provisions commence on proclamation but not later than by 1 December 2006.

[3]. Repeals section 35(4) of the Act so that motor car traders who purchase used motor cars at an auction or at any place other than the place at which they carry on business are covered under the general provisions in sections 35(2) and 35(8) and no longer have to insert into the dealings book a receipt containing the prescribed particulars, which is also signed by the auctioneer or the person from whom the motor car was bought or received.

Inserts a new section 35(9) into the Motor Car Traders Act 1986 that together with new section 35(8) provides that motor car traders who maintain their dealings book in electronically readable form can satisfy the requirements of section 35(2) either by keeping a document containing the relevant signature as outlined in the substituted section 35(8) or, as they were previously required to do, by printing the entries relating to a transaction and having this print‑out signed as prescribed.

[4]. Inserts new section 82A(3) into the Act to permit motor car traders who operate from more than one premises to maintain a dealings book in an electronically readable form on a single electronic database.

[5]. Inserts new sections 82AA(1A) and 82AA(1B) into the Act to enable an inspector to require production of a dealings book kept in an electronically readable form, either in a print-out or electronic format; and to require the person who provided it to the inspector to provide a prescribed statement verifying that the document provided is a true record of the electronic dealings book at the date of the statement.

Prisoners (Interstate Transfer) (Amendment) Bill

Purpose

The Bill amends the Prisoners (Interstate Transfer) Act 1983 to clarify and expand the grounds to be considered by the Minister in assessing requests by prisoners to be transferred to or from Victoria. These amendments will implement in Victoria changes agreed at the national level to the national co-operative legislative scheme for the interstate transfer of prisoners.

Content and Committee comment

[2]. The provisions in the Bill other than Part 2 and section 7(1), commence on the day after Royal Assent.

Part 2, which amends the Prisoners (Interstate Transfer) Act 1983, commences on 1 February 2006.

Section 7(1), which amends the Adult Parole Board’s power in section 77(5) of the Corrections Act 1986 to cancel a prisoner’s parole, commences operation upon proclamation but not later than on 28 February 2006.

[3]. Inserts a new section 10A into the Act which specifies the matters to which the Minister may have regard in forming an opinion or exercising a discretion under Part 2 (Transfers for Prisoner’s welfare) of the Act. These matters are the welfare and safe custody of the prisoner concerned, as well as a number of other specified matters, for example the protection of the community. The Minister may also have regard to any other matter he or she considers relevant. The Minister will be able to have regard to these matters in considering both requests for prisoners to transfer interstate from Victoria, and requests from prisoners to transfer to Victoria under Part 2 of the Act.

[5]. Amends Part 4 of the Act to clarify and expand the matters to which the Minister may have regard in forming an opinion or exercising a discretion under that Part in respect to the interstate transfer of prisoners for trial purposes and the return of those prisoners to their originating jurisdictions after trial.

[6]. Makes amendments clarifying the statutory immunity of the Adult Parole Board and its members under section 69 of the Act. Any resulting liability of a member attaches to the Board instead.

[9]. Inserts a new Part 9B into the Act to provide for additional powers and obligations in relation to people on extended supervision orders under the Serious Sex Offenders Monitoring Act 2005 who are directed to attend community corrections centres or receive visits from officers.

New section 104G imposes an obligation on an officer in charge of a community corrections centre to take all reasonable steps for the security, management, safety and welfare of the monitored person at the centre.

New section 104I allows officers to use reasonable force in respect to the monitored person at a community corrections centre to compel that person to obey a direction of the officer.

New section 104K(1) empowers an officer to take photographs of a monitored person at a community corrections centre for identification and record-keeping purposes.

Rail Safety Bill

Introduced: 4 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The main purpose of this Bill it to provide for safe rail operations in Victoria.

Content and Committee comment

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 January 2007 .

[4]. The Minister may declare any substance to be a drug for the purposes of Part 6 (alcohol and drug controls for rail safety workers).

[6]. Sets out the types of railway to which this Bill does not apply, such as amusement parks, underground mine rails and slipways.

[13 to 32]. Parts 2 and 3 of the Act provide for principles and duties relevant to rail safety including, duties of rail operators, rail safety workers, safety management systems, safety audits of rail operators and of medical records of rail safety workers.

[33]. The Safety Director may require utility works to stop if the works threaten the safety of rail infrastructure, and may order rail operations to stop if they threaten works of a utility.

