Scrutiny of Acts and Regulations Committee

Alert Digest No 10 of 2006

Tuesday, 12 September 2006

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City of Melbourne and Docklands Acts (Governance) Bill

Introduced: 22 August 2006
Second Reading Speech: 24 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Candy Broad MLC
Portfolio responsibiliy: Minister for Local Government

Purpose

The Bill amends the —

City of Melbourne Act 2001 to return the Docklands area (as defined in the Docklands Act 1991) to the municipal district of the City of Melbourne and to provide for the establishment of the Docklands Co-ordination Committee as a special committee of the Melbourne City Council,
Docklands Act 1991 to give effect to the return of the Docklands area to the municipal district of the City of Melbourne and to provide for the reservation of certain land in the Docklands area.

Committees report and comments

[Clauses]

[2]. The provisions in the Bill come into force by proclamation but not later than by 1 January 2008.

Note from the explanatory memorandum – The delayed commencement is necessary to ensure the smooth transition of municipal functions (including the preparation of voters’ rolls) in the Docklands precinct to City of Melbourne prior to the local government elections for the Melbourne City Council to be held in November 2008.

City of Melbourne Act 2001

[4]. Inserts a new section 5A in the Act to declare that the Docklands area is part of the municipal district of the City of Melbourne and also declares that the addition of the Docklands area to the municipal district of the City of Melbourne does not constitute a reconstitution of the Council, which could otherwise have implications for the Council under the Local Government Act 1989.

[5]. Inserts a new Part 4A (new sections 27A to 27K) in the Act to provide for the establishment of a Docklands Coordination Committee as a special committee of Melbourne City Council and provide for its composition, functions and like matters.

Docklands Act 1991

[6 to 22]. Clause 11 inserts a new section 25(4A) in the Act to provide that the Authority may not levy charges for any matter for which the Melbourne City Council has levied a rate or charge.

Clause 22 inserts a new Part 7 (new sections 57 to 73) being general transitional provisions for the new local government arrangements. For example the new section 60 provides that any person who immediately before the appointed day was an authorised officer under section 35H (as in force before its repeal) is deemed to be appointed by the Melbourne City Council under section 224 of the Local Government Act 1989 as an authorised officer and new section 63 provides that the Local Government Minister may direct the Authority to provide information to Melbourne City Council on any voters’ roll which existed in relation to the Docklands area immediately before the appointed day.

New section 68 provides that the status or continuity of any lease or sub-lease (including an agreement, licence, option to renew or other interest arising under or in relation to a lease (whether or not the lease has expired) and an interest in the nature of a lease) of land that was entered into by the Authority immediately before the land was reserved under new sections 66 or 67 is not affected by that reservation.

New section 70 provides that the reservation of land under the new sections 66 or 67 does not affect any right existing over the land in favour of a person (other than the Authority) immediately before the date of that reservation.

A ‘right’ is defined under this section as any easement, right in the nature of an easement, covenant or any other right created on a registered plan of subdivision within the meaning of the Subdivision Act 1988 or recorded on a folio of the Register kept under the Transfer of Land Act 1958.

New section 73 provides that no compensation is payable by the Crown in respect of anything done or arising out of this new Division.

The Committee makes no further comment.

Justice Legislation (Further Amendment) Bill

Introduced: 22 August 2006
Second Reading Speech: 24 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General and other Minister

Purpose

The Bill amends the —

Attorney-General and Solicitor-General Act 1972 with respect to pension entitlements;
Gambling Regulation Act 2003 and Casino Control Act 1991 in relation to training courses for licensed gaming industry employees and licensed casino employees;
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to enable the Director of the Classification Board to exempt certain approved public organisations (Victorian statutory bodies) from the operation of that Act in respect to classification requirements for films and computer games;
Confiscation Act 1997 to provide further for applications for restraining orders, applications for exclusion from civil forfeiture orders and execution of disposal orders, to validate previous restraining orders that may have contained a technical defect and to make an amendment of a statute law revision nature;
Corrections and Sentencing Acts (Home Detention) Act 2003 so as to allow the home detention program to continue indefinitely;
Council of Law Reporting in Victoria Act 1967 to increase the number of members appointed by professional associations;
Equal Opportunity Act 1995 to add to and update a number of definitions relating to workplace relations, to provide a mechanism for representative complaints and to allow the Commission to delegate certain powers or functions to staff members;
Infringements Act 2006 with respect to the period for lodgement of details of an infringement penalty and prescribed costs in respect of an infringement offence under certain Acts;
Judicial College of Victoria Act 2001 to include judicial registrars of the Magistrates’ Court as judicial officers for the purposes of that Act;
Juries Act 2000 with respect to jury pools and panels;
Legal Profession Act 2004 in order to reflect amendments to national model provisions that form part of the Act and generally to improve the operation of the Act;
Magistrates’ Court Act 1989 to include additional classes of persons who may witness statements to be tendered at committal proceedings;
Professional Standards Act 2003 in relation to professional indemnity insurance;
Sex Offenders Registration Act 2004 to clarify its application in relation to certain kinds of offender;
Victorian Civil and Administrative Tribunal Act 1998 with respect to the issue of injunctions and declarations, summary dismissal of proceedings, the granting of bail to persons arrested and brought before the Victorian Civil and Administrative Tribunal (VCAT) and the power to impose sentences of imprisonment for contempt of VCAT;
Victorian Law Reform Commission Act 2000 with respect to the appointment of an acting chairperson;
Working with Children Act 2005 to apply the complete definition of ‘child-related work’ for the purposes of the whole Act subject to certain exceptions;
Fair Trading Act 1999 and other Consumer Acts to allow inspectors to monitor compliance with those Acts; and
make amendments of a statute law revision nature to specified Acts.

