Scrutiny of Acts and Regulations Committee

Alert Digest No 7 of 2005

Tuesday, 14 June 2005

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Accident Compensation (Amendment) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible: Mr John Lenders MLC
Portfolio responsibility: Minister for WorkCover

Purpose

The Bill amends the Accident Compensation Act 1985 (the ‘Act’) to –

• provide for employers who exit the WorkCover Scheme and to deal with the liability for and management of the tail claims of such employers. The amendments seek to protect the WorkCover scheme from the impacts of employers exiting to the Commonwealth’s Comcare scheme;

• expressly bind the Crown to the criminal liability provisions of the Act;

• revise the secrecy provisions;

• remove the requirements for common seals;

• clarify the operation of the hearing loss provisions;

• improve the operation of the provisions relating to weekly payments;

The Bill amends the –

• Occupational Health and Safety Act 2004 to require employers who exit the WorkCover Scheme to contribute towards the costs and expenses incurred by the Authority for the provision of occupational health, safety and welfare regulation and related education and prevention services.

• Transport Accident Act 1986 to remove the requirement that the Transport Accident Commission must have an official seal.

Content and Committee comment

[Clauses]

[2]. Division 2 of Part 5 (clause 32) is deemed to have come into operation on 2 December 2003, the day after the day on which the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 received Royal Assent.

Division 5 of Part 2 (clauses 17 to 20) relating to compensation for hearing loss, is deemed to have come into operation on 18 November 2004 .

Divisions 1 and 3 of Part 2 and Division 1 of Part 3 and Part 4 come into operation on 1 July 2005 .

The remaining provisions commence operation on the day after Royal Assent.

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 to rights and freedoms’. Clauses 17 to 20 The Committee notes that there is no explanation provided in either the second reading speech or the explanatory memorandum regarding the retrospective operation of theses provisions. In respect to the retrospective application of the amendments made by clauses 17 to 21 the Committee will seek further advice whether the amendments may adversely effect any persons hearing loss claim. Clause 32 In respect to clause 32 concerning the amendment to the Accident Compensation and Transport Acts (Amendment) Act 2003, whilst the Committee considers the amendment does no more than correct an incorrect reference to an Act with a reference to the correct Act, the Committee nevertheless considers the Parliament should be provided an explanation for the reason why retrospective application is necessary. Pending the Minister’s response the Committee draws attention to the provisions.

[3 to 6]. These clauses amend the Act to enable the Victorian WorkCover Authority ("the Authority") to keep the liability and management of tail claims for employers who were either (but no longer are) insured employers under the Accident Compensation (WorkCover Insurance) Act 1993 or self-insurers or their subsidiaries under Part V of the Accident Compensation Act 1985.

An employer who was previously insured under a WorkCover insurance policy will be liable to pay the Authority for any difference between its tail claims liabilities and the Authority's available assets immediately prior to exit. In the case of an employer who was previously a self-insurer it will be liable to pay the Authority the amount of its tail claims liabilities as assessed immediately prior to exit. They will then continue to be liable for any deterioration in the liabilities related to their tail claims for a period of six years after their exit date. (Also note section 85 Constitution Act 1975 provision and statement below).

[9 to 12]. Aligns the secrecy provisions (production of documents or divulge and communicate information to officials) in the Act with the provisions relating to information disclosure in the recently enacted Occupational Health and Safety Act 2004.

[17 to 20]. Clarify the provisions that specifically deal with how compensation for hearing loss is determined and assessed. The provisions are retrospective to 18 November 2004 .

[21 to 23]. Makes amendments relating to Weekly Payments.

The Committee notes this extract from the explanatory memorandum –

The need for these amendments arose as a result of the recent Court of Appeal decision in Victorian WorkCover Authority v Balogh [2004] VSCA 200. The consequences of that decision were that the VWA and its agents could not challenge a worker's continuing entitlement to arrears of weekly payments in cases where a procedural step was not completed.

To address the issues raised by that decision, the Accident Compensation Act 1985 is being amended to ensure that the procedural provisions of the Act concerning the giving of a notice do not take precedence over provisions concerning entitlements.

[24]. Transitional - In respect to weekly payments the clause inserts new section 285 providing that the amendments made by clauses 21 to 23 apply in respect of an entitlement of a worker to weekly payments irrespective of when the entitlement arose.

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)

[25]. Inserts a new section 252G which declares that it is the intention of section 175 as inserted by clauses 6 to alter or vary the jurisdiction of the Supreme Court in that it provides that no appeal to the Court lies from the assessment of tail claims liabilities in new Part VIA.

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

Proposed new section 175 of the Accident Compensation Act provides that there is no recourse to the courts in relation to assessments made under the new Part VIA. Other sections in this proposed new Part of the Act provide for actuarial assessments of exiting employers' liabilities, as they were immediately prior to their exit to Comcare and annually thereafter for six years, and depending on the outcome of those assessments to require payment of certain amounts to be made by either the exiting employer or by WorkCover at certain times. The Bill provides only a limited right of review of these assessments and related matters.

These restrictions are necessary to ensure that:

• an incentive remains for employers to effectively manage their liabilities incurred prior to their exit to Comcare. Currently, the main incentive is via the premium system. As they will no longer have to pay premium, the incentive will instead be to limit the additional costs that they may have to pay for the liabilities incurred prior to their exit to Comcare. If the employer could dispute this liability, it may decrease the incentive to effectively manage these claims;

• the amounts that will be recovered are unlikely to be greater than those that would be recovered by the premium system if the employer remained insured with the VWA. VWA-insured employers have a limited right to recover premium and do not have recourse to the courts except in limited circumstances. As such, the proposal is consistent with the treatment of VWA-insured employers;

• the cost of any litigation would be largely borne by the VWA. Given that one of the bases for this proposal is to ensure the equitable treatment between VWA insured employers and those that exit to Comcare, the costs for recovery of past liabilities has been minimised; and

• this limit applies equally to the VWA. If the assessment at the end of the six-year liability period finds that the employer has managed their claims so effectively that there has been a reduction in their pre-exit liabilities, the VWA is bound by the actuarial assessment and may in fact owe the employer a refund.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, – ‘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.

