Scrutiny of Acts and Regulations Committee

Alert Digest No 6 of 2005

Tuesday, 17 May 2005

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Appropriation (2005/2006) Bill

Introduced: 3 May 2005
Second Reading Speech: 3 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon.John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund for the ordinary annual services of the Government for the 2005/2006 financial year.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on Royal Assent.

[3]. The Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2005/2006 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

Appropriation (Parliament 2005/2006) Bill

Introduced: 3 May 2005
Second Reading Speech: 3 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund to the Parliament in respect of the 2005/2006 financial year.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on Royal Assent.

[3]. The Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2005/2006 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

Emergency Services Superannuation (Amendment) Bill

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

Purpose

The Bill amends the Emergency Services Superannuation Act 1986 (the 'Act') to enable the payment of certain benefits on a taxed basis, and to enshrine the 8.4 times multiple for benefits on an untaxed basis.

The Committee notes this extract from the Minister's Second Reading Speech -

.. from 1 July 2005 all members who elect to receive their benefit as a lump sum, an allocated pension, or who roll their benefit into another fund will pay a reduced amount of tax on their benefit, to reflect the contributions tax that has already been paid, and most will receive a higher net benefit.

Importantly, safeguards have been put in place to ensure that no member will receive a lower net benefit. If it is established that a member has suffered detriment, the board will act to compensate the member.

Those wishing to transfer their benefit to the emergency services superannuation scheme's beneficiary account upon leaving the defined benefit scheme will have the option to transfer either an untaxed or a taxed benefit. This option has been included to cater for the small minority of members who might be disadvantaged by transferring a taxed benefit.

The change to payment of taxed benefits brings the emergency services superannuation scheme into line with the vast majority of superannuation funds, including the state superannuation fund, which moved to paying taxed benefits in 1995.

Content and Committee comment

[Clauses]

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

The Committee makes no further comment.

Energy Legislation (Miscellaneous Amendments) Bill

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

Purpose

The Bill makes amendments to the -

• Electricity Safety Act 1998 in relation to electricity safety management schemes,

• Electricity Industry Act 2000 in relation to the methodology for determining the amounts payable by generation companies for land use,

• Gas Industry Act 2001 to allow a review of VENCorp to be undertaken before 2007, and

• Fuel Emergency Act 1977 in relation to proclamations declaring a state of emergency.

Content and Committee comment

[Clauses]

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

[5]. Amends section 205(1) of the Gas Industry Act 2001 to omit the reference to the year 2007 to clarify that the Minister may cause a review of VENCorp to be undertaken by the ACCC or other nominated person at any time instead of only during 2007.

[6]. Amends section 3 of the Fuel Emergency Act 1977 to extend the current power of the Governor in Council to declare a state of emergency if it appears that an event has occurred or is about to occur which causes or is likely to cause a fuel shortage and also extends the time allowed for a declaration to be in force from one week to three months. The amended section are shown in bold in context below-

3. Proclamation of a state of emergency in relation to a kind of fuel

(1) Where at any time it appears to the Governor in Council that any action has been taken or is immediately threatened by any person or body of persons, or an event has occurred or is about to occur whereby any kind of fuel is or is likely to become unavailable to meet the reasonable requirements of the community and that a state of emergency exists or is likely to exist in relation to that fuel the Governor in Council may by proclamation published in the Government Gazette declare that a state of emergency exists in relation to that fuel.

(3) No such proclamation shall be in force for more than seven days, 3 months without prejudice to the issue of another proclamation of emergency before at or after the end of that period.

The Committee makes no further comment.

Fisheries (Abalone) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill will amend the Fisheries Act 1995 (the 'Act') to create new quota setting and management provisions for the abalone fishery. In particular, the Bill will enable individual abalone quota units to be held by a person who does not hold an Abalone Fishery Access Licence.

The Committee notes this passage from the Second Reading Speech -

The purpose of the Bill is to amend the Fisheries Act 1995 to implement a new system which provides for the separation of individual abalone quota units from the abalone fishery access licence. Currently under fisheries legislation, quota is tied to the abalone fishery access licence.
The Bill will separate the quantity of abalone that can be caught (i.e., quota) from the abalone fishery access licence so it can be traded separately, allowing non-abalone fishery access licence-holders to hold quota.

