Scrutiny of Acts and Regulations Committee

Alert Digest No 4 of 2005

Wednesday, 20 April 2005

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Justice Legislation (Amendment) Bill

Introduced: 22 March 2005
Second Reading Speech: 24 March 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Minister responsible: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the –

(1) Legal Aid Act 1978 to —

• facilitate the provision of alternative dispute resolution programs (ADR programs) by Victoria legal Aid (VLA);

• provide for the confidentiality of information compiled for, or arising out of, alternative dispute resolution programs;

• ensure that evidence arising out of an alternative dispute resolution program is not admissible in any court or legal proceeding except in limited circumstances;

• provide alternative dispute resolution conference chairpersons with limited immunity.

(2) Summer Time Act 1972 and the Supreme Court Act 1986 to change standard time in Victoria from Greenwich Mean Time to Co-ordinated Universal Time.

(3) Victorian Law Reform Commission Act 2000 to provide for Victorian Law Reform Commission interim and final reports to be sent to Parliament when Parliament is out of session.

Content and Committee comment

[Clauses]

[2]. Other than Part 3 (the new definition of ‘Standard Time’) the provisions in the Bill comes into operation on the day after Royal Assent. Part 3 comes into operation on 1 September 2005.

Legal Aid Act 1978 – Alternative Dispute Resolution (ADR)

[5]. Inserts a new Part VIB (new sections 40I to 40M) to the Legal Aid Act 1978 (LAA) dealing specifically with the provision of ADR programs by VLA.

New section 40J provides for a confidentiality regime to apply to the ADR programs. The confidentiality regime prevents information from being passed on to any other person or body including a court. New sections 40J(4), 40J(5) and 40L(2) provide exceptions to the ADR confidentiality regime.

New section 40K provides that documents arising out of ADR programs will be exempt from applications under the Freedom of Information Act 1982.

New section 40L provides that documents or evidence arising out of ADR programs will be inadmissible in any court or legal proceeding. New section 40L(2) provides for exceptions to inadmissibility.

New section 40M provides a statutory immunity for conference chairpersons for anything done or omitted to be done in good faith with any liability that would have existed but for the statutory immunity reverting to VLA.

Summer Time Act 1972

[6]. Substitutes a new definition for ‘standard time’ as set out in the Act.

Victorian Law Reform Commission Act 2000

[9]. Inserts a new section 21A in the Act establishing a new procedure for the tabling of Victorian Law Reform Commission (VLRC) interim and final reports when Parliament is in recess.

The Committee makes no further comment.

Land (Revocation of Reservations) Bill

Introduced: 23 March 2005
Second Reading Speech: 24 March 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill is to revoke the reservation over part of land at Richmond and to revoke the related Crown grant over the same part of land. It also revokes the reservation over certain land in the Parish of Sandhurst near Bendigo and temporarily re-reserves that land.

Content and Committee comment

[Clauses]

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

[3]. Revokes the Order in Council specified in Schedule 1 reserving land at Richmond Park, but only to the extent that the Order applies to the part of that land shown hatched on the plan in Schedule 2 (the relevant land).

[4]. Revokes the Order in Council, specified in item 2 of Schedule 1, that reserved land in the Parish of Sandhurst, near Bendigo, as a site for abattoirs.

[5]. Declares that in respect to land referred to in clause 4 the land is deemed to be temporarily reserved for nature conservation purposes pursuant to section 4(1) of the Crown Land (Reserves) Act 1978.

[6]. Deal with consequential issues as a result of the revocations made by clauses 3 and 4.

[7]. The Registrar of Titles must make any recordings in or amendments to the Register under the Transfer of Land Act 1958 necessitated by the operation of this Bill.

Schedules

Schedule 1 provides details about the reserved land referred to in the Bill.

Schedule 2 contains a plan showing, as a hatched area, the land in respect of which the Order in Council referred to in clause 3 is revoked.

The Committee makes no further comment.

Parliamentary Administration Bill

Introduced: 23 March 2005
Second Reading Speech: 24 March 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill contains provisions that –

• specify the administrative structure of the Parliament of Victoria, including the creation of Departments, the employment of Parliamentary officers and the transfer of employees;

• elaborate new Parliamentary officer values that indicate the standards expected of Parliamentary officers in the performance of their duties;

• specify new Parliamentary administration employment principles that indicate the required processes to ensure merit and equity in parliamentary employment;

• retain the appointment process for the Department Heads of the Legislative Council and the Legislative Assembly;

• provide that the employment of the Department Head of the Department of Parliamentary Services is governed by contract;

• retain the process for dealing with possible misconduct by a Department Head;

• enable regulations to be made to provide for disciplinary action in relation to Parliamentary officers; and

• retain the process for employing electorate officers.