[45]. The Safety Director must notify the applicant if he or she refuses the application for accreditation, must give a statement of reasons for the refusal and must notify the applicant that he, she or it has a right to seek review under Part 7.

[57]. It is an offence for a person to give false or misleading information in relation to an application for accreditation, a variation to an accreditation or a variation of a condition or restriction of an accreditation.

[58]. The Safety Director has the power of immediate suspension of accreditation in certain circumstances.

[59]. Makes provision with respect to disciplinary action against an accredited rail operator or a person who was an accredited rail operator. [61]. A person whose accreditation is suspended is not accredited during the period of the suspension.

[67]. An accredited rail operator must investigate and prepare a report into any railway accident or incident that may affect the accredited rail operator’s operations.

[69]. An accredited rail operator must notify the Safety Director, the Chief Investigator, Transport and Marine Safety Investigations and emergency services of an occurrence of a major incident immediately after becoming aware of that occurrence.

[70 to 75]. Substantially re-enacts the provisions of Division 2 of Part VI of the Transport Act 1983, which deal with alcohol and other drug controls for workers engaged in safety work on railway and tramway systems and sets out various presumptions in relation to the presence of alcohol or drugs in the blood or breath of a rail safety worker.

[76 to 86]. Make provision for drug and alcohol offences, testing, analysis, assessments, samples and associated legal evidentiary matters.

[87 to 90]. Part 7 identifies decisions made by the Safety Director under the Bill which are subject to review by VCAT.

[91]. Empowers the Minister to approve codes of practice to provide guidance to accredited rail operators and other persons who may be placed under obligations by or under the Bill.

[96]. A person is not liable to any criminal or civil proceedings for failing to observe a provision of an approved code of practice.

[97]. Makes provision with respect to the use of approved codes of practice in proceedings involving an alleged breach of the Act or regulations. An approved code of practice is admissible as evidence in such proceedings.

[104]. Deals with tabling and disallowance of certain Orders, notices and approved codes of practice. An Order under clause 4, or notice under clause 79(7) (procedure for assessing drug impairment), or an approved code of practice under clause 91, must be laid before each House of Parliament where it may be disallowed in whole or in part by either House of Parliament.

[105 to 109]. The Governor in Council may make regulations with respect to exempting persons from the need to be accredited or investigations carried out under clause 67; performance of safety duties and obligations, risk management and risk minimisation; the preparation, content and operation of safety management systems; the requirements for competency and certification of rail safety workers; and the methods used in the handling, use, maintenance, storage and testing of blood and urine samples to be used for drug and alcohol testing. [110]. Is a general regulation making power.

[117]. Inserts a new Subdivision 3 of Division 1 of Part II of the Act, containing new sections 9K to 9ZA and provides for the appointment of a Director, Public Transport Safety (the ‘Safety Director’). The sections set out the Safety Director’s appointment, terms and conditions, functions, powers, staff, objectives, delegations and personal immunity.

New section 9S provides that the Safety Director, or Acting Safety Director, is not personally liable where he or she, in good faith, acts or omits to act in the exercise of his or her powers under a relevant transport safety law, or in the reasonable belief that the act or omission was done within his or her authority under the relevant transport safety law. Any liability that would otherwise apply applies instead to the Crown.

New section 9Y provides that the Safety Director may delegate his or her powers under this Bill, the Transport Act 1983, or the Public Transport Competition Act 1995 to a transport safety officer or employee employed under Part 3 of the Public Administration Act 2004, or a consultant, contractor or agent.

[122]. Inserts new Division 4AAA concerning transport safety offences into the Act and transfers a number of the substantive safety offences and provisions currently contained in the Transport (Ticketing and Conduct) Regulations 2005 and the former and now revoked Transport (Passenger and Rail Freight) Regulations 1994.

[124]. Substitutes a new section 223 of the Act dealing with an offence relating to trespass on land or property owned by the Roads Corporation or Rail Track (otherwise known as VicTrack).

[125]. Inserts new Division 4B into the Act which primarily provides for the appointment of transport safety officers and the conferring on them of powers to enforce provisions of the Bill and other transport safety laws.

New section 228ZD provides that it is an offence to enter a secured site without reasonable excuse.

New section 228ZE provides that a transport safety officer may seize anything on railway premises or residential premises if he or she believes it to be necessary for compliance and investigative purposes.

New section 228ZG provides that a transport safety officer may apply to the Magistrates’ Court for a search warrant for railway premises or residential premises if the officer reasonably believes that evidence of an offence will be found there. The forms and procedures in the Magistrates’ Court Act 1989 apply to such warrants.

