Scrutiny of Acts and Regulations Committee

Alert Digest No 6 of 2006

Tuesday, 13 June 2006

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Accident Compensation and Other Legislation (Amendment) Bill

Introduced: 30 May 2006
Second Reading Speech: 1 June 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Minister for WorkCover, Treasurer and the
Attorney-General

Purpose

The Bill amends the —

Accident Compensation Act 1985 to increase certain benefits under the Act and improve the operation of the Act;
Accident Compensation (WorkCover Insurance) Act 1993 to provide for a default penalty if there is a failure to provide full and true disclosure in respect of matters relating to the calculation of premium;
Emergency Services Superannuation Act 1986 to continue the appointment of deputies of members of the Emergency Services Superannuation Board;
Transport Accident Act 1986 to clarify the power to appoint a Chairperson of the Board of Management of the Transport Accident Commission and provide for ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’ to be used in assessing the degree of psychiatric impairment;
Workers Compensation Act 1958 to include necessary provisions from the Workers Compensation Regulations 1995 so that those regulations are no longer required;
Wrongs Act 1958 to enable specified guidelines to be used in the assessment of certain impairments.

Content and Committee comment

[Clauses]

[2]. Part 1, sections 6 to 9, 25 and 26, and Parts 4, 5 and 7 come into operation on the day after Royal Assent.

Section 17(1) is deemed to have come into operation on 20 October 1999 (see below).

Sections 4, 18 and 24 are deemed to have come into operation on 1 June 2006. Sections 3, 5, 10 to 16, 17(2), 19 to 23 and Part 3 are deemed to have come into operation on 1 July 2006. Part 6 comes into operation on 5 August 2006.

Accident Compensation Act 1985

[4]. Inserts a new subsection (9) in section 16(1) of the Act to provide that the amendment made by section 8 of the Accident Compensation (Miscellaneous Amendment) Act 1997 applies retrospectively to the commencement of section 16 of the Act on 30 July 1985 (see also clause 26 which deals with transitional and savings provisions).

Note: This clause clarifies that it was never the intention of the Act to cover professional sportspeople who are injured whilst participating as a contestant in a sporting or athletic activity, engaged in training or preparation in order to participate as a sporting contestant, or is travelling between a place of residence and the place where the sportsperson is participating as a contestant.

The Committee notes that the amendments made by clause 4 to section 16 of the Act apply with retrospectively to 30 July 1985.

The Committee notes that existing proceedings and any proceedings commenced prior to 1 June 2006 are protected by the transitional and savings provisions in clause 26.

[14]. Inserts section 93EA into the Act to provide for a new limited entitlement (weekly payments for 13 weeks) to compensation to workers over the age of 65.

[17]. Amends section 99(13) of the Act and provides that a worker will be entitled, subject to the Act, to continue to receive compensation for medical and like services under section 99 even if the worker has received a settlement or award of pecuniary loss damages or has accepted a voluntary settlement of weekly payments under Division 3A of Part IV.

Note: The explanatory memorandum provides – The voluntary settlements are being included in section 99(13) for the avoidance of doubt and ease of reference. Workers who accept voluntary settlements have been entitled to continue to receive payments under section 99 pursuant to the operation of section 119J(2) (Preclusion of further claims - exceptions).

The Committee notes that the amendments made by clause 17 to section 99 of the Act are made retrospective by clause 2(2) to 20 October 1999. The Committee observes that the amendments appear to clarify the operation of section 99 and are beneficial to persons entitled to compensation payments under the Act.

[26]. Inserts a transitional and saving provision in new section 288 to provide that section 16 as amended by clause 4 of the Bill applies in respect to any claim made on or after 1 June 2006 regardless of when the injury occurred.

It further provides that the amendment of section 16 by section 4 of the Bill does not affect the rights of the parties to the proceedings known as Adrian Whitehead v Carlton Football Club Limited & Ors (No. 4905 of 2001) in the Supreme Court of Victoria (Court of Appeal).

[27]. Amends the Accident Compensation (WorkCover Insurance) Act 1993 to insert section 31B which provides for a default penalty where an employer has failed to make a full and true disclosure for the purposes of calculating premium.