...

The Bill provides for single abalone quota units to be transferred to any fit and proper entity, including persons who do not hold an abalone fishery access licence, thus providing for a larger number of traders in quota. The Bill also specifies the entitlements, transfer and notification requirements of an individual abalone quota unit holder.

Content and Committee comment

[Clauses]

[2]. Clauses 1, 2 and 11 of the Bill come into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than by 1 April 2006.

[4]. Amends section 10(2) to provide that the property in abalone taken from Victorian waters by the holder of an Abalone Fishery Access Licence under that licence passes from the Crown to the holder of the applicable individual abalone quota unit.

[8].Amends section 137 to provide that a person who is aggrieved by a decision of the Secretary to refuse to approve the transfer of an individual abalone quota unit may appeal the decision to the Licensing Appeals Tribunal.

[9]. Amends section 150 to allow a royalty to be imposed on individual abalone quota units.

[10]. Amends section 151 to allow levies to be prescribed for individual abalone quota units

The Committee makes no further comment.

Gambling Regulation (Public Lottery Licences) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill amends the Gambling Regulation Act 2003 (the 'Act') to -

• restrict a public lottery licence to lotteries, AFL footy tipping competitions and soccer football pools,

• to extend the initial term of a public lottery licence from a maximum of 7 years to a maximum of 10 years,

• require computer systems and other equipment used by a public lottery licensee to be approved by the Victorian Commission for Gambling Regulation,

• amend the restrictions on directors of another licensee under the Gambling Regulation Act 2003 from having a significant interest in certain other bodies,

• provide further for the costs of investigations by the Commission of applications under the Gambling Regulation Act 2004, and

• amend the process for applications for a public lottery licence.

Content and Committee comment

[Clauses]

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

[5]. Substitutes a new paragraph (a) in section 4.3.28(1) to vary a prohibition affecting directors of the holder of a wagering licence or an appointed subsidiary of that licensee so that those persons will be prohibited from being a director of, or have a voting power of 5% or more in, another person (other than a subsidiary of the wagering licensee) that holds a public lottery licence.

[6]. Substitutes the new definition of "public lottery".

[7]. Inserts a new section 5.2.1A into the Act which provides the licensees must used approved computer systems.

[8]. Inserts a new section 5.3.2A into the Act. It provides for the Minister to call for registrations of interest in the grant of a public lottery licence. [9]. Provides that a person who has been invited by the Minister under section 5.3.2A to apply for a public lottery licence may apply to the Minister for such a licence.

[11]. Provides the Minister may give written directions in relation to the licensee in the provision of information. It inserts a new section 5.5.6A into the Act.

[14]. Inserts additional regulation making powers.

The Committee makes no further comment.

House Contracts Guarantee (Amendment) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

This Bill amends the House Contracts Guarantee Act 1987 (the 'Act') to -

• establish the Housing Guarantee Claims Fund,

• confer responsibility on the Victorian Managed Insurance Authority ('VMIA') for the administration of that Fund and the Domestic Building ('HIH') Indemnity Fund and claims on those Funds,

• provide for the transfer of property, rights and liabilities of Housing Guarantee Fund Limited ('HGFL') to the State, in anticipation of the winding up of HGFL.

The Committee notes the Second Reading Speech -

The Bill transfers the responsibilities of the Housing Guarantee Fund Ltd, or HGFL, under the house contracts guarantee system and the domestic building (HIH) indemnity scheme to the Victorian Managed Insurance Authority, or VMIA.

...

The assets of HGFL will vest in the State and form a new fund called the Housing Guarantee Claims Fund, established by the Bill. VMIA will administer this fund as part of its administration of the running down of the house contracts guarantee scheme. When the guarantee scheme is finalised, this fund will be paid into the Domestic Builders Fund under the Domestic Building Contracts Act 1995.

The HIH Fund, which was established for the domestic building (HIH) scheme and currently administered by HGFL, will also be administered by VMIA and is otherwise unchanged.
While VMIA will have responsibility for the administering the above schemes and their funds, the Bill provides for the state of Victoria to be the successor in law of HGFL assets and liabilities on transfer of HGFL responsibilities to VMIA.

