Scrutiny of Acts and Regulations Committee

Alert Digest No 2 of 2006

Tuesday, 28 February 2006

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Building and Construction Industry Security of Payment (Amendment) Bill

Introduced: 7 February 2006
Second Reading Speech: 9 February 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Minister for Planning

Purpose

The Bill amends the Building and Construction Industry Security of Payment Act 2002 (‘the Act’) to make further provision with respect to progress payments for construction work and for the supply of related goods and services under construction contracts.

Committees report and comments

[Clauses]

[2]. Sections 1, 2, 3, 38, 39 and 41 come into effect on the day after Royal Assent. The remaining provisions come into effect on proclamation but not later than by 30 March 2007.

Commencement by proclamation exceeding one year from Royal Assent

As the proclamation period exceeds the Committee’s one year rule (refer to Practice Note No. 1) the Committee will seek further advice from the Minister concerning the necessity or desirability to have a longer commencement by proclamation period.

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

[13]. Inserts new section 12(2) to provide that interest is payable on unpaid amounts of progress payments.

[14]. Inserts new section 12A to enable a lien to be exercised by the claimant if a progress payment has not been paid.

[16]. Substitutes section 14 enabling a person who is or claims to be entitled to a progress payment (the “claimant”) to serve a payment claim on a person who is or may be liable to make the payment (the “respondent”).

[18]. Substitutes section 16(2)(a) and provides an alternative to the claimant going to a court to recover the unpaid portion of the claimed amount by means of an application for adjudication in respect of the payment claim.

[28]. New section 28R sets out procedures for the bringing of proceedings for the recovery of an unpaid adjudicated amount for which an adjudication certificate has been issued. This clause also places restrictions on a person seeking to set aside a judgement under those proceedings. The person cannot bring a cross-claim, raise a defence under the construction contract or challenge the adjudication determination or review determination. This is to ensure that the proceedings under section 28R can be dealt with in a timely and streamlined way. This provision does not prevent a person bringing separate proceedings under the construction contract to recover any amount allegedly overpaid or underpaid under the progress payment process. Section 46 of the Act expressly preserves this right.

[38]. Substitutes sections 48 and 49 to strengthen the no contracting out provision of the Act.

Section 85 Report to the Parliament pursuant to section 17(b) 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)

[40]. Amends section 51 of the Act to insert a new provision declaring that it is the intention of section 28R to alter or vary section 85 of the Constitution Act 1975. This provision is inserted because of the inclusion in section 28R of the restriction on a person bringing proceedings to set aside a judgment to enforce an adjudicated amount preventing that person from challenging the adjudication determination or review determination. The notes on proposed new section 28R set out the purpose of this restriction.

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

Clause 28R sets out a procedure for the bringing of proceedings in a court of competent jurisdiction for judgment to enable recovery of an unpaid adjudicated amount. It also provides that a person who brings proceedings to have that judgment set aside cannot challenge the adjudication determination or review determination made by the adjudicator or review adjudicator except on specified grounds. The reason for this restriction is to provide a timely, streamlined process for enforcing the adjudicated debt. This provision will not prevent a person from bringing separate proceedings under the construction contract to recover any amount allegedly overpaid or underpaid under the progress payment process. Section 47 of the principal Act preserves this right.

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.

The Committee makes no further comment.

Drugs, Poisons and Controlled Substances (Volatile Substances) (Extension of Provisions) Bill

Introduced: 7 February 2006
Second Reading Speech: 8 February 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibiliy: Minister for Health

Purpose

The Bill extends the operation of the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003 (the ‘Act’) which inserted new Division 2 into Part IV of the Drugs, Poisons and Controlled Substances Act 1981 giving the police particular powers when dealing with young people using inhalants. This Bill will enable Division 2 of Part IV of that Act to continue to operate for a further two years, until 1 July 2008.

Committees report and comments

[Clauses]

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

[3]. Amends section 2(3) of the Act by substituting the word ‘fourth’ for ‘second’, thereby extending the operation of Division 2 of Part IV of the Drugs, Poisons and Controlled Substances Act 1981 for a further two years.

Education and Training Reform Bill

Introduced: 7 February 2006
Second Reading Speech: 9 February 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Lyn Kosky MLA
Portfolio responsibiliy: Minister for Education and Training

Purpose

The Bill will repeal 11 Acts dealing with education and training, and also Division 8A of Part III of the Community Services Act 1970 (which deals with the obligations of parents to send their child to school). As indicated in the explanatory memorandum, the last three listed Acts are obsolete.

