Alert Digest No. 13 of 2005

Introduced: 26 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

The purpose of the Bill is to promote the use by the police force of Victoria of appropriate and secure management practices for law enforcement data by —

Content and Committee comment

[2]. The Act will come into force on proclamation but not later than 1 July 2006.

[4 to 14]. Establishes the Commissioner for Law Enforcement Data Security and sets out the Office’s terms and conditions of appointment, powers, functions and other procedural matters.

[15]. Prohibits the Commissioner or any staff provided by the Chief Commissioner of Police, from divulging or communicating to any person any information obtained or received in the course or as a result of the exercise of his or her functions under this Act.

[17]. The Commissioner must make a report to the Minister by 30 September each year on the performance of the Commissioner’s functions, and the exercise of powers, under this Act and cause a copy of the report to be laid before each House of Parliament before 30 October in the year in which the report is given to the Minister.

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

Crimes (Family Violence)(Holding Powers) Bill

Introduced: 18 October 2005
Second Reading Speech: 19 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Crimes (Family Violence) Act 1987 (the ‘Act’) to provide police with holding powers in family violence situations. The powers allow a member of the police force to direct a person and in certain circumstances, detain a person who refuses or fails to comply with a direction.

Content and Committee comment

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

[4]. Inserts new Division 2 (new sections 8AA to 8AK) in the Act to create direction and detention powers for police in family violence situations.

New section 8AB provides that a member of the police force may direct a person under new section 8AC, or subsequently apprehend and detain a person under new section 8AD, where they have reasonable grounds for suspecting that the person is at least 18 years old; and believing that the exercise of these powers is necessary to ensure the safety of the aggrieved family member or to preserve their property.

Provides that if a member of the police force intends to make a complaint in respect of a person the member may direct the person, orally or in writing to —

At the time of giving the direction, the police member must inform the directed person that refusing or failing to comply with the direction may result in their apprehension and detention under new section 8AD, and that, if apprehended and detained under new section 8AD, it is an offence to escape or attempt to escape.

Note: Section 49E of the Summary Offences Act 1966 may apply to a person who escapes from lawful detention (maximum penalty – 2 years imprisonment) section 9AD(3) declares that section 479C of the Crimes Act 1958 (escape from lawful custody - maximum penalty – 5 years) does not apply to a person who escapes or attempts to escape from detention.

A member of the police force may use reasonable force to apprehend and detain a person directed under new section 8AC where that person refuses or fails to comply with that direction.

A person may be detained at a police station or other place. The section provides that a person may only be detained at a police gaol where the police member considers it is necessary for the protection of any person or property or to prevent the person escaping from detention.

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’.

Preventative detention of persons not charged with an offence – liberty of the person – right not to be subject to arbitrary arrest or detention – Whether detention is punitive or preventative in character – Doctrine of separation of powers

The Committee notes that the preventative detention of persons who have not committed any offence is a serious infringement upon common law rights and freedoms and International Human Rights Law – including the right to liberty and the presumption of innocence.

The Committee notes that the provisions in the Bill will permit the detention of persons at police stations and in certain circumstances in police gaols without any charge being laid against them. The Committee accepts that it is a serious and fundamental right of citizens not to be detained or arrested in circumstances where no unlawful conduct has occurred. The Committee notes the Minister’s remarks in the second reading speech that the direction and detention powers are intended to be used as a purely preventative measure and are not to be regarded as punitive in nature.

The Committee accepts that in considering the question whether the provisions trespass rights and freedoms and whether preventative detention is justifiable in all the circumstances, regard may be had to the following principles –

Is the proposed law –

adopted in pursuit of legitimate policy objects
logically connected to achieving the objects
reasonably tailored (proportionality) in achieving the objects
impairs rights to the minimum extent possible and
has adequate accountabilities / safeguards to avoid or minimise any abuse of any conferred powers

The Committee also notes the following extracts from High Court decisions relevant to preventative detention –

It is accepted that in some circumstances, it is valid to confer powers on both non-judicial and judicial bodies to authorise detention, for example, in cases of infectious disease or mental illness. These categories are not closed. Per Callinan and Heydon JJ in Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at 1561 [214].