[29]. Amends the Occupational Health and Safety Act 2004 to provide for the payment of a fee to the Victorian WorkCover Authority for the occupational health, safety and welfare regulation and related education and prevention services that the Victorian WorkCover Authority provides to employers who are neither insured employers under the Accident Compensation (WorkCover Insurance) Act 1993 nor self-insurers or their subsidiaries under the Accident Compensation Act 1985

The clause also amends that Act to provide for the collection of data by the Victorian WorkCover Authority concerning occupational health, safety and welfare matters from employers who are neither insured employers under the Accident Compensation (WorkCover Insurance) Act 1993 nor self-insurers or their subsidiaries under the Accident Compensation Act 1985.

Statute law revision – Unexplained retrospective commencement

[32]. The clause is a statute law revision amendment and provides that the reference to the Transport Act 1983 in section 27 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (the ‘amending Act’) is replaced with a reference to the Transport Accident Act 1986. Section 27 of the amending Act purported to repeal sections 46A(8) and 46A(9) of the Transport Act 1983. In fact those sections do not exist in the Transport Act 1983. Those section are in fact found in the Transport Accident Act 1986. It is apparent to the Committee that the original amendment referred to the incorrect Act and the retrospective amendment is intended to correct that error from the commencement of the amending section on 2 December 2003 .

The Committee makes no further comment.

Accident Compensation and Transport Accident Acts (Ombudsman) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Accident Compensation Act 1985 (the ‘Act’) to confirm that the Ombudsman may enquire into or investigate any administrative actions of claims agents and self-insurers approved under that Act, and of certain delegates of the Victorian WorkCover Authority.

The Bill also amends that Act and the Transport Accident Act 1986 to provide a mechanism for the funding of additional services to be provided by the Ombudsman in relation to activities under those Acts.

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

The ability for the Ombudsman to review the conduct and procedures of claims agents and self-insurers reflects some existing situations, for example contractors providing prison and prison-related services. The Bill does not give the Ombudsman jurisdiction to consider the substance of compensation claims, which will continue to be determined as they are currently. However, by ensuring there is a clear mechanism for independent and impartial review of compensation claims management and handling, the Bill provides an incentive for the VWA and its claims agents, self-insurers, and the TAC, to make sure compensation claims are managed efficiently and fairly.

Content and Committee comment

[Clauses]

[2]. Clauses 3, 4 and 6 come into operation on 1 October 2005 and the remaining provisions come into operation on the day after Royal Assent.

[3]. Inserts section 21A into the A ct to confirm that the Ombudsman may enquire into or investigate any administrative actions of any person while acting as a delegate of the WorkCover Authority in administering claims under the Workers Compensation Act 1958 .

[4]. Inserts section 23AA into the Act to confirm that the Ombudsman may enquire into or investigate any administrative actions of an authorised agent while acting in its capacity as an authorised agent under the Act or any matter relating to such an administrative action.

[6]. Inserts section 153 into the Act to confirm that the Ombudsman may enquire into or investigate any administrative actions of a self-insurer while acting in its capacity as a self-insurer under the Act.

The Committee makes no further comment.

Courts Legislation (Miscellaneous Amendments) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the –

• Magistrates' Court Act 1989 to authorise certain persons to act as witnesses for statements to be tendered at a committal proceedings;

• Constitution Act 1975 and the County Court Act 1958 to provide recognition of certain prior service for pension purposes;

• Judicial Remuneration Tribunal Act 1995 to allow the Attorney-General to issue certain certificates in relation to judicial conditions of service and to allow the Judicial Remuneration Tribunal to consider additional leave arrangements;

• Magistrates' Court (Koori Court) Act 2002 to repeal sunsetting provisions relating to the Koori Court;

• Sentencing Act 1991 in relation to Drug Court absconders;

• Sentencing (Amendment) Act 2002 to repeal sunsetting provisions relating to the Drug Court.

Content and Committee comment

[Clauses]

[2]. Other than clause 11 the provisions in the Bill will commence on the day after Royal Assent. Clause 11(1) is back-dated to 5 April 2005 which is the commencement of section 16 of the Public Administration Act 2004.

[8]. Amends sections 18ZN and 18ZP of the Sentencing Act 1991 to provide that the treatment and supervision part of a drug treatment order is suspended where an offender fails to attend a hearing under sections 18ZN or 18ZP. The effect of the suspension is that from the suspension time does not count in calculating the period during which the treatment and supervision order is considered to have operated.

[9]. Repeals sections 2(2), 2(3) and 10 of the Magistrates' Court ( Koori Court ) Act 2002 .

[10]. Repeals the provisions in the Sentencing (Amendment) Act 2002 that would have had the effect of sunsetting the Drug Court provisions in the Sentencing Act 1991 and the establishment of the Drug Court Division in the Magistrates’ Court 1989.

Retrospective provision

[11]. Amends the Public Administration Act 2004 to ensure that the Legal Ombudsman has the functions of a public service body Head under that Act until the Legal Ombudsman is replaced by the Legal Services Commissioner under the Legal Profession Act 2004.

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

These amendments arise out of early commencement of a section of the Public Administration Act 2004, which substituted the Legal Services Commissioner for the Legal Ombudsman as a person with the functions of a public service body head. This section should have commenced at the same time as the Legal Profession Act 2004 under which the office of the Legal Ombudsman will be abolished and the legal services commissioner established.

It has always been intended that , until the Legal Profession Act 2004 commences, the Legal Ombudsman is a person with the functions of a public service body head for the purposes of the Public Administration Act 2004. The amendments therefore included in the Bill will reinstate the Legal Ombudsman as a person with the functions of a public body head until the Legal Profession Act comes into operation.

The Committee makes no further comment.

Dangerous Goods and Equipment (Public Safety) Acts (Amendment) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for WorkCover

Purpose

The Bill amends the Dangerous Goods Act 1985 and the Equipment (Public Safety) Act 1994 to align the provisions of those Acts dealing with inspectors powers and related matters with the equivalent provisions of the Occupational Health and Safety Act 2005.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 1 July 2005.

Amendments to the Dangerous Goods Act 1985

[7]. Inserts new section 10B which is a detailed and defined delegation of powers provision.

[9]. Substitutes new sections 11 to 17 and deals with inspectorial appointments and inspectorial powers of search and entry. New section 13 sets out the power of inspectors to enter places. New section 13A confers on inspectors the power to inspect, etc. vehicles, ships and boats.

New section 13B confers powers on inspectors who have exercised a power of entry under this Subdivision.

