Scrutiny of Acts and Regulations Committee

Alert Digest No 1 of 2005

Tuesday, 22 February 2005

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Channel Deepening (Facilitation) Bill

Introduced: 7 December 2004
Second Reading Speech: 9 December 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The primary purpose of this Bill is to facilitate the deepening by the Port of Melbourne Corporation of the channels, which serve the port. The Bill also amends the Port Services Act 1995 relating to wharfage and channel fees.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 30 come into operation on the day after Royal Assent the remaining provisions come into force on proclamation.

[5]. Defines the project as being a reference to the project for the deepening of channels providing shipping access to the Port of Melbourne.

[7]. Extends the existing functions vested in the Port of Melbourne Corporation by the Port Services Act 1995 to include the function of planning for, providing for or enabling provision for, managing, directing, controlling and carrying out the channel deepening project.

[9]. Empowers the Minister, on the recommendation of the Port of Melbourne Corporation to declare by Order published in the Government Gazette the whole or any part of the port of Melbourne waters or relevant port of Melbourne land, as defined in the clause, to be a "designated access area".

[12]. Requires an Order made under section 9 to be published in a newspaper and in a manner readily accessible to a person likely to enter the area.

[13]. Empowers the Port of Melbourne Corporation to authorise any of its officers, employees or contractors and any workmen, vehicles, vessels or equipment to enter any part of a designated access area.

[15]. Gives the Port of Melbourne Corporation the ability to warn a person to leave any part of a designated access area and deems the Corporation to be the occupier of the land for the purposes of section 9(1) of the Summary Offences Act 1966 (wilful destruction of property).

[16]. Makes it an offence for any unauthorised person to enter into or remain in any part of a designated access area.

[18]. Creates two offence provisions relating to interference with activities.

[19]. Makes it an offence for a person in a designated access area not to produce a certificate of authorisation, or to give his or her name and address to a member of the police force. The offence has a penalty of five penalty units.

[20]. Allows a member of the police force to remove a person from a designated access area if an assembly is being carried on in a manner involving unlawful physical violence or if because of the number of persons involved, it is impractical to preserve or maintain order by arresting the person or persons committing such an offence. In removing a person from a designated access area, the member of the police force may use such force as is reasonable in the circumstances. These powers are in addition to the powers of arrest that a police member has under any other law.

[24]. Provides an immunity to the directors of the Port of Melbourne Corporation, and officers and employees of the Corporation when acting under a works declaration made under proposed clause 22 from personal liability. The immunity for the directors, officers and employees of the Corporation will only apply to anything done or omitted to be done in good faith in the exercise of a power or the discharge of a duty under a works declaration or in the reasonable belief that the act or omission was in the exercise of the power or discharge of the duty under a works declaration. Any liability that does not attach to a director, officer or employee, attaches instead to the Corporation.

[26]. Precludes any appeals, or any proceedings by way of certiorari, prohibition, mandamus, or quo warranto, or the grant of a declaration or injunction against a decision made by a Minister acting under the legislation, section 40 of the Coastal Management Act 1995, or section 97F of the Planning and Environment Act 1987 in relation to the project. (Refer to section 85, Constitution Act 1975 report below).

Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[28]. Declares that it is the intention of the proposed section 26 to alter or vary section 85 of the Constitution Act 1975.

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

Clause 26 of the Bill precludes any appeal against a decision of the Minister under this Act concerning works declarations or declarations of designated access areas or decisions of other Ministers under the Coastal Management Act 1995 or the Planning and Environment Act 1987 relevant to the channel deepening project.

The clause also precludes any proceedings being taken by way of certiorari, prohibition, mandamus or quo warranto or the grant of an injunction or any order under the Administrative Law Act 1978.

These provisions are considered vital to ensure that no action can be taken in the courts which might have the effect of delaying the project.

The channel deepening project is one of the most important infrastructure projects to be undertaken in Victoria. Not only will it require a substantial investment of capital but it will also involve the deployment of large dredges from overseas under contract to the Port of Melbourne Corporation.