The Bill repeals the Parliamentary Officers Act 1975.

The Bill also includes provisions which amend the Parliamentary Committees Act 2003 to create a new Joint Investigatory Committee on Electoral Matters.

The Committee notes the extract from the explanatory memorandum –

The Parliamentary Administration Bill creates a modern framework to ensure good governance of the Parliament of Victoria. The Bill outlines the employment arrangements for Parliamentary officers and ensures that these arrangements are more consistent with modern employment arrangements for the delivery of public services. While the Bill will replace the Parliamentary Officers Act 1975, many key features of that Act will be retained and updated.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2, 38*, 39* and 42* will commence on the day after Royal Assent. Section 50 is deemed to have commenced on 21 December 2004. The remaining provisions will commence operation on proclamation but not later than by 1 July 2005. (* establishment of the Electoral Matters Committee)

[5]. Specifies the Parliamentary officer values that are expected to be observed by parliamentary officers employed by the Parliament in the performance of their duties. Department Heads of Parliament must promote the values to the officers that they employ. The values are similar to those in section 7 of the Public Administration Act 2004, but have been modified to take account of the independence of Parliament from the Executive.

[6]. Requires Department Heads to establish employment processes that ensure that employment decisions are based on merit, parliamentary officers are treated fairly, reasonably and have a reasonable avenue of redress against unfair or unreasonable treatment and which provide equal opportunity.

[7]. Specifies the administrative departments of the Parliament.

[11]. Provides that the Secretary of the Department of Parliamentary Services is employed by a contract of employment between the Secretary and the President and the Speaker.

[14]. Provides for the manner in which the relevant Presiding Officer can deal with a Department Head who has engaged in conduct which, in the Presiding Officer's view, renders the Department Head unfit to continue.

[15]. Establishes a process for inquiring into the truth of charges made against a Department Head.

[16]. Empowers the Governor in Council to take appropriate action to deal with the misconduct of a Department Head.

[17]. Empowers the Governor in Council to dispense with the services of a Department Head if the Department Head is found to be unfit to discharge the duties of the office.

[18]. Provides that Department Heads have all the powers and duties of an employer on behalf of the Crown, including assigning work and discipline.

[19]. Enables Parliamentary officers to seek a review of any action taken related to his or her employment.

[21]. Provides that if a public servant is employed as a Parliamentary officer any rights they have accrued as an employee within the meaning of the Public Administration Act 2004 are not affected so long as the right does not conflict with the role of a Parliamentary officer.

[22]. Provides that any Parliamentary officer who transfers to the public service or a public entity retains any rights accrued as a Parliamentary officer.

[28]. Prohibits full-time Parliamentary officers from engaging in other paid employment or carrying on a business, profession or trade without permission to do so.

[29]. States the grounds on which the employment of a Parliamentary officer may be terminated by the Department Head.

[30]. Provides that the President and the Speaker may jointly employ electorate officers to assist members of Parliament. [31]. Specifies the circumstances in which employment of electorate officers terminates.

[32]. Allows the Presiding Officers to delegate certain of their functions under the Bill or the regulations to the relevant deputy or clerk of the Parliament.

[33 and 34]. Respectively enable regulations and transitional regulations to be made for the purposes of the Act.

[37]. Repeals section 7(4A) of the Long Service Leave Act 1992 which provides that, subject to section 12B of the Parliamentary Officers Act 1975, the provisions of the Act also applies to officers of the Parliament.

The explanatory memorandum states – Clause 37 repeals section 7(4A) of the Act.

The Committee notes the brevity of the explanatory memorandum which only repeats the provision found in the Bill. The Committee is of the view that an explanatory memorandum should explain the intention and operation of the Bill's provisions.

The Committee draws attention to the provisions of section 35(b)(iii) of the Interpretation of Legislation Act 1984 that permits, in appropriate circumstances, the use of explanatory memoranda in the interpretation of legislation. Noting this provision the Committee is of the view that the drafting of helpful explanatory memoranda plays an important role in the legislative process and the standard of information provided by explanatory memoranda is therefore a serious issue of concern to the Committee.