The 11 Acts to be repealed are the —

Education Act 1958;
Adult Community and Further Education Act 1991;
Vocational Education and Training Act 1990;
Tertiary Education Act 1993;
Teaching Service Act 1981;
Victorian Curriculum and Assessment Authority Act 2000;
Victorian Qualifications Authority Act 2000;
Victorian Institute of Teaching Act 2001 (the ‘VIT’ Act);
Baxter Technical School Land Act 1982;
Educational Grants Act 1973; and
Education (Special Developmental Schools) Act 1976.

Some of the main changes noted in the explanatory memorandum.

State schools are to be called Government schools and they must be registered as do current non-Government schools.

The criteria for the registration of schools will change from those in the current section 42 of the Education Act 1958, to prescribed minimum standards.

The school leaving age is increased from 15 to 16 years of age. On turning 16, children will be able to leave school.

The position on religious instruction in Government schools is clarified, so as to permit discussion of events or topics that involve religion, whilst maintaining the current position that religious instruction is voluntary and can only be given by accredited instructors.

A child has the right to attend his or her designated neighbourhood Government school.

Parents who prefer to educate their child at home rather than sending them to school will need to seek approval for home schooling.

Students under 20 years as at 1 January are entitled to free instruction in government schools. Students aged 20 or more may be charged fees.

The position on voluntary financial contributions in Government schools is set out in clause 2.2.7 and includes guarantees against coercion or harassment as well as other safeguards.

The Registered Schools Board (RSB) and Victorian Qualifications Authority (VQA) are abolished. Their current functions will be assumed by the new Victorian Registration and Qualifications Authority (VRQA). The VRQA will also take over the Minister's current powers in the Tertiary Education Act 1993 to accredit courses in higher education and approve and authorise providers of higher education.

The new Victorian Registration and Qualifications Authority will be responsible (among other functions) for the registration of all schools (both Government and non-Government) and students undertaking home schooling.

The Victorian Learning and Employment Skills Commission is being renamed the Victorian Skills Commission.

The Bill updates the immunities in the current provisions, in line with Government policy, by inserting an immunity for members of the Merit Protection Boards and Discipline Appeals Board in respect of the Teaching Service and members of Victorian Institute of Teaching panels who hear discipline matters.

The Bill makes changes to the powers and functions Government School Councils (refer to explanatory memorandum pages 3-4 and 20-25).

Submissions received

The Committee received two written joint submissions in respect to regulation of home-teaching from –

Peter and Kerryn Dun, and
Andrew Verspaandonk and Justin Vaatstra

Content and Committee comment

[Clauses]

[1.1.2]. Provides that the Bill is to commence on a day or days to be proclaimed, but not later than 31 December 2007.

The Committee notes this extract from the explanatory memorandum –

This has the potential for the Bill, or parts of it, to commence more than 12 months after its Royal Assent. The reasons for the delayed sunrise date are as follows —

There are some provisions (such as increasing the compulsory school age to 16, or the requirement for all schools to be registered) that should coincide with the start of a school year, so the sunrise date of 31 December has been selected.
The reason for selecting 2007 is to allow sufficient time to prepare regulations prescribing the criteria for the registration of all schools and home schooling and to give all persons adequate notice of the new regulations. It is expected that it will take 12 months to finalise those regulations.

The Committee notes the explanation for the long commencement provision and accepts that it is necessary or desirable to allow for an extended commencement provision in all the circumstances.

[2.1.1]. Provides for compulsory schooling for children aged between 5 and 16 years. The new clause sets out 2 options for parents, namely to enrol the child at a registered school (which can be a Government or non-Government registered school), or to register the child for home schooling.

[2.1.2]. Creates an offence for parents of children of compulsory school age who, without a reasonable excuse, fail to comply with clause 2.1.1 (1 penalty unit – which is currently $104.81).

[2.1.3]. Sets out some examples of a reasonable excuse for the purpose of clause 2.1.2. The list is not exhaustive.

[2.1.7]. Enables the Minister to appoint school attendance officers (more commonly known as truant officers).

[2.1.14]. Repeats section 74F(a) and (b) of the Community Services Act 1970, which states that the burden of proving the grounds of a reasonable excuse lies on the parent (as the defendant), and other evidentiary matters.