Committees report and comments

[Clauses]

[2]. Provides various commencement dates for provisions in the Bill. A number of provisions commence on the day after Royal Assent. Other provisions commence on proclamation but not later than by 1 July 2007.

Part 16 (clauses 53 to 55), which amends the Sex Offenders Registration Act 2004, is deemed* to have come into operation on 1 October 2004 (the commencement of that Act).

Sections 18(1) and 18(5), which amends the Equal Opportunity Act 1995, are deemed* to have come into operation on 27 March 2006 (the commencement of relevant Commonwealth legislation)

Part 10 (clauses 24 and 25), which amends the Infringements Act 2006, and clause 85 which amends the City of Melbourne Act 2001 are deemed* to have come into operation on 1 July 2006 (the commencement of the Infringements Act 2006).

* The retrospective operation of these amendments is noted under the respective clauses.

Attorney-General and Solicitor-General Act 1972

[3]. Amends the Act to allow the Solicitor-General the same pension rights as a judge of the Supreme Court of Victoria.

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

[6 to 9]. Inserts a new section 64(2) to empower the Director of the Classification Board to direct that the Act does not apply to certain approved organisations. An organisation may only be approved for this purpose if it is established by or under a Victorian Act and carries on activities of an educational, cultural or artistic nature.

The Committee notes this extract from the Second Reading Speech –

The Bill amends the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 to allow the director of the classification board to exempt certain approved public organisations – such as the Australian Centre for the Moving Image (ACMI) – from classification requirements in respect of films and computer games.

The director's power to exempt will be subject to the proviso that only Victorian statutory bodies which conduct activities of an educational, cultural or artistic nature will be able to be considered for exemption. In addition, the director will be empowered to place conditions on such exemptions. The conditions are likely to include matters such as a prohibition on the exhibition of works that are or would be classified X18+ or which have been refused classification and a requirement to provide content warnings and to restrict access where a work contains restricted content.

Confiscation Act 1997

[10]. Amends section 17. Section 16 of the Act enables an applicant for a restraining order to make the application without notice to affected parties. New section 17(1) gives a court a discretion to require that notice of an application for a restraining order be given to any person whose property interests may be affected by such an order where the court considers that such notice is justified having regard to the factors listed in new sub-section (1A).

New section 17(1C) makes clear that, if a court does not require notice of an application for a restraining order to be given, the court may hear and determine the application in the absence of any person with an interest in the property that is the subject of the application.

Retrospective application of amendment

[13]. Inserts a new section 144A to validate certain restraining orders made on or before 26 September 2005 notwithstanding a potential defect in such orders that were made against named persons rather than specified property.

Note: Sub-section (2) provides that this validation provision does not affect the rights of parties in the Supreme Court proceeding of Director of Public Prosecutions v. Navarolli and Mokbel (No. 1545 of 2005).

Corrections and Sentencing Acts (Home Detention) Act 2003

[15]. Repeals sections 2(2) and (3) and sections 9, 10, 20 and 21 of the Act.

Note: These sections provide for the sunset of the home detention provisions in the Corrections Act 1986 and the Sentencing Act 1991 on the third anniversary of their commencement, and provide for transitional arrangements consequential upon the sunset of the home detention program. The effect of repealing these provisions is to continue the operation of the home detention program indefinitely.

Equal Opportunity Act 1995

Retrospective application of amendments

[18(1) and 18(5)]. Amend the definitions of ‘employment’, ‘employee’ and ‘employer’ in section 4(1) of the Act to remove references in each of those definitions to ‘Australian Workplace Agreement’ and ‘certified agreement’ and to replace them with reference to ‘a workplace agreement’. These amendments reflect changes in terminology used in the Workplace Relations Act 1996 (Cth).

The amendments to these definitions are deemed to have come into operation on 27 March 2006.

Note: This was the date the changes to the Commonwealth Workplace Relations Act 1996 came into operation.

[18(2) to 18(4)]. Substitute amended definitions for ‘industrial activity’ and ‘industrial organisation’ and insert a new definition for ‘industrial association’.

[19]. Inserts new sections 104(1A), (1B) and (1C) to replicate the representative complaints mechanism in section 19 of the Racial and Religious Tolerance Act 2001.

[20]. Inserts a new section 172(2) to allow the Commission to delegate to a member of staff of the Commission any of its powers or functions under particular sections in that Act, relating to the processing of complaints.

Infringements Act 2006

Retrospective application of amendments

[24]. Amends section 55 of the Infringements Act 2006 by providing for an extended period for lodgement for infringement offences issued under section 40 of the Local Government Act 1989 and section 166 of the Electoral Act 2002 to allow those offences to be lodged up to 6 months from the date of service of the infringement notice.

[25]. Inserts a new section 209A into the Infringements Act 2006 to prescribe a 12 month period for lodgement of infringement details in respect of offences under the Electoral Act 2002 and Local Government Act 1989. This is a transitional provision for offences for which an infringement notice was served under those Acts between 1 November 2005 and 30 June 2006.

The Committee notes that it has received advise from the Department of Justice to the effect that the amendments made by Part 10 which are retrospective to the commencement of the Infringements Act 2006 will effectively apply prospectively in the sense that the first time any such offence could be committed under the Electoral Act 2002 will be at the time of the next State election in November 2006 and that the amendments concerning offences committed under the Local Government Act 1989 only maintain the status quo* in respect to the lodgement of infringement notices in respect of offences arising from the November 2005 Local Government elections.

