Scrutiny of Acts and Regulations Committee

Alert Digest No 5 of 2005

Tuesday, 3 May 2005

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Children and Young Persons (Miscellaneous Amendments) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Sheryl Garbutt MLA
Portfolio responsibility: Minister for Community Services and Attorney-General

Purpose

The Bill amends the Children and Young Persons Act 1989 to —

establish a system for the Children's Court (the ‘Court’) to deal with unpaid infringement notices issued to children;
clarify the jurisdiction of the Criminal Division of the Court and change the operation of sentencing orders.

The Bill amends the Bail Act 1977 to provide for the holding of certain persons in youth training centres rather than prison.

The Bill amends the Road Safety Act 1986 and certain other Acts to provide for the enforcement of infringement notices against children.

As a consequence of the amendments made by the provisions in the Bill there are minor amendments proposed to be made to the Children and Young Persons (Age Jurisdiction) Act 2004 and the Children and Young Persons (Koori Court) Act 2004.

The Committee notes these extracts from the Minister’s Second Reading Speech –

Recognising the fact that the change in the age jurisdiction and the clarification of the definition of child may result in older people who fit within the definition of child coming before the Children's Court, the Bill gives the court the express discretion to transfer a proceeding involving a person aged over 19 to the adult courts. The Bill does not, however, alter the long-standing regime that attaches to children charged with murder, attempted murder, manslaughter, arson causing death or culpable driving causing death or, in exceptional circumstances, other indictable offences. Following committal proceedings in the Children's Court, such cases will continue to be processed in the County or Supreme courts.

…

Children and young persons infringement notice system

The Bill introduces a new process through which children's unpaid infringement notices can be handled by the court. While similar to the adult penalty enforcement by registration of infringement notice system, the proposed children and young persons infringement notice system involves greater discretion so as to take into account a child's financial and personal circumstances. This system provides issuing agencies - such as the Department of Infrastructure or Victoria Police - with the alternative of an expedited process rather than having to issue a charge and summons. The system focuses on finding a balance between a child's financial capacity and the need to ensure accountability for unpaid infringement notices.

Miscellaneous changes

…

The Bill clarifies an existing ambiguity in the Act by providing that the maximum period of any subsequent remand of a child in custody is 21 days- this means that a child on remand must be brought before a court every 21 days.

The Bill imposes a limit of $1000 on the amount of compensation, restitution or costs that may be ordered against a child. … The Bill provides a mechanism through the Magistrates Court to enforce orders for compensation, restitution or costs made in the Children's Court. At present, such orders are unenforceable as the Children's Court has no civil jurisdiction.

…

To aid in the identification of detainees and compiling of records, the Bill provides that a child's photograph may be taken by the officer in charge of a youth residential centre or a youth training centre after the young person's admission to the centre, instead of the current provisions for fingerprints to be taken.

…

Finally, while not affecting the substantive hearing of proceedings commenced prior to 1 July 2005, the Bill provides for the transfer of 17-year-old remandees from prison to youth training centres on the commencement of the Children and Young Persons (Age Jurisdiction) Act 2004.

Content and Committee comment

[Clauses]

[2]. The provisions of the Bill commence on a day or days to be proclaimed or by default on 1 July 2005.

The following provisions, however, commence on the days indicated —

Part 1 and section 61 on the day after the day on which the Bill receives the Royal Assent.
section 8(2) on the day on which section 10 of the Children and Young Persons (Koori Court) Act 2004 comes into operation.
section 57(2) on the day on which section 23(32) of the Road Safety (Drug Driving) Act 2003 comes into operation.
section 62 is deemed to have come into operation on 7 December 2004, the day on which the Children and Young Persons (Koori Court) Act 2004 received Assent. (the clause makes a statute law revision cross-referencing amendment – see below).

Children and Young Persons Act 1989

[4]. Amends section 3 of the Act by amending the definition of "child" to clarify that the age of the child when a criminal proceeding is commenced in the Children's Court is the relevant age for determining the Court's jurisdiction and not the time a child is brought before the court.

[5]. Inserts a new sub-section (1B) into section 7 of the Act to enable the Secretary to the Department of Human Services (the ‘Secretary’) to delegate the power to approve the isolation of a child in a remand centre, youth residential centre or youth training centre for a period of more than 24 hours to a public service executive of the level of EO-2 or above.

[6]. Inserts new subsections (5) and (6) in section 16 to further clarify the criminal jurisdiction of the court where the person is over the age of 19 but where the offence occurred whilst they were still a child when the proceedings were commenced.

[8]. Amends section 26 of the Act which prohibits publicity that may lead to the identification of a person involved in proceedings. New section 26(3) lists a number of deemed particulars likely to lead to the identification of a party or a witness.

[10]. Amends section 73(1) of the Act (interim accommodation orders) to include the reservation of a question of law under section 115A (to be inserted by clause 11) for the opinion of the Supreme Court as a basis on which the Court may make an interim accommodation order.