Content and Committee comment

[Clauses]

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

The Committee notes the delayed commencement provision and notes that no explanation is provided in either the explanatory memorandum or the second reading speech for the necessity or desirability for a delay in commencement of more than 2 years.

The Committee will seek further advice from the Minister.

Pending the response of the Minister the Committee draws attention to the provision.

[6]. Amends section 12 of the Act to reflect the transfer of responsibility for administering claims on guarantees from HGFL to VMIA and the transfer of liability for guarantees from HGFL to the State.

[13]. Inserts a new Part 2A into the Act which establishes a Housing Guarantee Claims Fund and sets out what money and other property is to constitute the Fund, how the Fund can be dealt with and how money in the Fund can be invested.

[23]. Substitutes a new section 49 of the Act to allow the Minister to close the Domestic Building (HIH) Indemnity Fund by notice published in the Government Gazette if satisfied that all claims on the Fund have been dealt with and that no further claim on the Fund can be made. It also provides for any money standing to the credit of the Fund on the publication of the notice to be paid into the Consolidated Fund.

[28]. Inserts a new Part 7 into the Act (sections 57 to 69) to set out the necessary transitional arrangements which will underpin the transfer of HGFL responsibilities to VMIA and the transfer of property, rights and liabilities of HGFL to the State.

New section 62 provides for the transfer of staff from HGFL to VMIA, and stipulates that staff employed by HGFL immediately before the appointed day will be taken to be employed by VMIA on the same terms and conditions and with the same accrued and accruing entitlements which applied to them as employees of HGFL, and in particular, that their service as an employee of VMIA is to be taken for all purposes to be continuous with their service with HGFL immediately before the appointed day.

The Committee makes no further comment.

Primary Industries Acts (Amendment) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill amends the Prevention of Cruelty to Animals Act 1986 to -

• provide for the registration and enforcement of interstate court orders relating to the custody of animals; and

• strengthen the enforcement provisions of that Act with respect to the seizure of animals and other things.

The Bill amends the Domestic (Feral and Nuisance) Animals Act 1994 to -

• require the permanent identification of menacing dogs; and

• provide for the seizure of cats not wearing identification; and

• provide for the power to destroy seized dogs whose owners cannot be located.

The Bill amends the Fisheries Act 1995 to -

• enable size limits for a species of fish to be fixed by a fisheries notice; and

• strengthen the enforcement powers in that Act in relation to the production of documents and records.

Content and Committee comment

[Clauses]

[2]. Other than clause 10 the provisions in the Bill come into operation on the day after Royal Assent. Clause 10 will come into operation on proclamation but not later than by a day to be proclaimed with a forced commencement date of 31 March 2007.

The Committee notes the explanatory memorandum -

The delayed commencement provides time for regulations to be made to support the amendments in clause 10 before that clause commences.

Amendments to the Prevention of Cruelty to Animals Act 1986

[3]. Inserts new sections 12A and 12B to deal with the registration on interstate court orders. Such orders disqualify persons from having custody of an animal or making custody subject to certain conditions. The interstate order is then enforceable under new section 12A. New section 12B provides for the Governor in Council to declare a law of another State or Territory to be a corresponding law for the purposes of new section 12A.

[5]. Substitutes section 21B to enable an inspector or other person named in a warrant authorised under section 21A to execute the warrant without an announcement or giving a person on the premises an opportunity to allow entry if immediate entry is required to ensure the safety of a person or effective execution of the warrant.

[6]. Inserts new sections 21D to 21M. New section 21D provides for the seizure and forfeiture of a thing (including an animal) believed to have been used in connection with the commission of an offence against that Act or the regulations under the Act. New section 21L provides that in certain circumstances an unclaimed seized thing may be sold or destroyed. For example a seized animal may be destroyed on humane grounds or if it is diseased.

[9]. Inserts new sections 24K to 24Q to provide for the seizure, sale and destruction of an animal held in contravention of section 12(7) or new section 12A(8) (breaching a court order or a registered interstate court order).