‘The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature… depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed’. - Per Gummow J in Kruger v The Commonwealth (1997) 190 CLR 1 at 162

The separation of powers

A further consideration is to whether the proposed law intends to infringe the separation of powers between the executive and the judiciary which prevents the executive arm of government from imposing punitive sanctions without trial or conviction by the courts. The Committee considers that the characterisation of the proposed law as preventative rather than punitive is critical in a proper consideration whether the law may constitute a trespass to the doctrine and thus erode the fundamental constitutional rights of judicial independence.

The question whether the detention powers are reasonable, proportionate, meet legitimate objectives and whether they constitute a minimum intrusion on the rights and freedoms of a person are matters for the consideration and determination of the Parliament.

Accountability / oversight of the use and incidence of the detention powers

It is not clear to the Committee whether there is any ‘reporting’ oversight or accountability concerning the incidence and use of the power to detain a person at a police station or gaol. As detention in a formal custodial environment is a serious matter impacting on a person’s rights and freedoms the Committee will seek further information from the Attorney-general concerning oversight of police powers under these new provisions.

Pending further advice the Committee draws attention to the provisions.

A member of the police force must inform the detained person of certain persons they may communicate or attempt to communicate with, and a prescribed form to be given to the detained person containing prescribed information about their rights and responsibilities under the new holding powers procedures provided by the Bill.

The persons with whom they may communicate or attempt to communicate are a friend or relative (other than the aggrieved family member) to inform them of their whereabouts; and a legal practitioner.

If a detained person wishes to communicate with any of these people, a member of the police force must afford the person reasonable facilities as soon as practicable to enable the communication; and allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances where, as far as practicable, the communication will not be overheard. The provisions also include access to a competent interpreter for persons who do not have knowledge of the English language sufficient to enable them to understand the reason for the direction or detention.

A police member does not have to comply with the communication provisions in the Bill if the member reasonably believes that such communication may endanger the aggrieved family member or their property.

The duration of the direction power, inclusive of the detention power if it has been invoked, is 6 hours from the time the initial direction is given, or for a further period if ordered by a court under new section 8AG. A further period ordered by the court under new section 8AG may not allow the total period of direction, inclusive of any detention period, to continue beyond 10 hours.

A direction or detention power ceases upon any one of a number of circumstances. These circumstances are—

A direction or detention power also ceases where an intervention order, an interim intervention order or a warrant under the Act is refused.

Extension of direction or detention order in exceptional circumstances – 8AG

A member of the police force may apply to the court for an extension of the period of the direction or detention power beyond 6 hours. The application must be made within 6 hours after the direction is given and the court may only grant an extension of time where satisfied that there are exceptional circumstances. The extension of time must not be for a period that would cause the total period of direction, inclusive of any detention period, to continue beyond 10 hours.

New section 8AH provides for the application to the court for an extension of the period of the direction, or detention power, to be made by telephone or facsimile machine.

New section 8AI requires police to notify the person under the direction power or detention power when such power ceases and immediately release the person if they are detained.

New section 8AJ prohibits police from interviewing or questioning a person under the direction or detention power in relation to any offence or alleged offence.

A court may, if practicable, hear a person who is under the direction or detention power, or an aggrieved family member, or both, on the hearing of a complaint for an intervention order or interim intervention order; and an application for an extension order under section 8AG.

[6]. Amends section 18AB of the Act to extend the power of police to enter and search premises where they reasonably believe a person is refusing or failing, or has refused or failed, to comply with a direction

Duties and Land Tax Acts (Amendment) Bill

Introduced: 25 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Duties Act 2000 to provide a duty exemption for equity release programs and to amend the land rich duty provisions and the motor vehicle duty provisions. The Bill also amends the Land Tax Act 1958 and the Land Tax Act 2005 to introduce a new regime for the payment of land tax on land held on trust and to make minor technical amendments.

Content and Committee comment

[2]. Other than section 4 and Part 4 the provisions in the Bill come into operation on the day after Royal Assent. Part 4 comes into operation on 1 January 2006.

… as announced on 16 June 2005 there will be an exemption from duty for arrangements where senior Victorians enter into equity release programs with financial institutions. These programs are designed to give older people with limited funds access to equity tied up in their homes. Under these programs the customer can continue to live in their own home and continues to own the majority of their home. The financial institution does not realise their share of the proceeds until after the home is sold. The stamp duty exemption will apply for all transactions entered into from 15 June 2005.

The Committee notes that the retrospective operation of the amendments made by section 4 are beneficial to certain taxpayers.

[4]. Inserts a new section 55 into the Duties Act 2000 to provide that no duty is chargeable in respect of a transaction taking place on or after 15 June 2005 under an equity release program that results in a change in beneficial ownership.