The Committee will write to the Premier to seek an assurance that future explanatory memoranda will better assist Members of Parliament in their consideration of legislation before the Parliament.

The Committee will seek clarification of the reason for the repeal of section 7(4A) of the Long Service Leave Act 1992.

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

[38 and 39]. Inserts new sections 5(ca) and 9A into the Parliamentary Committees Act 2003 creating a new Joint Investigatory Committee into electoral matters called the Electoral Matters Committee.

Section 85 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)

[42]. Limits the jurisdiction of the Supreme Court to ensure that proceedings, recommendations, reports or documents of the new Committee cannot be the subject of judicial review. The immunity to existing Committees is provided by section 50 of the Parliamentary Committees Act 2003 and the amendments therefore place the new Committee on an equal footing with all other Parliamentary Committees.

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

Clause 42 inserts a new section 51(2) into the Parliamentary Committees Act 2003 which provides that it is the intention of section 50 of that act, as it has effect on and after the commencement of clauses 38 and 39 of this bill, to alter or vary section 85 of the Constitution Act 1975.

Clauses 38 and 39 provide for the establishment of a new joint investigatory committee of the Parliament (the Electoral Matters Committee).

Section 50 of the Parliamentary Committees Act 2003 provides that proceedings of joint investigatory committees or any recommendations or reports made by a joint investigatory committee do not give rise to a cause of action in law, and must not be the subject of, or in any way be called into question in, any proceedings before a court.

As this Bill establishes a new joint investigatory committee, it expands the field of operation of section 50 of the Parliamentary Committees Act 2003. The purpose behind section 50 is to allow committee members to discharge their duties and responsibilities without obstruction or fear of prosecution and to foster free and frank discussion of proposals and matters being considered by committees.

Section 19 of the Constitution Act 1975 provides that the Council and the Assembly and their committees and members hold and enjoy the same privileges, immunities and rights as were held by the House of Commons in 1855. Therefore, a privilege (which has its origins in the Bill of Rights 1689) is conferred on Victorian parliamentary committees whereby the committees are protected from being 'impeached or questioned' in any 'court or place out of Parliament'. The powers and privileges of both the houses of Parliament include the inherent power to take any action to ensure the functioning of its chambers, to regulate its proceedings and to arrest and punish for contempt or breach of privilege.
I do not think it has happened yet, but there is always the potential.

For the avoidance of doubt, section 50 of the Parliamentary Committees Act 2003 expressly seeks to protect committee proceedings, reports and recommendations from judicial consideration.

Clause 42 of the Bill ensures that the new joint investigatory committee has the same level of protection as all other parliamentary committees.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b)(ii) of the Parliamentary Committees Act 2003, ‘if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable’.

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

[46]. Inserts a new section 10A into the Information Privacy Act 2000. The provision clarifies that the Information Privacy Act 2000, or any Information Privacy Principles under that Act, do not apply to the collection, holding, management, use, disclosure or transfer of personal information by a Parliamentary Committee carrying out its functions as a Parliamentary Committee.

[50]. Makes a number of technical amendments to Schedule 3 of the Public Administration Act 2004 (the 2004 Act). Schedule 3 of the 2004 Act contains consequential amendments made to a number of other Acts as a result of the enactment of the 2004 Act. The amendments are retrospective to 21 December 2004 which is the date of Royal Assent of the 2004 Act. However Schedule 3 of the 2004 Act only came into operation on 5 April 2005 and the Bill was introduced on 22 March 2005 and the Second Reading Speech was delivered on 24 March 2005.

The Committee notes that the explanatory memorandum states – Clause 50 makes a number of technical amendments to the consequential provisions of the Public Administration Act 2004.

The Committee notes the clause appears to have retrospective operation and as such the Committee repeats it’s comments and concerns (refer to clause 37 above) in respect to inadequate or unhelpful explanatory memoranda.

In this instance some reference should have been made to the date of Royal Assent and the commencement of the provisions in Schedule 3 in the context of the announcement and timing of the amendments made by this Bill.

[51]. Amends section 28 of the Terrorism (Community Protection) Act 2003 to make it clear that any Order-in-Council is only to be made on the recommendation of the relevant Minister for the essential service concerned. The section is in Part 6 of the Act dealing with the preparation of risk management plans by the operators of essential services to protect those services from the effects of terrorist acts.

[53]. Repeals the Parliamentary Officers Act 1975.