[11]. Inserts a new section 115A to enable the Family Division of the Court, of its own motion or on the application of a party to proceedings, with the consent of the President, to reserve a question of law in the form of a special case stated for the opinion of the Supreme Court.

[12]. Amends section 129 to inert a new subsection (4A) to clarify that the maximum period of any subsequent remand of a child in custody is 21 days. This means that a child must be brought before a court at least every 21 days.

[41]. Amends section 191 by capping the maximum amount the Court may order a child offender to pay by way of restitution or cost to $1000.

[42]. Amends section 192 to provide a mechanism to enforce orders for compensation, restitution or costs made in the Court.

[44]. Inserts a new section 196B to enable the Criminal Division of the Court, of its own motion or on the application of a party to proceedings, with the consent of the President to reserve a question of law in the form of a special case stated for the opinion of the Supreme Court. If such a question is reserved, the Court cannot finally determine the matter until the Supreme Court has given its opinion, nor can the Court proceed in a manner or make a determination inconsistent with the Supreme Court's opinion.

[45]. Amends section 197(9) by making 21 years the upper age limit of a person in respect of whom the County Court or the Supreme Court can make an order on appeal.

[46]. Amends section 240 to insert that ‘age and maturity of a person’ is a factor the Youth Parole Board is to have regard to in considering whether or not to direct the transfer of a detainee in a youth training centre to a prison to serve the unexpired portion of a sentence.

[48]. Replaces sections 253(2) and 253(3) of the Act with a power for the officer in charge of a youth residential centre or youth training centre to photograph a detainee upon reception at the centre for identification and record keeping purposes, instead of the current provisions for fingerprints to be taken.

[50]. Inserts a new Division 13 in Part 4 of the Act concerning the Children and Young Persons Infringement Notice System.

[54]. Inserts new Schedule 2A into the Act providing a new regime through which the Children's Court can deal with unpaid infringement penalties that are currently in respect of adults, enforceable through the Penalty Enforcement by Registration of Infringement Notice (PERIN) system.

The new process will provide a method for agencies to enforce unpaid penalty infringements in the Children's Court as an alternative to proceeding by way of charge and summons.

[60]. Amends the Bail Act 1977 by inserting a new section 5A empowering the County or Supreme Court upon adjournment of criminal proceedings involving a defendant undergoing a sentence in a youth training centre to direct that the defendant be returned to that centre until the resumption of the hearing or expiry of the sentence of detention, whichever occurs sooner. It also permits the Court, upon the end of a sentence of detention where the proceedings have been adjourned, to either grant bail or refuse bail and direct that the defendant be brought before it for a bail hearing.

[62]. Makes a statute law revision to section 10(3) of the Children and Young Persons (Koori Court) Act 2004 by adding a reference to section 8(3)(c). Section 10 of that Act repeals the provisions of that Act, that is they sunset on 1 July 2007 and the Divisions of the Court will therefore revert to the Family Division and the Criminal Division at which time reference to the Koori Court (Criminal Division) will be unnecessary. The amendment simply corrects a cross-referencing oversight.

The Committee makes no further comment.

City of Melbourne (Amendment) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 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 City of Melbourne Act 2001 (the ‘Act’) to remove the requirement for an Order in Council to authorise differential rates to be applied by Melbourne City Council.

Content and Committee comment

[Clauses]

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

[3]. Amends section 28 of the Act to remove the requirement for an Order in Council to enable Melbourne City Council to charge differential rates. The amendment also provides that if the Melbourne City Council uses the net annual value (NAV) system of valuation and declares a differential rate, the highest differential rate must be no more than 2 times the lowest differential rate.

The Committee makes no further comment.

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Justin Madden MLC
Portfolio responsibility: Minister for Commonwealth Games

Purpose

The Bill amends the Commonwealth Games Arrangements Act 2001 (the ‘Act’) to —

provide for the management and regulation of areas, whether on land or water, being used for the Commonwealth Games and associated events,
exempt Commonwealth Games venues, facilities and other areas from various laws to facilitate the efficient delivery of the Games, and
make various other amendments necessary for the effective conduct of the Commonwealth Games and associated events.

Content and Committee comment

[Clauses]

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

[6]. Inserts new sections 3C and 3D into the Act.

New section 3C allows the Minister to declare a specified period to be a Games period for the purposes of the Act. Any such period must include March 2006 or part of March 2006.

New section 3D allows the Minister to declare any item to be a prohibited item for the purposes of the Act. The Minister must consult with the Minister administering the Control of Weapons Act 1990 and the Minister administering the Fair Trading Act 1999 before making such a declaration. The declaration is to be published in the Government Gazette. Section 3 (as amended) provides a list of prohibited items (a) to (k) and then a catch all item (l) which provides that ‘prohibited item’ means –
(l) any item which the Minister declares under section 3D to be a prohibited item.