New section 24K provides for a magistrate to issue a warrant authorising an inspector to enter premises and seize an animal if the magistrate is satisfied that there are reasonable grounds to believe that an animal is being held in contravention of section 12 or new section 12A.

New section 24N applies where a person has been found guilty of an offence against section 12 or new section 12A and provides for the Department Head to authorise the sale by an inspector of an animal seized under new section 24K.

New section 24O provides for the Department Head to authorise the destruction of a seized animal by an inspector if a person has been found guilty of an offence against section 12 or new section 12A in respect of the animal.

Amendments to the Domestic (Feral and Nuisance) Animals Act 1994

[10]. Amends section 19 to provide that a 'menacing dog' must be identified by a prescribed permanent identification device. The provision currently only applies to 'dangerous' dogs.

[11]. Amends section 77 to provide that a cat may be seized where it is found outside its owner's premises without identification.

Amendments to the Fisheries Act 1995

[13]. Amends section 68A to provide that offences relating to size and catch limits apply in relation to size and catch limits set by fisheries notices as well as size and catch limits specified in the regulations.

[14]. Inserts new sections 102(6A),102(6B) and 102(6C) to enable an authorised officer to require a person to produce a document which the officer reasonably believes to be relevant to ascertaining whether or not that Act, the regulations under that Act or a fisheries notice are being observed.

Privilege against self-incrimination - documents to be produced - use-immunity

New section 102(6B) abrogates the privilege against self-incrimination for any record produced under section 102(6) or document produced under new section 102(6A).

The Committee notes the explanatory memorandum -

However, a use-immunity provision is included for a document produced under section 102(6A). This provision will enable a natural person to claim, before producing such a document, that the production of the document would tend to incriminate the person or make the person liable to a penalty. The document is not then admissible in evidence against the person in criminal or civil proceedings or in proceedings for the imposition of a penalty except in relation to the offence of providing false or misleading information. This will enable documents to be obtained, for example, from a person who may have records about the transport of high value fish such as abalone. The documents would not be able to be used as evidence against the person but may be used as evidence of non-compliance with the Fisheries Act 1995 by a third party. If the privilege against self-incrimination is not abrogated, the person could refuse to provide documents on the grounds that they provide evidence of a failure to comply with a non-fisheries related offence, thereby frustrating the purposes of the provision.

[15]. Amends section 152 to specifically provide that a fisheries notice can set minimum and maximum size limits for the taking of fish.

The Committee makes no further comment.

Road Safety (Further Amendment) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Road Safety Act 1986 to -

• increase the penalties for hit and run drivers;

• make further provision with respect to the granting of an extension of time to deal with a traffic infringement notice;

• enable certain drug-driving offences to be disregarded after 10 years in determining previous convictions for certain purposes;

• prohibit unauthorised cycling on freeways and enables removal of unauthorised people, bicycles etc from freeways;

• enables police to use tyre deflation devices in pursuits;

• increase the minimum licence cancellation period in certain dangerous driving cases;

• authorises the disclosure of vehicle information by VicRoads in connection with the authorisation by police or VicRoads of vehicle towing.

The Bill amends the Road Management Act 2004 to enable -

• VicRoads to remove certain vehicles or things that are a hazard to traffic from freeways or certain other roads;

• police to serve infringement notices under the Act;

The Bill amends the Road Safety (Drug Driving) Act 2003 to extend to 1 July 2006 the trial of random drug testing for drivers.

Content and Committee comment

Amendment of the Road Safety Act 1986

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

[4]. Includes the drug-driving offences in the list of offences to which the '10 year rule' applies. (The "10 year rule" means that offences more than 10 years old are disregarded for the purpose of determining whether a further offence is treated as a subsequent offence.)

[5]. Increases the maximum penalty for drivers who fail to stop or render assistance after an accident in which a person is killed or seriously injured to a penalty of not more than 10 years.

[6]. Enables the police to use tyre deflation devices in police pursuits.

[7]. Increases the minimum driver licence and learner permit cancellation period in certain dangerous driving cases.

[8]. Substitutes a new section 67 which allows a person who can demonstrate that he or she was not actually aware that a traffic infringement notice had been issued against him or her can apply to the Magistrates' Court for a further 28 days to deal with the notice.