New section 228ZK provides that a transport safety officer may require certain persons to provide documents or other things required to be kept under a relevant transport safety law.

New section 228ZN provides that a transport safety officer may direct an individual who the officer believes to be a relevant person to state his or her name, home address and business address.

New section 228ZZB provides for the payment of compensation by the Safety Director for damage caused in the exercise of a power conferred by Division 4B.

Privilege against self-incrimination – use limitation – abrogation for documents and things

New section 228ZZP provides that, subject to new section 228ZZP(2), a person is not excused from complying with a direction given under Division 4B on the ground that complying with the direction may result in information being provided that might incriminate the person; or make the person liable to a penalty.

However any information obtained from a natural person under this Division is not admissible in evidence against the person in criminal proceedings other than in proceedings in respect of the provision of false information; or must not be used in any action, proceeding or process that may make a person liable to penalty.

Any documents or items required to be kept under the Act and required to be produced under section 228ZK(1) to a transport safety officer is admissible in evidence against the person in criminal proceedings.

The section also provides that any information obtained from a person under the Division that is contained in any document or item that the person is required to keep under a relevant transport safety law; or that was obtained without the direct assistance of the person is admissible in evidence against the person in criminal proceedings or may be used in any action, proceeding or process that may make a person liable to penalty.

A person provides direct assistance in the obtaining of a document or item if the person is required to identify, to reveal the location of, or to explain the contents of, the document or item.

New section 228ZZQ provides that certain decisions relating to improvement and prohibition notices are reviewable decisions. New section 228ZZR provides for internal review of certain reviewable decisions (other than decisions made by the Safety Director) by the Safety Director. New section 228ZZS provides for review of certain reviewable decisions by the Victorian Civil and Administrative Tribunal.

[160]. Inserts a new Division 4A of Part 4 containing new sections 48A to 48G, into the Road Management Act 2004. The provisions impose duties on State road authorities, infrastructure managers, works managers and works contractors carrying out works on or in the immediate vicinity of rail infrastructure or rolling stock to ensure so far as is reasonably practicable that they carry out the works safely.

[161]. Inserts new sections 137A to 137C into the Water Act 1989 imposing duties on water authorities and works contractors, when carrying out works on or in the immediate vicinity of rail infrastructure, to ensure, so far as is reasonably practicable, that they carry out the works safely.

[162]. Inserts new section 62A to 62C into the Water Industry Act 1994 imposing duties on water licensees and works contractors, when carrying out work on or in the immediate vicinity of rail infrastructure, to ensure, so far as is reasonably practicable, that they carry out the works safely.

Retail Leases (Amendment) Bill

Introduced: 4 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Minister responsible: Hon. André Haermeyer MLA
Portfolio responsibility: Minister for Small Business

Purpose

The Bill makes miscellaneous amendments to the Retail Leases Act 2003, the Retail Tenancies Reform Act 1998 and the Retail Tenancies Act 1986, to amend section 146 of the Property Law Act 1958 in relation to a breach of a lease amounting to repudiation and to repeal the Small Business Victoria (Repeal) Act 1996.

Content and Committee comment

Sections 1, 2, 3, 12(7), 16, 17, 23, 37, 51 and 52 come into operation on the day after Royal Assent.

Part 4 is deemed to have come into operation at the last moment of 30 June 1998 . Part 4 of the Act is necessarily deemed to have come into operation at the last moment of 30 June 1998 as Part 4 amends the Retail Tenancies Act 19 86 which was repealed on 1 July 1998 by the Retail Tenancies Reform Act 1998 .

Clause 45(2) is deemed to have come into operation on 1 July 1998 . Clause 45(2) amends the Retail Tenancies Reform Act 1998 to define “prospective tenant”. It is required to come into operation on that date to ensure that leases entered into under the Retail Tenancies Act 1986 which were renewed during the operation of the Retail Tenancies Reform Act 1998 are covered under the Retail Tenancies Reform Act 1998 from the date this Act first commenced operation, being 1 July 1998 .

Sections 39 to 43 are deemed to have come into operation on 15 April 2003, the date of Royal Assent of the Retail Leases Act 2003, with these clauses amending the sections of the Retail Leases Act 2003 which amend the Retail Tenancies Reform Act 1998 and the Retail Tenancies Act 1986.