New section 56ZU inserted by clause 22 creates an offence concerning bringing into a prescribed area or possession in a prescribed area of a prohibited item during a Games period (defined in section 3).

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

The Committee notes that the definition of ‘prohibited item’ includes any item that the Minister declares to be a prohibited item for the purpose of section 3D. The Committee notes that such a declaration will in effect have very limited application for offences during the declared ‘Games period’ which will not exceed 90 days and the test event period.

The Committee notes that such a Ministerial declaration will be published in the Government Gazette but is not otherwise subject to Parliamentary scrutiny.

Accepting that the declaratory power is for a limited purpose and duration the Committee does not report adversely on the provision in the circumstances.

The Committee draws attention to the provision.

[9]. Inserts new Part 3A containing new sections 28C to 28H into the Act.

New section 28D applies during a Games period or any period other than a Games period for which an order under section 28E is in force and prevents a Council from making, and renders inoperative, local laws for or with respect to a Games management area.

[12]. Inserts new sections 51A and 51B into the Act to allow the Secretary, a member of the police force or an authorised officer to warn unauthorised persons to leave a restricted access area for the purposes of safety and security and allows an authorised officer or a member of the police force to direct unauthorised persons not to enter a restricted access area.

[14]. Inserts a new section 56(1A) into the Act which allows a member of the police force to remove a person from a Games management area if the person is not authorised to be in a restricted access area.

[15]. Inserts new Part 5AA including new section 56AF which empowers a member of the police force to move a vehicle which is hindering or obstructing a Games management area, is not authorised to be in that area, or is causing a danger or traffic congestion in that area.

New section 56AC deals with existing rights to carry on a business in a premises in respect of a Games management area (also refer to clause 24 – new section 57AL).

[17]. Amends section 45 of the Act. New section 45(1A) allows the Minister to temporarily close a road or part of a road for the purposes of conducting a Commonwealth Games event, or any purpose associated with or ancillary to the conduct of that event.

[19]. Inserts a new Division 2C of Part 5A containing new sections 56KJA to 56KJD into the Act concerning authorisations for advertising on boats within one kilometre of a Games management area or a Commonwealth Games event during March 2006.

[21]. Amends section 56ZC to include intentionally or recklessly disrupting the conduct of a Commonwealth Games event within the existing offence of obstructing or hindering.

[22]. Inserts new section 562E and new Divisions 2 to 6 of Part 5B containing new sections 56ZE to 56ZZK into the Act.

56ZE to 56ZT create specific offences during the games or test event period. The offences include entering a playing field, track, pool or arena, unauthorised advertising; damaging or defacing property; unauthorised erection of structures or displaying signs or banners; blocking stairs, exits or entries; climbing on any fence, barrier or barricade; throwing or kicking stones, bottles or other projectiles; unauthorised use of a loud hailer, public address system or other broadcast device; conduct surveys or solicit money without authorisation; unauthorised hawking or sale of goods and services; bringing into a Games management area of goods for sale or distribution; unauthorised sale, offering or making available for sale, or giving away of any ticket to the Commonwealth Games; unauthorised busking; unauthorised possession of alcohol; unauthorised entry of vehicles; unauthorised parking or leaving of vehicles.

56ZU and 56ZV deals with the unauthorised possession of prohibited items and provides that an authorised officer or member of the police force power may request the surrender of a prohibited item or to confiscate that item if a person intends to bring or has brought the prohibited item into a Games management area.

56ZZA allows an authorised officer or a member of the police force to direct a person to leave or not to enter a Games management area in specified circumstances.

New section 56ZZB allows a member of the police force to apply to the Magistrates' Court for an order prohibiting a person who has previously been directed to leave or not enter a Games management area under section 56ZZA and who the member of the police force suspects is likely to disrupt a Commonwealth Games event from entering any Games management area during a Games period or test event period.

New section 56ZZC prohibits unauthorised advertising on buildings or structures within one kilometre of a Games management area.

[23]. Inserts new Divisions 1 to 4 of Part 6 containing new sections 57AA to 57AL into the Act.

New section 57AG allows an authorised officer to require a person to give their name and address. New section 57AH provides that it is an offence for a person to refuse to give their name and address or to provide a false or misleading name and address. New section 57AI provides authorised officers or members of the police force with powers of inspection in relation to ticketed venues.

New section 57AK allows a member of the police force to use reasonable force to remove a person from a Games management area where that person has been given a direction under the Act and has not complied with that direction.

No compensation payable

New section 57AL specifies no compensation is payable in respect of any loss, damage or injury, other than the death of, or personal or bodily injury to, a person, resulting from or arising out of any act or omission done in good faith by any person in the administration or purported administration of this Act or the regulations in relation to the management and conduct of the Commonwealth Games or any associated event, activity or program.

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

It is acknowledged that there may be some impact on the business in the areas that are to be declared as Commonwealth Games venues. The aim of the organising committee and the government is to cause the minimum disruption to the businesses in the Commonwealth Games venues. Accordingly the Bill contains a mechanism that will enable the Secretary to negotiate an appropriate outcome.