*The offences were previously enforceable under the PERIN court scheme under the Magistrates’ Court Act 1989.

Judicial College of Victoria Act 2001

[26]. Substitutes a new section 3(c) to indicate that the definition of ‘judicial officer’ includes a magistrate or judicial registrar of the Magistrates’ Court or a magistrate of the Children’s Court.

Juries Act 2000

[30]. Removes a qualification to the existing option for jurors to be called by their juror number rather than by their name.

Note: The amendment will promote the use of this capability by judicial officers by ensuring that it need not be formally justified in reference to any rationale but instead has equal standing at law with the use of names as juror identifiers. This is necessary in order to respond to heightened calls to protect the privacy and security of prospective jurors who may otherwise feel personally exposed and/or at risk through their participation in the trial process. The policy change is achieved by omitting the words ‘for security or other reasons’ from section 31(3) of the Act.

Magistrates’ Court Act 1989

[45]. Amends clause 8 of Schedule 5 by adding designated officers from Centrelink and the Passport Fraud Section of the Department of Foreign Affairs and Trade to be included in the list of authorised persons to witness a statement to be tendered by the informant at committal proceedings.

Sex Offenders Registration Act 2004

Retrospective application of amendments

[53]. Amends the definitions in section 3 of ‘existing controlled registrable offender’ to mean a person who was in custody, or serving a specified sentence or order immediately before 1 October 2004, as a result of having been sentenced for a registrable offence committed when he or she was 18 years of age or older. The clause also amends the definition of “supervising authority” to mean the authority prescribed in the regulations as the supervising authority that is deemed to have custody of, or be responsible for supervising, a registrable offender under the Act.

The amendments are retrospective to the commencement of the Act – 1 October 2004.

[55]. The amendments to section 3 do not affect the rights of the parties in the proceedings known as DPP v Neisser [2006] VSC 218 (No. 9544 of 2005) in the Supreme Court of Victoria.

The Committee notes this extract from the Second Reading Speech –

The Bill amends the Sex Offenders Registration Act 2004 to clarify that persons who were serving suspended sentences for certain sexual offences when the Act commenced on 1 October 2004 are subject to the operation of the Act.

The recent Supreme Court case of DPP v. Neisser (2006) VSC 218 concerned an offender who was serving a suspended sentence in respect of registrable offences at the time of the commencement of the Act.

In the first instance, the court found that because the offender was serving a suspended sentence, he was not under the supervision of a supervising authority, and therefore not within the class of offenders who were eligible to be placed on the sex offender register. The appeal decision of the Supreme Court of Victoria upheld the magistrates view.

Arising from this case, the Bill makes technical amendments to the definition of 'existing controlled registrable offender' to specify all types of sentences for which registration applies as at 1 October 2004, and to explicitly clarify that the act applies to persons who were serving suspended sentences for registrable offences as at 1 October 2004.

Given the reasoning of the Supreme Court in the Neisser case, the Bill will also amend the definition of 'supervising authority' to mean the authority prescribed by the regulations as a supervising authority that is deemed to have custody of, or be responsible for, supervising a registrable offender under this Act, and to deem the Secretary of the Department of Justice to be the supervising authority for persons serving a suspended sentence, or a good behaviour bond under the Sentencing Act 1991, for the purposes of the act and the regulations.

These amendments are not intended to either extend or restrict the scope of the Sex Offenders Registration Act 2004 from that originally intended at the time the act commenced on 1 October 2004, they are intended to clarify the application of the act and ensure it is effectively implemented.

Victorian Civil and Administrative Tribunal Act 1998

[56]. Amends section 75(3)(c) to expand the power to summarily dismiss proceedings that are frivolous, vexatious, misconceived, lacking in substance or an abuse of process at the directions hearing stage of VCAT proceedings to ordinary legal practitioner members of the Tribunal.

[58]. Inserts new section 134(5) to provide that if a person fails to attend the Tribunal or produce documents as required by summons, the Tribunal may direct the police to apprehend that person and bring them before the Tribunal and provides that a judicial member of the Tribunal may grant bail under the Bail Act 1977 to a person brought before the Tribunal under section 134.

Consumer Acts

Inspection powers – entry without consent or warrant - monitoring compliance without the need to have ‘reasonable belief’ of any contravention – entry powers between 9 am and 5 pm – powers not to apply to residential premises.

[66]. Inserts a new section 121A in the Fair Trading Act 1999 dealing with a search of premises without consent or warrant to monitor compliance with the Act the regulations or an order of a court or tribunal. An inspector must not exercise such a power in any part of the premises that is used for residential purposes and must not exercise such a power unless the premises are open for business or between the hours of 9am and 5pm.

[70]. Inserts new section 37EA in the Associations Incorporation Act 1981 allowing an inspector to enter and search certain premises for the purpose of monitoring compliance with the Act, the regulations under the Act or a court or tribunal order (see clause 66 above).

Self-incrimination preserved but not in respect to documents required under laws.

[71]. Substitutes section 37M of the Associations Incorporation Act 1981 providing protection against self-incrimination for a natural person who is required to give information or do any other thing under the relevant Part. The privilege does not extend to the production of documents required to be produced under the relevant Part of the Act. The revised provision is in identical form to section 133 of the Fair Trading Act 1999.