Part 3 (other than section 45(2)) is deemed to have come into operation at the last moment of 30 April 2003 . Part 3 of the Act is necessarily deemed to have come into operation as the last moment of 30 April 2003 as Part 3 amends the Retail Tenancies Reform Act 1998 which was repealed on 1 May 2003 by the Retail Leases Act 2003.

The remaining provisions of the Bill are deemed to have come into operation on 1 May 2003 , the date the Retail Leases Act 2003 came into operation. The amendments are mainly procedural amendments to that Act and it is necessary for these provisions to commence on the same date as the commencement of that Act to ensure that the substantive provisions of that Act have effect from their commencement as amended by this Bill.

The outcomes of retail tenancy court decisions suggests that legal certainty is promoted when amending legislation is deemed to have commenced from the same commencement dates of the principal legislation. Accordingly, several clauses of the Bill commence in line with the original commencement dates of those Acts.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’.

The Committee notes the retrospective operation of the amendments made by the Bill to the respective Retail Tenancy Acts and the extract from the Minister’s Second Reading Speech.

Considering the complex policy issues involved in amending the current and predecessor Acts covering the retail tenancy field the Committee will seek further advice from the Minister whether any tenant or landlord may be adversely affected by these provisions.

Pending the Minister’s advice the Committee draws attention to the provision.

[7]. Substitutes a new section 7 of the Act to provide that a retail premises lease is entered into or assigned when the first of 3 numerated events occur.

[13]. Amends section 22(1) of the Act to provide that a landlord or tenant may agree in writing on a period, other than 28 days, within which the landlord must give the tenant a copy of the lease signed by the landlord and the tenant.

[15]. Amends section 24(1)(c) of the Act to ensure that if the tenant performs all of the tenant's obligations under the lease the landlord must return the security deposit as soon as practicable after the lease ends.

[16]. Amends section 25 of the Act by providing that a landlord must also notify the Small Business Commissioner in writing upon the renewal of a retail premises lease.

[20]. Substitutes section 37(7) of the Act to provide that the time by which a specialist retail valuer must carry out a valuation may be extended to such longer period as may be agreed between the landlord and tenant, or if there is no agreement, as determined in writing by the Small Business Commissioner.

[32]. Amends section 77(1) of the Act to provide that the prohibition on unconscionable conduct by a landlord extends to conduct in respect of proposed leases.

[33]. Amends section 78(1) of the Act to provide that the prohibition on unconscionable conduct by a tenant extends to conduct in respect of proposed leases.

[51]. Amends section 146 of the Property Law Act 1958 to address the decision of the Court of Appeal in Apriaden vPty Ltd v Seacrest Pty Ltd [2005] VSCA 139, to ensure that section 146 applies in circumstances where there has been a breach amounting to repudiation which the landlord has accepted as such.

The Bill improves the notice provisions contained in the Property Law Act 1958 to give greater protection to tenants where there has been a breach of a lease by the tenant, including a breach amounting to repudiation.

The outcome of recent common-law cases suggests that a tenant may be subject to termination without notice, potentially on the basis of a trivial breach of the lease. Faced with the landlord regaining possession of the premises, for example, by changing the locks to the premises overnight, a tenant may be forced to go to the courts to seek relief against forfeiture. The Bill restores the original intent of the notice provision contained in the Property Law Act 1958 of providing tenants with advance notice that the landlord is acting on a breach of lease.

In such cases, a landlord will be required to give the tenant a notice of breach and at least 14 days to rectify the breach prior to the landlord entering the premises. The amendment also provides greater clarity for landlords in specifying when a notice is required. The right of a landlord to re-enter premises in the case of non-payment of rent will remain.

[52]. Repeals the Small Business Victoria (Repeal) Act 1996. The Act has now fulfilled its purpose and its provisions are now spent.

Transport Legislation (Safety Investigations) Bill

Purpose

The Bill amends the Transport Act 1983(the ‘Act’) and establishes a statutory office of Chief Investigator, Public Transport and Marine Safety Investigations to undertake safety investigations of accidents and incidents. The Director, Public Transport Safety and the Director of Marine Safety will continue to carry out compliance-based investigations in relation to rail, bus and marine safety and under the proposed Rail Safety Bill and the Marine Act 1988.

While the Acts provide authority for the Minister or the Secretary to require rail and bus incidents to be investigated, currently Victoria does not have a dedicated resource to conduct no-blame investigations.