1. 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 and freedoms’.

The Committee will seek further information from the Minister concerning the nature of the mechanism contained in the Bill that may redress any adverse impact on businesses in the relevant areas during the Games period.

2. The Committee reports to Parliament pursuant to a term of reference provided in section 17(b)(iii) of the Parliamentary Committees Act 2003, – ‘where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue’.

The Committee will also seek further advice why in the particular circumstances a section 85 Constitution Act 1975 declaratory provision and statement is not deemed appropriate.

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

[24]. Inserts a new Schedule 5 into the Act regulating infringement notices.

[27]. Amends section 58 to allow for the expiry of various provisions of the Act and various amending acts.

The Committee makes no further comment.

Courts Legislation (Judicial Pensions) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 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 Attorney-General and Solicitor-General Act 1972, the Constitution Act 1975, the County Court Act 1958, the Magistrates' Court Act 1989, the Public Prosecutions Act 1994 and the Supreme Court Act 1986 with respect to constitutionally protected pensions.

The Bill facilitates the division of constitutionally protected pension entitlements following the breakdown of a marriage and introduces a new definition of "partner" for the purposes of reversionary pensions in accordance with equal opportunity legislation to include de facto and same sex relationships.

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

This Bill will help to modernise the State's constitutionally protected pension schemes by ensuring they operate in accordance with Commonwealth Family Law and Victorian Equal Opportunity Legislation.

The Bill facilitates the division of constitutionally protected pension entitlements following the breakdown of a marriage and gives partners in de facto and same sex relationships access to reversionary pensions for the first time.

Commonwealth Family Law Legislation

The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) came into operation in December 2002. The Act amended the Family Law Act 1975 (Cth) to create greater certainty for separating and divorcing couples. Under the Act superannuation entitlements can be divided either by agreement or court order.

In 2003 Parliament passed the Superannuation Acts (Family Law) Act 2003 to ensure the Commonwealth's family law legislation applied to the State's public sector defined-benefit superannuation schemes. The separate interest method for splitting superannuation entitlements was adopted by that Act.

The State's constitutionally protected pension schemes also need to operate in accordance with the Commonwealth legislation.

Adopting the separate interest method for dividing pensions is consistent with the government's approach to other defined-benefit superannuation schemes and has been recommended as the most equitable method for division of pension entitlements by an independent actuary.

Equal Opportunity Legislation

…

The Equal Opportunity Act 1995 prohibits discrimination on the basis of marital status.

The constitutionally protected pension schemes were established in the middle of the 19th century. Accordingly reversionary pensions are only available for married heterosexual partners.

Replacing references to 'spouse' with the definition of 'partner' used in the State Superannuation Act 1988 and the Parliamentary Salaries and Superannuation Act 1968 will ensure reversionary pensions are available for de facto and same sex partners.

Content and Committee comment

[Clauses]

[2]. The amendments made by the Bill will come into operation on Royal Assent.

[3 to 5]. Make necessary amendments to the Attorney-General and Solicitor-General Act 1972.

[6 to 10]. Make necessary amendments to the Constitution Act 1975.

[11 to 15]. Make necessary amendments to the County Court Act 1958.

[16 to 18]. Make necessary amendments to the Magistrates' Court Act 1989.

[19 to 23]. Make necessary amendments to the Public Prosecutions Act 1994.

[24 to 26]. Make necessary amendments to the Supreme Court Act 1986.

The Committee makes no further comment.

Electoral Legislation (Further Amendment) Bill

Purpose

The Bill amends the Electoral Act 2002, the Constitution Act 1975, the Constitution (Parliamentary Reform) Act 2003 and the Local Government Act 1989 to improve the operation of the electoral system in Victoria.

Content and Committee comment

[Clauses]

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

Electoral Act 2002

[3]. Amends section 24 of the Act by including electors who have attained 70 years of age in the categories of people eligible to apply to the Victorian Electoral Commission to enrol as a general postal voter.

[5]. Deals with the re-registration of a registered political party within certain time frames.

[6]. Amends section 60 of the Act to provide that a decision to refuse an application for re-registration of a registered political party is a decision that is reviewable by the Victorian Civil and Administrative Tribunal (‘VCAT’).

[7]. Amends section 69(3)(b) of the Act to increase the number of signatories required on the nomination form for an independent candidate from 6 to 50.

[8]. Substitutes a new Division 5 of Part 5 of the Act dealing with how-to-vote cards.

Replaces section 77 of the Act and provides that a person may submit a how-to-vote card to the election manager for registration by the Victorian Electoral Commission at any time in the period that starts on the first working day after the final nomination day and ending at noon on the 6th working day before election day.

Inserts section 82A which provides for review by VCAT of the Commission's decision to register a how-to-vote card or an altered how-to-vote card.