The Committee notes this extract from the explanatory memorandum –

This clause reflects the current section 74F(a) of the Community Services Act 1970. The clause is not considered to involve a reversal of the legal burden of proof. The defendant, if pleading one of the excuses listed in clause 2.1.3 or any other excuse, would have to establish the facts giving rise to the excuse. If the facts of the defence are raised by the defendant, the legal burden of proof passes back to the prosecution to establish its case.

The Committee notes that the pleading of an excuse (as a defence to a charge) is a matter within the peculiar knowledge of the defendant and once the particular factual basis is established by the defendant the burden of proof to make out the charge rests with the prosecution.

[2.2.1]. The Minister may establish schools, including for students of one sex.

[2.2.18]. The principal of a government school may refuse to enrol a student in accordance with the regulations on the basis of the age of a person seeking to enrol at a school.

69. Things done with statutory authority

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of—

(a) an Act, other than this Act;

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

[2.2.2]. A decision by the Minister to discontinue a school may not be challenged legally. (Refer to section 85 Constitution Act 1975 statement below).

[2.2.3]. There is a limitation of occupier’s liability in respect to a discontinued school.

[2.2.10]. Education in government schools must be secular and must not promote any religion, denomination or sect. Where religious instruction is permitted it must be in accordance with section 2.2.11.

[2.2.11]. Repeats section 23(2) to (4) of the Education Act 1958 to provide that "special religious instruction" is voluntary and can only be given by accredited instructors and authorises the Minister to approve the holding of pageants and other events. "Special religious instruction" is defined to cover instruction provided by churches and other religious groups. The word "special" is new in this clause, so as to distinguish it from the "general" religious education referred to in clause 2.2.10.

[2.2.12]. In every government school there must be a ceremony where students acknowledge their role as Australian citizens. The Minister may issue guidelines in respect to the form and intervals of such a ceremony. The flag to be used at such a ceremony is the Australian National Flag.

[2.2.19]. Deals with discipline and provides that a principal of a government school may expel a student for breach of discipline. The student may appeal the expulsion to the Secretary.

[2.2.20]. Updates section 32 of the Education Act 1958 which enables the Minister to supply meals at government schools to children who are disadvantaged by their socio-economic background. The new clause enables the Minister to provide a range of services to children with special needs.

[2.3]. Provides for Government School Councils and their objectives, functions and powers.

[2.3.8]. Empowers councils to employ teaching and other staff in schools. The employment of teaching staff is subject to clause 2.3.6(3)(a) which prevents councils employing permanent teaching staff.

[2.3.10 and 2.4.58]. Provide that a school council and the Secretary must dismiss a teacher or any member of the teaching service convicted or found guilty of a sexual offence (defined in the Act) against a child and 2.6.29 (cancellation of registration) states that a teacher ceases to be registered by the VIT if convicted or found guilty of a sexual offence (as defined in the Act). The clauses repeat sections in the current Acts which do not provide an appeal right against the operation of the clauses.

The Committee notes this extract from the explanatory memorandum –

The reason for not providing a right of appeal is because —

a conviction or finding of guilt for a sexual offence against a child destroys the trust that must exist between a parent, the school and teacher, as well as between the Department and the employee;
the Department is charged with the care and responsibility of children, and it is inconsistent with that responsibility to employ persons found guilty or convicted of sexual offences against children;
the Government has adopted a policy of zero tolerance in respect of teachers convicted of sexual offences against children;
Employees do have the right to submit that a case of mistaken identity has occurred, or that an incorrect criminal record has been received. These cases are handled administratively by internal processes;
Also the unfair dismissal laws of the Commonwealth may provide rights to employees to seek redress under that Act.

No appeal against dismissal for sexual offence

The Committee notes the policy reasons stated in respect to the absence of appeal provisions in circumstances where a person is convicted of the prescribed sexual offences in the Bill. The Committee observes that these provisions substantially re-enact the provisions currently found in the Acts to be repealed by this Bill.

Delegation by School Council to 'any person or body'

[2.3.15]. Widens the delegation powers of councils of Government schools, and enables them to delegate matters to "another person or body".

The Committee notes this extract from the explanatory memorandum –

The broad delegation power is intended to support different forms of school education provision which might emerge through the Capital Investment and Access Policy and under clause 5.2.4 which covers multi sector arrangements. For example, a group of schools may decide to form a federation and delegate some (or all) powers to an overarching council; two schools may form an association with a TAFE provider and thereby create a new governance body.