[13]. Substitutes a new section 233 of the Duties Act 2000 and inserts new sections 233A to 233H. The effect of these new sections is to relocate into the Act the exemptions from duty that are currently contained in the Road Safety (Vehicles) Regulations 1999.

[18 to 31]. Parts 3 and 4 of the Bill insert a new model for taxing land held in a trust, which will apply from 2006 onwards. Part 3 amends the Land Tax Act 1958 and Part 4 inserts corresponding provisions into the proposed Land Tax Act 2005. It is necessary to amend both theses Acts as the Bill for the Land Tax Act 2005 is still before the Parliament.

The key elements of the new land tax trusts model are summarised in the Treasurer’s Second Reading Speech and also in the explanatory memorandum.

Gambling Regulation (Miscellaneous Amendments) Bill

Introduced: 18 October 2005
Second Reading Speech: 19 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill amends the Gambling Regulation Act 2003, the Gambling Regulation (Further Amendment) Act 2004 and the Casino Control Act 1991 to enhance the regulatory role of the Victorian Commission for Gambling Regulation and for other miscellaneous purposes.

Content and Committee comment

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

[4]. Amends sections 3.5.33(1) and (2) of the Act by prohibiting any payment of gaming machine winnings exceeding $2000 to be payable by cheque made out to cash.

[5]. Amends section 5.7.4 of the Act providing that the Commission must refuse an application to conduct a trade promotion lottery if, in the Commission's opinion, the proposed trade promotion lottery is offensive or contrary to the public interest.

[6]. Inserts new sections 8.3.11A and 8.3.11B to provide for the investigation of a community or charitable organisation to determine whether or not it should continue to be a declared organisation and the provision of information to the Commission.

Health Professions Registration Bill

Introduced: 26 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Sherryl Garbutt MLA
Minister responsible: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

This Bill seeks to introduce a common system of registration for health practitioners, and a common system for investigations and hearings relating to professional performance, professional conduct and ability to practise of registered health practitioners.

Currently, there are 12 different Acts and regulations relating to the registration of 12 different types of health practitioners in Victoria. These legislative schemes are similar, but not the same. This Bill will repeal those different pieces of legislation and replace them with a common system that covers requirements for registration, types of registration and endorsements of registration. In addition, the Bill will introduce revised definitions of "professional misconduct" and "unprofessional conduct" and introduce a common system for the making of complaints (notifications) in respect of health practitioners. The new system for the carrying out of investigations provides for investigations into professional performance, professional conduct and health related issues. Hearings on behalf of a board following an investigation may be held by a professional standards panel or a health panel appointed by the relevant board.

If the matter raises serious concerns about a registered health practitioner's professional performance, conduct or ability, such as when cancellation of registration may be warranted, the matter is to be referred to VCAT.

The Bill also provides for the registration of students in relation to each of the 12 health professions included in the Bill. Notifications may be made with respect to students and a health panel or VCAT may hear matters concerning a limited range of issues affecting students.

The Act will also establish the Medical Radiation Practitioners Registration Board.

Content and Committee comment

[2]. Sections 1 and 171(2) come into operation on Royal Assent. The remaining provisions of the Act come into operation on proclamation but not later than by 1 September 2007.

The Committee notes that the Act will repeal 11 existing health profession registration Acts and notes the memorandum provided by the Department of Human Services concerning the need to use a delayed commencement provision in the circumstances.

[4 to 35]. Provide that an application for registration as a health practitioner may be made to the responsible board that registers that kind of health practitioner. The provisions deal with qualifications, student registration, provisional and interim registration, professional indemnity, renewal and suspension of registration.

[36]. Places an obligation on a registered medical practitioner to notify a responsible board about the ability to practise of a registered health practitioner or student in circumstances where the person has seriously impaired ability to practice that may place the public at risk.

[54]. Sets out the procedure to be followed if a panel requires a health practitioner or student to undertake a health assessment, including that a health practitioner appointed by the panel must carry out the assessment.

[73]. A panel must give reasons for a determination made to the health practitioner or student and a person whose interests are affected by a determination may apply to the panel for the reasons. The panel must give the reasons to the person unless the panel decides it is not in the public interest to do so.

[76]. Sets out when the responsible board must make an application to VCAT for an order in respect of a health practitioner or student, and when the responsible board has a discretion to make such an application.