It follows that any unnecessary delays which may impact on the availability of the dredges could put the viability of the project at risk.

The proposed statutory prohibition on the use of injunctions and similar actions will not affect the other rights which aggrieved parties are capable of exercising, such as the right to pursue fair and reasonable compensation for any actionable loss which may be attributed to the project. For example, government is concerned to protect the right of businesses operating in the bay such as aquaculture, tourism, diving and fishing to seek compensation for any such losses arising from this project.

On this basis the clause is considered to represent a reasonable balance between the interests of the public in ensuring that the work is carried out without disruption and the other rights of parties who may be affected by the project.

[29]. Provides a regulation making power to give effect to the Act.

[30]. Provides for the expiry of the Act on 31 December 2010.

The Committee notes this extract from the explanatory memorandum –

As it is intended that the project will be finalised by this date, the Act will no longer be required.

The Committee makes no further comment

Corrections (Transition Centres and Custodial Community Permits) Bill

Introduced: 7 December 2004
Second Reading Speech: 8 December 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Corrections

Purpose

The Bill amends the Corrections Act 1986 (‘the Act’) to provide for the establishment of transition centres and to provide for separate types of custodial community permits.

Content and Committee comment

[Clauses]

[2]. The Bill commences on the day after Royal Assent. Any unclaimed provisions which do not come into operation before 1 August 2005 commence operation on that day.

[4]. Ensures that references to prisons include transition centres.

[5]. Establishes community transition centres. The Governor in Council may by Order published in the Government Gazette appoint any premises or place to be a transition centre.

The Committee notes the comments in the Second Reading Speech –

A site at Jeffcott St, West Melbourne (adjacent to the Melbourne Assessment Centre) has now been selected as the site of the 25-bed male CTU and it is anticipated that the facility will be constructed by the end of the 2005-06 financial year.

The CTU will not be a mini-prison. The CTU will be a non-institutional correctional facility managed by Corrections Victoria that will provide safe and secure custody of its residents while promoting positive behaviour change and responsible, supported engagement in the community.

[6]. Inserts section 56AC which provides for the transfer of prisoners to and from transition centres. It sets out the criteria which must be satisfied before the Secretary can direct that a prisoner be transferred to a transition centre.

[7]. Substitutes existing section 57 of the Act with new sections 57-57D. The Secretary may issue the following custodial permits to prisoners.

• A corrections administration permit;

• A rehabilitation and transition permit;

• A fine default permit.

New section 57A specifies the purposes for which the Secretary may issue a corrections administration permit. The duration of the permit is limited to 3 days, except in 2 specified cases.

New section 57B specifies the purposes for which the Secretary may issue a rehabilitation and transition permit. The permit may be issued for a period of up to 30 days.

New section 57C regulates the issue of a fine default permit to require a person to carry out community work. The permit may only be issued to a person who is the subject of a penalty enforcement warrant or who failed to pay a monetary penalty or an instalment under an instalment order. The permit may be issued for the whole, or remaining part, of the term for which the person was to be imprisoned.

New section 57D sets out provisions which apply to all custodial community permits. The Secretary must be satisfied that adequate consideration has been given to the safety and welfare of the prisoner and members of the public and that facilities exist for the provision of adequate and suitable escort and transport where necessary.

[8]. Makes consequential amendments to the Act. In particular, the clause amends existing sections 6C(1) and 6E so that a person who is absent from a prison under a fine default permit is deemed released from the legal custody of the Secretary to the Department of Justice or the Chief Commissioner of Police

The Committee notes the comments in the Second Reading Speech –

The Bill will provide that persons released on fine default permits will be deemed to be released from the secretary's legal custody. Currently, fine defaulters released on a CCP will be deemed to remain in the custody of the secretary, DOJ, for the duration of the CCP. However, unlike in the cases of prisoners released on permits for other purposes, there appears to be no rationale for stating that fine defaulters should remain in the secretary, DOJ's, legal custody for the duration of the permit.