[9]. Inserts a new section 97A into the Act which permits the election manager of an election day voting centre to temporarily suspend voting at an election day voting centre in specified circumstances.

[10]. Substitutes a new section 98 which will repeal the existing categories of electors who may apply to vote early and or by post. The new provision will permit a person to apply to vote early or by post if that person makes a declaration in their application that he or she will be unable to attend an election day voting centre during the hours of voting on election day.

Constitution Act 1975

[14]. Amends section 49 of the Act to clarify which public officers cannot sit in Parliament. Victorian or Commonwealth public servants and any person who holds any office or place of profit under the Crown (of Victoria or any other Crown) cannot sit in Parliament unless expressly permitted to do so and their election is null and void.

[15]. Amends section 61 of the Act which sets out those circumstances in which a public servant or holder of any office or place of profit under the Crown, may sit in Parliament. The amendment provides that holders of any office or place of profit under the Crown (Victorian or other) and Victorian or Commonwealth public servants may be elected to Parliament, but upon the election that person ceases to hold that office or place of profit under the Crown or their employment in the public service is deemed to have ceased.

Constitution (Parliamentary Reform) Act 2003

[16 to 19]. Amend the Act so that the amendments will come into operation upon the dissolution of the Parliament when a general election will be held. These amendments ensure that the relevant provisions will be consistent with other provisions amended by the Act such as a reference to a region rather than to a province in respect to election to the Legislative Council.

[17]. Inserts a new section 34 in the Act which makes amendments to the Electoral Act 2002 dealing with how-to-vote cards for the Legislative Council.

The Committee notes a cross-referencing error in the explanatory memorandum. This amendment is consequential to clause 8 not to clause 9.

[20]. Amends schedule 3 of the Local Government Act 1989 to provide that if on the final count, 2 candidates have an equal number of votes, the result is to be determined by lot.

The Committee makes no further comment.

Higher Education Acts (Amendment) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education

Purpose

The Bill amends the Acts establishing Victorian universities and the Victorian College of the Arts to make provision concerning their governance and operation to enable the institutions to comply with new National Governance Protocols (the ‘Protocols’). The changes will enable the institutions to be eligible for additional funding under the Higher Education Support Act 2003 (Cth).

The Protocols are set out in the explanatory memorandum and include –

the higher education provider must have its objectives and/or functions specified in its enabling legislation;
the governing body must adopt a statement of its primary responsibilities (including the eight which are listed);
the duties of the members of the governing body and sanctions for the breach of those duties must be specified in the enabling legislation;
the size of governing body must not exceed 22 members and must include members with certain expertise;
the higher education provider is to codify and publish its internal grievance procedures.

Content and Committee comment

[Clauses]

[2]. The amendments made by the Bill will come into operation on proclamation. The default commencement date is 31 August 2005, except for the provisions regarding dual sector arrangements, for which the default commencement date is 30 June 2006.

Deakin University Act 1974

[5]. Substitutes new section 6 providing for the Council to be the governing body responsible for the direction and superintendence of the University. This section also sets out the Council's primary responsibilities having regard to the protocols.

[6]. Amends section 7 to provide the knowledge, skills and experience requirements and qualifications of appointed Council members.

[7]. Amends section 8 and deals with rotation and term of office limits of Council membership. Appointments and election to Council must not exceed a 12 year limit (consecutive or otherwise) unless Council resolves otherwise.

[8]. Deals with criteria relevant to removal of a Council member. An automatic vacancy will arise if a Council member becomes disqualified from managing corporations under Part 2D.6 of the Corporations Act.

New sections 9(2A), (2B) and (2C) allow the Council to remove a member by a two-thirds majority of members present at a meeting if the member has failed to comply with his or her responsibilities. The section includes the process that must be followed before a member is removed.

[12]. Amends section 19 to provide for a member of the Council to act in the interests of the University as a whole and for the extension of the improper use of information by a Council member to include any improper use of the member's position on the Council. The clause also inserts in new section 19(3) additional responsibilities for members of Councils.

[16]. Amends section 33A(2)(a) to increase the ceiling for the disposal of land requiring Ministerial approval from $1.5 million to $3 million.

[17]. Amends section 34A by inserting the term "activities" in addition to "objects" to reflect current terminology regarding the formation of companies that are no longer required to have objects.

[18]. Provides a transitional provision in respect to Council members allowing members elected or appointed prior to the amendments made by the Bill to complete their period of office even where that exceeds 12 years in office.

[19 to 127]. Make similar amendments to those made in clauses 5 to 18 to the La Trobe University Act 1964, the Melbourne University Act 1958, the Monash University Act 1958 the Royal Melbourne Institute of Technology Act 1992 the Swinburne University of Technology Act 1992 the University of Ballarat Act 1993 the Victorian College of the Arts Act 1981 the Victoria University of Technology Act 1990.

[128]. Changes the name of the Victoria University of Technology to the Victoria University and includes appropriate transitional provisions.