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The Bill makes it clear that the principal function of the office is the independent investigation of no blame public transport and marine safety matters and the reporting of the results of investigations to the Minister. In conducting accident or incident investigations, the Chief Investigator will not apportion blame and must focus primarily on determining the factors which caused the accident or incident. The Chief Investigator must also identify safety issues that may require further review, monitoring or consideration.

Content and Committee comment

[2]. The provisions in the Bill commence on proclamation but not later than by 1 January 2007.

[4]. Inserts a new Part V into the Act dealing with the Chief Investigator (CI), Transport and Marine Safety Investigations. The part deals with the powers, functions and terms of appointment and like matters of the CI. The Part also defines what are transport and marine safety matters.

(1) The Chief Investigator may, in writing, delegate any of his or her powers or functions under this or any other Act (other than this power of delegation) to any member of his or her staff, or to any consultant, contractor or agent engaged by him or her.

(2) If authorised in writing to do so by the Chief Investigator, a delegate may sub-delegate to another person any power or function delegated to the delegate by the Chief Investigator.

The Committee notes the following complete extract from the explanatory memorandum concerning the clauses of the Bill dealing with the employment of staff and the power of the Chief Investigator to delegate his or her powers or functions –

New sections 83I and 83J enable the Chief Investigator to employ staff and to delegate his or her functions and powers. Staff members will be public servants.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependent on insufficiently defined administrative powers’.

It appears to the Committee that the delegation power of the Chief Investigator (CI) is itself very broad and includes: consultants, contractors and agents engaged by the CI. The Committee also notes that section 83J(2) will effectively permit a delegate to sub-delegate to any person. Taken together the delegation provisions are very broad and require appropriate explanatory material.

The Committee notes that the brevity of the explanatory memorandum does little to assist the Parliament or the Committee to deliberate on the appropriateness of the delegation provision nor does it assist the Committee in its scrutiny of legislation in reporting to the Parliament in respect to the inclusion of certain provisions in the Bill.

The Committee notes its policy to seek reasonable and adequate explanation in respect to provisions which delegate powers or functions to a wide or ill-defined group of persons.

The Committee will seek further information from the Minister.

Pending the Ministers response the Committee draws attention to the provision.

New section 83K provides that liability attaches to the Crown rather than the Chief Investigator for anything done or omitted to be done in good faith in the exercise of a power or the performance of a function in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Part.

The Committee notes that there is no explanatory material in respect to proposed new section 83L. The Committee will draw attention to this deficiency.

New section 83L deals with validity of acts and decisions of the Chief Investigator.

New section 85B provides that the Minister may direct that the Chief Investigator to investigate a particular public transport safety matter or marine safety matter. Such directions take effect upon publication in the Government Gazette and the Minister must ensure that a copy of the direction is laid before each House of Parliament within 3 sitting days after publication.

New section 85C makes it offence for a person to disclose any information obtained during the course of the person's duties under this Part, or obtained under section 85E, except in specified circumstances.

New section 85D provides that the Chief Investigator may disclose information acquired by him or her in carrying out his or her functions under this or any other Act to any person if the Chief Investigator considers that the disclosure is necessary or desirable for the purposes of transport safety.

However, the Chief Investigator may only disclose information that is, or that contains, personal information in the circumstances allowed by the regulations.

New section 85E provides that the Chief Investigator may authorise a person who is not a member of his or her staff to have access to information acquired by the Chief Investigator in carrying out his or her functions under this or any other Act if the Chief Investigator considers that it is necessary or desirable to do so. Such a person is also bound by section 83C (above).

New section 85F establishes a confidential reporting system for persons who, as an employee, contractor or volunteer, carries out work for a bus, train or tram operation or is involved with the operations of vessels.

New section 85H provides that the Chief Investigator may ask the Executive Director of Transport Safety Investigations appointed under section 12 of the Transport Safety Investigations Act 2003 (Cth) to investigate any accident or incident that has occurred in Victoria that is a public transport safety matter or a marine safety matter.

Veterans Bill

Introduced: 4 October 2005
Second Reading Speech: 5 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

Content and Committee comment

[2]. The provisions in the Bill will come into operation either on the day after Royal Assent or on proclamation but not later than by 1 February 2007 .

[4 to 19]. Establishes the Victorian Veterans Council (the ‘Council’) as a body corporate, sets out its objectives, functions, powers, membership, provides for formal and procedural matters and allows staff to be appointed under Part 3 of the Public Administration Act 2004 to assist the Council.