Councils are subject to directions of the Minister, and the directions could limit the persons to whom delegations may be made. The section and directions will also provide the flexibility as circumstances change in the future without having to seek further legislative changes and to meet the requirements of school councils that need special delegation powers to meet their special circumstances.

The Committee notes the explanation for the desirability to provide for a flexible delegation provision to meet special circumstances. The Committee observes that Councils are subject to the directions of the Minister and that these directions may restrict or limit the delegation powers.

[2.3.31]. Limits the ability of councils of Government schools to commence legal proceedings (including the prerogative writs and declarations and injunctions) against Government bodies without the approval of the Minister. It updates section 14B of the Education Act 1958 which prevents councils from commencing legal proceeding against any person without the Minister's approval. Section 14B is considered to be too wide in respect of the persons it prohibits proceedings against, and the clause will no longer require the Minister's approval to commence proceedings against non-Government bodies. (Refer to section 85 report and statement below).

[2.3.32]. Provides an indemnity to the members of a council of a Government school. It repeats section 14C of the Education Act 1958.

[2.4]. This Part inserts the current Teaching Service Act 1981 which deals with the conditions of employment in the teaching service, the Minister's powers to make Orders about the teaching service, the Secretary's employment powers in respect of the teaching service, and the establishment and functions of the Merit Protection Boards and Discipline Appeals Board.

[2.5.1 to 2.5.24]. Re-enacts the current Victorian Curriculum and Assessment Authority Act 2000 which deals with the establishment, membership, functions and powers of the Victorian Curriculum and Assessment Authority.

[2.6.1 to 2.6.78]. Re-enacts the current Victorian Institute of Teaching Act 2001, which requires all teachers in Victorian schools to be registered with the VIT, and deals with the establishment, membership, functions and powers of the Victorian Institute of Teaching.

[2.6.22 and 5.3.4]. Authorise the Victorian Institute of Teaching and the Secretary to obtain a criminal record check without a teacher's or employee's consent. They repeat sections in the current VIT Act and Education Acts.

The Committee notes this extract from the explanatory memorandum –

The clauses may raise privacy issues, as criminal record checks can normally only be undertaken with the consent of a person. The sections in the current Acts were recently inserted to undertake criminal record checks on a number of teachers and employees who had not undergone a criminal record check before being employed or registered by the VIT. The power has been retained as it also enables the VIT and the Department to follow up any information it may receive concerning a person's background, as well as checking the validity of any information supplied by a person, or following up a criminal record check which has not disclosed offences beyond a certain date.

The Committee notes the provisions repeat existing powers to undertake criminal records checks without the consent of, but on notice to the person.

Suspension of teacher charged with an offence – presumption of innocence

[2.6.27]. Permits the Victorian Institute of Teaching to suspend the registration of a teacher charged with a sexual offence against a child, after giving notice to the teacher and the opportunity to make submissions.

The Committee notes this extract from the explanatory memorandum –

The clause may raise issues of fairness, as a person is presumed to be innocent until convicted or found guilty.

The reason for inserting the clause is because a range of circumstances may warrant suspending the registration, or other students may need to be protected, or there is a need to uphold the reputation of the teaching profession.
The circumstances that may warrant suspending the registration include where the teacher has made admissions or pleaded guilty to the offence, or where the evidence is overwhelming.
Other students may need to be protected if the teacher leaves the current employer and seeks employment at another school pending the hearing of the charges. The reputation of the teaching profession may need protection if no action is taken by the school against the teacher.

The Committee draws attention to the provision.

[2.6.76]. Updates the current section 80 of the Act by inserting an immunity for members of a VIT and hearing panels who hear discipline matters. The immunity is consistent with Government policy. Whilst protecting the members against legal action, the clause entitles persons to take legal action against the Crown instead of the members;

[3.1.1 to 3.1.34]. Insert the provisions of the current Vocational Education and Training Act 1990 which deals with the establishment, functions and powers of the Victorian Skills Commission (being the current Victorian Learning and Employment Skills Commission); Technical and Further Education institutes; and Industry Training Boards.

[4]. This Chapter establishes the new Victorian Registration and Qualifications Authority (the ‘VRQA’) and requires the following to be registered —

home schooling;
schools;
providers of accredited —
- senior secondary courses;
- Vocational Education and Training courses;
providers of higher education courses;
providers of courses to overseas students.