[9]. Prohibits unauthorised use of a freeway by bicycle riders and provides for the removal of both the person and the bicycle where necessary.

[11]. Allows for the disclosure of personal information by VicRoads to the police about the towing of a vehicle.

[14]. Sets out how the Acts Interpretation Act 1901 (Cth) and the Interpretation of Legislation Act 1984 of Victoria intersect in respect of the Road Safety Act 1986. This is specified so there is national consistency in respect of the regulation of heavy vehicles. This implements the National Transport Commission's model Road Transport Reform (Compliance and Enforcement) Bill 2003. That Bill set out nationally agreed principles for the regulation of heavy vehicles.

Amendment of the Road Management Act 2004

[17]. Allows an authorised officer to direct the removal of illegally erected structures, devices, hoardings, advertisements, signs or bills.

[19]. Inserts new sections 119A and 119B to give VicRoads greater powers to deal with hazards on freeways and other roads. This includes the removal of vehicles left parked or standing on freeways. Reasonable force may be used to enter any such vehicle.

[20]. Allows for a road to be declared a controlled access road. It is intended that the policy document prepared by VicRoads regarding controlled access roads will be incorporated by reference by clause 3 of Schedule 2. VicRoads has prepared a document which is not an Act, Code or Statutory rule that divides the controlled access roads for which it is responsible into a number of different categories and establishes different requirements for each category.

Amendment of Melbourne City Link Act 1995

[23]. Substitutes a new section 87A which allows a person who can demonstrate that he or she was not actually aware that a tolling infringement notice had been issued against him or her to apply to the Magistrates' Court for a further 28 days to deal with the issue.

Amendment of other Acts

[24]. Extends roadside drug screening of oral fluid samples from 1 July 2005 to 1 July 2006.

[26]. Prohibits the unauthorised publication and communication of facts and documents which have come into the possession of Victoria Police by virtue of their office (in relation to towing operations), Authorised disclosure to tow truck operators is allowed where it is done for specified purposes within the Road Safety Act 1986.

The Committee notes the detailed and helpful explanatory memorandum attached to the Bill and will write to the Minister to commend the officers concerned in its preparation.

The Committee makes no further comment.

Sex Offenders Registration (Amendment) Bill

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

Purpose

The Bill amends the Sex Offenders Registration Act 2004 (the 'Act') to -

• substitute a new definition for 'corresponding registrable offender'.

• permit reasonable force to be used to take photographs,

• alter the length of reporting periods applicable under the Act,

• require courts to notify offenders and the Chief Commissioner of Police of certain matters and

• broaden the circumstances in which personal information in the Register of Sex Offenders may be disclosed for judicial functions and activities and to enable notification to be made to the Registrar of Births, Deaths and Marriages.

The Bill also amends the Sentencing Act 1991 to prevent sentencing courts from having regard to any consequences that may arise under an order made pursuant to the Sex Offenders Registration Act 2004.

The Bill further amends the Births, Deaths and Marriages Registration Act 1996 to require the Registrar under that Act to notify the Chief Commissioner of Police of the change of name of, or of the record of the sex of, persons on the Register of Sex Offenders.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 3 of the Act will come into operation on the day after Royal Assent; and the remaining provisions of the Act come into operation on proclamation but not later than by 1 October 2005.

[8]. Substitutes a new section 9 to define who is a "corresponding registrable offender".

The Committee notes this extract from the Minister's Second Reading Speech -

The Bill will enable more effective application of the Act to sex offenders that are required to report in another State or Territory. The Bill will require all registrable offenders that relocate from another State or Territory to Victoria, to continue to report to the Victorian registrar for the remainder of the reporting period imposed by the sentencing court in their home State or Territory, regardless of whether the offence for which they were registered would make them a registrable offender under Victorian law. This will ensure that a registrable offender does not attempt to evade their reporting requirements in another State or Territory by moving to Victoria.

Standard of proof for grant of application - 'beyond a reasonable doubt' - Application may be made up to 30 days after sentence - Appeal will stay application

[9]. Amends section 11 of the Act to -

• require the court to be satisfied, beyond reasonable doubt, that the person poses a risk to the "sexual safety of one or more persons or of the community" to enable a sex offender registration order to be made.