[77]. Sets out the findings that VCAT may make with respect to a health practitioner after completing a hearing under this Division.

[78]. A health practitioner affected by a range of decisions, findings or determinations may apply to VCAT for review of that decision, finding or determination.

[80]. Creates various offences relating to registration, including claims as to registration held, qualifications, and use of particular titles. [83]. Creates offences relating to registration or endorsement of registration being obtained or procured by fraud, false representation or forgery.

[95]. The Governor in Council, on the recommendation of the Minister may issue guidelines about minimum standards with respect to the advertising of regulated health services, where such guidelines are formulated by the responsible board and approved by the Minister.

[100 to 117]. Provides for specific provisions in respect to ownership of pharmacy businesses, and lists who may or may not own or have a proprietary interest in a pharmacy business.

[117 to 138]. Provides that the responsible boards referred to in Schedule 1 of the Act are established* or continued in operation under this Act, and sets out the characteristics of the boards as corporate bodies. The sections deal with membership, powers and functions of the respective boards. *The Medical Radiation Practitioners Registration Board is established by this Bill.

[131]. Immunity – No personal liability attaches to a member of a responsible board, the registrar and panel members appointed by a responsible board for acts and omissions done in good faith in the exercise of powers or discharge of duties under this Act, or acts or omissions done in the reasonable belief that they were in the exercise of such powers or discharge of such duties. Any liability resulting from an act or omission attaches instead to the responsible board.

[133]. Delegation – A responsible board may delegate certain powers and functions under the Act to a member of the responsible board or the person responsible for maintaining the register or any other member of the staff of the responsible board.

[147]. Warrant to enter and search – A person appointed by a responsible board may apply to a magistrate for the issue of a search warrant in relation to particular premises if the person believes, on reasonable grounds, that there is or has been a contravention of the Act or regulations on the premises, or that entry into the premises is necessary to investigate a notification which could provide grounds for suspension or cancellation of registration or the revocation of an approval.

[154]. Privilege against self-incrimination – abridged in certain respects – The privilege against self-incrimination does not apply to documents required to be kept under the Act or to the requirement under section 101(7) of the Act (disclosure of information as to ownership or proprietary interest in a pharmacy).

[158]. The Governor in Council may make regulations with respect to a number of matters to give effect to the purposes of the Act.

[165]. Establishes the Medical Radiation Practitioners Registration Board of Victoria as a body corporate and as a responsible board for the purposes of this Act.

[172]. The registers of the responsible board established under a repealed provision are deemed to be the registers of the corresponding responsible boards for the purposes of this Act.

Investigative, Enforcement and Police Powers Acts
(Amendment) Bill

Purpose

Content and Committee comment

[2]. The provisions in the Bill, other than Parts 4, 9 and 10, will come into operation on the day after Royal Assent. Parts 4 and 9 come into operation on a day to be proclaimed. Part 10 will come into operation on 1 July 2006 if it is not proclaimed earlier.

This open-ended commencement is consistent with the commencement of relevant related provisions of the Telecommunications (Interception) (State Provisions) Act 1988, the Surveillance Devices (Amendment) Act 2004, the Crimes (Assumed Identities) Act 2004 and the Crimes (Controlled Operations) Act 2004. It will allow these amendments to come into operation in concert with certain Commonwealth amendments and Commonwealth/State implementation arrangements.

[3]. Extends the purpose of the Act to "security purposes" and "related activities" to allow security agencies to utilise the assumed identities regime set up under the Act through use of its mutual recognition provisions.

[5]. Extends the application of section 10 (making entries in the register) to security agencies who will be able to make application to the Victorian Supreme Court for an order that the Registrar of Births, Deaths and Marriages make an entry (or cancel an entry) in the of Births, Deaths and Marriages Register, in relation to an assumed identity.

The Bill provides Commonwealth security agencies with access to 'assumed identities' provided by State documentation, such as birth certificates and drivers licences. This complements the model legislation agreed to be adopted by all Australian jurisdictions in relation to law enforcement agencies, allowing security agencies to acquire and use assumed identities in order to gather intelligence for national security purposes.

[9 and 10]. Amongst other matters the Act grants authority to the Office of Police Integrity to use surveillance devices. The authority is subject to certain controls and reporting functions which applies to all agencies. The amendments made in the Bill transfer the proposed Ombudsman's oversight role to the Special Investigations Monitor, who will be the “relevant monitor” for all Victorian agencies using surveillance devices and controlled operations.