[4.3.9]. Authorises the VRQA to register students for home schooling in accordance with the regulations and sets out the grounds on which the registration may be cancelled. An authorised officer does not have the right under clause 5.8.3(3) to enter residential premises where registered home schooling takes place.

The Committee notes this extract from the Second Reading Speech –

As stated earlier, this Bill acknowledges parental choice.

Parental choice extends beyond school education providers - some parents also choose between formal schooling and home-schooling. Although home-schooling is chosen by relatively few parents, it is common throughout the democratic world and Australia is no exception. The Bill recognises this choice and the commitment that home educators make to their children's learning. Equally, the responsible Minister also needs to exercise their responsibility under the Act to ensure all students receive a quality education. The current approach to home-schooling provides no support to parents in terms of materials or guidance. Therefore, the Bill requires the new statutory authority to develop a modern and transparent approach to registering and monitoring home-schooling. This will be done in close consultation with parents engaged in home-schooling.

[4.7]. This Part groups together all the offence provisions in the Bill for ease of reference. The offences cover —

conducting an unregistered school;
using the titles "registered provider" or "government accredited" or "government recognised" without being registered or accredited;
falsely claiming to be a Registered Training Organisation;
issuing qualifications or claiming to be able to do so as an RTO or using terms which imply it;
claiming to be able to offer training as an RTO or using terms which imply it;
providing and accredited course without being authorised to provide the course;
awarding a qualification on the State Register without being authorised to award the qualification;
offering to provide an accredited course which is not accredited.
misleading information relating to registration on the State Register.

[4.8.1]. Enables a person to apply to VCAT for a review of a decision by the VRQA not to grant or approve, or to suspend or cancel a registration or approval or authorisation including decisions in respect to home schooling.

[5.2.3]. The Minister may acquire land either by agreement or on compulsory acquisition. If land is compulsorily acquired the provisions of the Land Acquisition and Compensation Act 1986 accordingly apply.

[5.3.3]. Contains the Secretary's delegation powers. Apart from some minor limitations, they largely enable the Secretary to delegate powers to "any person".

The Committee notes this extract from the explanatory memorandum –

The section mirrors section 18 of the Public Administration Act 2004 which enables a public service body head (which includes the Secretary as a Department Head) to delegate powers under that Act to "any person".

The reasons for providing the Secretary with a wide delegation power are—

most of the Secretary's powers relate to employment matters, which cover those employed under the Government teaching service (under the Bill) and also administrative staff under the Public Administration Act 2004, and it is preferable that the delegation powers under both Acts be the same;
the delegation power enables the Secretary to delegate matters to other persons such as contractors with expertise, or retired officers engaged to conduct investigations or discipline enquiries. For example, a recent matter involved a delegation to a person who was a retired Departmental officer and an officer of another Department.

The Committee draws attention to the provision.

[5.3.4]. Refer to 2.6.22 in respect to the Secretary’s power to seek a criminal record check without the consent of the person. The Secretary must give notice of that request to the person.

[5.6]. Provides for volunteer workers compensation for personal and property injury.

Section 85 Report to the Parliament pursuant to section 17(b) 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)

[5.9.3]. Declares that it is the intention of clauses 2.2.2, 2.3.31 and 2.4.22 to alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court of Victoria to entertain legal actions in respect of the matters in those clauses.

(i) Section 2.2.2(2) provides that the minister's decision to discontinue or continue a government school cannot be challenged by prerogative writ, injunction, or other legal proceedings. The types of legal proceedings listed are those mostly available in the Supreme Court of Victoria.

The reasons for altering or varying section 85 of the Constitution Act 1975 is because decisions to discontinue or continue a government school are made following lengthy public consultation, and are based on projected demographic and other considerations such as other government schools servicing an area, and the minister's decisions on these matters should be final. It should be noted that section 2.2.2 reflects the current section 21A of the Education Act 1958.

(ii) Section 2.3.31 prevents councils of government schools from issuing legal proceedings against government bodies without the consent of the minister. The type of proceedings listed include prerogative writs, injunctions, or other legal proceedings issued in the Supreme Court of Victoria.