[73]. Amends the Credit (Administration) Act 1984 by substituting a new section 27 concerning entry without consent or a warrant (see clause 66 above).

Self-incrimination preserved but not in respect to documents required under laws.

[74]. Substitutes a new section 38 in the Credit (Administration) Act 1984 providing protection against self-incrimination for a natural person who is required to give information or do any other thing under the relevant Part. The privilege does not extend to the production of documents required to be produced under the relevant Part of the Act. The revised provision is in identical form to section 133 of the Fair Trading Act 1999.

Self-incrimination preserved but not in respect to documents required under laws.

[76]. Substitutes a new section 70U in the Estate Agents Act 1980 providing protection against self-incrimination for a natural person who is required to give information or do any other thing under the relevant Part. The privilege does not extend to the production of documents required to be produced under the relevant Part of the Act. The revised provision is in identical form to section 133 of the Fair Trading Act 1999.

[79]. Amends the Introduction Agents Act 1997 by inserting a new section 44A allowing an inspector to enter and search certain premises for the purpose of monitoring compliance with the Act or the regulations under the Act or an order of a court or tribunal (see clause 66 above).

[80] Amends the Introduction Agents Act 1997 by substituting for sections 55 and 56 new sections 55, 56, 56A, 56B, 56C and 56D.

Self-incrimination preserved but not in respect to documents required under laws.

New section 56A provides a protection against self-incrimination for a natural person who is required to give information or do any other thing under the relevant Part. The privilege does not extend to the production of documents required to be produced under the relevant Part of the Act. The revised provision is in identical form to section 133 of the Fair Trading Act 1999.

[81]. Amends the Motor Car Traders Act 1986 substituting a new section 82AH allowing an inspector to enter and search certain premises for the purpose of monitoring compliance with the Act, the regulations under the Act or a court or tribunal order (see clause 66 above).

Self-incrimination preserved but not in respect to documents required under laws.

[82]. Amends the Motor Car Traders Act 1986 substituting a new section 82AS providing protection against self-incrimination for a natural person who is required to give information or do any other thing under the relevant Part. The privilege does not extend to the production of documents required to be produced under the relevant Part of the Act. The revised provision is in identical form to section 133 of the Fair Trading Act 1999.

[85 to 88]. Make a number of statute law revision amendments to four Acts. In each case the amendments correct cross-referencing or typographical errors.

In respect to clause 85, the Committee observes that this statute law revision amendment (retrospective to 1 July 2006 – the commencement of the Infringements Act 2006) amends the City of Melbourne Act 2001 to reflect the deletion of a number of sub-sections in the Local Government Act to which the City of Melbourne Act made reference. The statute law revision therefore ensures that the correct sub-sections of the Local Government Act are referred to in the City of Melbourne Act.

The Committee makes no further comment.

Public Sector Acts (Further Workplace Protection and Other Matters) Bill

Purpose

The Bill amends the —

Public Administration Act 2004 and the Parliamentary Administration Act 2005 to enable certain public sector employees and Parliamentary officers to apply to the Public Sector Standards Commissioner (PSSC) for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable;
Public Administration Act 2004 in relation to –

the definition of “public entity”;
the application of certain public sector values;
the right of return of former executives;
the application to the State Services Authority (SSA) of the Freedom of Information Act 1982 and Part 7A of the Financial Management Act 1994;
the delegation powers of the State Services Authority;

Audit Act 1994 with respect to the transmission of the Auditor-General’s annual plan to Parliament and to update references to standards;
Commonwealth Games Arrangements Act 2001 in relation to the abolition of the Melbourne 2006 Commonwealth Games Corporation;
Ombudsman Act 1973 to enable the delegation of the Ombudsman’s powers and functions under other Acts;
Public Sector Employment (Award Entitlements) Act 2006 to assist in giving effect to Australia’s obligations under certain International Labour Organisation conventions.

Committees report and comments

[Clauses]

[2]. Other than section 11 the provisions in the Bill will commence operation on the day after Royal Assent. Section 11 is deemed to have come into operation on 4 April 2005 (see notes at clause 11 below).

Public Administration Act 2004

[3 and 4]. Inserts a new Subdivision 5A in Division 2 of Part 4 and makes necessary consequential amendments to the Act. The purpose of the Subdivision to enable certain public sector employees whose employment is terminated to apply for relief in respect of that termination on the grounds that it was harsh, unjust or unreasonable.

New section 70G provides that an application may be dismissed if it is frivolous, vexatious or lacking in substance.

New section 70J requires the PSSC to attempt to have all applications settled by conciliation between the parties in the first instance.

New section 70L deals with how the PSSC is to arbitrate a matter once the applicant has elected to proceed to arbitration.

New section 70M provides for remedies that may be made on arbitration of the complaint.

New section 70X specifies that the PSSC or delegate is not personally liable for certain acts or omissions done in good faith, and that any liability in these circumstances attaches to the SSA.

New section 70Y provides that a party to a proceeding under this Subdivision or a person appearing as a witness or a legal practitioner representing a party has the same protection and immunity as they would have if the proceeding were in the Supreme Court.

New section 70Z provides for specific regulation making powers in relation to matters under the Subdivision, without limiting the general regulation-making power in section 112.

Parliamentary Administration Act 2005

[5 and 6]. Inserts a new Division 7 in Part 3 of the Act (new sections 29A to 29X) and make necessary consequential amendments to the Act to provide that Parliamentary officers have access to the new unfair dismissal jurisdiction in terms similar to those referred in clauses 3 and 4 above.