Defaulters of court-imposed fines who are subsequently given community-based orders to undertake community work as payment for the debt are not within the secretary's legal custody. Therefore, holders of a fine default permit will still have obligations under that permit and the secretary, DOJ, will have responsibilities with respect to such permit holders, but these persons will not be in the secretary's legal custody.

[9]. Makes consequential amendments to Schedule 7 of the Magistrates’ Court Act 1989 to recognise that custodial community permits issued to fine defaulters will now be called fine default permits.

The Committee makes no further comment

Geothermal Energy Resources Bill

Introduced: 30 November 2004
Second Reading Speech: 1 December 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Energy Resources

Purpose

The purpose of the Bill is to regulate geothermal energy and extraction in Victoria. The Bill also amends the Petroleum (Submerged Lands) Act 1982.

The Committee notes this extract from the explanatory memorandum –

The exploration and development of geothermal resources is not currently regulated in Victoria. Geothermal energy is a clean and renewable energy source that is low in greenhouse gas emissions and is created naturally from heat deep within the earth. The Geothermal Energy Resources Bill aims to encourage large scale commercial and sustainable exploration and extraction of Victoria's geothermal energy resources. Small-scale uses will continue to be regulated by existing planning, environment and water law. The Bill is based on the regulatory model established in the Petroleum Act 1998 and will be subject to the Environment Effects Act 1978, and the Environment Protection Act 1970. Access to water will be regulated by the Water Act 1989.

Content and Committee comment

[Clauses]

[2]. Part 1 comes into operation on the day on which the Bill receives the Royal Assent. The remainder of the Bill comes into operation on proclamation but not later than 30 June 2006.

[12]. Declares that the Crown owns all geothermal energy and geothermal energy resources on or below the surface of any land in Victoria that came to be on or below the land without human assistance. [13]. Provides that the Crown retains all rights to geothermal energy and geothermal energy resources on or below land.

[14]. Makes it an offence for a person to explore for geothermal energy unless authorised or permitted by the Act. [15]. Makes it an offence to extract geothermal energy unless authorised or permitted under the Bill.

[16]. Provides that geothermal energy and geothermal energy resources become the property of the person extracting it under the provisions of the Act.

[17 to 31]. Makes provision for applications for exploration permits, their terms and renewal.

[32 to 41]. Makes provision for ‘retention leases’ where a geothermal energy discovery is not immediately commercially viable but may become so within up to 15 years.

[42 to 55]. Makes provision for applications for extraction licences, their terms and the provision for development plans.

[79]. Prohibits a person from carrying out geothermal energy operations on references, marine parks and sanctuaries and wilderness Crown land.

[87]. Provides that prior to the commencement of geothermal energy operations on any land, the authority holder must take reasonable steps to ensure that the operation will not contravene legislation relating to areas of aboriginal significance.

[88]. Prohibits geothermal energy operations on private land without the consent of the owners and occupiers of the land or agreement on compensation with the owners and occupiers or where the Victorian Civil and Administrative Tribunal has determined the amount of compensation payable to the owners and occupiers.

[89]. Provides for compensation that may be payable by an authority holder to owners and occupiers of private land and native title holders for loss or damage as a result of any geothermal energy operation.

[90]. Compensation is not payable for the value of any geothermal energy or any geothermal energy resource in or under the surface of any land.

[91]. In respect to Crown land compensation is payable to the Crown as a direct, natural and reasonable consequence of geothermal energy operations.

[94]. Provides for the determination of disputes on private or native title land by the Victorian Civil and Administrative Tribunal or the Supreme Court in accordance with the Land Acquisition and Compensation Act 1986.

[99]. An authority holder must hold insurance against expenses or liabilities in connection with the carrying out of geothermal energy operations.

[100]. An authority holder must take out a rehabilitation bond (clean-up work or pollution prevention) which is acceptable to the Minister and for an amount specified by the Minister.