The reasons for altering or varying section 85 of the Constitution Act 1975 is because it is considered inappropriate for school councils established by the government to issue proceedings against the state, or other school councils, or other bodies having a common interest with the state. In circumstances where disputes occur, then administrative action should be able to resolve the matter, rather than resorting to litigation and tying up our courts. It should be noted that section 2.3.31 reflects the current section 14B of the Education Act 1958 in a slightly amended version.

(iii) Section 2.4.22 prevents principals of government schools from issuing legal proceedings arising out of an appointment or non-appointment of a person as a principal.

The type of proceedings listed include prerogative writs, injunctions, or other legal proceedings issued in the Supreme Court of Victoria. The reasons for altering or varying section 85 of the Constitution Act 1975 is to remove delays associated with a multiplicity of appeal and review processes, and because of the existence of rights of review under the bill with the Merit Protection Board. It is considered that the specialised Merit Protection Board established under the bill for these processes is the appropriate body to review these decisions. It should be noted that the section repeats the current section 30 of the Teaching Service Act 1981.

The current section 14B of the Education Act 1958 prevents councils of government schools from issuing legal proceedings against any person without the consent of the minister.

The term 'any person' was considered too restrictive, and the updated clause 2.3.31 improves the position of councils by enabling them to issue proceedings against non-government bodies without the minister's consent. This change will permit councils to issue proceedings against third parties that are not government bodies for matters such as contractual disputes.

Decisions to discontinue government schools is also a subject worth mentioning. This government is committed to a policy of not unilaterally or forcibly closing government schools. Whilst we consider that the decision of the minister to discontinue a particular school should be final, it is the processes that lead to that decision which will be critical. Our policy will not see government schools being closed without community support and ensuring there are other appropriate education services in place for students.

[5.10.5]. Repeats section 11(5) of the Teaching Service Act 1981 to enable Orders in respect of the Teaching Service to be retrospective in operation. This is necessary to enable salary increases and other entitlements to be awarded from a date before the making of the Order.

The Committee draws attention to the provision.

[6]. Provides the repeals, consequential amendments and transitional provisions consequent on the new and re-enacted provisions in the Bill.

The Committee notes the helpful explanatory memorandum provided with this Bill. The Committee in particular notes that it deals in a transparent manner, with every potential issue the Committee might have raised as a matter requiring further advice from the Minister.

The Committee will write to the Minister accordingly.

The Committee makes no further comment.

Interpretation of Legislation (Further Amendment) Bill

Introduced: 7 February 2006
Second Reading Speech: 8 February 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill amends the Interpretation of Legislation Act 1984 (the ‘Act’) so as to —

clarify the effect of a failure to comply with section 9(1) of that Act (numbering of Acts);
provide for Acts to commence by default on proclamation or on the first anniversary of their passing, whichever is the earlier;
make further provision with respect to the exercise of powers between the passing of an Act or the making of a subordinate instrument and its commencement;
ensure that the repeal of a savings, transitional or validating provision or of a provision construing references does not affect its operation;
construe references to renumbered or relocated provisions;
insert definitions of certain commonly-used terms;
provide for the construction of provisions relating to entities representing, or not representing, the Crown.

Content and Committee comment

[Clauses]

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

[3]. Section 9 of the Act provides that Acts passed in each calendar year shall be numbered in regular arithmetical series beginning with the number 1 in the order in which they receive Royal Assent. The amendment provides that a failure to number Acts does not affect the validity, operation or effect of any Act whether passed before the amendment or after it.

The Committee notes that there was a gap in the numbering of Acts in 2005 and that the amendment seeks to put beyond legal challenge that administrative oversight.

[4]. Amends section 10A to provide for the power to fix a day or days of commencement where an Act makes no provision for the commencement of a particular provision of the Act, or makes no provision for the commencement of the Act or of more than one provision of the Act. In these circumstances, commencement will be on proclamation or on the first anniversary of the passing of the Act (i.e. Royal Assent), whichever is the earlier.

The clause also amends sections 11(1) and (2) to delete section 11(1)(b) and recast the section to make it easier to read. Section 11(1)(b) of the Act currently provides that where no day is fixed for an Act to come into operation it is to come into operation 28 days after it receives Royal Assent.

[5]. Substitutes a new section 13 and sets out the powers that may be exercised under an Act between the passing and commencement of an Act. This section is often utilised to facilitate the practical implementation of an Act prior to its commencement. For example, it allows for necessary regulations to be prepared, required office space to be leased and appointments to be made.