• enable the prosecution to make an application for a sex offender registration order not later than 30 days after the sentence for a registrable offence is imposed.

• stay the operation of a registration order in circumstances where a registrable offender appeals against a finding of guilt or sentence.

Police may use reasonable force to photograph registrable offender

[12]. Inserts a new section 27A to enable a member of the police force, receiving a report made in person, to require the registrable offender to be photographed and to expose any part of his or her body (except his or her genitals, the anal area of his or her buttocks or in the case of females or transgender people who identify as females, their breasts) on which there are any tattoos or permanent distinguishing marks, to enable that part of the body to be photographed.

[13]. Amends section 28 to require a member of the police force to inform the registrable offender of the purpose for which the power to photograph is to be exercised and why the member is not satisfied as to the registrable offender's identity, and if the registrable offender refuses to expose part of his or her body for the taking of photographs of that part of the body, that reasonable force be used. Reasonable force may be used if the registrable offender refuses to co-operate voluntarily and the use of force is authorised by a member of the police force in charge of a police station at the time of the request or a member of or above the rank of sergeant.

[15]. Substitutes a 15 year reporting period for a registrable offender who has ever been found guilty of 2 class 2 offences; reporting for the remainder of his or her life for a registrable offender who has ever been found guilty of 2 or more class 1 offences or of a class 1 offence and 1 or more class 2 offences or of 3 or more class 2 offences.

[16]. Substitutes section 37 to require a corresponding registrable offender to continue to comply with the reporting obligations imposed by Part 3 of the Act until, if he or she were in a foreign jurisdiction, he or she would not be required to report to the corresponding registrar of that foreign jurisdiction. If a corresponding registrable offender is so in more than one jurisdiction, the reporting period that applies is the longest for which he or she would be required to report to the corresponding registrar of a foreign jurisdiction.

[17]. Substitutes section 50(5) of the Principal Act to ensure that a court that makes any order or imposes any sentence that makes a person a registrable offender, or imposes any sentence on a person for a registrable offence, must give a written notice specifying the reporting period that applies to that person at the time the order is made or sentence is imposed.

Disclosure of information on the register to a court or the Registrar

[20]. Amends section 63(1)(b) of the Act to enable personal information in the Register to be disclosed by a person with access to the Register to a court for judicial functions or activities.

The clause also inserts an amendment to authorise the Chief Commissioner of Police to notify the Registrar of Births, Deaths and Marriages of the date of birth and the residential address of any registrable offender as stated in the Register of Sex Offenders.

[23]. Inserts additional offences in Schedule 4 in respect to sexual servitude and deceptive recruiting for commercial sexual services.

[25]. Amends section 5 of the Sentencing Act 1991 to ensure that, in sentencing an offender, a court must not have regard to any consequences that may arise under the Act from the imposition of the sentence.

[26 and 27]. Respectively inserts new sections 29A and 30I in the Births, Deaths and Marriages Registration Act 1996 to require the Registrar of Births, Deaths and Marriages to notify the Chief Commissioner of Police if a person on the Sex Offenders Register registers a change of name or makes an application to change their gender. This notification must be given in writing and must state both the person's former and new names and acquired gender. This requirement applies when the Registrar has previously been notified that the person is on the Sex Offenders Register.

The Committee makes no further comment.

Tobacco (Amendment) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Tobacco Act 1987 (the Act) to -

• Ban smoking in enclosed workplaces and other areas;

• Increase controls over tobacco advertising;

• Introduce further measures to prevent the supply of tobacco products to young people;

• Generally increase controls over tobacco and amends the Transport Act 1983 to;

• Ban smoking in covered public transport property.

Content and Committee comment

[2] Other than Part 3 and section 27 the provisions in the Bill come into operation on 1 March 2006. Part 3 (licensed premises) and section 27 come into operation on 1 July 2007.

The Committee notes this extract from the Minister's Second Reading Speech -

The implementation timelines are reflective of the governments understanding of providing industry and the community sufficient time to understand and accommodate the new tobacco laws.

[3]. Inserts various definitions into the Act.