Privilege against self-incrimination

New section 13C sets out the powers of inspectors in relation to the production of documents and questioning. An inspector must inform the person that he or she may refuse to answer any question if answering any question would tend to incriminate the person. The person is not liable to prosecution if an inspector fails to produce an identity card or fails to warn the person required to give information.

New section 15 provides for the issue of search warrants in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.

New section 16 provides that the powers of an inspector in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except with the permission of the occupier or under the authority conferred by a search warrant.

[12]. Substitutes sections 17B, 17C, 18, 19 and 20 dealing with non-disturbance, improvement, and prohibition notices, which an inspector may issue requiring the occupier of a place to stop the use or movement of, or interference with, any specified thing at the place, and prevent the disturbance of the thing or a specified area.

New section 17J allows the Authority to apply to the Supreme Court for an injunction enforcing a provisional direction, or a non-disturbance, improvement or prohibition notice.

New section 18 allows an inspector to ask a person to state his or her name and address in specified circumstances.

New section 18A gives an inspector the power to give oral or written directions to a person at a place if the inspector reasonably believes that it is necessary to do so because of an immediate risk to the safety of any person or of damage to any property arising out of the presence of dangerous goods or any related thing.

Protections Concerning Self-Incrimination and Legal Professional Privilege

New section 19F provides that a natural person may refuse or fail to give information or do any other thing that the person is required to do by or under the Act or regulations if giving the information or doing the other thing would tend to incriminate the person, subject to specified exceptions. The privilege does not apply to the production of documents required to be produced under the Act.

New section 19G expressly preserves legal professional privilege.

New section 20A sets out the procedure for seeking an internal review of a reviewable decision. New section 20B provides that an eligible person may apply to the Victorian Civil and Administrative Tribunal for a review of a reviewable decision.

[22]. Inserts new sections 60A to 60C to confer on the Authority the power to accept a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of the Act or regulations. New section 60B sets out the consequences of failing to comply with an undertaking accepted by the Authority.

Amendments to the Equipment (Public Safety) Act 1994

[27]. Substitutes new Parts 3 and 4 to deal with appointment of inspectors and their powers and functions.

New section 14 sets out the entry powers of inspectors.

New section 14B sets out the powers of inspectors in relation to the production of documents and questioning. An inspector must inform the person that he or she may refuse to answer any question if answering any question would tend to incriminate the person. The person is not liable to prosecution if an inspector fails to produce an identity card or fails to warn the person required to give information.

New section 16 provides for search warrants issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.

New section 17 provides that the powers of an inspector in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except with the permission of the occupier or under the authority conferred by a search warrant.

New section 19 deals with non-disturbance notices. New section 19A gives an inspector the power to issue an improvement notice to a person. New section 19B gives an inspector the power to issue a prohibition notice. New section 19H allows the Authority to apply to the Supreme Court for an injunction enforcing a provisional direction, or a non-disturbance, improvement or prohibition notice.

New section 20 allows an inspector to ask a person to state his or her name and address in specified circumstances.

Self-incrimination and Legal Professional Privilege

New section 23 provides that a natural person may refuse or fail to give information or do any other thing that the person is required to do by or under the Act or regulations if giving the information or doing the other thing would tend to incriminate the person, subject to specified exceptions. The privilege does not apply to the production of documents required to be produced under the Act.

New section 23A expressly preserves legal professional privilege.

New section 24A sets out the procedure for seeking an internal review in relation to a reviewable decision. New section 24B provides that an eligible person may apply to the Victorian Civil and Administrative Tribunal for a review of a reviewable decision.

[32]. Inserts new sections 34A to 34C to confer on the Authority the power to accept a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of that Act or regulations. New section 34B sets out the consequences of failing to comply with an undertaking accepted by the Authority.

The Committee makes no further comment.

Energy Safe Victoria Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amendments to the Electricity Safety Act 1998, the Gas Safety Act 1997 and consequential amendments to other Acts, to provide for the establishment of Energy Safe Victoria and the abolition of the Office of Gas Safety ("OGS") and the Office of the Chief Electrical Inspector ("OCEI") upon its establishment.

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

The Energy Safe Victoria Bill provides for the merger of the Office of the Chief Electrical Inspector and the Office of Gas Safety into a streamlined regulator, operating as ‘Energy Safe Victoria’.

Content and Committee comment

[Clauses]

[2]. Other than clause 59, the Bill comes into operation on proclamation but not later than by 30 December 2005 .

Clause 59, which corrects a cross-reference error in section 6 of the Electricity Industry (Wind Energy Development) Act 2004, has a retrospective commencement date of 23 November 2004 , the date on which that Act received the Royal Assent to ensure that section 6 operates correctly from its commencement.

[4 to 24]. Establishes Energy Safe Victoria and provides for its objectives, powers and functions. The clause allows for the appointment or engagement of employees or persons to assist Energy Safe Victoria, on terms and conditions that Energy Safe Victoria determines and provides that Energy Safe Victoria consists of the Director of Energy Safety (the "Director").

[29]. Confers discretion on Energy Safe Victoria as to the manner in which an inquiry is conducted and provides that it is not bound by the rules of evidence.

[30]. Provides Energy Safe Victoria with powers relating to inquiries including to summons any person to provide information, documents or to appear before it to give evidence.

Failure to obey such a summons, without lawful excuse is an offence, the penalty being 60 penalty units, however it is a lawful excuse to disobey a summons of Energy Safe Victoria if compliance may incriminate a person or make that person liable to a penalty.

The clause further imposes a penalty where a person gives false or misleading information to Energy Safe Victoria and imposes a penalty where a person threatens, intimidates, or coerces another person, or causes another person to suffer loss, injury or disadvantage because that person assists or intends to assist an inquiry undertaken by Energy Safe Victoria.

This clause also provides protection from certain liabilities for persons who in good faith make a statement or give a document or information to Energy Safe Victoria in connection with an inquiry.

[33]. Enables the Governor in Council to make regulations for or with respect to prescribing any matter or thing authorised or required to be prescribed or necessary to be prescribed for the carrying of the Bill into effect.

[35]. Abolishes the OCEI on the commencement day (the date of commencement of Part 5 of the Bill) and provides for Energy Safe Victoria to be the successor in law of OCEI.