[31 to 47]. Part 6 amends the Workers Compensation Act 1958 to incorporate provisions of the Workers Compensation Regulations 1995 that are still operative.

The Committee makes no further comment.

Appropriation (2006/2007) Bill

Introduced: 30 May 2006
Second Reading Speech: 30 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Treasurer

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund for the ordinary annual services of the Government for the 2006/2007 financial year. The amounts shown in Schedule 1 provide for the ongoing operations of the respective government departments.

Committees report and comments

[Clauses]

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

[3]. The Treasurer may issue the stated amount out of the Consolidated Fund ($26,774,762,000) in respect of the financial year 2006/2007 for the purposes set out in Schedule 1 to the Bill.

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

The Committee makes no further comment.

Appropriation (Parliament 2006/2007) Bill

Introduced: 30 May 2006
Second Reading Speech: 30 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibiliy: Premier

Purpose

This Bill provides appropriation authority for payments from the Consolidated Fund to the Parliament in respect of the 2006/2007 financial year. The amounts contained in Schedule 1 provide for the operations of the Parliament for the financial year 2006/2007.

Committees report and comments

[Clauses]

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

[3]. The Treasurer may issue the stated amount ($87,989,000) out of the Consolidated Fund in respect of the financial year 2006/2007 for the purposes set out in Schedule 1 to the Bill.

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

The Committee makes no further comment.

Drugs, Poisons and Controlled Substances (Amendment) Bill

Introduced: 30 May 2006
Second Reading Speech: 1 June 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibiliy: Minister for Police and Emergency Services

Purpose

The Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the ‘Act’) in relation to —

definitions and offences, including new offences, in Part V of the Act;
the scheduling of drugs in Schedule Eleven to the Act;
search warrants and the destruction or disposal of drugs of dependence and other things in certain circumstances;
the authorisation of persons as authorised police employees to perform specified functions under the Act.

The Committee notes this extract from the Second Reading Speech –

The Bill also extends the offence of trafficking involving children. It is currently an offence for an adult to supply a drug to a child for that child to use or to sell to another child, but not for that child to sell the drugs to an adult. The Bill criminalises the supply of drugs to a child for the purposes of that child trafficking the drugs to an adult.

In particular the Bill adds a new class of 'designer drugs' to schedule 11. It also prescribes 'large commercial' quantities for a range of drugs whose prevalence in the illegal market has increased.

The Bill also provides for numbers of plants to be used as an alternative to weight when quantifying the amount of opium poppies an offender has in his or her possession. This method is already used in quantifying cannabis plants.

The Bill also allows for multiple quantities of drugs of dependence in a dilute form to be aggregated for the purpose of deeming an offender to be in possession of a commercial or large commercial quantity of drugs, to better reflect the scale of the commercial enterprise that they may be engaged in (this is already available for drugs in a 'pure' form).

Reflecting the increase in the use of hydroponic technology to cultivate cannabis, the Bill amends the definition of 'cultivate' to include propagation of cuttings and the definition of 'narcotic plant' to include cuttings, with or without roots.

The Bill also enables unsworn police personnel to be authorised to possess drugs in the course of their duties, for purposes such as transport, storage, examination, analysis and destruction of drugs. This will free up sworn police time, whilst ensuring that the handling of drugs during the prosecution process remains strictly controlled.

The Bill extends the circumstances in which illegal drugs may be destroyed in situ. These amendments will enable Victoria Police to destroy volatile and potentially explosive substances used in illicit drug manufacture that pose a health and safety risk, without court authorisation.

The Bill enables the Chief Commissioner, or delegate (being a member of Victoria Police not less than the rank of superintendent), to authorise destruction or disposal of drugs and related material seized without warrant, expeditiously and, in situ, subject to appropriate safeguards, where an analyst or botanist certifies that this is required in the interests of health and safety. The Chief Commissioner will be required to keep statistics on the use of this power and report annually upon its use to the Minister for Police and Emergency Services, who in turn will table that report in Parliament.

The analyst or botanist's certificate and the Chief Commissioner's or delegate's report on the destruction of the drugs and related material, will also be available to the owner or occupier of the land from which the items were seized and destroyed, and to any person charged in connection with the items seized or destroyed, to ensure procedural fairness in the prosecution process.