Public Administration Act 2004

[7]. Modifies the definition of ‘public entity’ in section 5 to cover entities where the right to appoint at least 50 per cent of the directors of a corporate body resides in a Minister or the Governor in Council; and entities which are created by Order in Council by a Minister or the Governor in Council where the right to appoint directors could have been exercised.

[9]. Makes changes to the right of return in section 27 to allow a former executive who is eligible for right of return, to waive that right in return for something else, for example, a lump sum settlement payment. A former executive eligible for right of return who exercises that right is not also entitled to a payment in lieu of notice under their executive contract.

[11]. Inserts a new section 44A which applies the Freedom of Information Act 1982 to the State Services Authority as if it were a Department. The provision is retrospective to the creation of the State Services Authority (SAS) on 4 April 2005.

The Committee notes this extract from the Second Reading Speech –

The Bill makes the State Services Authority subject to the Freedom of Information Act 1982 in the same way as if it were a department. This provision is retrospective to the date of its establishment. This ensures that a significant accountability mechanism is applied to the body, as it does for other Victorian statutory entities.

[13]. Amends section 48 to allow members of the SSA to delegate functions to ‘any other person whatsoever’ other than persons employed under Part 3 of the Act and includes functions under the Parliamentary Administration Act 2005.

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 on insufficiently defined administrative powers’.

The Committee has consistently drawn attention to provisions which allow significant or wide-ranging powers or functions to be delegated to ‘any person’. The Committee considers that a defined power to a category of persons in public employment or to persons with particular professional qualifications is to be preferred where possible.

The Committee has set guidelines in Practice Note No. 1 in cases where the Committee in unable to properly assess the necessity or desirability to include such wide delegation provisions because either no or inadequate explanatory material has been provided to Parliament concerning the provision.

The Committee will seek further information from the Minister concerning the necessity or desirability for inclusion of such a broad delegation provision in the Bill.

Pending further advice the Committee draws attention to the provisions.

Commonwealth Games Arrangements Act 2001

[17 to 19]. Amend the Act to transfer all the rights and liabilities of the Melbourne 2006 Commonwealth Games Corporation to the State. The Corporation will cease to exist on 31 December 2006 or an earlier date as determined by Order of the Governor in Council.

Ombudsman Act 1973

[20]. Amends section 11 of the Act to allow the Ombudsman to delegate powers granted under Acts other than the Ombudsman Act 1973 to ‘any person’.

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 on insufficiently defined administrative powers’.

The Committee notes that the Ombudsman Act 1973 already permits a delegation under that Act to ‘any person’ and that the amendment will extend that wide delegation provision to powers or functions vested in the Ombudsman by any other Act.

The Committee has consistently drawn attention to provisions which allow significant or wide-ranging powers or functions to be delegated to ‘any person’. The Committee considers that a defined power to a category of persons in public employment or persons with particular professional qualifications is to be preferred where possible.

The Committee will seek further information from the Minister concerning the necessity or desirability for inclusion of such a broad delegation provision in the Bill.

Pending further advice the Committee draws attention to the provisions.

Public Sector Employment (Award Entitlements) Act 2006

[21]. Amends section 1(b) of the Act to insert a new purpose, namely to assist in giving effect to Australia’s obligations under certain International Labour Organisation Conventions.

[22]. Inserts a new Part 3A (new sections 15A to 15E).

New section 15B states that a public sector employer cannot offer, nor accept an offer, to enter into a statutory industrial agreement which differs in any material way from the terms and conditions in the employee’s collective agreement or preserved award.

New section 15C provides that a public sector employer does not have the legal capacity to offer, nor accept an offer of, a statutory industrial agreement which differs in any material way from the terms and conditions in the employee’s collective agreement or preserved award.

New section 15D states that the new Part does not exclude common law agreements which provide terms and conditions more beneficial than a collective agreement or preserved award.

New section 15E provides a regulation-making power which allows regulations to be made to exclude public sector employers, or classes of employers from the Part.

Commonwealth Powers (Industrial Relations) Act 1996

[23]. Inserts a new section 5(1)(o) into the Act consequent upon the new Part 3A (clause 22 above) of the Public Sector Employment (Award Entitlements) Act 2006. This section inserts another matter excluded from Victoria’s reference of industrial relations powers to the Commonwealth.

The Committee makes no further comment.

Road Legislation (Projects and Road Safety) Bill

Introduced: 22 August 2006
Second Reading Speech: 24 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibiliy: Minister for Transport

Purpose

The Bill amends the —

Road Safety Act 1986 to –

increase the penalties for certain offences involving alcohol or other drugs or a refusal to comply with requirements under Part 5 and, for this purpose, to clarify what is taken to be a second or other subsequent offence;
alter the circumstances in which a court is permitted or required to impose an alcohol interlock condition;
implement an intelligent access program for heavy vehicles;
introduce a graduated probationary driver licence scheme and introduce other measures in relation to young or inexperienced drivers;
reform the nomination process under the ‘owner onus’ provisions of the Act;
prevent the registration or transfer of registration of a motor vehicle if the Chief Commissioner of Police intends to make an application for the impoundment, immobilisation or forfeiture of that motor vehicle.

Sentencing Act 1991 to increase the minimum period before certain persons subject to an alcohol interlock condition on their driver licence or permit can apply for its removal.

Road Management Act 2004 in relation to the M1 Redevelopment Project.

Melbourne City Link Act 1995 in relation to the Link Upgrade Project; and to reform the nomination process under the “owner onus” provisions of that Act.