[103]. Provides for the holder of an authority to pay to the Minister a royalty in respect of any geothermal energy extracted.

[111 and 112]. Provides that the holder of an authority must rehabilitate any land (or pay the costs of doing so) used for a geothermal energy operation.

[123]. Provides for authorisation of inspectors and the issue of identity cards.

[125]. Gives an inspector power to enter premises and to exercise certain powers for the purpose of monitoring compliance with this Bill or in connection with the issue of a prohibition notice. [126]. Gives an inspector power of entry and to exercise certain powers in an emergency situation.

[127]. Gives an inspector power of entry, search and seizure (with the consent of the occupier) if he or she has reasonable grounds for suspecting that there is evidence of an offence.

[130]. Gives an inspector the power to apply to a magistrate for the issue of a search warrant in specified circumstances in accordance with the forms, rules and procedures observed in accordance with the Magistrates’ Court Act 1989.

[137]. The Minister must pay compensation for damage caused by an inspector unless the inspection reveals that there has been a contravention of the Bill.

[140]. An inspector has the power to require information or documents. [141]. makes it an offence for a person to fail to comply with a requirement of an inspector without a reasonable excuse.

[144 and 146]. Allows the Minister to issue improvement or prohibition notices to authority holders in certain circumstances and appeals to the Victorian Civil and Administrative Tribunal for review of an improvement or prohibition notice.

[153 to 163]. Provides for the Minister to establish and maintain a geothermal energy register and the effect of registration.

[166]. Provides for the Minister and the Secretary to delegate his or her powers to a person employed in the Department, other than the power of delegation.

[169]. Provides a prescriptive form of regulation making power for the purposes of the Act.

[170 to 174]. Makes consequential amendments to a number of related Acts.

[175]. Provides transitional and saving provisions including for geothermal energy extraction operations that existed before the commencement of the requirements under this Act. A former extraction licence is deemed to be license under the Act.

The Committee makes no further comment

Retirement Villages (Amendment) Bill

Introduced: 7 December 2004
Second Reading Speech: 9 December 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible: Mr. John Lenders MLC
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the Retirement Villages Act 1986 (‘the Act’). In particular, it –

• Makes further provision in relation to the sale of premises in retirement villages, the operation and management of retirement villages and the occupation of premises in retirement villages;

• Establishes a register of retirement villages;

• Makes further provision for enforcement powers; and

• Provides generally for other matters in relation to retirement villages.

Content and Committee comment

[Clauses]

[2]. Is the commencement provision. The Bill commences on a day to be proclaimed. If not proclaimed, the Bill commences operation on 1 August 2006.

[3]. Inserts various definitions into the Act. The Committee notes the comments in the Second Reading Speech –

Over the past two years an extensive review of the current scheme has been undertaken. …..The review has identified a number of issues relating to an imbalance of information and power between residents and operators of retirement villages which need to be addressed to ensure that minimum standards in the industry remain acceptable into the future.

The bill will address these matters in a fair and balanced way. The amendments centre on:

o regulation of contract terms;

o clearer rules around exit arrangements, including ongoing charging of fees, resale of units, and payment of exit entitlements;

o limitations on operators with regard to making decisions on behalf of individual residents; and

o improved dispute resolution.

To avoid regulatory overlap and simplify compliance, the bill excludes aged care facilities covered by the commonwealth Aged Care Act 1997.

However, it will operate in such a way that facilities with any current residents who do not have the protection of that act remain subject to the Retirement Villages Act until all its residents do come within the coverage of the commonwealth act.

[4]. Provides that a retirement village notice must contain prescribed information.

[5]. Requires that the owner or the owner's agent must give the resident a copy of any residence contract 21 days before the residence contract is entered into. The manager must give the resident copies of any management contract and other specified documents 21 days before the management contract is entered into.

[7]. Makes it an offence not to use a contract which complies with the regulations. It provides that any contract entered into after the commencement of the provision is unenforceable against the resident to the extent that it is inconsistent with any requirements of the regulations.