[4]. Inserts a new definition of "tobacco advertisement".

[5]. Enables the Minister to declare the 'high roller room' in a casino to be a smoking area.

[6]. Inserts new sections 5A to 5I into the Act. It inserts a new offence of smoking in an enclosed workplace (new section 5A). Exemptions are set out in subsection (2) of new 5A. These include -

• Residential premises;

• Licensed premises;

• An outdoor dining or drinking area;

• A declared smoking area of a casino;

• A vehicle;

• A place of business occupied by the sole operator of the business that is not for the use of members of the public;

• A personal sleeping or living area of premises providing accommodation to members of the public for a fee or a residential facility;

• An area in an approved mental health service;

• A personal sleeping or living area or an exercise yard of a prison

• A detention centre.

Occupiers of dining areas, restaurants, bingo centres, casinos and retail shopping centres may be guilty of an offence if no smoking signs are not displayed. Section 3 defines what is an acceptable no smoking sign.

[11]. Amends the penalties for the offences regarding tobacco advertisements. The new maximum penalty for each offence is 60 penalty units.

[12 and 13]. Also increase penalties for various offences to 60 penalty units.

[15]. Amends the penalty regarding purchasing tobacco for minors. Under this managers can commit an offence if employees are not properly trained.

[16]. Makes it an offence to place vending machines in premises unless it is in -

• the bar area of licensed premises in line of sight of a bar;

• an approved venue or in a casino in line of sight of a service counter; or

• a bottle shop immediately adjacent to the service counter.

[18]. Inserts new Division 3 in Part 2 concerning underage music/dance events. It is an offence for a person to smoke in any area or premises while an underage music/dance event is taking place. Occupiers of such premises commit an offence if appropriate no smoking signs are not displayed.

[19]. Provides that infringement notices may be issued by police members as well as inspectors.

[20]. Replaces existing Schedule to the Act and includes offences for which infringement notices may be issued.

[21 to 24]. Deals with licensed premises (Part3) and amends section 5A inserted by this Bill as on 1 July 2007. The clause also substitutes sections 5C to 5E as a consequence of licensed premises also coming under the regulatory regime of enclosed workplaces as from 1 July 2007.

[26]. Inserts a new section 222A in the Transport Act 1983 and extends the offence of smoking in or on any public transport property that is a covered train platform, tram stop or bus stop. Acceptable no smoking signs must be displayed.

The Committee makes no further comment.

Transport Legislation (Further Amendment) Bill

Introduced: 4 May 2005
Second Reading Speech: 5 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The main purposes of the Bill are to amend the Rail Corporations Act 1996 to provide for a new access regime.

The Bill also amends the Transport Act 1983 to -

• validate certain things done or purported to have been done by certain persons in relation to the administration of Part VII of that Act, including the investigation and prosecution of offences under that Part; and

• validate certain accreditations of passenger transport companies and bus companies under Division 4A of Part VII of that Act that may not have been validly given by the Secretary; and

• deem certain instruments of delegation as validly and lawfully executed; and

• validate certain exercises or purported exercises of delegated powers to authorise certain persons to do things in relation to the administration of Part VII of that Act, including the investigation and prosecution of offences under that Part.

Content and Committee comment

[Clauses]

[2]. Other than clauses 5 and 9(7), (8) and (9), the provisions in the Bill will come into operation on Royal Assent. The remaining clauses come into operation on proclamation but not later than by 1 January 2006.

[4 and 5]. Amends Part 2A of the Rail Corporations Act 1996 concerning a new access regime which facilitates on-rail competition. The provisions include an access regime dispute resolution mechanism.

[6]. Inserts (inter alia) a new Division 8 of Part 2A in the Rail Corporations Act 1996. New section 38ZZZC provides that only the Commission may bring civil proceedings in respect of a penalty provision under the Division.

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)

[7]. Amends section 105 of the Rail Corporations Act 1996 to insert a new sub-section (3) which declares that it is the intention of section 38ZZZC (as inserted by clause 6) 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 7 of the Bill states that it is the intention of section 38ZZZC to alter or vary section 85 of the Constitution Act 1975.