Chattel Securities Act 1987 to include on the certificate provided to prospective purchasers any intended application for the impoundment, immobilisation or forfeiture of a motor vehicle.

Land Acquisition and Compensation Act 1986 and the Planning and Environment Act 1987 in relation to the effect of zoning decisions on compensation.

Alpine Resorts (Management) Act 1997 (clauses 61 and 62) to make further provision for land at Mount Hotham Alpine Resort in respect to the Mount Hotham Village Road Project and for the powers of VicRoads and the Mount Hotham Alpine Resort Management Board and to make other amendments to that Act.

The Bill also makes amendments of a statute law revision or consequential nature to the Children and Young Persons Act 1989, the Children and Young Persons (Miscellaneous Amendments) Act 2005, the Children, Youth and Families Act 2005 and the Infringements Act 2006.

Committees report and comments

[Clauses]

[2]. Other than specified provisions the amendments made by the Bill come into operation the day after Royal Assent. The specified provisions are –

clauses 16 (compulsory carriage of licence by young drivers) and 19 (drink driving offences committed by young or inexperienced drivers) commence on proclamation but not later than by 1 January 2007;
clauses 9 and 11 (Intelligent Access Program for heavy vehicles) and 18 (compulsory carriage of learner permits) commence on proclamation but not later than by 1 July 2007;
clauses 17 and 20 (probationary licences) commence on proclamation but not later than by 1 July 2008.

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

The Committee notes the delayed commencement provision for clauses 17 and 20 and will seek further information from the Minister concerning the need or desirability for such an extended delay in bringing the Act into force.

The Committee refers to its Practice Note No. 1 of 2005 in respect to delayed commencement provisions greater than one year from Royal Assent and notes that it will routinely request explanatory material where a provision infringes the one year rule.

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

Road Safety Act 1986

[3 to 8]. Part 2 makes alcohol and drug related amendments. The main purposes of the Part are to increase the penalties for second and subsequent drink driving offences (including refusal to comply with testing requirements), as recommended by the Sentencing Advisory Council; the penalties for drug driving offences; the circumstances in which the court may or must impose an alcohol interlock condition when it grants a re-licensing application made by a person whose driver licence or permit was cancelled for a drink driving offence; the minimum period before which a person whose driver licence or permit has been made subject to an alcohol interlock condition following a second or subsequent drink driving offence may apply to the court for removal of that condition.

[9 to 15]. Inserts a new Part 12 in the Act which is a voluntary national road program whereby heavy vehicle operators agree to remote tracking of the movement and location of their vehicles, to ensure compliance with agreed operating conditions (e.g. speed limiting devices) in return for less restrictive access on the road network than an equivalent non-tracked vehicle. The scheme is referred to as the ‘Intelligent Access Program’ (IAP). The proposed new Part adopts the model adopted by the National Transport Commission and is the model endorsed by the Australian Transport Council. The Part makes provisions in respect to privacy relating to driver identification, collection, storage and security of information.

[16]. Inserts a new sub-section (8) into section 19 to make it an offence for a person under the age of 26 to not have his or her driver licence in his or her possession at all times whilst driving or in charge of a motor vehicle.

[17]. Amends section 21 regarding probationary driver licences and allow regulations to be made extending a probationary licence period (for example, where the driver has committed a specified offence or the licence has been suspended); requiring a probationary licence holder to comply with prescribed procedures and requirements; establishing different classes of probationary driver licences; requiring progression through those stages before a full driver licence can be obtained.

[18]. Inserts a new sub-section (6) into section 22 to create an offence for a person holding a learner permit not to have his or her permit in his or her possession while driving or in charge of a motor vehicle.

[19]. Makes provision with respect to drink driving offences by young or inexperienced drivers. Section 50(1AB)(b) gives a court discretion to not cancel the licence of a person who has committed a drink driving offence involving a blood or breath alcohol concentration (BAC) of less than 0·07 the amendment makes it clear that this does not apply if the person committed that offence while under the age of 26.

[21 to 32]. Make operator onus amendments to the Act and consequential amendments to a number of other Acts.

Note: The main purpose of Part 5 (clauses 21 to 32) is to establish a new “operator onus” enforcement system in respect of certain traffic, parking and tolling offences, which will replace the existing “owner onus” systems. The new system will determine who is held responsible where the identity of the offender is not established at the time the offence is detected.

[33 to 38]. The clauses amend the Chattel Securities Act 1987 and the Road Safety Act 1986 and makes further provision for the impoundment, immobilisation and forfeiture of motor vehicles.

The Committee notes this extract from the Second Reading Speech –

The vehicle impoundment scheme allows a court to order that a repeat hoon offender’s motor vehicle be impounded or immobilised for up to three months and if the person continues to offend their motor vehicle can be forfeited. If a person is notified of an application to have their motor vehicle impounded, immobilised or forfeited they are not allowed to sell or otherwise dispose of the motor vehicle. Despite this law, it is possible that some people subject to these applications may attempt to frustrate the application by having their motor vehicle registered in another person’s name or by selling the motor vehicle to an innocent third party who is not aware of the application.

The proposed amendments will address this by requiring VicRoads to block the transfer of registration of a motor vehicle if Victoria Police is applying to the court for an impoundment, immobilisation or forfeiture of that motor vehicle. Victoria Police will also be allowed to place a record about that motor vehicle on the Vehicles Securities Register to warn potential purchasers that it may be subject to an impoundment, immobilisation or forfeiture order.