[8]. Specifies the conditions to which an obligation to pay an amount recoverable under section 26(1) may be subject.

[9]. Provides for the extinguishment of a charge over part of land made subject to a charge by operation of the Act. The Committee notes the comments in the Second Reading Speech –

Provision has also been made for the Director of Consumer Affairs Victoria to approve an application for the lifting of the retirement village notice and extinguishment of the charge on a part of the land that will no longer be used as a retirement village. The current 'all-or-nothing' system has complicated subdivision proposals.

[10]. Inserts a new Part 5A. It governs the options to purchase of a person who holds it and the sale of premises by residents. It provides for a resident who owns a residence in a retirement village to appoint an agent other than the retirement village manager to sell that unit, conditional on the purchaser entering into a management contract with the manager of the retirement village. A manager of a retirement village who is not appointed as an agent for the sale of the premises of an owner resident is not to interfere with its sale. The Victorian Civil and Administrative Tribunal (VCAT) is to resolve any disputes in the event they are not resolved by mediation.

[12]. Provides that the role of a residents’ committee in a dispute between residents is to be a mediator. A residents’ committee must not act as a mediator in a dispute which is being dealt with by a manager.

[14]. Inserts new Part 6A which governs matters relating to the operation and management of retirement villages. This includes charges for personal services and maintenance charges in respect of former non-owner residents. It also deals with powers of attorney and proxies. A manager of a retirement village cannot require a resident to give him or her a power of attorney in favour of the manager. The manager cannot require a resident to appoint the manager as the proxy of the resident.

New clause 38E sets out the procedure for dealing with management complaints or dispute mediation. All residents are to be informed of complaints and dispute mechanisms. New clause 38H sets out the recording and reporting requirements.

New Part 6B sets out when payments are to be made on the cessation of occupation of residents. New Part 6C establishes a register of retirement villages.

[18]. Applies certain provisions of the Fair Trading Act 1999 to specify who may bring proceedings for an offence against the Act and the regulations. New section 41A makes it an offence to supply false and misleading particulars to the Director of Consumer Affairs.

[20]. Inserts additional regulation making powers into section and increases the maximum penalty which may attach to an offence against the regulations from 5 penalty units to 20 penalty units.

[21]. Contains transitional provisions.

[22 to 24]. Repeal obsolete provisions.

The Committee makes no further comment

Statute Law Revision Bill

Introduced: 26 February 2003
Second Reading Speech: 14 December 2004
House: Legislative Council
Minister introducing Bill: Hon. John Lenders MLC
Minister responsible: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill –

• makes minor amendments to a number of Acts to revise the statute law of Victoria,

• relocates certain transitional provisions from amending Acts that are to be repealed to their principal Act, and

• repeals 209 redundant or spent Acts that are no longer required to remain on the Victorian statute books.

Office of the Chief Parliamentary Counsel

In the course of the Committee’s scrutiny of the Bill the Committee received evidence from the Chief Parliamentary Counsel Mr Eamonn Moran QC and from Parliamentary Counsel Ms Gemma Varley.

The Chief Parliamentary Counsel provided the Committee with a certificate declaring that the amendments made by the Bill are not intended to make substantive changes to the statute law of Victoria and that the Acts to be repealed by the Bill are entirely spent in their operation and can be safely repealed. The certificate of the Chief Parliamentary Counsel is shown at Appendix 4.

Content and Committee comment

[Clauses]

[2]. All the amendments and repeals made by the Bill come into force on Royal Assent. There are no proposed retrospective amendments in the Bill.

[3]. Provides that the Acts listed in Schedule 1 are to be amended as set out in that Schedule.

Schedule 1 – Miscellaneous amendment to Acts

Amendments made in the items of the Schedule include typographical errors, errors of punctuation or spelling, cross-referencing errors, grammatical errors, corrects references to superseded Acts, Tribunals or public sector offices.