The new section 13 more clearly sets out what powers may be exercised during this interim period. The new section 13 clarifies that a person appointed during the interim period can exercise a power under the Act and a body may meet and exercise a power in the same manner and subject to the same conditions or limitations as if the Act were in operation. The exercise of these powers does not confer a right or impose an obligation on a person before the commencement of the Act except to the extent necessary to bring the Act or relevant provision into operation.

The new section 13 provides that a person or body appointed can be remunerated during the interim period. It also provides that the duration of an appointment during the interim period is not to be taken into account in calculating the duration of an appointment after the Act commences. If an Act provides that a person may be appointed for a three year term, the three years will run from the date of the commencement of the Act not from the date of the appointment in the interim period.

[6]. Inserts a new section 14(2A) and 28(2A) into the Act to provide for the effect of a repeal of an Act or where it otherwise ceases to have effect. The amendments clarify that where an Act contains a provision that —

is of a saving or transitional nature; or
validates anything that would otherwise be invalid; or
requires a reference to an entity or a class of entity in an Act or subordinate instrument or other instrument to be construed as a reference to another entity or class of entities—

the repeal of the provision, or where the provision otherwise ceases to operate, does not affect the operation of that provision.

Section 28 provides for the effect of a repeal of a subordinate instrument or where it otherwise ceases to have effect. New section 28(2A) clarifies section 28 in a manner consistent with the amendments made to section 14.

The Committee notes this extract from the Second Reading Speech –

It is common for provisions of this nature to be repealed after they have taken effect as part of the ongoing program of statute law revision. The repeal is done on the basis that it will not affect the operation of the provision.

The amendment makes the effect of the repeal of these types of provisions absolutely clear.

[7]. Inserts new sections 17(1A) and 31(1A) to provide that if a provision in an enactment of another jurisdiction is renumbered or relocated the reference in the Victorian Act or subordinate instrument is to be construed as a reference to the provision as renumbered or relocated unless the contrary intention appears.

[8]. Substitutes a new section 26 which provides for the exercise of powers between the making and commencement of a subordinate instrument in a manner similar to the new section 13 (clause 5 above).

[9]. Inserts a number of new definitions of commonly used terms in section 38 of the Act. This section defines many terms that have application across all Acts and subordinate instruments unless the contrary intention appears.

[10]. Inserts a new section 38AAA into the Act to provide that where reference is made in an Act or subordinate instrument to a particular Department and the name of the Department is changed under the Public Administration Act 2004 then the reference is to be taken to be a reference to the Department by its new name from the date that the name is changed and so far as it relates to any period on or after that date.

[12]. Inserts a new section 46A into the Act dealing with the construction of provisions relating to bodies representing the Crown. This new section has been inserted in response to the recent High Court decision in McNamara v Consumer Trader and Tenancy Tribunal and Roads and Traffic Authority [2005] HCA 55. In that case the High Court found that a statutory body did not have the benefit of Crown immunity even though it was described in legislation as representing the Crown.

The Committee notes this extract from the explanatory memorandum –

Until McNamara, it was presumed that describing an entity as "representing the Crown" in a statute gave the entity the benefit of Crown immunity. Those entities may be exposed to liabilities and obligations to which it was never intended that they be exposed. Many other statutes describe an entity as not representing the Crown. The intention in these statutes is that the entity not have the status, privileges and immunities of the Crown unless the contrary intention appears. New section 46A(1) provides that where an entity is described in an Act or subordinate legislation as representing the Crown then the entity is to have for all purposes the status, privileges and immunities of the Crown unless a contrary intention appears. Conversely, section 46A(2) provides that where an Act or subordinate instrument provides that an entity does not represent the Crown the entity does not have for any purpose the status, privileges and immunities of the Crown unless a contrary intention appears. New section 46A(3) is intended to ensure that no implication arises from an Act or subordinate instrument not stating whether or not an entity represents or does not represent the Crown. New section 46A(4) defines the Crown for the purposes of this section as including the State.

[13]. Inserts a new section 59 by way of a transitional provision that provides that the amendment in clause 12 to address the McNamara case will not affect any proceedings commenced before the commencement of the Act.

The Committee makes no further comment.