[39 to 50]. Make miscellaneous amendments to the Road Safety Act 1986. Among the provisions the Bill includes an offence of tampering with a vehicle identification number or other label or mark on a vehicle that uniquely identifies it and sets it apart from similar vehicles.

[51 to 58]. Make amendments to the Road Management Act 2004. The Act currently assigns responsibility for structures on roads over irrigation and drainage channels to road authorities.

Prior to the introduction of the Act, water authorities were the owners of structures on roads over irrigation and drainage channels. The amendments transfer responsibility for these structures back to water authorities. Further amendments to the Act provide a power to enable the transfer of other responsibilities between road authorities and utilities where both parties agree to the transfer.

[59 and 60]. The Bill amends the Land Acquisition and Compensation Act 1986 and the Planning and Environment Act 1987 to correct the operation of those acts in circumstances where they do not provide landowners, whose land is acquired, with compensation that properly reflects their loss.

[63 to 75]. Make amendments to the Road Management Act 2004 in respect to the M1 redevelopment project. The main purpose of Part 11 is to facilitate the widening and redevelopment of the M1 Freeway from Doveton to Yarraville, including parts of the Monash Freeway, the Melbourne City Link toll road and the West Gate Bridge and Freeway which form part of the M1.

The Committee notes this extract from the Second Reading Speech –

The Bill proposes a range of amendments to the Road Management Act 2004 and the Melbourne City Link Act 1995 to facilitate the upgrade of the M1 freeway from Yarraville in the western suburbs to Doveton in the south-east. This includes the sections managed by VicRoads and those owned and operated by Melbourne CityLink Ltd under the City Link concession. Collectively, the upgrade of these roads is known as the ‘M1 redevelopment project’.

…

The Bill will amend the Road Management Act 2004 to facilitate the necessary planning approvals and to expedite acquisition of both public and private land to enable construction to proceed on schedule. The bill also amends the Melbourne City Link Act 1995 to allow amendments to the concession deed and related agreements relating to the upgrade of the City Link sections of the M1. The bill will also authorise construction and operation of the upgraded road by CityLink Melbourne on terms consistent with the contractual arrangements.

[65]. Inserts a new Schedule 5A in the Road Management Act 2004 providing for specific provisions concerning the M1 redevelopment project. Part 4 of the Schedule makes certain modifications in respect to the application of the Land Acquisition and Compensation Act 1986.

Subdivision 2 of Part 4 of the Schedule (clauses 14 to 19) enables VicRoads to follow a special acquisition process in relation to acquisitions in the Redevelopment Project area for the purposes of the M1 Redevelopment Project. The purpose of the special process is to enable land to be acquired more quickly than would normally be possible under the Land Acquisition and Compensation Act 1986.

Note from the explanatory memorandum – ‘This will not reduce compensation rights in relation to such interests, but it will ensure that Project delivery is not delayed by having to comply with the acquisition notice procedure afresh each time a new unregistered interest in land comes to the notice of VicRoads as the acquiring authority’.

Division 2 of Part 4 of the Schedule deals with the acquisition of native title rights and interests. New clause 20 enables VicRoads to acquire native title rights and interests for the purposes of the M1 Redevelopment Project. Sub-clause (2) provides for the application of the Land Acquisition and Compensation Act 1986 to such acquisitions, subject to the modifications made by Division 2 of Part 4 of the new Schedule 5A. New clause 22 provides for the referral of objections to a proposed compulsory acquisition of native title rights and interests to the Victorian Civil and Administrative Tribunal. New clause 24 provides for compensation payable to a person in respect of native title rights and interests under this Division of Part 4 of new Schedule 5A to be on just terms.

New clause 37 empowers VicRoads to take physical possession of land to which the legal title has been acquired from the persons who currently occupy it. Subsequent provisions govern how this may be done.

New clause 45 sets out the procedure to be followed where the person refuses to give up possession to VicRoads or hinders VicRoads’ taking of possession. The procedure is similar to that which applies in similar circumstances under section 28 of the Land Acquisition and Compensation Act 1986 for the taking of possession of land acquired under that Act. In essence, the provision enables VicRoads to issue a warrant authorising the Sheriff to take possession of the land.

New clause 50 creates a right to compensation in relation to interests in land which have been extinguished or acquired by one of the processes set out in the new Schedule 5A and is to be determined in accordance with the Land Acquisition and Compensation Act 1986 as if the land had been acquired under that Act, with certain procedural changes reflecting the difference in the acquisition procedure. Compensation rights conferred by clause 50 do not extend to public statutory authorities or councils, other than an estate in fee simple owned by a council.

New clause 51 provides for a limited right of compensation for councils where the council has suffered a direct pecuniary loss as a result of the acquisition.

[72]. Inserts a new Part 2B in the Melbourne City Link Act 1995 to amend the concession deed and related agreements relating to the upgrade of the City Link sections of the M1. The Bill authorises construction and operation of the upgraded road by CityLink Melbourne on terms consistent with the contractual arrangements.

The Committee notes the detailed and useful explanatory memorandum and will write to the Minister to commend the officers responsible for its preparation.

The Committee makes no further comment.

Sentencing (Suspended Sentences) Bill

Purpose

The Bill amends the Sentencing Act 1991 (the ‘Act’) to —

list factors to which a sentencing court must have regard in considering whether to suspend a sentence of imprisonment.

Note: Second Reading Speech – The Bill introduces a set of factors into the Sentencing Act 1991 which courts must have regard to when considering whether it is desirable in the circumstances to impose a suspended sentence. These factors are specific to suspended sentences, but complement the existing general sentencing guidelines in section 5 of the act.

create a presumption against a wholly suspended sentence of imprisonment being imposed for a serious offence.