Currently all parts of the opium poppy, including the seeds, are classified as drugs of dependence. In practice, police are reluctant to enforce the prohibition on possession of poppy seeds, owing to their widespread culinary use. In recognition of this, the Bill decriminalises the possession of poppy seeds.

Content and Committee comment

[Clauses]

[2]. Other than sections 9(2), 12 and 15 the provisions in the Bill come into operation on proclamation but not later than by 1 May 2007. Sections 9(2), 12 and 15 come into operation on proclamation but not later than by 1 October 2007.

Delayed commencement by proclamation more than ‘one year’ from Royal Assent

Note: The explanatory memorandum provides – It is necessary to have a forced commencement date of 1 October 2007 for clauses 9(2), 12 and 15 of the Bill to enable regulations to be made to prescribe precursor chemicals and quantities for prescribed precursor chemicals. These regulations will be developed in consultation with key medical, pharmaceutical and biotech industry, research and enforcement stakeholders, and informed by national deliberations on this issue.

The Committee is of the opinion that a delayed commencement in the circumstances is appropriate to the purposes of the new provisions.

[5]. Inserts new sections 44A and 44B to allow the Chief Commissioner of Police to authorise an employee of Victoria Police (employed under Part 3 of the Public Administration Act 2004 in the office of the Chief Commissioner of Police, that is, unsworn police personnel) to be given certain authorisations to allow them to transport, carry, examine, analyse, destroy or otherwise handle a poison or drug of dependence for the purposes of assisting authorized officers perform their duties and functions under the Act.

[6]. Extends the existing immunity for authorised officers in section 50 of the Act to apply to those holding an authorisation under new section 44A (i.e. non-sworn officers, refer to clause 5 above).

[8]. Makes amendments to section 70 of the Act in respect to a drug of dependence that is contained in or mixed with another substance. This will allow for the calculation of an aggregated commercial quantity or aggregated large commercial quantity of either a drug of dependence that is contained in or mixed with another substance (‘dilute’) or a drug of dependence that is not contained in or mixed with another substance.

Also amended is the definition of ‘traffickable quantity’ to include a drug of dependence that is not contained in or mixed with another substance and the definition of ‘cultivate’ to include the grafting, division or transplant of a narcotic plant, and also amends the definition of ‘narcotic plant’ to include a cutting of a plant whether or not the cutting has roots.

Offence to supply a drug to a child who supplies another person with that drug

[10]. Expands the offence under section 71B of the Act of supply of a drug of dependence to a child to apply to a person who supplies a drug of dependence to a child for the purposes of the supply of that drug of dependence by that child to any person, whether a child or adult.

Strict liability offence – Possession of tablet press or precursor chemicals without lawful excuse – Reverse onus defence

[11]. Inserts a new section 71C which creates an offence to possess a tablet press without being authorized or licensed under the Act or regulations made under that Act or otherwise without a lawful excuse.

[12]. Inserts a new offence to possess a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical without being authorized or licensed under the Act or regulations or otherwise without a lawful excuse.

The Committee notes this extract from the Second Reading Speech –

The Bill provides that possession of a tablet press without a lawful excuse will be a criminal offence, punishable by a maximum of 600 penalty units, or five years imprisonment, or both.

The Bill also creates an offence of possession of a prescribed precursor chemical at or above the prescribed quantity without lawful excuse.

As with tablet presses, it is recognised that there are a variety of lawful reasons to possess such chemicals (scientific research, manufacturing et cetera), and the inclusion of a 'lawful excuse' defence ensures that legitimate users will not be captured by this offence. The schedule of chemicals to be prescribed will be the subject of extensive consultation with industry and other key stakeholders during the development of the regulations.

Strict liability offences – reverse onus defence

The Committee notes the offences in clauses 11 and 12 (new sections 71C and 71D) are to be strict liability offences respectively requiring the defendant to establish ‘lawful excuse’ for the possession of certain equipment or chemicals.