[20 to 22]. Establishes the Victorian Veterans Fund (the ‘Fund’) and outlines what payments must go into the Fund, the purposes for which the Fund may be used, requires the Victorian Veterans Council to publish guidelines, approved by the Minister, concerning payments from the Fund and the ANZAC Day Proceeds Fund and makes it an indictable offence for recipients of money from the Fund to use that money for purposes other than the purpose for which it was given.

One of the great benefits of this Bill is that it will establish a Victorian Veterans Fund and provide it with an annual source of revenue.

In its 2002 report on Anzac Day laws, SARC recommended that a proportion of the proceeds from gaming on Anzac Day should flow to the Anzac Day Proceeds Fund. The Anzac Day Proceeds Fund gets revenue from sporting and racing activities on Anzac Day. SARC argued that Anzac Day gaming should be subject to the same requirement, reflecting a principle that some of the benefits of Anzac Day activities should be returned to veterans. We agree entirely.

SARC also recommended that the uses of the Anzac Day Proceeds Fund should be widened to include education and commemoration, as well as veterans' welfare.

In our consultations on this Bill the veterans community expressed a strong preference for ensuring that the current uses of the Anzac Day Proceeds Fund should be protected.

We have therefore decided to create a separate education and commemoration fund. This is the Victorian Veterans Fund.

This Bill will ensure that, in addition to proceeds from sporting and racing on Anzac Day, gaming activities will also contribute to the ex-service community. It will work in this way: on 1 September each year the total gaming revenue to the Community Support Fund for the previous financial year will be divided by the number of days in that year. The dividend -- one day's average gaming revenue representing the proceeds from Anzac Day -- will be transferred to the Victorian Veterans Fund.

The purpose of this annual fund is to provide the veterans community with greater capacity to:

The Victorian Veterans Fund will be administered by the Victorian Veterans Council. The council will develop public guidelines about the use of the fund, will determine what gets funded and will be required to account publicly for the expenditure. The bill also allows the council to determine other uses of the fund, with the agreement of the minister -- in this case, the Premier.

[23 to 85]. Part 4 of the Bill deals with Patriotic Funds and section 23 defines ‘patriotic fund’.

[30]. Provides that the Director of Consumer Affairs (the ‘Director’) may delegate any of his or her functions or powers under Part 4 to any member of the public service employed in the administration of this Part.

[31]. The Director is the successor in law to the Patriotic Funds Council of Victoria.

[33]. A person must not establish any patriotic fund or raise money for a patriotic fund without the prior approval of the Director.

[47]. The Director may request that an auditor’s report on the accounts and records kept in relation to a patriotic fund be submitted by the trustees at a specified date.

[48]. Any authorised deposit-taking institution must provide to the Director, when requested to do so in writing by the Director, any information that the Director requires.

[49]. The Director may apply for a court order where a patriotic fund is not functioning properly.

[50]. The Director may appoint an administrator to wind up a patriotic fund if at least 60% of the trustees have agreed in writing that the fund be wound up.

[59]. Incorporates into the Act a number of enforcement provisions from the Fair Trading Act 1999 which extend and apply to this Act. These provisions relate to applications for injunctions or other court orders where any provision of the Act is being contravened.

[61]. Specifies the extent of an inspector’s power to enter and search any premises on or from which a patriotic fund is being administered or any premises that an inspector believes on reasonable grounds contains any records or accounts required to be kept under the Act or any document that may indicate whether the Act has been complied with.

[64]. An inspector may apply to a magistrate for a search warrant if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence under this Act. The warrant may authorise the inspector to enter the premises and to search for and seize any thing named or described in the warrant. The forms and procedures provided in the Magistrates Courts’ Act 1989 apply to such warrants.

[71]. Provides for the payment of compensation by the Minister for any damage caused by an inspector in the exercise of any power conferred by the Act, except where the damage is caused during an inspection that reveals that there has been a contravention of the Act.

[75]. Declares that it is a reasonable excuse for a person to refuse to give information or do any other thing that is required under this Part if the giving of information or the doing of the thing would tend to incriminate that person. However it is not an excuse to refuse or fail to produce a document that the person is required to produce under the Act even if its production would tend to incriminate.

The Committee notes that the explanatory memorandum is incomplete and does not refer to the abridgement in respect to the compulsion to produce documents that tend to incriminate. The explanatory memorandum states –

‘That it is a reasonable excuse for a person to refuse to give information or do any other thing that is required under this Part if the giving of information or the doing of the thing would tend to incriminate that person.’