By way of examples of the amendments made in Schedule 1 of the Bill are the following –

• Administration and Probate Act 1958 in item 1, clarifies that the references to ‘Registrar’ in certain sections of that Act are references to the ‘Registrar of Probates’.

• Children’s Services Act 1996 in item 4, substitutes a new reference to the Victorian Civil and Administrative Tribunal for the old reference to the defunct Administrative Appeals Tribunal. Other items that make the same reference amendment are items15, 23 and 24.

• Labour and Industry Act 1958 in item 11, removes the out of date reference to the Chief Manager of the Department of Health in section 123(2) of that Act and substitutes the new reference to the Secretary of the Department of Human Services.

• Land Tax Act 1958 in item 12, removes the unnecessary conjunction ‘and’ in section 58A(1)(d).

• Metropolitan Fire Brigades Act 1958 in item 16, amends section 63(3) removing a reference to the repealed Liquor Control Act 1987 and substituting a reference to the new Liquor Control Reform Act 1998.

• Southgate Project Act 1994 in item 20, corrects a misspelling of the word ‘amendments’.

• Wrongs (Public Contracts) Act 1981 in item 28 substitutes the modern spelling of ‘employee’ in sections 3(1) and 3(3).

[4]. Provides that the Acts listed in Schedule 2 are to be amended as provided for in that Schedule.

Schedule 2 – Relocation of certain transitional provisions made by amending Acts into the appropriate principal Acts

The Schedule inserts into the Crimes Act 1958 and the Sentencing Act 1991 (the principal Acts) various transitional provisions made by a number of amending Acts which are to be repealed by Schedule 3 of the Bill. The amending Acts are spent in that their substantive provisions are now contained in the principal Acts and it is more appropriate to now relocate the transitional provisions relating to the amendments made into the principal Acts.

The Committee notes the Minister’s comments in the Second Reading Speech concerning the amendments made by Schedule 2 of the Bill –

The Bill also more appropriately places the transitional provisions contained in the following amending Acts – the Crime (Sexual Offences) Act 1991, the Crimes Amendment Act 1993, the Miscellaneous Acts (Omnibus Amendments) Act 1996, the Sentencing and Other Acts (Amendment) Act 1993 – into the principal Acts – the Crimes Act 1958 and the Sentencing Act 1991.

[5]. Provides that the Acts listed in Schedule 3 are to be repealed.

Schedule 3 – Repeal of spent, redundant and unproclaimed Acts

The schedule consists of 209 Acts from 1972 and 2001 that are to be repealed.
The repealed Acts fall into 4 groups.

(a) Spent Principal Acts.

Amongst this group are the Constitutional Convention Act 1972 which was identified by the Committee as a redundant Act[1] and the Australia Acts (Request) Act 1999[2] which never received Royal Assent. There is also a group of Appropriation Acts that are now entirely spent in their operation and can therefore be repealed.

(b) Spent Amending Acts with transitional or substantive provisions.

These amending Acts are wholly in operation and have amended or repealed the provisions in the Acts they were intended to amend or repeal. The transitional provisions are no longer necessary or are re-enacted by this Bill in the appropriate principal Act.

The substantive provisions are no longer required because they have taken effect or have been re-enacted in the relevant principal Act.

The explanatory memorandum makes it clear that any residual effect of the transitional provisions that have not been re-enacted are nevertheless covered by section 14 of the Interpretation of Legislation Act 1984.

(c) Spent amending Acts with unproclaimed provisions.

The Fisheries (Shark Fishery) Act 1990 (the unproclaimed Act) is to be repealed. The unproclaimed Act would have amended the Fisheries Act 1968. However the 1968 Act was repealed by the Fisheries Act 1995 and the unproclaimed Act is not longer necessary.

(d) Spent amending Acts.

Amending Acts that are wholly operational that have amended the Acts they were enacted to amend and contain no transitional or substantive provisions.

The Committee makes no further comment

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