The Committee observes that in criminal law the ‘general rule’ is that the prosecution bears the onus of proving the necessary elements of a criminal offence. The Committee accepts that in appropriate circumstances the onus of proving, on the balance of probabilities, ‘lawful excuse’ for the possession of restricted equipment or chemicals may more conveniently rest with the defendant and may justify a reverse onus provision.

The Committee is of the opinion that a ‘lawful excuse’ reverse onus provision appears to be justified in the two cases noted above.

[14]. Inserts new sections 91 to 96 into the Act to provide that police members may enter, search, seize and destroy or dispose of certain drugs of dependence or other substances, poisons, controlled substances or an instrument, device or substance that is, or is capable of being used in the cultivation, manufacture, sale or use of a drug of dependence found on public land, or other premises (with the written or oral permission of either the owner or occupier), where required in the interests of health and safety. The disposal or destruction must be authorised by the Chief Commissioner of Police or delegate of or above the rank of Superintendent.

[15]. Amends section 132 of the Act to enable the Governor in Council to make regulations for or with respect to prescribing precursor chemicals and the prescribed quantity of a precursor chemical for the purposes of the Act.

The Committee makes no further comment.

Electoral and Parliamentary Committees Legislation (Amendment) Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Premier and Attorney-General

Purpose

The Bill amends the —

Electoral Act 2002 to provide for electronic voting by electors who because of a visual impairment cannot otherwise vote without assistance and clarify that certain electoral offences are indictable offences;
Constitution (Parliamentary Reform) Act 2003 to make amendments to the Electoral Act 2002 to provide for the final nomination day and election day for a by-election and provide for a new form of ballot-paper for the Legislative Council where there are 20 or more groups;
Parliamentary Committees Act 2003 to enable Joint Investigatory Committees to use electronic means in conducting meetings and taking evidence and to allow the Scrutiny of Acts and Regulations Committee time to report on a Bill up to 10 sittings days after the Bill has received Royal Assent;
Magistrates' Court Act 1989 and the Constitution Act 1975.

Committees report and comments

[Clauses]

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

Electoral Act 2002

[3]. Inserts a new Part 6A (sections 110A–110I) in the Act to provide for electronic voting. This new Part will facilitate a trial of electronic voting planned for the November 2006 State election.

New section 110B makes it clear that the new Part does not create an entitlement to vote by electronic voting.

New section 110C provides that the Victorian Electoral Commission (the Commission) will designate the voting centres where electronic voting will be available. Electronic voting will be available both in the early voting period and on election day.

New section 110D provides that voters with vision impairment who could not otherwise vote without assistance and who want to vote using an electronic voting kiosk will be entitled to use the electronic voting facilities.

New section 110E gives the Commission the power to approve the software program to enable electronic voting if the Commission is satisfied that specified criteria have been met as set out in new section 110E(2).

New section 110F requires the Commission to put in place security arrangements to ensure that electronic voting is secure and secret.

New section 110G provides that a ballot paper may be in electronic form.

New section 110H deals with voting. Where a person wants to vote using the electronic voting facilities, an election official may ask the person whether they have a visual impairment that would require the person to seek assistance to vote using a paper ballot paper.

New section 110I makes it an indictable offence to, without reasonable excuse, destroy or interfere with any computer program, data file or electronic device which is used or intended to be used for electronic voting.

Clarification that offences are indictable

[4 to 9]. Amends sections 149 to 153 which set out various offences under the Act. The intention of the amendments is to make it clear on the face of the legislation that the offences are indictable offences. The offences respectively deal with false information, forging or uttering electoral papers, voting offences, bribery, interference with political liberty, and tampering.

Constitution (Parliamentary Reform) Act 2003

[11]. Amends section 26 of the Act. Currently sections 61 and 63 of the Electoral Act 2002 provide for the timing of by-elections.

Note: The Act will amend section 63 when the relevant provisions come into operation on the dissolution of the current Parliament. That amendment (section 26) will inadvertently delete the provisions in section 63 that provide for timeframes for the nomination day and the election day of a by-election. The clause reinserts those provisions.

[12 to 14]. Amends section 32 and inserts a new schedule 1B of the Act to provide for a second form of ballot paper for the Legislative Council where there are 20 or more groups of candidates.