The Committee does not consider this to be an accurate and complete clause note that usefully describes the effect of an important common law privilege in respect to self-incrimination.

The Committee will draw this matter to the attention of the Minister.

[82]. Provides that a person who is affected by a decision of the Director under this Part may apply to VCAT for a review of the decision.

[85]. Repeals the Patriotic Funds Act 1958 and makes appropriate savings provisions in respect to that repealed Act.

In respect to Patriotic Funds the Committee notes these extracts from the Second Reading Speech –

The Bill will repeal the Patriotic Funds Act 1958 and the regulatory provisions from that act will be incorporated in the Veterans Act.

The most significant change relates to who carries out the regulation. The regulation of patriotic funds is, in part, a matter of consumer protection. The regulation protects the assets in patriotic funds, thereby protecting the members of the ex-service community who are beneficiaries of the funds and also protecting the people who donate to the funds - giving assurance that the money will be used as intended.

The control of funds remains entirely with the trustees of that fund. The Bill offers some new options to trustees for using funds in cases where the trust is winding up or where the trust has more funds than are needed to meet its purpose.

The opportunity has been taken to modernise the capacity of the government to ensure the proper administration of patriotic funds. The Director of Consumer Affairs has a range of new investigative powers, modelled upon the Fundraising Appeals Act 1998 and the Fair Trading Act 1999, which will enable monitoring of patriotic funds where this is necessary to ensure that they are properly managed.

The Magistrates Court may also appoint an administrator to take over the administration of the trust for a period where there is maladministration or an insufficient number of trustees. Additionally, a majority of the trustees of a patriotic fund may request the director to appoint an administrator to take over the management of the fund for them.

There is one further improvement to auditing arrangements in the Bill. Many patriotic funds have very little revenue or expenditure. This is particularly true of building funds. In some cases it may not be necessary for trustees to go to the expense of having an annual audit. The Bill will allow the Governor in Council to prescribe classes of funds which do not need to have their annual financial returns audited.

[87]. Amends section 4A of the ANZAC Day Act 1958 to clarify that all of the money accruing to the ANZAC Day Proceeds Fund each year must be disbursed, and provides that the disbursement will occur in accordance with recommendations of the Victorian Veterans Council instead of the Patriotic Funds Council.

[88]. Makes Part 4 of the Bill a Consumer Act under the Fair Trading Act 1999.

[89]. Amends the Gambling Regulation Act 2003 to transfer to the Victorian Veterans Fund, on 1 September each year, one day’s average Community Support Fund gaming revenue from the previous financial year.

[91]. Amends the Shrine of Remembrance Act 1978 to clarify that the trustees of the Shrine of Remembrance can organise and conduct educational activities in the Shrine precinct relating to the military service of Australians.

The Bill amends the Shrine of Remembrance Act 1978 to clarify that the powers and duties of the trustees of the Shrine of Remembrance include an ability to conduct educational and exhibition activities in relation to military, peacemaking and peacekeeping service. This implements a recommendation of the 2002 SARC report.

[92]. Repeals the Defence Reserves Re-Employment Act 1995 and the Discharged Servicemen’s Preference Act 1943, and makes the Victorian Veterans Council the successor in law to the Defence Reserves Re-Employment Board which administered those Acts.

Water (Resource Management) Bill

Introduced: 5 October 2005
Second Reading Speech: 6 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Water

Purpose

The Bill amends the Water Act 1989 (the ‘Act’) to make further provisions for the sustainable management of the State’s water resources.

The Bill implements reforms contained in the Victorian Government’s White Paper—Our Water our Future released in 2004.

Part 2 of the Bill contains amendments to the Act to improve the planning and assessment of the State’s water resources and to establish an environmental water reserve. It also contains changes to the Minister’s powers to qualify rights.

Part 3 of the Bill contains amendments to the Act to introduce new entitlements and services to replace water rights, stock and domestic allowances and sales water in irrigation districts and ‘take and use’ licences and sales water in declared water systems. ‘Take and use’ licences, limited to a maximum term of 15 years, will continue to apply in undeclared water systems. Upon the declaration of a water system, existing entitlements will be converted into the new entitlements.

The Part also amends the Act to establish a Water Register and put in place a process for reconfiguring water distribution systems.

Content and Committee comment

[2]. Provides for the Act to come into operation on a proclamation, but no later than 1 August 2008 .

The unbundling of water rights in irrigation districts will have an impact on local government rates. Currently the value of a water right is included in the value of the land to which the water right is attached. The value of the water share created on conversion would not normally be included in the land valuation.