Land (St Kilda Triangle) Bill

Purpose

The Bill reserves a ‘triangle’ of Crown land in St Kilda for public purposes and provides for the management of that land. The Bill provides for the revocation of reservations of land within that triangle, the re reservation of that land and the reservation of other land within the triangle and other land for public purposes. The Port Phillip City Council is to be the committee of management of the reserved land and to have powers to lease part of the reserved land.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 July 2007.
The Committee notes this extract from the Second Reading Speech –

Clause 2 provides for the Act to come into operation in a timely way to allow for continued access to parts of the St Kilda triangle site prior to the commencement of the proposed works.

[4]. Provides for the revocation of the permanent reservation of land described in item 1 of Schedule 1.

[6]. Provides for the closure of the road known as the Lower Esplanade and terminates all rights, easements or privileges claimed in the land (formerly the road) shown hatched on the plan in Schedule 2.

[8]. Provides the mechanism by which part of one of two designated areas of land shown cross-hatched on the plan in Schedule 3 will be used for the purposes of a pedestrian overpass over Jacka Boulevard.

[12]. Empowers the committee of management of the St Kilda triangle land to grant a lease of that land providing the Minister has given prior consent. The initial term of the lease may be up to 50 years with one or more extensions each of up to 21 years.

The Committee makes no further comment.

Public Sector Employment (Award Entitlements) Bill

Introduced: 7 February 2006
Second Reading Speech: 8 February 2006
House: Legislative Assembly
Minister introducing Bill: Rob Hulls MLA
Portfolio responsibiliy: Minister for Industrial Relations

Purpose

The purposes of the Bill are to —

ensure that Victorian public sector employers continue to provide fair minimum employment conditions to public sector employees;
establish a fairness test for workplace agreements made by public sector employers;
amend the Workplace Rights Advocate Act 2005 to provide for the delegation of additional functions;
amend the Commonwealth Powers (Industrial Relations) Act 1996 to exclude certain matters from those referred by that Act to the Parliament of the Commonwealth.

The Committee notes this extract from the explanatory memorandum –

The Bill is introduced to impose certain obligations on public sector employers, namely to apply terms and conditions of employment no less beneficial to employees than the award entitlements of Victorian public sector employees as they were prior to Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth coming into operation. For this purpose, the Bill preserves public sector employees' award entitlements and establishes a fairness test for workplace agreement making in the Victorian public sector that provides a floor for fair bargaining for public sector employees and their unions. The Bill also amends the Workplace Rights Advocate Act 2005 and the Commonwealth Powers (Industrial Relations) Act 1996.

Content and Committee comment

[Clauses]

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

[8]. Provides that the Act binds the Crown.

[9]. Defines the ‘preserved entitlements’ of an employee, as used in clause 10 of the Bill.

[10]. Provides that a public sector employer must not provide a term or condition of employment to an employee that is less favourable to the employee than the employee's preserved entitlements. This means that public sector employers must continue to provide terms and conditions of employment at least as favourable as the preserved entitlements, even where entitlements under the award on which a relevant award is based are subsequently abolished or reduced as a consequence of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

The above situation does not apply where the public sector employer makes an applicable workplace agreement under the Commonwealth Act that passes the fairness test in clause 13 of the Bill.

[13]. Sets out the fairness test for proposed workplace agreements and provides that, before offering a workplace agreement to an employee or trade union, a public sector employer must submit the proposed agreement to the Workplace Rights Advocate (the WRA) for a determination as to whether it passes the fairness test.

[14]. Sets out certain prohibitions that apply to public sector employers in respect of offering, accepting, making or lodging workplace agreements that do not pass the fairness test in clause 13.

[15]. Removes the legal capacity of public sector employers to offer, accept, make or lodge workplace agreements that do not pass the fairness test, and declares that the Act displaces provisions of the Corporations legislation where there is an inconsistency between the two.

[16]. Provides that the Act applies despite anything to the contrary in any other Act.

[17]. The functions of the WRA are not subject to the directions of the Minister.

[18]. Allows regulations to be made to give effect to the Act.

[20]. Amends the Commonwealth Powers (Industrial Relations) Act 1996 by inserting into section 5 of that Act an additional exclusion from the matters that are referred to the Commonwealth under section 4 of that Act. The additional exclusion is of matters that would allow or require a public sector employer to provide a term or condition of employment in breach of clause 10 of the Bill; or offer, accept, make or lodge with the Employment Advocate a workplace agreement that does not pass the fairness test within the meaning of clause 13 of the Bill.

The Committee makes no further comment.