The Bill transfers responsibility for monitoring police use of telephone interception powers from the Ombudsman to the Special Investigations Monitor, who already was assigned the responsibility of monitoring the Director and his office's use of such powers. This transfer addresses the Commonwealth's perceived conflict of interest between the use of such powers by the Director, Police Integrity, and the monitoring of the use of such powers by the Ombudsman.

For its part, the Commonwealth government last month introduced legislation into the Federal Parliament -- the Telecommunications (Interception) Amendment (Stored Communications) and Other Measures Bill 2005 -- including the Office of Police Integrity as an eligible authority for the purposes of the Commonwealth Telecommunications (Interception) Act 1979.

The Office of Police Integrity will now be authorised for certain defined 'permitted purposes' to collect and use information by use of a telecommunications device.

[13]. Amends section 6A to prevent the Chief Commissioner from delegating to another person the power to declare an incident requiring urgent cross-border assistance or to extend such a declaration.

[16]. Inserts a new Part VC (sections 102L to 102U) dealing with the appointment of special constables generally or in urgent situations. Special constables are police members from other jurisdictions who can also be appointed to be members of the Victorian force and exercise police powers in Victoria. They can be used in border locations or for urgent assistance if needed to support Victorian police members.

Section 102L provides power to the Chief Commissioner to appoint special constables who must be serving police members of another jurisdiction.

Section 102M provides that, before a special constable can exercise police powers in Victoria, he or she must take an oath or affirmation.

Section 102N provides that a special constable has all the powers and privileges of a constable at common law or under any Act.

Section 102O provides power for the Chief Commissioner to terminate the appointment of a special constable at any time and requires certain notification to be given of the termination.

Section 102P sets out the powers of the Chief Commissioner to conduct an investigation into whether a special constable may have committed a breach of discipline or committed a criminal offence.

Section 102Q provides power for the Chief Commissioner or a Deputy Commissioner to declare an incident to be an incident requiring urgent cross-border assistance. This power cannot be delegated.

Section 102R provides that a declaration remains in force for 14 days and can be extended once only, for a further period of 14 days.

Section 102S sets up a streamlined appointment process to allow urgent assistance to be provided by special constables in the event that it is necessary. It is not necessary to take the oath or affirmation before acting in the office of special constable and appointments cease after the declaration period ceases.

Section 102T enables a special constable appointed during a period in which a declaration under Division 2 is in force to act in the office of special constable without first having taken an oath or made an affirmation of office. However, the oath or affirmation must be taken or made as soon as practicable after his or her appointment.

Section 102U sets a default termination date for special constables appointed during a period when a declaration under Division 2 is in force, unless terminated sooner.

[24]. Inserts new Part 2A (new sections 9A to 9E) to provide for the functions of the Office of Police Integrity under the Act.

The Office of Police Integrity will be required to keep records in relation to the issue of warrants and other matters in connection with interceptions and to report to the State Minister in relation to the issue and revocation of warrants and the use that has been made of the information obtained under those warrants. The Part requires that the State Minister provide the Commonwealth Minister with copies of all warrants and reports provided to the State Minister; and places requirements on the Director in relation to the keeping and destruction of restricted records.

[25]. Substitutes a new Part 3 into the (new sections 10 to 20C) to provide for the functions of the Special Investigations Monitor (SIM) under the Act. The SIM will now oversee both Victoria Police and the Office of Police Integrity in relation to telecommunications intercepts.

New section 18 sets out the SIM's general powers of inspection, including the power to enter, access records, copy and make extracts of records and require staff to provide information.

New section 19 sets out the powers of the SIM to obtain relevant information, including the power to require information, by notice in writing, and to require attendance at a specified time and place to answer questions.

New section 20 provides that a person is not excused from giving information to the SIM on the grounds that it would contravene a law, or not be in the public interest or tend to incriminate the person. However, any self-incriminating information provided is subject to a use immunity for the person who provided it.

New section 20A permits dealing with information for the purposes of inspection and report, despite the provisions of any other law.

New section 20B provides immunity for the SIM in the exercise of these functions.

New section 20C makes provision for delegation by the SIM to another inspecting officer.

[30 to 33]. Inserts a new Part 5 in Schedule 7 of the Act to set out procedures in relation to the payment of infringement fines by instalments (payment plan) through a centralised payment facility to be established in the Department of Justice.