The Committee makes no further comment.

Local Government (Amendment) Bill

Purpose

The Bill amends the Local Government Act 1989 (the ‘Act’) with respect to the appointment of Chief Executive Officers by Councils.

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

The Local Government (Amendment) Bill 2005 addresses this issue, amending section 94 of the Local Government Act 1989 to provide that a contract with a CEO is void if it is made:

before the general election for a term that continues after the general election; and
the contract of employment was entered into following a variation made to the chief executive officer's current contract of employment that reduced its term.

This Bill will prevent councils from varying CEO contracts to bring forward expiry dates to before election dates, thus allowing them to reappoint incumbent CEOs.

Content and Committee comment

[Clauses]

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

[3]. Amends section 94(7) of the Act to provide that a contract of employment as CEO between a Council and a person is void in certain circumstances.

The amendment provides that the contract will also be void where it is made before a general election for a term that continues after the general election and the contract of employment was entered into following a variation made to the CEO's current contract of employment that reduced its term.

This new paragraph is intended to clarify the operation of the Act to ensure that Councils cannot shorten the term of their CEO's employment contract to enable them to reappoint the CEO earlier than would have otherwise been possible.

The Committee makes no further comment.

Long Service Leave (Amendment) Bill

Purpose

The Bill amends the Long Service Leave Act 1992 (the ‘Act’) to make the law relating to long service leave more consistent with modern working arrangements and to ensure that employees who take leave for family purposes are not disadvantaged.

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

The main purpose of the Bill is to amend and update the Long Service Leave Act 1992. The 1992 Act substantially reflects the long service leave provisions in the 1979 Industrial Relations Act, although many provisions have not changed since the 1953 Act. In summary, the Bill will:

allow employees to take an initial period of long service leave after 10 years rather than 15 years;
change long service leave entitlements so that they recognise the impact of family commitments on workers;
ensure categories of employees such as casual and seasonal employees are treated fairly;
align Victoria's long service leave provisions more closely with other states, particularly New South Wales and Queensland;
provide more appropriate penalties for non-compliance with long service leave legislative provisions;
make access to pro rata long service leave payments available to employees upon termination after 7 rather than 10 years; and
provide that long service leave is exclusive of public holidays.

Importantly, the long service leave entitlement will remain at 13 weeks leave after 15 years service. The accrual rate will remain unchanged at approximately .086 weeks per year of service.

…

The proposed reforms will reflect parental leave entitlements, such as adoption leave and paternity leave. This will help create greater consistency and remove discriminatory treatment for parties accessing maternity or other parental leave.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 1 January 2006.

[5]. Inserts a new section 56A into the Act to provide for pro rata leave after 10 years at the rate of 1/60th of the period of employment.

[6]. Amends section 58 of the Act to provide for an entitlement to pro-rata long service leave after 7 years rather than after 10 years.

[8]. Amends section 62(2) of the Act to extend the forms of leave that do not break continuity of service to now cover carer's, paternity and adoption leave.

[9]. Inserts a new section 62A into the Principal Act to define the term "continuous employment" in relation to casual and seasonal employees.

[12]. Substitutes a new section 66 of the Act to provide that an employer and an employee may agree when an employee can take his or her leave and if the employer and employee cannot agree, the employer may direct the employee to take his or her leave at a particular time by giving the employee at least 3 months' written notice.

The employee may apply to the Industrial Division of the Magistrates' Court for an order concerning the taking of long service leave if the employee and employer cannot reach an agreement or if the employee receives a notice from the employer directing the employee to take the leave at a particular time.

[14]. Substitutes a new section 70 in the Act to provide that long service leave does not include any public holiday occurring during the period of leave. Section 70 currently provides that long service leave includes any public holiday occurring during the period of leave.

[15]. Inserts a new section 71A into the Act to provide that an employee may request that his or her employer grant the employee long service leave at half pay and for a period twice as long as the period to which the employee would otherwise be entitled. The employer must grant such a request if it is reasonable to do so having regard to the needs of the business and the needs of the employee.

[24]. Amends section 160 of the Act to allow an organisation registered under the Commonwealth Workplace Relations Act 1996 (Cth) to bring proceedings in the Industrial Division of the Magistrates Court on behalf of an employee to recover money owed to the employee, if requested to do so by an employee who is a member of the organisation. Proceedings under this section must be started within 6 years after the employee's entitlement arises.

The Committee makes no further comment.

Magistrates’ Court (Judicial Registrars and Court Rules) Bill

Purpose

The Bill amends the Magistrates' Court Act 1989 (the ‘Act’) to create the office of judicial registrar in the Magistrates' Court and to broaden the rule-making power of the Magistrates’ Court.

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

For example, Judicial Registrars will not be able to imprison people.

Furthermore, review or appeal of decisions made by judicial registrars will be as a hearing de novo by a Magistrate. That is, the matter will be re-heard rather than reviewed.