[36]. Makes provision for the transfer of the person who holds the office of chief electrical inspector and employees of OCEI to Energy Safe Victoria. Sub-clause (1) deems the person who holds the office of the chief electrical inspector on the commencement day to be an employee of Energy Safe Victoria on the terms and conditions determined by the Minister and with the same accrued and accruing entitlements as applied to that person immediately prior to that day unless that person is appointed as Director with effect from that day.

An employee of OCEI on the commencement day to be an employee of Energy Safe Victoria on the same terms and conditions and with the same accrued and accruing entitlements as applied to that person immediately prior to that day and provides that the service of a person deemed to be an employee of Energy Safe Victoria is regarded as being continuous with their prior service with OCEI.

[39]. Abolishes OGS on the commencement day, and provides for Energy Safe Victoria to be the successor in law of OGS.

[40]. Provides for the transfer of the person who holds the office of Director of Gas Safety and employees of OGS to Energy Safe Victoria. Sub-clause (1) deems the holder of the office of the Director of Gas Safety on the commencement day to be an employee of Energy Safe Victoria on the terms and conditions determined by the Minister and with the same accrued and accruing entitlements as applied to that person immediately prior to that day unless that person is appointed Director with effect from that day.

An employee of OGS on the commencement day to be an employee of Energy Safe Victoria on the same terms and conditions and with the same accrued and accruing entitlements as applied to that person immediately prior to that day and provides that the service of a person deemed to be an employee of Energy Safe Victoria is regarded as being continuous with their prior service with OGS.

The Committee makes no further comment.

Environment and Water Legislation (Miscellaneous Amendments) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLC
Portfolio responsibility: Environment and Water

Purpose

The Bill makes miscellaneous amendments to the Sustainable Forests (Timber) Act 2004, the Safety on Public Land Act 2004 , the Victorian Conservation Trust Act 1972, the Water Act 1989 and the Melbourne and Metropolitan Board of Works Act 1958 .

Content and Committee comment

[Clauses]

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

[4]. Substitutes a new section 74 into the Sustainable Forests (Timber) Act 2004 to enable an authorised officer to issue a written notice indicating that he or she is satisfied that a damage, risk, matter or activity which was the subject of a suspension notice has been remedied.

[6]. Amends section 7 of the Safety on Public Land Act 2004 to provide that a public safety zone declaration must be published in the Government Gazette. The Secretary must cause notice of the making of a declaration to be published in a newspaper circulating generally in the State and in any newspaper circulating generally in the area affected by the declaration. Such a public notice must include details of where the declaration may be inspected. The declaration must be made available at certain regional offices and on the Internet.

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

Rather than require the whole declaration to be published in statewide and local newspapers, those newspapers will carry notice of the making of the declaration and details of where the declaration may be viewed. The full declaration will continue to be published in the Government Gazette and on the Internet. It will also be available for inspection at the department's head office and relevant regional offices.

There is also an amendment to enable documents to be incorporated by reference into a public safety zone declaration. This will, for example, enable media such as maps to be used to assist the public in identifying and locating public safety zones.

Validation of past orders and subordinate instruments

[15 and 16]. Respectively insert new sections 305C 305D in the Water Act 1989 and sections 241A and 241B in the Melbourne and Metropolitan Board of Works Act 1958. The amendments will allow for the adoption or incorporation of any matter contained in any document formulated, issued, or prescribed or published by any person (for example the incorporation by reference into orders or other instruments of maps and plans).

The amendments also validate orders or instruments made or purported to be made under certain specified provisions in those Acts on or after 1 July 1984 and in force, or purportedly in force, immediately before the commencement of the provisions in the Bill that would have been validly made if the inserted amending sections had been in operation at the time the relevant orders or other instruments were made.

The Committee notes this extract from the explanatory memorandum –

It was on 1 July 1984 that the Interpretation of Legislation Act 1984 took effect. Section 32 of that Act provides that the incorporation by reference of certain documents into subordinate instruments is not permitted unless the Act under which the instrument is made specifically provides for the incorporation by reference of documents of that type.

The Committee notes this extract from the Minister’s Second Reading Speech that has relevance to clauses 15 and 16 of the Bill –

Parts 5 and 6 of the Bill amend the Water Act 1989 and the Melbourne and Metropolitan Board of Works Act 1958 to address particular issues relating to the declaration of districts and areas. They provide that subordinate instruments made under certain provisions of these Acts may incorporate by reference matters contained in documents such as plans and maps. It also amends those Acts to validate past subordinate instruments made since 1 July 1984 that have incorporated by reference maps, plans or other documents. Referring to the maps and plans in a subordinate instrument or piece of legislation is often the most convenient and effective means of describing an area of land.

The Committee makes no further comment.

Health Legislation (Miscellaneous Amendments) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Health

Purpose

The Bill amends the Cemeteries and Crematoria Act 2003, the Health Services Act 1988, the Mental Health Act 1986 and various health practitioner regulation Acts.

Content and Committee comment

[Clauses]

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

[5]. Amends the Cemeteries and Crematoria Act 2003 to provide that either a Magistrates' Court or a coroner appointed under the Coroners Act 1985can make an order requiring a cemetery trust to cremate or inter the bodily remains of a deceased poor persons.

[16]. Insets sections 12 and 12AA to establish procedures by which a registered medical practitioner or a mental health practitioner may make an involuntary treatment order in relation to a person in the community or in an approved mental health service.

[19]. Substitutes new section 52(7)(a) of the Mental Health Act 1986 providing that the maximum time for which special leave may be granted is 7 days, rather than 24 hours as previously. Special leave is sometimes used to provide specialised medical treatment that is not available at the mental health service.

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

The Bill also amends the act to allow security patients to be granted up to a maximum of seven days special leave for medical treatment.

Currently the Act provides that security patients (who have been transferred from prison requiring mental health treatment or are found guilty of an offence and ordered to be detained in a mental health service) can only be granted special leave from a mental health service for a maximum of 24 hours. The amendment will bring security patients in line with forensic patients under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which allows a maximum of seven days special leave for medical treatment.

Special leave is often used to provide specialised medical treatment that is not available at the mental health service. Difficulties arise when the medical treatment cannot be completed within 24 hours, and multiple leave applications must be made to cover the period of treatment. This is considered onerous and unnecessary. This amendment will streamline paperwork by reducing the number of applications required to be made.