The Bill provides that an agency must offer instalment payment plans to people where there is financial hardship. It also establishes the powers and mechanisms for the Department of Justice to offer agencies a centralised facility for managing instalment plans, which agencies can choose to use, or establish their own facility. …

The eligibility criteria for instalment plans will include people on a Commonwealth benefit or who have a health care card, and these criteria will be prescribed by regulation. The bill also proposes a general provision for people whose circumstances warrant consideration. For example, people in financial difficulty who are not on a benefit could make a case to the issuing agency to pay outstanding fines by instalment.

Prahran Mechanics’ Institute (Amendment Bill

Introduced: 25 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister Responsible: Hon. Candy Broad MLC
Portfolio responsibility: Minister for Local Government

Purpose

The Bill amends the Prahran Mechanics' Institute Act 1899 (the ‘Act’) firstly, to alter the composition of the governing committee of the Institute and secondly, to validate certain decisions of the governing committee of the Institute.

The Act provides for the incorporation of the Prahran Mechanics' Institution and Circulating Library (‘the Institute’) and for the establishment of a governing committee of 9 members including the Mayor of the City of Prahran and 4 persons elected by that municipal council. The City of Prahran and the City of Malvern were abolished in 1994 and replaced by the Stonnington City Council. The Act as amended by the Bill will refer to the new Council, reduce the membership of the governing committee to 7 and will reduce council representation on the governing committee to 1 Council appointee.

Content and Committee comment

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

[4]. Repeals sections 6(1) and 6(2) which originally set out the membership of the governing committee. They are replaced with sub-sections (1), (2), (2A) and (2B) to provide that the governing committee is to have a membership of seven with one being appointed by the Stonnington City Council (for a term specified by the Council) and six are to be elected by the members of the Institute.

[5]. Substitutes a new section 7 that provides for the filling of extraordinary vacancies on the governing committee of the Institute.

[8]. Inserts a new section 15 to declare that the actions of the governing committee prior to the enactment of the provisions in the Bill are deemed to be validly done as if the governing committee had been validly constituted at the time. This limited validation ensures that the previous actions of the governing committee cannot be queried simply on the basis of an error in the constitution of the committee.

Road Safety and Other Acts (Vehicle Impoundment and
Other Amendments) Bill

Purpose

(b) makes consequential amendments to the Children and Young Persons Act 1989, the Children, Youth and Families Act 2005, the Magistrates' Court Act 1989 and the Crimes Act 1958 to expand the definitions of ‘sentencing order’ and ‘sentence’; and

(d) amends the Bail Act 1977, the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991 and the Working with Children Act 2005 to make reference to new Commonwealth drug offences and to make consequential amendments.

Content and Committee comment

[2]. Parts 1, 4 and 5 come into operation on the day after Royal Assent. Part 2 and Part 3 (except section 8) commence on proclamation but not later than by 1 July 2006.

Section 8 comes into operation on the day on which section 3 of the Children, Youth and Families Act 2005 comes into operation.

[3]. Inserts a new offence (new section 65A) of “improper use of a motor vehicle”. The offences target persons who drive in a manner that causes loss of traction by one or more of the motor vehicle's wheels. It is a defence to a charge for this new offence to prove that the loss of traction was involuntary.

[4]. Inserts a new Part 6A (new sections 84C to 84ZS) which establishes a motor vehicle impoundment, immobilisation and forfeiture regime in Victoria.

New section 84F accords Victoria Police members new powers to take certain actions in relation to motor vehicles under the motor vehicle impoundment, immobilisation and forfeiture regime.

New section 84G sets out how the power to seize a motor vehicle under new section 84F can be exercised.

New section 84H sets out a process by which Victoria Police may demand the surrender of a motor vehicle so that it may be impounded or immobilised.

New section 84I confers powers on police members to physically effect the impoundment or immobilisation of seized or surrendered motor vehicles. Police members may do anything reasonably necessary to impound or immobilise the motor vehicle, including moving it to a holding yard and impounding it or immobilising it for the balance of the designated period.

New section 84O allows an application to be made to the Magistrates' Court for an order that an impounded or immobilised motor vehicle be released.

New section 84Q provides for the recovery of impounded or immobilised motor vehicles upon the expiry of the designated period.

New section 84T empowers the relevant court to order that a motor vehicle used in the commission of a third or subsequent offence be forfeited to the Crown.

