Alert Digest No. 9 of 2005

Introduced: 20 July 2005
Second Reading Speech: 20 July 2005
House: Legislative Council
Minister introducing Bill: Hon. Bill Forward MLC
Portfolio responsibility: Treasurer and Minister for WorkCover

Purpose

The Bill amends the Accident Compensation Act 1985 (the ‘Act’) to provide that the Minister must determine which cases to pursue a legal liability from a third party to pay damages; the prevention of delegation of that power and the reporting of such cases annually to the Parliament.

The Bill before the house today preserves the principle of third party recoveries where there has been negligence, but raises the bar in relation to the use of this action.

The Bill proposes to amend section 138 by adding the requirement that all third party recovery actions be authorised by the Minister for WorkCover, that this power cannot be delegated, and that the VWA report on the details of recoveries in its annual report each year. In essence, the capacity remains for recoveries to take place, but the Minister is accountable for its use.

While the VWA is an independent authority, section 20C states that the Authority is subject to the general direction and control of the minister, and also subject to specific written directions. It is appropriate, therefore, that the Minister takes the responsibility of ensuring that unpaid, voluntary carers are not inappropriately subjected to third party recoveries by the Authority.

Content and Committee comment

(1) An action to recover any amount from a third party under the indemnity in section 138(1) cannot be commenced without the prior written approval of the Minister.

(2) The Minister cannot delegate his or her power of approval under sub-section (1).

(3) The Authority must include in its report of operations under Part 7 of the Financial Management Act 1994 in respect of each financial year full details of any approvals given by the Minister under sub-section (1) during that year.

(4) The Minister must give the Authority any information the Authority reasonably requires in order to comply with its reporting obligation under sub-section (3).

Casino Control (Amendment) Bill

Introduced: 19 July 2005
Second Reading Speech: 21 July 2005
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill amends the Casino Control Act 1991 and the Casino (Management Agreement) Act 1993 to –

Content and Committee comment

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

[3]. Substitutes a new section 25(1) in the Casino Control Act 1991 to vary the periodic review of the casino operator that is required to be undertaken by the Victorian Commission for Gambling Regulation from not later than every 3 years to intervals not exceeding 5 years. The clause also provides for new additional matters the Commission is required to consider in the course of a periodic review.

[8 to 11]. Ratifies an eighth deed of variation to the casino management agreement. The deed of variation between the State and Crown is contained in the Schedule. The variation removes from the management agreement the requirement (the single purpose restriction) that Crown obtain the consent of the State prior to acquiring assets that are not related to running a casino. The variation will effectively enable Crown to carry on businesses in addition to the casino.

Residential Tenancies (Further Amendment Bill

Introduced: 19 July 2005
Second Reading Speech: 21 July 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Housing

Purpose

The Bill amends the Residential Tenancies Act 1997 (the ‘Act’) (RTA) to introduce protections for residents sharing rooms in rooming houses, and to apply the caravan park provisions of the Act to residents after sixty days, rather than ninety days.

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

The legal coverage of residents in shared rooms in rooming houses has been in question since the decision in Kirkland Fisher v. Aboriginal Hostels [1998] VSCA 130 (Fisher), which determined that the provisions in the Rooming Houses Act 1990 only applied to residents with exclusive occupation of a room. As the provisions referred to in Fisher have been re-enacted without substantive change in the RTA, there has been some doubt as to whether the provisions of the RTA extend to cover residents in shared rooms in rooming houses.

As a consequence, many residents of shared rooms in rooming houses have found themselves without any rights or safeguards under the RTA and without the same statutory rights that are enjoyed by residents of other forms of residential properties.

Currently, a person who does not have prior written consent from the caravan park owner to occupy a site in a caravan park as his or her only or main residence, must have occupied a site for a minimum of 90 consecutive days before he or she is regarded as a resident and eligible for protection under the Act. Under the new provisions, this period will be reduced to 60 days. This will afford longer term occupiers of caravan park sites rights and protections under the Act sooner than is currently the case, without interfering with the provision of accommodation for tourism.

Content and Committee comment

[2]. Other than sections 7, 9, 10, 11, 12 and 13, the provisions in the Bill come into effect on Royal Assent. The remaining sections come into effect on proclamation but not later than by 1 December 2005 .