Schedules

Schedule 1 inserts savings and transitional provisions that –

• preserve existing employment arrangements;

• preserve any current grievance proceeding; and

• preserve the existing administrative Department structure.

The Committee makes no further comment.

Sentencing (Further Amendment) Bill

Introduced: 23 March 2005
Second Reading Speech: 24 March 2005
House: Legislative Assembly
Minister introducing Bill: Hon.Bob Cameron MLA
Minister responsible: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill promotes the recognition of victims in court processes by amending the –

• Sentencing Act 1991 to require sentencing courts to consider the impact of the offence on any victim;

• Sentencing Act 1991 and the Children and Young Persons Act 1989 to provide for the reading aloud of victim impact statements in sentencing hearings; and

• Evidence Act 1958 and the Magistrates' Court Act 1989 to require courts only to order a victim who is a witness to leave the court until required to give evidence if it considers it is appropriate to do so.

Content and Committee comment

[Clauses]

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

[3]. Inserts a new section 5(2)(daa) of the Sentencing Act 1991 requiring the court to have regard to the impact of the offence on any victim of the offence.

In respect to clauses 3, 4 and 5 the Committee notes this extract from the Minister’s Second Reading Speech –

…matters which the legislation requires the court to have regard to may not fully encompass all aspects of the impact of a crime on a victim. For example, impacts such as a victim's eroded sense of safety, inability to form social relationships or inability to hold down a job may not be regarded as falling within the matters to which a court currently must have regard. A court may consider such things as part of the impact on the victim but is not currently required to.

In order to emphasise the relevant impact on a victim, this Bill will introduce an express requirement into section 5(2) that courts must have regard to the impact of the offence on the victim when making sentencing decisions. The purpose of this amendment is not to fetter judicial discretion. Rather, this will reinforce the longstanding position that it has always been relevant for a sentencer to have regard to the impact of an offence on the victim.

Secondly, the Bill will provide that where the victim so desires the prosecutor must read aloud appropriate, admissible and relevant parts of the victim impact statement during the sentencing proceeding.

Section 95A of the Sentencing Act 1991 currently provides that if a court finds a person guilty of an offence, a victim may make a victim impact statement to the court for the purpose of assisting the court in determining an appropriate sentence.

At present, there is no requirement that admissible, appropriate and relevant components of victim impact statements must be read out in open court, although courts currently have the discretion to do this. By making this mandatory where the victim so requests, this Bill acknowledges the importance for many victims of having their voice formally heard in the court process.

Courts will still retain the discretion to determine whether or not the statement in question is admissible, appropriate and relevant.

[4]. Amends section 95B(1) of the Sentencing Act 1991 to provide that the contents of a victim impact statement should, in addition to containing particulars of any injury, loss or damage suffered by the victim, also contain particulars of the impact of the offence on the victim.

[5]. Inserts a new section 95F of the Sentencing Act 1991 to provide that the court must ensure that any admissible parts of the victim impact statement that are appropriate and relevant to sentencing must be read aloud in open court in the course of the sentencing hearing by the prosecutor if the victim so requests.

[6]. The amendments made by clauses 3, 4 and 5 apply to a proceeding for an offence commenced on or after the commencement of the amendments, regardless of when the offence is alleged to have been committed.

[7 and 8]. Make similar amendments to the Children and Young Persons Act 1989 as in clauses 4, 5 and 6 above.

[9]. Inserts a new Division 3A into Part II of the Evidence Act 1958 to provide that a court in a criminal proceeding may only order a victim of the offence who is a witness in a proceeding to leave the courtroom if the court considers it is appropriate to do so.

[10]. Inserts a new section 156A of the Evidence Act 1958 to provide that the amendment made by clause 9 of the Bill applies to a proceeding for an offence commenced on or after the commencement of that section, regardless of when the offence is alleged to have been committed.

[11]. Inserts section 127(ba) in the Magistrates' Court Act 1989 to provide that in a criminal proceeding the court may not order a victim to leave the courtroom until he or she is required to give evidence unless the court so specifies in the witness order.

[12]. Inserts clause 31A of Schedule 8 to the Magistrates' Court Act 1989 to provide that the amendment made by clause 11 of the Bill applies to a proceeding for an offence commenced on or after the commencement of that section, regardless of when the offence is alleged to have been committed.

The Committee makes no further comment.

Committee Room
18 April 2005

Scrutiny of Acts and Regulations Committee
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