New section 84V creates a substitution process whereby the Chief Commissioner of Police may seek an impoundment, immobilisation or forfeiture order against a motor vehicle registered in the offender's name, rather than that used in the commission of the relevant offence.

New section 84ZA allows a person whose interests are substantially affected by an impoundment, immobilisation or forfeiture order to apply to a court for the variation of such order.

New section 84ZF provides a mechanism by which a person, other than the driver, who has an interest in a motor vehicle in respect of which a forfeiture order has been made, may apply to a court for an order that ownership of the motor vehicle be transferred to them (if they are the sole owner), or that they be paid out of the proceeds of sale an amount commensurate with the extent of their interest in the motor vehicle (if they are not the sole owner of the motor vehicle or if the motor vehicle has already been sold).

New section 84ZG provides that a police member can apply in writing to a magistrate for a search and seizure warrant in respect of a motor vehicle that is the subject of an impoundment, immobilisation or forfeiture order. New section 84ZM extends the application of the Magistrates' Court Rules with respect to search warrants to those issued under this Division, unless this Division otherwise specifies.

New section 84ZQ allows the Chief Commissioner of Police to sell or otherwise dispose of a motor vehicle or any item left in a motor vehicle which has not been collected within two months of the motor vehicle becoming available for collection or release from impoundment or immobilisation.

[6]. Amends Schedule 2 to the Act to allow Regulations to be made with respect to various matters in relation to impoundment, immobilisation or forfeiture.

[11]. Amends section 56AF of the Commonwealth Games Arrangements Act 2001 to provide that an authorised officer may remove a vehicle from a Games management area and the Secretary may also recover the costs of doing so.

[13 to 16]. The Commonwealth Parliament has recently enacted the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005. Among other things, that Act repeals certain existing drug offences under the Customs Act 1901 (Cth) and amends the Commonwealth Criminal Code by inserting new drug offences including offences dealing with the importation and exportation of illicit drugs. These clauses amend various Victorian Acts which refer to the former drug offences in the Customs Act 1901 (Cth) to reflect these changes to Commonwealth laws. The Victorian Acts amended are the Bail Act 1977, the Drugs and Controlled Substances Act 1981, and the Sentencing Act 1991.

Superannuation Legislation (Governance Reform) Bill

Introduced: 26 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Minister responsible: Hon. John Lenders MLA
Portfolio responsibility: Minister for Finance

Purpose

The Bill amends the Emergency Services Superannuation Act 1986 and a number of other Superannuation Acts to –

As a consequence of this Bill, from 1 December 2005 all of the administrative functions for Victoria's public sector superannuation schemes will be the responsibility of one entity. This means one board accountable to members and government. This is logical and makes economic sense.

A single administrator with a single management structure provides considerable opportunities for cost savings. It allows for the reduction of duplication in areas of IT, accounting, legal, and other consulting services and addresses the diseconomies associated with the declining membership of the State Superannuation Fund.

From the perspective of members, a single larger entity will be better placed to meet the needs of members moving forward.

Importantly, safeguards have been put in place to ensure that no member's benefit will be affected by the integration.

Content and Committee comment

Transport Legislation (Further Miscellaneous Amendments) Bill

Introduced: 18 October 2005
Second Reading Speech: 19 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

Content and Committee comment

[2]. Other than the specified Parts and sections the provisions in the Bill come into operation on the day after Royal Assent. Part 4, Division 1 of Part 9 and sections 9, 11, 12, 34, 35, 40 to 47 come into operation on a day to be proclaimed but not later than by 1 January 2007.

[4 and 5]. Provides that the Mitcham-Frankston Freeway is to be known as “EastLink” and inserts a savings provision into the Mitcham-Frankston Project Act 2004 to ensure that the change made to the name of the Act by the Bill has automatic effect in all documents.

[9]. Amends various provisions of the Rail Corporations Act 1996 to make provision for the change of name of Spencer Street Station to Southern Cross Station and of the Spencer Street Station Authority to the Southern Cross Station Authority.

[17]. Inserts section 89(8) into the Road Safety Act 1986, which provides that despite anything to the contrary in section 89, the fact that a person has paid an infringement penalty, or has been found guilty, participated in a diversion program or had a conviction imposed by a court in respect of an infringement for which an infringement notice was served may be recorded and used to exclude the person from a scheme to provide discounted fees to good drivers.