[20 to 50, 53 to 54]. Parts 5 and 6 of the Bill contains identical amendments to 10 of health practitioner registration Acts and the Veterinary Practice Act 1997. The amendments –

• allow Boards to lift, vary or revoke the conditions on a practitioner’s registration with agreement from the practitioner without returning to a hearing;

• with allow, with Ministerial consent, Board Members to serve up to an additional 3 months beyond the date of expiration of their term of office;

• allow Boards to issue guidelines about minimum terms and conditions of professional indemnity insurance and require that insurance as a condition of the grant or renewal of registration;

• allow Boards to grant specific registration to a person with the applicant's qualifications and training if the Board is satisfied it is necessary to meet an identified need.

• allow Boards to appoint persons to formal and informal panels from a list of persons approved by the Governor in Council, rather than having to seek approval each time a panel is constituted.

The Committee makes no further comment.

Land (Miscellaneous Matters) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLC
Portfolio responsibility: Attorney-General

Purpose

The Bill revokes the reservations relating to various parcels of land and the Crown grants in relation to some of those parcels and to re-reserve part of one of those parcels of land; and amends the Ballarat (Sovereign Hill) Land Act 1970 to provide for additional land to be included in the reserved land to which that Act applies.

Content and Committee comment

[Clauses]

[2]. Other than Part 2 the provisions in the Bill come into operation on the day after the day Royal Assent. Part 2 comes into operation on proclamation but not later than by 31 December 2006 .

[3 to 5]. Deals with the revocation of reservations and Crown grant in East Melbourne (Anglicare Site) and preserve a lease between Anglicare and Bayside Health.

[6 to 8]. Deals with the revocation of reservation and Crown grant and a reservation of the Berry Street Child and Family Care Centre land at East Melbourne .

[9 to 13]. Inserts a definition of "museum site land" into section 2 of the Ballarat (Sovereign Hill) Land Act 1970 and makes other amendments to that Act relevant to a change in land status of crown land at Ballarat. The amendments add a further area of Crown land to the Sovereign Hill tourist reserve at Ballarat.

The Committee makes no further comment.

Melbourne College of Divinity (Amendment) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Education

Purpose

The Bill amends the MelbourneCollege of Divinity Act 1910 (the ‘Act’) to make further provision for the College's governance and operation. The amendments will enable the College to comply with new National Governance Protocols (the ‘Protocols’) and thereby be eligible for the additional Commonwealth funding contingent on the adoption of these Protocols.

The Committee has previously noted the 11 Protocols in Alert Digest No.5 of 2005 in respect to the Higher Education Acts (Amendment) Bill. The same Protocols are applicable to the Melbourne College of Divinity and are described in the explanatory memorandum and the Second Reading Speech.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 December 2005.

[5]. Amends section 5(1) to provide that the College continues to be a body corporate under the name of the Melbourne College of Divinity.

[6]. Inserts new sections 6 to 9C in the Act providing for the governance and operation of the Council of the College.

[12]. Inserts new section 19A providing the power for the College to acquire property, create and administer trust funds and establish investment common funds.

[18]. Inserts a saving provision in new section 34 to ensure the Melbourne College of Divinity is the same body as previously constituted in all regards and provides for a transitional period for members of Council appointed or elected before these amendments to complete their term of office even if this exceeds 12 years. This provision does not apply to re-appointment to the Council.

The Committee makes no further comment.

National Parks (Alpine National Park Grazing) Bill

Introduced: 14 May 2005
Second Reading Speech: 26 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Environment

Purpose

The Bill amends the National Parks Act 1975 (the ‘Act’) in relation to cattle grazing in the Alpine National Park and to make other minor and related amendments to that Act.

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

The Bill will bring to an end licensed cattle grazing in the Alpine National Park.

…

Clause 9 will ensure that the four licences which expire on 30 June 2006 continue until that date, despite the earlier repeal of section 32AD, under which they were granted, and section 22C. Clause 9 will also make it clear that a licence issued under section 32AD is not able to be renewed.

Clause 6 recognises the circumstances of landowners whose freehold land is surrounded by or abuts the national park. The new section 30BA will enable the minister to permit cattle to be moved through the park (but not through a wilderness zone or a reference area) to or from freehold land if there is no practical alternative route. Such movements would need to be as expeditious as possible, and the granting of the right may be subject to conditions, for example, to minimise disturbance to park values.

Content and Committee comment

[Clauses]

[2] Other than sections 4, 7, 10, 11 and 12 the provisions in the Bill come into operation on the day after Royal Assent. The remaining sections come into operation on 14 August 2005.

[4]. Repeals section 22C which currently allows cattle grazing to occur in five wilderness zones in the park.

[6]. Inserts section 30BA to enable the Minister to grant to a person whose land abuts or is surrounded by the park a reasonable right to move cattle through the park (other than through a wilderness zone or reference area). The Minister may grant the right, subject to conditions, and may exempt that person from any regulation applying to the park.

[7]. Repeals section 32AD which currently provides for the granting of licences to graze cattle in specified areas of the park, and the granting of alpine tourism licences in the park. There are 59 existing licences under section 32AD(1), 55 of which expire on 13 August 2005 and 4 on 30 June 2006. There are no existing alpine tourism licences under section 32AD(3).

[9]. Inserts new sections 50O and 50P to permit certain licence holders to maintain their licence until they expire on 30 June 2006 but provides that those licences are not capable of renewal.

[11 and 12]. Respectively repeals sections 57 and 58 which currently enables a grazing licence granted under the Land Act 1958 and the Forests Act 1958 to apply to certain land which was included in the park as a result of the National Parks (Amendment) Act 2000.

The Committee makes no further comment.

Planning and Environment (Williamstown Shipyard) Bill

Introduced: 25 May 2005
Second Reading Speech: 26 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Planning

Purpose

The Bill amends the Planning and Environment Act 1987 (the ‘Act’) to ensure the continued use of the Williamstown Shipyard Site for industrial and marine engineering purposes and ancillary purposes.

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

The Bill inserts new part 3D into the Planning and Environment Act 1987, which introduces a process for the implementation of a Williamstown shipyard site strategy plan. This process is similar to that which was provided for in the MelbourneAirport Environs Strategy Plan under part 3C of the Act.