[4]. Amends section 3 of the Act to insert new definitions of "exclusive occupancy right", "room capacity", "shared room", "shared room right", and amends the definition of "resident" as it applies to caravan parks and makes a minor amendment to the definition of "rent".

[5]. Inserts new sub-clauses (2) and (3) into section 92 of the Act, and provides that a residency right may be either an exclusive occupancy right or a shared room right.

Section 92A confirms that an exclusive occupancy right entitles a resident to occupy a room to the exclusion of others, and clarifies that a resident may enjoy an exclusive possession right jointly with others. The example given is of members of a domestic partnership occupying a room with an exclusive occupancy right.

Section 92B provides for a shared room right, under which a resident of a room occupies the room with one or more other residents selected by the rooming house owner.

[7]. Inserts a new section 92C into the Act requiring the rooming house owner to give each resident a notice setting out his or her rights before the occupancy commences.

[9]. Inserts a new Division 1A of Part 3 of the Act relevant to shared room rights.

[10]. Inserts new sub-clauses (1A) and (2A) into section 102 of the Act to allow a person in a shared room to refer a matter to the Director of Consumer Affairs for investigation where there has been a reduction of rent following a change in room capacity, but where the resident believes the rent reduction is insufficient, and the rent is excessive.

[17]. Amends section 113 of the Act and declares that, by simply sharing a room, a resident does not breach his or her duty to preserve the quiet enjoyment of the premises.

[18]. Inserts new sub-clauses (2) and (3) at the end of section 122 of the Act to impose an obligation on a rooming house owner to take all reasonable steps to ensure that a resident of a shared room does not do, or permit to be done, anything which interferes with the privacy, peace and quiet of, or the proper use and enjoyment of the room by, other residents of the room; and to clarify that, by simply permitting the sharing of a room, a rooming house owner does not breach a duty to preserve the quiet enjoyment of the premises.

[20 and 21]. Amends sections 136 and 137 of the Act to ensure that a rooming house owner can gain access to a shared room in the circumstances permitted by that section and clarifies the grounds for entry into a shared room by a rooming house owner, where a resident of the room has failed to comply with duties under the Act.

[22]. Amends section 145 to require caravan park owners to notify caravan park residents of the residency rights that are conferred on them after 60 days of continuous occupation in the caravan park as their main residence.

[27]. Amends section 284 to permit a rooming house owner to give a resident of a shared room notice to vacate based on use of the room for an illegal purpose.

[28]. Amends section 355 to ensure that a warrant of possession can be directed to a particular person in a shared room.

Vagrancy (Repeal) and Summary Offences (Amendments Bill

Introduced: 19 July 2005
Second Reading Speech: 21 July 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill repeals the Vagrancy Act 1966 and re-enacts certain provisions in the Summary Offences Act 1966 and the Crimes Act 1958.

Content and Committee comment

[4]. Inserts new section 19 into the Summary Offences Act 1966 which re-enacts the offence of obscene exposure in a public place. The offence is currently in section 7(1)(c) of the Vagrancy Act 1966.

[5]. Inserts new Division 8 into Part I of the Summary Offences Act 1966 (new sections 49A to 49F) containing the following offences –

49A(2) A person must not cause, procure or encourage a child to beg or gather alms. Penalty 12 months imprisonment.

6(1)(d) Any person who begs or gathers alms or causes or procures or encourages a child to beg or gather alms shall be guilty of an offence. Penalty: For a first offence – imprisonment for one year; For a second or subsequent offence against this section imprisonment for two years.

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

The government has decided to retain the offence of begging and the related offence of encouraging or procuring a child to beg. The government is committed to poverty law reform and, in a fairer Victoria, has undertaken to monitor the impact of the offence of begging on people who suffer genuine hardship.

The government, in partnership with police, welfare, local government and advocacy groups, will continue to explore means to support people who resort to begging when faced with extreme poverty.

7(1)(g) Any person who has in his custody or possession without lawful excuse (the proof of which excuse shall be on such person) any picklock-key crow jack bit or other implement of housebreaking shall be guilty of an offence.

6(1)(c) Any person who habitually consorts with reputed thieves unless such person, on being thereto required by the court, gives to the satisfaction of the court a good account of his so consorting shall be guilty of an offence.