The types of matters to be heard by judicial registrars will be relatively routine or less complex matters currently heard by Magistrates. These may include:

restoration of driving licence;
interim intervention order applications;
taxing of costs to parties in a civil proceeding;
directions hearings and case conferences;
applications to issue search warrants;
inspection of property seized under a search warrant;
interlocutory applications in civil proceedings; and
bail applications.

Content and Committee comment

[Clauses]

[2]. Other than section 6 the provisions in the Bill come into operation on Royal Assent. The commencement of section 6 is linked to the commencement of the Legal Profession (Consequential Amendments) Act 2005. That Bill is still before the Parliament.

[4]. Provides for the constitution of the Court by a judicial registrar.

[5]. Inserts a new Part 2A in the Act in relation to the appointment of judicial registrars of the Magistrates' Court by the Governor in Council following a recommendation to the Attorney-General by the Chief Magistrate. The term of appointment of a judicial registrar may not exceed 5 years. A judicial registrar is eligible for re-appointment.

A judicial registrar may be suspended from office by the Chief Magistrate, with the approval of the Attorney-General, if the Chief Magistrate believes there may be grounds for the removal of the judicial registrar from office. A process for the investigation of a suspended judicial registrar is prescribed. The grounds for removal are limited to proved misbehaviour or incapacity.

New section 16I provides that rules of court may be made in relation to the proceedings that may be dealt with by the Court constituted by a judicial registrar and the delegation of all or any of the powers of the Court to judicial registrars except for certain powers.

New section 16J provides a judicial registrar has the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties.

New section 16K provides that the Court constituted by a magistrate may direct that a hearing and determination of the Court constituted by a judicial registrar be reviewed by the Court constituted by a magistrate as a hearing de novo. This direction may be given either at the request of a party to a proceeding or by the Court.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vii) of the Parliamentary Committees Act 2003, – ‘insufficiently subjects the exercise of legislative power to parliamentary scrutiny’

The Committee notes that clause 5 will insert a new Part 2A in the Act relating to Judicial Registrars including new section 16I concerning Rules of Court.

The Committee will seek further advice or confirmation from the Attorney-General that such Rules of Court will be subject to the same oversight by the Committee and possible disallowance by Parliament as Rules of Court made pursuant to other Parts of the Act.

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

[6]. Makes a consequential amendment to the Act by inserting new terminology introduced by the Legal Profession Act 2004.

Rule making – criminal proceedings

[7]. Inserts a new section 16(1A) of the Act which provide that the Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules of court in relation to criminal proceedings and in relation to any matter or thing required or permitted by the Act to be prescribed by rules of court or necessary to be prescribed by rules of court to give effect to the Act.

The Committee makes no further comment.

National Parks (Point Nepean) Bill

Introduced: 20 April 2005
Second Reading Speech: 21 April 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The Bill amends the National Parks Act 1975 (the ‘Act’) to make provision to establish a national park to be known as Point Nepean National Park and to make various amendments to the Mornington Peninsula National Park.

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

… the Bill will establish a new Point Nepean National Park incorporating former Department of Defence land to be transferred from the Commonwealth as well as parts of the existing Mornington Peninsula National Park. It will also add areas of coastal land to Mornington Peninsula National Park.

…

Two significant areas of Commonwealth land at Point Nepean are to be transferred to the State for addition to the national park estate, in two separate stages.

Content and Committee comment

[Clauses]

[2]. Other than sections 7 and 8 the provisions in the Bill will commence on the day after Royal Assent. Sections 7 and 8 commence on proclamation but not later than by 1 July 2006.

[5]. Inserts new sections 65 to 67 in the Act.

New section 65 provides that certain roads in Mornington Peninsula National Park ceases to be a road when it is included in that park.

New section 66 provides that the lands shown hatched on the plans of Mornington Peninsula National Park and Point Nepean National Park are excluded from those parks until the relevant titles are surrendered to the Crown.

[6]. Amends Schedule Two of the Act to substitute a new description of Mornington Peninsula National Park in Part 4 and inserts a new Part 44, which describes Point Nepean National Park.

[7 and 8]. On transfer to the State these clauses deal with the cessation and removal of certain easements over Defence Roads on the plan of Point Nepean National Park.

The Committee makes no further comment.

Owner Drivers and Forestry Contractors Bill

Purpose

The purpose of the Act is to regulate the relationship between persons who contract to transport goods in a vehicle, or harvest forest products using motorised equipment, supplied by them and persons who hire them, principally by —

requiring information to be given to contractors;
providing requirements for contracts;
allowing negotiating agents to be appointed;
providing a dispute-resolution mechanism;
conferring functions on the Small Business Commissioner;
establishing a Transport Industry Council and a Forestry Industry Council;
providing for codes of practice to be made;
prohibiting unconscionable conduct;
amending the Victorian Civil and Administrative Tribunal Act 1998.