Parliamentary Committees Act 2003

[17]. Amends section 3 of the Act to insert definitions of the terms ‘audio link’ and ‘audio visual link’.

Jurisdiction to consider Acts not considered whilst they were Bills

[18]. Amends section 17 of the Act to provide that the Scrutiny of Acts and Regulations Committee may consider a Bill within 10 sitting days after the Act receives Royal Assent if the Committee was not able to consider the Bill when it was introduced into Parliament.

[19]. Amends section 25 of the Act to provide that a Joint Investigatory Committee may conduct all or any part of a meeting at which one or more members are participating through an audio or audio visual link. The Joint Investigatory Committee must unanimously approve the use of the audio link or audio visual link and must be satisfied that the quality of the link will enable members to verify the identity of the member participating by the link.

The Committee notes this extract from the Second Reading Speech –

The Bill will also amend the Act to allow committee members to participate in meetings by audio or audio-video link. Committee members may participate in meetings in this manner where the quality of the link is such that members of the committee attending physically can verify the identity of the absent member and the participation of one member remotely does not prevent the participation of another via a similar means. The committee must resolve unanimously to permit the use of these technologies for committee business. A quorum would still be required to be constituted only from those members physically attending the meeting.

[Underling added]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’ – Representative Democracy -– Parliament – Members right to vote on questions arising at Parliamentary Committee meetings

The Committee notes the extract of the Minister’s Second Reading Speech and notes that a Member participating remotely by means of electronic link is not to be counted for purposes of the quorum. It would therefore appear to the Committee that a Member participating remotely is, for the purposes of the Act, not ‘present’ but ‘participating’ at the meeting. Considering other provisions of the Act, for example sections 24(1) and 26(2), it is unclear to the Committee whether a Member participating remotely has a right to vote on questions before the Committee.

The Committee will write to the Premier to seek clarification.

Pending this clarification the Committee draws attention to the provision.

[20]. Amends section 28 of the Act to allow a Joint Investigatory Committee to take evidence in any manner it considers appropriate including by audio or audio visual link. This clause also provides for the manner in which an oath or affirmation may be administered when a witness is giving evidence by audio or an audio visual link.

[21]. Amends section 35 of the Act to facilitate the easier tabling of Committee reports.

Constitution Act 1975

[23]. Makes a consequential amendment to section 19 of the Constitution Act 1975 to provide that a committee may administer an oath to witnesses including by means of audio or audio visual link.

The Committee makes no further comment.

Evidence (Document Unavailability) Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Minister for Planning

Purpose

The Bill amends the Evidence Act 1958 (the ‘Act’) in relation to documents that are unavailable in civil proceedings and to make a consequential amendment to the Victorian Civil and Administrative Tribunal Act 1998. In essence the Bill creates new judicial discretionary powers in a civil proceeding involving the unavailability of documentary evidence. That discretion may involve a ruling or order drawing an adverse inference, a presumption, reverse onus of proof or striking out a defence or claim.

Note: Also the amendments made earlier this year to the Crimes Act 1958 by the Crimes (Document Destruction) Act 2006 (new sections 253 to 255). The new indictable offences concerning destruction of evidence are not yet in force (Royal Assent 4 April 2006).

Committees report and comments

[Clauses]

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

[4]. Inserts a new Division 9 into Part III of the Act (new sections 89A–89E) to provide for document unavailability in a civil proceedings.

New section 89A provides that a document is unavailable if it is, or has been but is no longer, in the possession, custody or power of a party to a civil proceeding and the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification (whether before or after the commencement of the proceeding).

New section 89B provides that where section 89A applies and the unavailability of the document is likely to cause unfairness to a party to the proceeding, the court may make any ruling or order it considers necessary to ensure fairness to all parties to the proceeding including —

drawing an adverse inference when a document is unavailable;
presuming a fact in dispute between the parties to be true in the absence of evidence to the contrary;
preventing certain evidence from being led;
striking out all or parts of a defence or a statement of claim; or
reversing the evidential burden of proof.

Section 89C sets out the matters that a court must consider before exercising its judicial discretion under section 89B.

New section 89D applies the new rules to proceedings in the Victorian Civil and Administrative Tribunal.