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

The Bill also provides for a new consorting offence to target activities that may be a prelude to organised crime. It will be an offence, without reasonable excuse, to habitually consort with a person convicted or suspected of an organised crime offence.

While the original consorting offences targeted thieves, the new offence is directed at people involved in organised crime and is designed to assist police in creating a hostile environment for organised crime.

Rights and freedoms – Reverse onus of proof – Presumption of innocence

The Committee notes that the offences in new sections 49D and 49F include reverse onus of proof provisions and that the sections essentially re-enact in the Summary Offences Act 1966 provisions existing in the Vagrancy Act 1966 (to be repealed).

The reverse onus provisions respectively provides that the defendant bears the burden of proving any lawful excuse for having custody or possession of any housebreaking implements, and any reasonable excuse for habitually consorting with a person found guilty of, or who is reasonably suspected of having committed, an organised crime offence.

The Committee notes that such reverse onus of proof provisions are ordinarily interpreted as imposing a standard of proof on the defendant (the evidential burden) based on the balance of probabilities.

Given that the sections re-enact existing provisions and the nature of the offences the Committee accepts that the reverse onus of proof provisions are reasonable and balance the need to protect the rights of a defendant with the need to meet other public interests in prosecuting such offences. The Committee accepts the provisions do not unduly trespass on the right of a defendant to be presumed innocent.

However, the Committee notes that where legislation includes a reverse onus of proof provision it expects that the explanatory memorandum should reasonably explain or justify this decision. In the present case the explanatory memorandum draws attention to the existence of the provisions but makes no comment as to the desirability to retain the reverse onus provision.

The Committee reiterates that it will continue to point out deficiencies in an explanatory memoranda particularly where the provision in question tests or infringes the Committee’s terms of reference.

The Committee draws attention to the provisions.

[6]. Inserts new section 31B into the Crimes Act 1958. This section re-enacts the offence of being armed with criminal intent which is currently in section 8(a) of the Vagrancy Act 1966.

[7]. Makes a consequential amendment to section 60B(2) of the Crimes Act 1958, so that the re-enacted offence of obscene exposure (see [4] above) is included as a "sexual offence" for the purposes of that section. Section 60(B) of the Crimes Act 1958 deals with offences related to loitering near schools.

Working with Children Bill

Introduced: 20 July 2005
Second Reading Speech: 21 July 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for them have their suitability to do so checked by the Secretary of the Department of Justice.

This Bill also amends the Sentencing Act 1991 to prevent sentencing courts from having regard to any consequences that may arise under this Act and amends Schedule 1 to that Act to broaden the range of sexual offences which may cause an offender to be treated as a serious sexual offender under that Act.

Submissions

The Committee received submissions from the Office of the Victorian Privacy Commissioner and Victoria Legal Aid. These submissions are reproduced as Appendix 4.

Summary

Content and Committee comment

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 July 2006.

The commencement of working with children checks will be set by Orders in Council made under clause 9(5) of the Bill, which may be made up until 1 July 2011.

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

There will be a five year implementation phase, during which the legislation will be progressively rolled out across all fields of child related work. There will be ample time and assistance for all those who need to comply with this Bill to do so.

[9]. Defines child-related work broadly and captures paid employment, work as part of a religious vocation, work in connection with a corporation, unincorporated body or a partnership and volunteering. Part 3 (clauses 27 to 32) provides for exemptions from the check.

[10]. Sets out the requirements for an application for a working with children check. The application must authorise the conduct of a police record check, and the making of enquiries to a relevant prescribed body, such as a professional registration board.

Category 1 – Secretary must refuse assessment – limited appeal rights to VCAT

[12]. The Secretary must refuse to give an assessment where a person is on the Sex Offender Register or is subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005; or as an adult, has been convicted or found guilty of an offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences) against a child or who has been convicted or found guilty of child pornography offence.

Category 2 – presumption against positive assessment unless no unjustifiable risk

[13]. Provides for applications from persons who have been convicted or found guilty of certain categories of offences or have charges pending in respect to those categories of offences. There is a presumption that an application in this category will be refused unless the Secretary is satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. In exercising this discretion the Secretary must have regard to certain criteria prescribed in section 13(2)(a) to (j).