The Committee notes these extracts from the Minister’s Second Reading Speech –

The purpose of this Bill is to provide some basic protections and a framework for effective resolution of disputes to improve the position of vulnerable small businesses namely owner drivers in the transport industry and harvesting and haulage contractors in the forestry industry.

…

The Bill applies to owner drivers in the transport industry and harvesting and haulage contractors in the forestry industry and those who engage them. Owner Drivers and log haulage drivers are defined in the Bill as persons who provide a vehicle (including a motorcycle or bicycle) in addition to personal services (driving and ancillary activities) under a contract for services with the hirer.

The Bill covers all forms of owner driver businesses, including companies and those who employ others (such as additional or relief drivers), but only where a person who does actual driving duties has a direct or indirect proprietary interest in the vehicle. All harvesting contractor small businesses are covered.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on a day to be proclaimed but not later than by 1 December 2006.

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

The Committee notes the delayed commencement provision and will seek further advice from the Minister as to why such a lengthy delay in commencement is desirable or necessary in the circumstances.

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

[4]. Sets out the definition of owner drivers and owner driver contracts.

[5, 6]. Defines haulage contractors and haulage contracts and harvesting contractors and harvesting contracts.

[7]. Provides a power to make regulations prescribing classes of persons to be or not to be contractors, and for specified classes of contracts to be or not to be owner driver contracts, haulage contracts or harvesting contracts.

Contracting requirements

[10]. Introduces a requirement for various persons to provide an information booklet (in a form specified by the Minister and published - clause 13) to a potential contractor (other than a short term contractor - clause 11) before engaging the contractor.

[14]. Deals with the development and revision of rates and costs schedules.

[19]. Sets out the application of this Division to ongoing engagements, being engagements that are either of no fixed duration. That is, to any contract for ongoing services that does not have a specified end date; or for a period of at least 30 days.

[23]. Provides that a hirer must not require a contractor to make any payment in respect of insurance, or to make any deductions from payments to a contractor in respect of insurance, unless the hirer has an insurance policy in force and has provided a copy of the policy to the contractor.

[25 and 26]. Provides that an individual or group of contractors or a hirer can appoint a person or group of persons to be their negotiating agent in relation to regulated contracts.

Codes of Practice

[27 to 30]. Allows regulations to be made prescribing codes of practice in relation to the engagement of contractors (being owner drivers, haulage contractors or harvesting contractors) or a class of those contractors (for example, courier drivers).

Unconscionable Conduct

[31 to 32]. Provides that a hirer must not engage in unconscionable conduct with respect to a contractor and provides a guide as to the matters to which the Victorian Civil and Administrative Tribunal may have regard for the purpose of determining whether a hirer has engaged in unconscionable conduct.

[32]. Sub-clause (1) provides that a contractor must not engage in unconscionable conduct with respect to a hirer.

Dispute Resolution

[33 to 53]. Provides for a system of alternative dispute resolution before a mediator appointed by the Small Business Commissioner and disputes before VCAT. Where mediation fails the dispute may be referred to VCAT and the clauses detail the type of orders VCAT may make.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b)(iii) of the Parliamentary Committees Act 2003, – ‘where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue’

The Committee notes the dispute resolution system established by the Bill and will seek further clarification from the Minister concerning any intention or otherwise of creating an exclusive jurisdiction in VCAT to hear certain matters under the proposed legislation and whether this may exclude or alter or vary the jurisdiction of the Supreme Court such as may warrant a section 85 Constitution Act 1975 provision and statement in the Bill.

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

Small Business Commissioner

[54]. Sets out the functions of the Small Business Commissioner under the Act.

Transport Industry Council

[55 to 57]. Establishes the Transport Industry Council of Victoria and sets out its functions, membership, constitution and procedures.

Forestry Industry Council

[58 to 60]. Establishes the Forestry Industry Council of Victoria and sets out its functions, membership, constitution and procedures.

[61]. Provides that persons must not engage in vilification in certain circumstances.

[65]. Provides that a provision of a regulated contract is void to the extent that it is contrary to or inconsistent with anything in the Act, a regulation, code of practice or an order of general application, or purports to exclude the operation of the Act or the Regulations.

[66]. Provides for the making of regulations with respect to matters required or permitted under the Act.

[67]. Makes amendments to the Victorian Civil and Administrative Tribunal Act 1998 to give effect to the new regulatory system introduced by the provisions in the Bill.

[68]. Sets out the transitional arrangements for the Act.

[69]. Sets out further transitional arrangements for those provisions of the Act dealing with unconscionable conduct and disputes. The unconscionable conduct provisions and dispute resolution processes apply to conduct occurring before or after the commencement of those provisions.

[Schedule 1]. Sets out the constitution and procedures of the Transport Industry Council and the Forest Industry Council.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee

Alert Digest No 5 of 2005

Tuesday, 3 May 2005

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Committee Room 18 April 2005

Committee Room
18 April 2005