Note: Second Reading Speech – Accordingly, the Bill provides that courts must not impose wholly suspended sentences for serious offences unless there are exceptional circumstances which make it appropriate to do so, and it is in the interests of justice.

Serious offences are defined in section 3 of the Sentencing Act 1991 and include murder, manslaughter, rape, armed robbery, sexual offences involving children and a range of other offences involving violence.

provide a new procedure to deal with breaches of suspended sentences.
empower courts to order young offenders to serve a restored suspended sentence in a youth justice facility.

Note: Second Reading Speech – At present, an 18-20-year-old who breaches a suspended sentence and is ordered to serve the component of the term of imprisonment that was suspended has to serve the term in an adult prison. This is despite the existence of the 'dual track' system in Victoria, which allows judges or magistrates at the point of sentencing to elect to send such young people either to adult prison or, if they are assessed as suitable, to a juvenile justice facility.

…

The Bill addresses the existing anomaly by allowing a judge or magistrate to send such a young person to a juvenile justice facility upon breach of a suspended sentence, providing the young person is deemed suitable for such a facility.

enable time held in custody in relation to proceedings for the breach offence as well as the breach proceedings themselves to be deducted from a restored suspended sentence of imprisonment.

Committees report and comments

[Clauses]

[2]. The majority of the provisions of the Bill come into operation on 1 November 2006, unless they are proclaimed on an earlier date. Sections 6(2) and (3), and clause 7(2), which substitute “youth justice centre” for “youth training centre”, will commence on the day on which section 601 (repeal of the predecessor Act*) of the Children, Youth and Families Act 2005 comes into operation. * Commencement not later than by 1 October 2007.

Note: Second Reading Speech – The new rules on suspended sentences will apply to offences committed on or after the day the Bill commences. This is in keeping with the convention that a person is sentenced for an offence in accordance with the laws that were in place when he or she committed that offence.

The new provisions relating to breaches of suspended sentences will apply to any conviction entered on or after the commencement date, where that conviction constitutes a breach of a suspended sentence.

[4]. Inserts a new sub-section (1A) to section 27 of the Act to provide that a court, in considering whether suspension of a sentence of imprisonment is desirable, must have regard to a range of specific factors. The factors mitigate against the suspension of a sentence.

The clause also adds new sub-sections (2B) and (2C) to section 27 of the Act to restrict the ability of a court to wholly suspend a sentence of imprisonment imposed for a serious offence (defined in section 3 of the Act). A court must first consider the factors in new sub-section (1A) of section 27 and must also be satisfied that suspension is appropriate because of the existence of exceptional circumstances and is in the interests of justice.

[5]. Amends section 31 to repeal the offence of breach of an order suspending a sentence, and replace it with a mechanism that allows a breach of a suspended sentence to be acted upon without the need to charge the offender with an offence.

[6]. Creates a new section 31(7) of the Act which gives a court the power to sentence a young offender to serve all or part of a restored suspended sentence in a youth training centre or youth residential centre.

The Committee makes no further comment.

State Taxation Legislation (Miscellaneous Amendment) Bill

Introduced: 22 August 2006
Second Reading Speech: 24 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Treasurer

Purpose

The Bill amends the —

Duties Act 2000 to —

clarify and modify exemptions relating to trusts and in circumstances involving relationship breakdowns;
exempt certain health centres and health services;

Land Tax Act 2005 to —

bring forward the use of valuations and remove indexation of valuations;
exempt certain health centres and health services;

Pay-roll Tax Act 1971 to exempt certain health centres and health services;

Public Authorities (Dividends) Act 1983 to include the Melbourne Convention and Exhibition Trust as a public authority under that Act;

Taxation Administration Act 1997 to —

clarify assessment procedures in relation to land tax and the congestion levy;
clarify objection procedures and rights in relation to land tax;

Valuation of Land Act 1960 to —

clarify the valuation procedure for transmission easements;
provide new objection rights for certain land tax valuations.

Committees report and comments

[Clauses]

[2]. Other than a number of sections the amendments made by the Bill come into force on the day after Royal Assent. Sections 17(1) and 20(2) are deemed to have come into operation on 1 January 2006 (the commencement of the Land Tax Act 2005).

Sections 6, 12, 13 and Part 4 are deemed to have come into operation on 1 July 2006. These all apply to the introduction of a new exemption for public ambulance services and clarification of the exempt status of certain other bodies including community health centres.

The Committee notes that in each instance the retrospective application of the provisions are of a beneficial nature and do not impose a retrospective taxation obligation on any person

[17(1)]. Amends section 96(1)(ca) of the Taxation Administration Act 1997 to clarify that an objection can be made to a valuation made by a valuer nominated by the Valuer-General that is used by the Commissioner in an assessment of land tax.

Note: Section 96 deals with objections by taxpayers to decisions and assessments made by the Commissioner or valuations made by the Valuer-General.

[20(2)]. Inserts a new sub-section 16(8) in the Valuation of Land Act 1960 to provide that the section does not apply in respect of an objection to a valuation made by the Commissioner or made for the Commissioner by the Valuer-General or a person nominated by the Valuer-General.

Note: Section 16 deals with who may object to a valuation made under the Act. The footnote to the new sub-section (8) provides that section 96(1)(ca) (as amended by clause 17(1) above), provides for such objections.

The Committee makes no further comment.