Category 3 – Presumption to grant assessment with discretion to refuse where appropriate

[14]. In category 3 there is a presumption that the Secretary will grant the application. The Secretary has a discretion to refuse an application if he or she thinks appropriate, having regard to the prescribed criteria. The category involves applications from persons who have been subject to a finding of a prescribed kind (such as a cancellation of a practitioner's registration) made by a prescribed body (such as the Medical Practitioners Board of Victoria) or who has been convicted or found guilty of an offence against Part 4 of the Act (failing to comply with the Act, for example, engaging in child-related work without an assessment notice) or has such a charge pending.

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

The Committee notes that category 3 applications may result in either a negative or interim negative assessment and that this may occur on the basis of ‘findings of a prescribed kind’ provided to the Secretary from a ‘prescribed body’.

The Committee notes that there appears to be no legislative guidance or limitation upon what are to be the ‘prescribed bodies’ and what may be findings of a prescribed kind made by such bodies.

The Committee is of the opinion that this may be a very wide power that would enable legislation to be made by regulations. For example, whether a ‘prescribed body’ is one that is a tribunal or disciplinary board established under an Act of Parliament and what kind of relevant disciplinary offences would constitute ‘a finding of a prescribed kind’.

The Committee will seek further advice from the Attorney-General whether it is appropriate or possible to define or limit the definition of ‘prescribed body’ and ‘finding of a prescribed kind’ for the purposes of the Act.

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

Applicant’s right to make submission before final negative determination is made

[16]. If the Secretary intends to issue a negative notice, before making a final decision (other than on a category 1 application), he or she must give the applicant an opportunity to make a submission.

[17]. The Secretary must grant an assessment notice to all applications that fall outside categories 1, 2 and 3 (i.e. persons with no relevant criminal record or relevant disciplinary findings must be given a favourable assessment notice). Where the Secretary exercises a discretion in favour of an applicant in category 2 and 3 applications an assessment notice must also be given.

The Secretary must give a negative notice to all category 1 applicants. In cases where a negative notice is issued, it must be accompanied by a written notice giving reasons for the decision and information about the applicant's right to appeal to VCAT.

[18]. If the Secretary is aware of the applicants prospective employer or employer agency he or she must give that employer a copy of the positive, negative or interim negative assessment notice.

[19] An assessment notice is valid for 5 years but may be revoked or surrendered earlier.

[20]. Requires the holder of an assessment notice, or a person who has applied for an assessment notice and is waiting on the outcome, to notify the Secretary, any person who has engaged him or her in child-related work or any agency with whom he or she is listed of any relevant change (defined in the section) to their circumstances.

[21]. Deals with re-assessment of a person’s eligibility to have an assessment notice where the Secretary is notified of a change of circumstances (by the person, a prescribed body or the Chief Commissioner of Police).

[22]. Requires a person who receives a negative notice or an interim negative notice to inform any person by whom he or she is engaged in child-related work, or any agency where they are listed as being available to perform child-related work.

[25]. A person who has received a negative assessment may only re-apply after 5 years have passed or where there has been a relevant change in their circumstances such as the quashing of a finding of guilt.

[27]. A parent (volunteer) (includes a domestic partner of the parent) will not be required to get an assessment notice to volunteer in relation to an activity in which their child ordinarily participates.

[28]. A person who is closely related (defined by the section as including ‘domestic partners’) to a child (children) will not require an assessment notice to engage in child-related work when all the children with whom he or she has direct contact during the work are closely related to him or her.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – ‘right to family relations’

The Committee notes Article 17 of the International Covenant on Civil and Political Rights which provides –

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Committee will seek further information concerning the operation of section 28, whether a ‘person who is closely related to a child’ and who is otherwise issued with a negative assessment notice (for example in respect to work outside the family environment) commits any offence pursuant to section 34.

Example: A person engages in family child-related work within the meaning of section 28 of the Act and subsequently applies for an assessment notice to work in child-related work at a child care centre. The person receives a negative notice. Does the person commit an offence under section 34 for engaging in child-related work when they have received a negative assessment? Can the person continue to rely on the section 28 exemption notwithstanding the negative notice?

Pending further advice from the Attorney-General the Committee draws attention to the provision.

[29]. A child will not be required to get an assessment notice to work in child-related work. Further a school student who has not attained the age of 20 years (that is an 18 or 19 year old) and who undertakes voluntary work at their school, or as organised by their school, will not be required to get an assessment notice to work in child-related work.