Section 38ZZZC provides that a person may not bring civil proceedings in respect of a matter arising under part 2A of the act except in accordance with division 8. The provision further provides that the Essential Services Commission may bring civil proceedings in respect of a penalty provision. The term 'penalty provision' is defined in proposed new section 38A which is being inserted into the Rail Corporations Act by clause 4 of the Bill. The effect of division 8 is that the Essential Services Commission is the only person that may bring civil proceedings in respect of contraventions of penalty provisions, including proceedings for injunctions and declarations. A contravention of a civil penalty attracts a pecuniary penalty not exceeding $1 million.

The reason for limiting the jurisdiction of the Supreme Court by this section is that the Essential Services Commission as the regulatory authority on whom the function of administering and enforcing the obligations under Part 2A is conferred should be the only person with authority to enforce contraventions of a penalty provision.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, - 'provisions that may repeal, alter or vary the jurisdiction of the Supreme Court'

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

Amendment of the Transport Act 1983

[15]. Inserts a new Division 1B in Part VIII. The new Division validates certain things done or purported to have been done by certain persons in relation to the administration of Part VII of the Act, including the investigation and prosecution of offences under that Part; and validates certain accreditations of passenger transport companies and bus companies under Division 4A of Part VII of the Act that may not have been validly given by the Secretary; and deems certain instruments of delegation as validly and lawfully executed; and validates certain exercises or purported exercises of delegated powers to authorise certain persons to do things in relation to the administration of Part VII of the Act including the investigation and prosecution of offences under that Part.

The Committee notes that some in some cases the validating provisions apply to actions or things done in the period beginning 1 July 1983.

The Committee notes this extract from the Minister's Second Reading Speech -

A decision made in the case of Arachichi v. Clark in the Melbourne Magistrates Court on 14 February 2005 cast doubt on the validity of the authorisation of the authorised officers concerned to exercise enforcement powers under the Transport Act. As a result the Department of Infrastructure reviewed relevant accreditations, authorisations and delegations relating to public transport compliance and enforcement. The review also raised wider concerns about the validity of company accreditation and the authorisation of the authorised officers they employ, the issue of infringement notices by the Department of Infrastructure and the use of powers by authorised officers for enforcement and prosecution purposes. It indicated that there is an argument that some or all accreditations, authorisations and delegations have been technically voidable since 24 August 1999 in the case of accreditations and since 1 July 1983 for authorisations and delegations.

Consequently, it is arguable that past and present infringement notices, prosecutions and enforcement actions relating to public transport may be subject to legal challenge due to purely technical defects.

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)

[16].Inserts a new section 255G into the Transport Act 1983 that declares that it is the intention of new section 246CZC 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 -

Proposed new section 255G of the Bill to be inserted by clause 16 states that it is the intention of section 246CZC to alter or vary section 85 of the Constitution Act 1975. Section 246CZC provides that a person may not bring proceedings (whether criminal or civil) for any matter or thing that, by reason of the operation of sections 246CA to 246CZB is deemed to be valid or lawful or to have been validly or lawfully done. The effect of sections 246CA to 246CZB is that anything done or purported to be done by a person purportedly appointed or authorised as an authorised officer is deemed always to have had the same force and effect as it would have had if the person appointing that person and the person had been validly appointed or authorised.

Similarly, section 246CT regularises accreditations given or purportedly given by the secretary in the past and sections 246CU to 246CZB affirm the validity of prosecutions, authorisations, evidence and delegations effected, arranged or undertaken by past and present persons and organisations with responsibility for public transport compliance and enforcement.

The reason for limiting the jurisdiction of the Supreme Court by this section is to eliminate the possibility of persons bringing proceedings or defending prosecutions founded on possible technical defects relating to accreditations, authorisations and delegations. The public interest is served best by concentrating effort on sound administrative platforms going forward rather than enabling the diversion of resources towards the defence of legal actions about past technicalities.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003 - 'provisions that may repeal, alter or vary the jurisdiction of the Supreme Court'.

The Committee will write to the Minister to seek his advice whether there are any known existing legal proceedings that may be affected by these validations.

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

The Committee makes no further comment.

Committee Room
16 May 2005

Scrutiny of Acts and Regulations Committee
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