The Williamstown shipyard site as defined in section 46ZA includes Crown land that is currently being used as a car park and for other public purposes. The land is included for consistency with the Tenix-Williamstown naval shipyard bid. However, the Bill makes it clear that the strategy plan must not prevent the continued use by the public of the land in accordance with its current use. The land is specified in the Act.

Section 46ZC provides that the minister may at any time prepare a strategy plan for the Williamstown shipyard site. Such a strategy plan would have to give effect to the purposes of part 3D of the act.

Under section 46ZED, the Williamstown shipyard site strategy plan will have to be approved by a resolution passed by each house of Parliament before it could come into effect. Any subsequent amendments to the strategy plan will need to follow the same process as that for the original strategy plan.

Content and Committee comment

[Clauses]

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

[3]. Inserts new Part 3D into the Act to insert new sections 46Z to 46ZH to provide for the preparation of a Williamstown Shipyard Site Strategy Plan.

The Minister must cause the Williamstown Shipyard Site Strategy Plan to be laid before each House of Parliament within 7 sitting days of that House after the strategy plan has approved under section 35 of the Planning and Environment Act 1987. The strategy plan does not come into effect until it has also been approved by a resolution passed by each House of Parliament within 10 sitting days after it has been laid before that House.

The Committee makes no further comment.

Racing and Gambling Acts (Amendment) Bill

Introduced: 24 May 2005
Second Reading Speech: 26 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Gaming

Purpose

The Bill amends the —

• Racing Act 1958 with respect to the Racing Victoria Centre land and in respect to appeals to the Racing Appeals Tribunal;

• Gambling Regulation Act 2003 with respect to the publication of race fields and the health benefit levy;

• Casino Control Act 1991 with respect to the health benefit levy.

The Bill also makes statute law revision amendments to the Gambling Regulation (Further Amendment) Act 2004 and repeals spent Acts.

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

The Bill contains the following key amendments within the sphere of racing and gaming regulation:

• the creation of a new offence prohibiting the unauthorised publication of race fields;

• legislative support to facilitate the transfer of the Crown release from the Victoria Racing Club to Racing Victoria Ltd;

• consistency of process for appeal rights to Racing Victoria Limited's racing appeals and disciplinary board; and

• an increase in the annual health benefit levy payable by gaming operators and the casino operator

Content and Committee comment

[Clauses]

[2]. Other than section 3 and 10 the provisions in the Bill come into operation on the day after Royal Assent. Section 10 is deemed to have come into operation on 21 December 2004, which is the date of Royal Assent of the Gambling Regulation (Further Amendment) Act 2004. Section 3 comes into operation on a day to be proclaimed but not later than by 31 December 2005.

Racing Act 1958

[3]. Makes a number of technical amendments relevant to appeal rights to the Racing Appeals Tribunal from the horse racing appeals and disciplinary body.

[4]. Provides for insertion of a new Part IVA into the Act which contains various amendments related to the surrender of "Racing Victoria Centre land" by the Victoria Racing Club. The amendment provides for the transfer of the Crown lease for a specific piece of land, known as ‘Racing Victoria Centre’ from the Victoria Racing Club to Racing Victoria.

Gambling Regulation Act 2003

[7]. Amends the Act to allow a person to communicate, publish or transmit betting odds or race fields in accordance with an approval under section 2.5.19(2) of the Act.

[8]. Amends a formula set out in the Act to provide for an increase in the health benefit levy payable by a gaming operator each financial year.

[9]. Repeals 4 spent amending Acts.

[10]. Makes statute law revision amendments to the Gambling Regulation (Further Amendment) Act 2004.

The Committee notes this extract from the explanatory memorandum –

They are deemed to be effective as of the date of Royal Assent of that Act. The amendments are necessary because 2 sections of that Act (which have not yet been proclaimed) make separate amendments to the same sections of the Gambling Regulation Act 2003. In order for those amendments to operate effectively when they are proclaimed (especially if they are proclaimed on different days) it is necessary to make these statute law revision amendments.

Casino Control Act 1991

[11]. Amends a formula set out in the Act to provide for an increase in the health benefit levy per machine payable by the casino operator each financial year.

The Committee makes no further comment.

Racing and Gaming Acts (Police Powers) Bill

Introduced: 17 May 2005
Second Reading Speech: 19 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopolous MLA
Portfolio responsibility: Gaming

Purpose

The Bill amends the –

• Racing Act 1958 to enable the Chief Commissioner of Police to issue exclusion orders for race-courses,

• Casino Control Act 1991 to extend the scope of exclusion orders issued by the Chief Commissioner of Police under that Act so that they can apply to the Casino Complex.

Content and Committee comment

[Clauses]

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

[4]. Amends the Racing Act 1958 to provide for the making of exclusion orders by the Chief Commissioner of Police. The Chief Commissioner of Police may issue a written order to a person that excludes them from entering or remaining on a specified race-course or specified race-courses. The Chief Commissioner of Police may give the chief steward of each of the controlling bodies a photograph, if he or she has one, of each person on the list of excluded persons.

New section 35B provides that a person who is subject to an exclusion order relating to a specified race course must not enter or remain on the specified race-course during a race-meeting.

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

The Bill amends the Racing Act 1958 to provide the Chief Commissioner of Police with power to exclude persons from race meetings held at specified racecourses.

Currently, alleged crime figures, excluded from the casino by an order of the Chief Commissioner of Police, remain free to attend race meetings. This provides the opportunity for such persons to undermine the integrity of racing and engage in corrupt practices such as coercing individuals in the industry or potentially in money laundering.

The proposal to extend the power to issue exclusion orders to encompass race meetings protects against behaviours that may damage the integrity of the racing industry.

The Bill makes provision for the issuing of exclusion orders for racecourses for the duration of race meetings. Racecourses can be used at other times for non-racing purposes and it is inappropriate and unnecessary for the exclusion order provisions to apply at such times.

Orders can be made for any of the racecourses specified in the bill and any that are prescribed by regulation.

Importantly, the Chief Commissioner of Police can only issue an exclusion order if he or she considers it necessary in the public interest.

The Bill excludes persons who hold a bookmaking licence or an occupational racing licence under the Racing Act 1958 from the exclusion order provisions as they are already subject to licensing requirements, including disciplinary procedures, under the act and the relevant rules of racing.

[8]. Amends section 74(1) of the Casino Control Act 1991 to enable the Chief Commissioner of Police to issue an exclusion order for the casino complex if it is in the public interest to do so. The Committee notes that such a decision is not subject to appeal to the Commission. (s.74 (3)).