[5]. Inserts a new section 158 in the Act to clarify that new sections 89A to 89E apply to a civil proceeding commenced on or after the date of commencement of those sections regardless of when the document was destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification.

Note: The legislation is prospective and the rights of parties to any proceedings already commenced before the legislation comes into operation will not be affected.

The Committee notes this extract from the Second Reading Speech –

The legislation will apply to proceedings commenced on or after the date of commencement of the legislation regardless of when a document became unavailable. As the legislation is prospective, the rights of parties to any proceedings that may have commenced before the commencement of the legislation will not be affected.

A court's powers to take into account the unavailability of documents will be able to be used in respect of documents that may have been destroyed prior to the commencement of the legislation. Any perceived unfairness involved in considering documents that became unavailable prior to the date of commencement can be raised before the court as a relevant factor which may influence the exercise of the court's judicial discretion.

[6]. Inserts new section 78A into the Victorian Civil and Administrative Tribunal Act 1998 to provide for the same transitional provision under that Act as in clause 5 above.

The Committee makes no further comment.

Gambling Regulations (Further Miscellaneous Amendments Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibiliy: Minister for Gaming

Purpose

The Bill amends the Gambling Regulation Act 2003 (the ‘Act’) in relation to public lotteries and confidentiality and makes a consequential amendment to the Tobacco (Amendment) Act 2005.

Committees report and comments

[Clauses]

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

[4]. Substitutes a new section 5.2.8 in the Act creating an offence for a person to knowingly sell a lottery ticket to a minor and re-enacts the offence currently in section 5.2.8 for a person to knowingly accept an entry in a public lottery from a minor.

[6]. The Minister may grant a public lottery licence to an applicant or a Victorian company which is a wholly owner subsidiary company of the applicant approved by the Commission.

[14]. Inserts new Division 6 in Part 3 of Chapter 5 of the Act dealing with temporary public lottery licences.

[16]. Provides that the Minister’s and Commission’s power to delegate authorisation to disclose protected information is non-delegable to the staff or members of the Commission.

[17]. Substitutes a new Division 6 of Part 1 of Chapter 10 of the Act with respect to confidentiality. New section 10.1.30 creates an offence for a regulated person (the Minister, Commission and employees) to make a record or disclose to someone any protected information that has been acquired in the performance of functions under gaming legislation.

New section 10.1.32(1) provides that disclosure of protected information by a regulated person is permitted in some circumstances.

New section 10.1.33 relates to the restrictions that apply to publishing statistical information in relation to gaming venues.

New section 10.1.34 relates to disclosures by third parties (being persons other than a regulated person) to whom protected information is disclosed by a regulated person.

[18]. Amends the investigation powers of the Commission in Chapter 10 of the Act in respect to wholly owned subsidiary companies of a public lottery licence.

The Committee makes no further comment.

Health Legislation (Infertility Treatment and Medical Treatment) Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibiliy: Minister for Health

Purpose

The Bill makes amendments to the licensing provisions in section 93 of the Infertility Treatment Act 1995 to allow an infertility service provider to apply and be granted a licence to conduct treatment in their own right rather than restricting licensing to hospitals and day procedure centres.

The Bill also makes amendments to the certificate in Schedule 3 to the Medical Treatment Act 1988 will make it clear that only those guardians appointed by the Victorian Civil and Administrative Tribunal with powers to make medical treatment decisions may lawfully refuse medical treatment on behalf of an incompetent person by completing the certificate.

Committees report and comments

[Clauses]

[2]. Other than section 5 the provisions in the Bill come into operation on Royal Assent. Clause 5, which contains minor statute law revision amendments (see below), is deemed to have come into operation on 6 May 2003 (the date of Royal Assent to Act No. 11/2003).

[3]. Amends section 93 of the Infertility Treatment Act 1995 by inserting a new paragraph (ca) to extend the list of entities that may make an application to the Infertility Treatment Authority for a licence to undertake activities regulated by the Act, such as carrying out infertility treatment procedures. The new paragraph enables proprietors of clinics that are based within, or access the clinical services of, a hospital or day procedure centre to apply for a licence under section 93.