[18]. Substitutes section 92(3)(h) of the Road Safety Act 1986, so that information held by VicRoads (that is, from its vehicle registration and driver licencing database) may be disclosed to an enforcement agency in another jurisdiction for the purposes of enforcing an infringement penalty for an offence allegedly committed by a Victorian in that jurisdiction.

The amendments permit the main elements of public transport ticketing law to be re-framed and consolidated in regulations, to re-cast a number of key offence provisions and to make changes to the way in which conditions under which public transport services can be used may be determined.

New section 220A replaces and strengthens the existing section 221(5) covering fraudulent and similar activities.

New section 220B introduces new offences of counterfeiting or altering a ticket or other thing that can be used to prove an entitlement to use a public transport.

New section 220C replaces an existing offence relating to claiming or taking the benefit of an exemption or concession when not entitled to do so.

[25]. Replaces the existing section 221AA with a new section which establishes a comprehensive set of empowering provisions to support regulations in relation to the use of public transport services.

[27]. Makes a number of substantive and consequential amendments to make it possible for the Bus Association Victoria to be accredited to employ or engage authorised officers and for people so employed or engaged to be authorised as authorised officers and to ensure that a person so employed or engaged may, if authorised to do so, bring proceedings for ticket offences.

[32]. Amends section 9C to confer on the Director of Public Transport powers to require the felling and removal of, or to fell and remove, any tree or wood on grounds relating to the safety of a railway track operated or maintained by the Director on behalf of the Crown.

[40]. Amends section 218B of the Act relating to the power of an authorised officer or a member of the police force to require a person to state his or her name and address.

[41]. Inserts a new section 220AA in the Act to create an offence of giving to an authorised officer or a member of the police force or one of a number of other specified classes of person, information that is relevant or possibly relevant for the purposes of the Division (including for the purposes of any relevant regulations) and that the person giving the information knows or believes to be false.

[43]. Inserts a new section 224 into the Act to constitute the main offence in the Act in relation to the deliberate or reckless provision of false or misleading information or deliberately or recklessly engaging in misleading or deceptive conduct.

Workplace Rights Advocate Bill

Introduced: 25 October 2005
Second Reading Speech: 27 October 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Minister responsible: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Industrial Relations

Purpose

The Bill establishes the Office of the Workplace Rights Advocate (WRA) to provide information about, and promote and monitor the development of, fair industrial relations practices in Victoria.

Content and Committee comment

[2]. The Act comes into force on proclamation but not later than by 1 March 2006.

[5 to 7]. Sets out the functions and powers and terms of appointment of the WRA and allows the Minister to appoint an Acting WRA and allows staff to be employed under Part 3 of the Public Administration Act 2004 to enable the WRA to perform functions under the Act.

[9]. The WRA may delegate to any person employed under Part 3 of the Public Administration Act 2004, other than the power of delegation.

[12]. An employer or other person must not victimise a worker or a person associated with a worker where a worker has provided the WRA with any information or has exercised any right they may be entitled to under the Act. The clause also defines what may constitute victimisation.

[13]. The Governor in Council may make regulations to give effect to the purposes of the Act.

[14]. The State Services Authority must conduct a review of the WRA to determine whether its powers and functions remain appropriate.

[15]. Inserts a new sub-section into the Victorian Civil and Administrative Tribunal Act 1998 to allow the WRA to intervene in a proceeding of that Tribunal.

Scrutiny of Acts and Regulations Committee

Alert Digest No 13 of 2005

Tuesday, 15 November 2005

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Commissioner for Law Enforcement Data Security Bill

Purpose

Content and Committee comment

Crimes (Family Violence)(Holding Powers) Bill

Purpose

Content and Committee comment

Duties and Land Tax Acts (Amendment) Bill

Purpose

Content and Committee comment

Gambling Regulation (Miscellaneous Amendments) Bill

Purpose

Content and Committee comment

Health Professions Registration Bill

Purpose

Content and Committee comment

Investigative, Enforcement and Police Powers Acts
(Amendment) Bill

Purpose

Content and Committee comment

Prahran Mechanics’ Institute (Amendment Bill

Purpose

Content and Committee comment

Road Safety and Other Acts (Vehicle Impoundment and
Other Amendments) Bill

Purpose

Content and Committee comment

Superannuation Legislation (Governance Reform) Bill

Purpose

Content and Committee comment

Transport Legislation (Further Miscellaneous Amendments) Bill

Purpose

Content and Committee comment

Workplace Rights Advocate Bill

Purpose

Content and Committee comment