[10 and 11]. Substitutes a new section 77 in the Casino Control Act 1991 to provide that a person who is the subject of an exclusion order or an interstate exclusion order must not enter or remain in the casino and permits the police to bring proceedings for contravention of an exclusion order.

[12]. The Casino operator must, as soon as practicable inform an inspector where a person is present in the Casino in contravention to an exclusion order.

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

Under the Casino Control Act 1991, the Chief Commissioner of Police may currently issue an exclusion order that prevents a person from entering or remaining in the gaming area of the casino. There is no power however to exclude persons from the remainder of the casino complex. The casino complex includes hotels, shops, restaurants, other entertainment facilities such as a cinema and car parking facilities. The casino complex will be defined by means of a map lodged in the central plan office of the Department of Sustainability and Environment. Copies of the plan are available from the Clerk of the Assembly.

Persons present in the broader casino complex may intend to enter the gaming area and there is a risk that an excluded person, present in the broader casino complex, might enter into the gaming area undetected.

Extending the power to issue exclusion orders to encompass the whole casino complex will assist Victoria Police in its efforts to combat organised crime.

The proposal also provides a more uniform approach with other jurisdictions, such as New South Wales, where the relevant provisions can apply, by the making of regulations, to the entire casino precinct, including restaurants and bars.

The Bill amends the Casino Control Act 1991 to extend the power of the Chief Commissioner of Police to issue exclusion orders. It will enable the Chief Commissioner of Police to issue exclusion orders for the entire casino complex.

As with the provisions for racecourses, the Chief Commissioner of Police can only issue an exclusion order when he or she considers it necessary in the public interest.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003 – ‘makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions’ 1. Casino Control Act 1991 The Committee notes that the provisions in the Act currently provide powers to prohibit persons entry to certain racing and gaming venues by means of an exclusion order issued by a casino operator, the Commission or the Chief Commissioner of Police (respectively sections 72 and 74). The Committee further notes that the Act provides for an appeal to the Commission from a decision of a casino operator or a single Commissioner of the Victorian Commission for Gambling Regulation (s.73) and that no appeal lies from a decision of the Chief Commissioner of Police (s.74). The Committee will seek further information from the Minister for the policy reasons for not providing an appeal against such a decision. 2. Racing Act 1958 The Committee notes that the exclusion powers by the Chief Commissioner in this Act are new powers (new Division 5 of Part 1). The Committee will seek further information from the Minister for the policy reasons for not providing an appeal against such a decision. Pending the response of the Minister the Committee draws attention to the provisions.

The Committee makes no further comment.

State Taxation Acts (General Amendment) Bill

Introduced: 24 May 2005
Second Reading Speech: 26 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the –

• Business Franchise (Petroleum Products) Act 1979 to allow payments from the Better Roads Victoria Trust Account for road safety initiatives and traffic and transport integration programs.

• Debits Tax Act 1990 to discontinue the liability to pay debits tax that arises from a certain date.

• Duties Act 2000 to –

1. introduce a new Part 4A into Chapter 2 to deal with transactions treated as sub-sales of land and sets out the position in respect of transfers involving additional consideration; transfers resulting from land developments and transfers resulting from options.

2. repeal a number of minor exemptions in that Act concerning transfers of property resulting from a reduction in capital, on a company wind-up or on a foreclosure of mortgage and provides transitional arrangements where necessary.

3. extend the temporary suspension of the first home owner exemption or concession;

4. clarify certain terms in the land-rich provisions and insert a new provision to allow for the registration of declared wholesale unit trust schemes;

5. amend the corporate reconstruction exemption to extend the exemption to eligible transactions arising from corporate consolidations.

• First Home Owner Grant Act 2000 to extend the period for which an eligible transaction will attract the $5000 additional grant. The amount of the additional grant will reduce to $3000 from 1 January 2006 and will cease on 1 July 2007.

• Land Tax Act 1958 to

1. introduce new exemptions from land tax for land used for residential care facilities, supported residential services, rooming houses and caravan parks. There are specific requirements for each of these exemptions to be applicable and in each case special land tax will apply if the use of the land changes. Each of these amendments will apply retrospectively, from 1 January 2005 for caravan parks and from 1 January 2004 for each of the others.

2. to amend the principal place of residence exemption to clarify the calculation of refunds in particular circumstances and adopts for that Act, where relevant, the administrative provisions of the Taxation Administration Act 1997 that deal with the power to require information.

3. To raise the tax free threshold, reducing actual rates of land tax (including a rebate for the 2005 land tax year) and capping certain potential tax increases for the 2006 land tax year.

• Pay-roll Tax Act 1971, specifying that wages paid or payable by school councils from 1 July 2004 are exempt from pay-roll tax.

• Taxation Administration Act 1997 to clarify the instances where penalty tax may be reduced following a voluntary disclosure of non compliance by a taxpayer. The Bill also extends the list of authorised recipients under the secrecy provisions by adding the Country Fire Authority and the Metropolitan Fire and Emergency Services Board. The manner in which the interest rate and valuation of foreign currency are determined is amended to reflect current practice.

• Taxation (Interest on Overpayments) Act 1986 to remove obsolete provisions concerning the manner in which the interest rate and valuation of foreign currency are determined to reflect current practice.

Submissions received

The Committee received a submission from solicitors Mallesons Stephen Jaques, on behalf of their client Grocon Pty Ltd. The submission concerned the retrospective amendment made by clause 13 of the Bill to section 71(1) of the Duties Act 2000. The Committee was not able to consider this submission but has agreed to write to the Treasurer raising the issue of retrospectivity. The submission is shown as an Appendix to this Alert Digest.

Content and Committee comment

[Clauses]

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

• Sections 24(3), 26, 28 and 29 (other than sub-section (2)) are deemed to have come into operation on 1 January 2004. These sections deal with land tax exemptions.

• Section 13(1) is deemed to have come into operation on 13 May 2004.