[4]. Amends Schedule 3 to the Medical Treatment Act 1988 to make it clear that only those guardians appointed by the Victorian Civil and Administrative Tribunal with powers to make medical treatment decisions may lawfully refuse medical treatment on behalf of an incompetent person by completing the certificate.

[5]. Makes statute law revision amendments to the Health Legislation (Research Involving Human Embryos and Prohibition of Human Cloning) Act 2003 to clarify which Act was being amended and insert the full title of the Commonwealth Act.

The Committee makes no further comment.

Land (Further Miscellaneous) Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Minister for Planning

Purpose

The Bill revokes the permanent reservation over part of the land at Belmont, Moreland South and Bendigo as well as to revoke the related Crown grant over part of the land at Moreland South and Bendigo. The changes are made to facilitate the construction of improved road and recreational facilities.

Committees report and comments

[Clauses]

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

[4 to 6]. Revokes certain Orders in Council that permanently reserved land in the specified areas shown in the Schedules.

[8]. Requires the Registrar of Titles to make recordings in or amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of the Bill.

The Committee makes no further comment.

Long Service Leave (Preservation of Entitlements) Bill

Purpose

The Bill amends the Long Service Leave Act 1992 (the ‘Act’) to —

protect and maintain existing long service leave entitlements;
require disclosure by employers if proposed agreements impact on entitlements;
allow the Industrial Division of the Magistrates' Court to make certain orders where an employer dismisses or prejudices an employee in relation to long service leave.

Committees report and comments

[Clauses]

[2]. Other than Parts 2 and 4 (clauses 4 and 6) the provisions in the Bill come into operation on 1 October 2006. Parts 2 and 4 are deemed to have come into operation on 27 March 2006.

In respect to the retrospective operation of Parts 2 and 4 the Committee notes the following note in the explanatory memorandum –

‘Parts 2 and 4 relate to preserved entitlements and superior award conditions and are designed to protect entitlements that may be lost as a result of the operation of the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth, which came into operation on 27 March 2006.

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

The Committee notes the retrospective operation of Parts 2 and 4 of the Bill and notes that the preservation of long service entitlements is intended to be beneficial to employees.

[4]. Inserts new Parts 6 and 7 (new sections 82 to 86) into the Act. New section 84 states that, if immediately before 27 March 2006 an award provided a long service leave entitlement that was more beneficial to the employee than the entitlement in Part 5 of the Act, the employee is entitled under the Act to the superior entitlement. This applies whether or not the employee was employed before 27 March 2006.

New section 86 provides that an employee who is or was at any time entitled to a protected accrued long service leave entitlement is entitled to benefit from the entitlement under the Principal Act regardless of the status of the award or agreement under which the entitlement accrued.

[5]. Inserts new Parts 8 and 9 (new sections 87 to 93) into the Act and provides for disclosure of unfair long service leave entitlements in certain circumstances and provides remedies where this requirement is not met.

Offence to terminate or threaten to terminate an employee seeking long service entitlement

New section 90 provides that an employer must not terminate or threaten to terminate the employment of an employee or alter the employee's position to the employee's prejudice because the employee is entitled or seeks to exercise any entitlement or right under the Principal Act.

Reverse onus of proof – civil penalty

New section 91 provides for a reverse onus of proof in proceedings for a contravention of section 90, if the employee proves that he or she took long service leave, applied for long service leave, or communicated to the employer an intent to take leave. The onus of proving that the termination or prejudice was not actuated by the reason alleged by the employee lies on the employer.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’ – Reverse onus of proof - Burden of proof – presumption of innocence – civil penalties

The Committee observes that new section 91 places an evidentiary burden on the defendant (employer) to prove that termination of or prejudice to an employee, was not actuated by the reasons alleged by the employee.

The Committee notes that in the ordinary course it is for the prosecution in a criminal proceedings to prove all the necessary elements of the crime beyond a reasonable doubt to support a conviction and that in a civil proceeding, a party alleging a fact has the legal burden of proving the existence of that fact on the balance of probabilities.