The government is concerned that there be time to allow the rating impacts to be properly assessed and managed. For this reason clause 73 of the Bill amends the Valuation of Land Act 1960 to keep the value of a water share in the value of the associated land until 1 July 2008 . This will allow affected councils time to develop appropriate rating strategies in consultation with their communities.

Delayed commencement provision.

The Committee notes the Minister’s statement in the Second Reading Speech and accepts that there may be circumstances where a delayed commencement may be necessary or justifiable.

[4]. Inserts new sections 4A and 4B relating to the establishment of an environmental water reserve set aside for environmental purposes. The Environmental Entitlements is a new concept established by amendments made by clause 24 of the Bill. The Environment Minister will hold the entitlement.

[10]. Amends section 22A enabling the Minister to make an Order to limit the amount of water that can be taken annually for consumptive purposes in an area.

[14]. Inserts a replacement Division 4 of Part 3, which sets out the Minister’s powers to qualify rights.

New section 33AA confers power on the Minister to temporarily qualify certain rights to water if a water shortage has been declared.

New section 33AB confers power on the Minister to permanently qualify certain rights to water. New section 33AC sets out the procedures, including the giving of notice, that apply to temporary and permanent qualifications.

[41]. Inserts a new Part 3A into the Act relating to water shares, one of the new entitlements to be created by the Bill.

Water shares are the primary entitlements to water for consumption in a declared water system. Water allocations are made in relation to each water share based upon the amount of water available in the relevant water system each water season, up to a maximum amount determined for the water share. The water share authorises the taking of water allocations, subject to other requirements or conditions upon the taking of water.

Water shares are generally able to be traded to any person, regardless of whether they propose to use the water. However, in order to ensure that there is sufficient water available on the market for irrigators and other persons who wish to use the water, a limit is placed upon the amount of water that can be held by non-water users in each water system (‘non-water user limit’). If the non-water user limit is exceeded, trading of water shares is restricted, with the aim of preventing any further growth in the amount of water held by non-water users in the system.

New section 33E creates an offence of taking water from specified sources in a declared water system unless authorised to do so under a water share or otherwise by or under the Act.

[54]. Inserts a new Part 4B into the Act. The new Part relates to water-use licences and water-use registrations. Water-use licences are required by persons wanting to use the water available to them under a water share for irrigation. Water-use licences are subject to any applicable standard water-use conditions made by the Minister.

[57]. Inserts a new Part 5A into the Act establishing the Victorian Water Register, setting out the information that must be recorded in the register, who will be responsible for making the recordings and what information will be available to the public. The Part sets out the powers and functions of the Registrar.

[58]. Replaces section 141 of the Act with a similar power allowing an Authority, in certain circumstances, to reduce or restrict the quantity of water supplied to a person, or discontinue the supply of water to a person. In limited circumstances, a person may apply to the Victorian Civil and Administrative Tribunal for a review of a decision under this section.

[59]. Inserts new section 155A, which imposes liability on an Authority to compensate an owner of a property that has ceased to be a serviced property by operation of a declaration under new section 161J, which is being inserted by clause 60.

[60]. Inserts a new Part 7A in the Act dealing with reconfiguration plans. A reconfiguration plan is defined to be a plan for the future capacity for a water Authority to provide services to properties within its district.

New section 161J confers power on an Authority to declare serviced properties to cease to be serviced properties. The effect of the declaration is that the owner is not entitled to receive a delivery service under new Part 11, inserted by clause 61.

[61]. Inserts a replacement Part 11 in the Act and sets out the functions, powers, responsibilities and obligations of a water Authority with an irrigation district that is supplied from a declared system.

[70]. Inserts new Schedules 12A and 12B into the Act. Schedule 12A sets out provisions related to recording mortgages and the powers of sale of a mortgagee. Schedule 12B sets out additional powers of the Registrar that are required for electronic lodgement of dealings with water shares.

[71]. Adds a new Schedule 15 into the Act which deals with the conversion of existing Part 11 rights (irrigation) into new rights.

[73]. Amends section 5A of the Valuation of Land Act 1960 to keep the value of a water share in the value of land specified in a water-use licence or water-use registration, where the water share is associated with the land.

Scrutiny of Acts and Regulations Committee

Alert Digest No 12 of 2005

Tuesday, 18 October 2005

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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)

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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)

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Committee Room 17 October 2005

Committee Room
17 October 2005