[30]. Registered teachers will not need a separate assessment under the Act. (The registration scheme for teachers is similar to the scheme proposed by the Act).

[31]. Police Officers who are neither suspended nor dismissed from the police force will not be required to get an assessment notice to work in child-related work.

[32]. Visiting workers who do not live in Victoria and who do not ordinarily perform child-related work in Victoria are not required to get an assessment notice.

[33]. It is an offence to engage in child-related work without an assessment notice.

[34]. A person who has ever been issued a negative assessment notice and does not have a current assessment notice must not apply for child-related work. For the purposes of this offence a person who holds a negative notice will be considered to have applied for child-related work even if that work was directly supervised by another person.

The Committee notes that the offence in section 34 (unlike sections 33 and 35) appears not to require a mental element of intent or recklessness. Rather, the offence is proven where a person, who has at any time been given a negative notice, and who does not have a current notice, either applies for or engages in ‘child-related work’. The strict liability element appears to cast a duty on every applicant, who is ultimately given a negative assessment, to know the negative outcome of their application.

Currently, the only defence to the charge under section 34 is that the person may prove that they did not know that the work was ‘child-related work’.

There may be rare cases where the person makes an application for an assessment and then abandons the application without formally withdrawing it and is oblivious to the fact that a negative assessment has been made.

It appears to the Committee that without an appropriate defence of due diligence in knowing that a negative assessment had been made it may, in some rare cases in an unintended duty on the part of an applicant to ensure they know the outcome of their application.

The Committee will seek further advice from the Attorney-General whether an appropriate due diligence defence should be available in the circumstances.

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

[35]. A person must not engage a person who does not have an assessment notice in child-related work. A person is only guilty of this offence if they know that the work they are engaging a person in is child-related work and they know that the worker does not have an assessment notice or are reckless about whether the worker has an assessment notice.

[36]. It is an offence for an agency to offer the services of a person in child-related work if that person does not have an assessment notice.

[37]. It is an offence to use a volunteer assessment notice in order to engage in child-related work for profit or gain. It is an offence for an employer to engage a person with a volunteer assessment notice to perform work for profit or gain.

[38]. It is an offence to use a false assessment notice or another person's assessment notice.

[39]. It is an offence to provide false or misleading information in or in relation to a working with children check, or on a reassessment.

[40]. It is an offence to give confidential information (other than in the prescribed circumstances) acquired through the working with children check or under other relevant provisions of the Act.

(a) any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act; or

any of the Secretary's powers under this Act, other than this 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 dependant on insufficiently defined administrative powers’.

The Committee notes that under clause 43(b) the Secretary, by instrument, may delegate to another prescribed person or body. The term ‘prescribed person or body’ is not defined or limited in any way by the other provisions of the Act.

The Committee expects that where a provision seeks to include a wide or un-defined delegation provision that background material would be provided in the explanatory memorandum or the second reading speech sufficient to enable the Committee to assess the need for such a provision.

The Committee also draws attention to the incomplete description of the delegation provision as being one only to be exercised by public servants when subparagraph (b) of section 43 may permit ‘another prescribed person or body’ to be delegated powers.

The Committee will write to the Minister to seek further advice concerning the necessity or desirability to include a wide delegation provision. The Committee will also draw attention to the inadequate explanatory memorandum.

Pending receipt of this advice the Committee draws attention to the provision.

[48]. The Secretary and public servants performing functions under the Act are not personally liable in the performance of a function under the Act if they act in good faith. Any liability resulting from the act or omission attaches to the State.

[50] Amends section 5(2BC) of the Sentencing Act 1991 to provide that a Court may not, in sentencing an offender, have regard to any consequence that may arise under the Act.

Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2005

Tuesday, 9 August 2005

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Accident Compensation (Further Amendment) Bill

Purpose

Content and Committee comment

Casino Control (Amendment) Bill

Purpose

Content and Committee comment

Residential Tenancies (Further Amendment Bill

Purpose

Content and Committee comment

Vagrancy (Repeal) and Summary Offences (Amendments Bill

Purpose

Content and Committee comment

Working with Children Bill

Purpose

Submissions

Summary

Content and Committee comment