The section amends section 71(1) of the Duties Act 2000. In 2004 section 71 was substituted by an amendment which commenced operation on 13 May 2004 (No.46/2004, s.12). The explanatory memorandum provides that this amendment is necessary because it clarifies the intent of the original provision;

• Part 7 (except section 33) is deemed to have come into operation on 1 July 2004. These provisions deal with exemptions from pay-roll tax by a school council will have effect from the start of the 2004/2005 financial year;

• Sections 24(2), 27, 29(2), 30 and 33 are deemed to have come into operation on 1 January 2005. These provisions deal with land tax exemption for caravan parks and the refund amendment to the principal place of residence exemption which will have effect for the 2005 land tax year.

• Sections 19, 20 and 21 are deemed to have come into operation on 31 March 2005. These provisions deal with corporate consolidation duty exemptions which take effect from the date of public announcement.

• Parts 3 and 5 and section 12 are deemed to have come into operation on 1 July 2005. This is to reflect the decision to discontinue debits tax liability from that date and to extend the additional first home owner grant (and parallel temporary suspension of the duties exemption) from their previous end dates of 30 June 2005. Part 2, which broadens the purposes of the Better Roads Victoria Trust Account, also commences on 1 July 2005.

Retrospective provisions The Committee notes that the retrospective provisions in the Bill (other than clause 13) provide certain exemptions from liability to pay duty or tax and are therefore of a beneficial nature to taxpayers. In respect to the retrospective application of clause 13 which deletes certain words in section 71 of the Duties Act 2000 the Committee is of the opinion that the amendment corrects a drafting error and is retrospective to the commencement of the original section as substituted on 13 May 2004 (Act No. 46/2004). The Committee will seek further advice from the Treasurer whether any person may be adversely effected by the retrospective operation of clause 13 amending section 71(1) of the Duties Act 2000. Pending the Treasurer’s response the Committee draws attention to the provision.

Duties Act 2000

[13]. Amends section 71(1) and is retrospective to 13 May 2004 which is the date of the commencement of the substituted section 71 (as amended by No.46/2004). The section is shown in context with words proposed to be omitted struck through –

71. Meaning of "landholder"

(1) For the purposes of this Part, a "landholder" is any of the following that has land holdings in Victoria—
(a) a private unit trust scheme;
(b) a wholesale unit trust scheme;
(c) a private company.

(2) A landholder is "land rich" if—
(a) it has land holdings in Victoria with an unencumbered value of $1 000 000 or more; and
(b) its land holdings in all places, whether within or outside Australia, comprise 60% or more of the unencumbered value of all its property.

First Home Owner Grant Act 2000

[23]. Amends the Act by extending the period for which the additional amount of the grant may be claimed. The amount of the additional grant is also to be reduced from a specified date.

Land Tax Act 1958

[24 to 32]. Inserts new exemptions from land tax and makes a range of other amendments including amending the rates and thresholds, allowing for rebates for the 2005 tax year and capping increases for the 2006 tax year. There are further amendments, which affect the principal place of residence exemption and how associated refunds are calculated in relation to the exemption. The land tax exemptions are retrospective to 1 January 2004 (aged care facilities, supported residential services and rooming houses) and others to 1 January 2005 (caravan parks).

Pay-Roll Tax Act 1971

[34]. Amend the Act to reflect an exemption from pay-roll tax for wages paid or payable by school councils.

The Committee makes no further comment.

Victorian State Emergency Service Bill

Introduced: 24 May 2005
Second Reading Speech: 26 May 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Police and Emergency Services

Purpose

The Bill —

• establishes the Victoria State Emergency Service Authority to manage the Victoria State Emergency Service;

• re-enacts the VictoriaState Emergency Service Act 1987 with amendments to improve the operation and effectiveness of the Victoria State Emergency Service;

• amends the Country Fire Authority Act 1958 and the Metropolitan Fire Brigades Act 1958 to improve the transparency and equity of funding arrangements;

• repeals the VictoriaState Emergency Service Act 1987and make consequential amendments to certain other Acts.

Content and Committee comment

[Clauses]

[2]. Sections 1 and 2 commence on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than by 1 July 2006.

[4 to 27]. Establishes the Victoria State Emergency Services Authority (the Authority) and sets out its functions, duties, powers and provides for matters related to the provision of a Board of Directors and provides for various administrative and procedural matters.

[18]. A Director is not personally liable for anything done or omitted to be done in good faith in the circumstances specified. In order to claim the immunity the act or omission needs to be in the exercise of a power or discharge of a duty under the Act or Regulations or the reasonable belief that this was the case. If the immunity applies then liability attaches to the Authority.

[23]. Enables the Authority to delegate in the manner specified, functions, duties and powers under the Act or Regulations to the Chairperson, a Director or employees. The power of delegation cannot be delegated.

[26]. The Chief Executive Officer may delegate to any person, office holder or position approved by the Authority, functions, powers and responsibilities of the Chief Executive Officer. This does not apply to the power of delegation.

[27]. The Minister may delegate powers or functions under the Act to any person. This does not apply to the power of delegation.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003 – ‘makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers’ The Committee notes the wide delegation powers in clauses 26 and 27 ‘to any person’ and will seek further information from the Minister in respect to the necessity or desirability to include such a delegation power in the Bill. Pending the Minister’s response the Committee draws attention to the provision.

Victoria State Emergency Service

[28 to 46] Provides that the Victoria State Emergency Service continues to exist. The Service consists of the Director of Operations, the persons employed under section 30 and registered and probationary members.

[31]. The Director of Operations may delegate his or her powers and duties under the Act or regulations to any employee of the service. This does not apply to the power of delegation.

[42]. Provides immunity for service members and volunteer emergency workers. This prevents personal liability, for anything done or omitted to be done in the exercise of a power or discharge of a duty under the Act or regulations, or in the reasonable belief that this was the case. Liability in these circumstances attaches instead to the Authority.

Compensation

[47] Provides for compensation for a registered or probationary member, who suffers personal injury arising out of or in the course of emergency service. Provision is made for assessing compensation and the computing of average weekly earnings.

[49]. Provides for compensation to registered and probationary members for loss or damage to their property whilst engaging in an authorised activity, training or practising for such activity or travelling to or from any place where any such activity is to be or has been engaged in.

[54]. Deals with fraudulent claims and provides that a person must not mislead the Minister, the Victorian WorkCover Authority, the County Court, the Magistrate's Court or any other person with regard to a compensation claim.

[56]. Repeals the VictoriaState Emergency Service Act 1987.

The Committee makes no further comment.

Committee Room
30 May 2005

Scrutiny of Acts and Regulations Committee
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