The Committee observes generally that a reverse onus provision may be considered a derogation of the presumption of innocence in common law. However the Committee also accepts that the presumption can be abridged by statute where there are countervailing legitimate public policy objectives. One such reason is where a fact is peculiarly within the knowledge of a party and where it is more difficult or costly for the alleging party to disprove that fact than for the party to explain or establish the fact. In the present circumstances there is a legal burden on the employer to prove on the balance of probabilities that the employer’s actions were not actuated by the reasons proven by the employee.

Whether in the particular circumstances it is appropriate to provide a reverse onus provision on an employer is a matter for the Parliament to consider and determine.

New section 92 states that if an employer contravenes section 90 the contravention is not an offence. The court may, however, impose a penalty of up to $10,000 on the employer.

The Committee makes no further comment.

National Parks and Crown Land (Reserves) Acts (Amendment) Bill

Introduced: 30 May 2006
Second Reading Speech: 1 June 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Environment

Purpose

The Bill amends the —

National Parks Act 1975 (the ‘Act’) to add land to parks under that Act and to amend the provisions relating to offences in marine national parks and marine sanctuaries; and
Crown Land (Reserves) Act 1978 to create three regional parks, four nature conservation reserves, a recreation reserve and eight water reserves.
Heritage Rivers Act 1992 and the Mineral Resources Development Act 1990.

Committees report and comments

[Clauses]

[2]. A number of provisions commence on Royal Assent. The remaining provisions commence not later than by 30 June 2007.

Strict liability offences

[5]. The clause inserts sub-section (2A) in the Act to create a lesser, strict liability offence to use recreational fishing equipment in a marine national park or marine sanctuary. (40 penalty units).

Note: ‘Recreational fishing equipment’ is defined in new sub-section (9) (clause 5(5)). It is not an offence to merely carry such equipment in a boat.

A sub-section (6A) is also inserted to create an offence for a person in the waters in a marine national park or marine sanctuary to possess a priority species (abalone and rock lobster). This offence would apply, for example, where a person is found in the water (e.g. wading or swimming) in possession of abalone but the taking of the abalone has not been observed.

[6]. Inserts a new sub-section 2A in section 45D of the Act to provide that if an offence under that Division is committed from or in connection with a boat, the person in charge of the boat at the time that the offence was committed is also guilty of the offence. Due diligence defences are available under sections 45D(1) and (2).

Note: The extended liability is intended to place an onus on the person in charge of a boat to ensure the responsible behaviour of those on board, or connected with, a boat in a marine national park or marine sanctuary. An example of an offence committed in connection with a boat is spearfishing while underwater diving based from the boat.

A new sub-section (2C) provides an additional defence for the purposes of proposed sub-section (2A). The person is not guilty if he or she is able to prove that he or she did everything that was reasonably practicable to ensure that the offence would not be committed and did not aid, abet, counsel or procure the commission of the offence.

[7]. Amends section 45E of the Act and extends from 18 months to 3 years the time in which proceedings may be commenced for offences in section 45A.

The Committee makes no further comment.

State Taxation (Reductions and Concessions) Bill

Introduced: 30 May 2006
Second Reading Speech: 31 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Treasurer

Purpose

The Bill gives effect to certain taxation changes announced in the annual budget.

The Bill amends the Duties Act 2000 to extend the exemption for pensioners to property transactions up to $300,000 for a full exemption and $400,000 for a partial concession. Additionally, the Bill amends that Act to remove the temporary suspension of the first home owner exemption or concession from 1 January 2006 and introduces a new provision allowing an eligible first home owner to elect to receive either the exemption/concession or the additional first home owner grant.

The Bill consequentially amends the First Home Owner Grant Act 2000 to take account of the election now available to eligible first home owners under the Duties Act 2000.

The Land Tax Act 2005 is amended to reduce rates of land tax and cap potential tax increases for the 2007 land tax year.

The Pay-roll Tax Act 1971 is amended specifying pay-roll tax rate reductions for the periods from July 2006, July 2007 and July 2008.

Committees report and comments

[Clauses]

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

Part 2 makes a range of amendments to the Duties Act 2000.

Part 3 amends that part of the First Home Owner Grant Act 2000 dealing with the amount of the additional grant (or First Home Bonus).

Part 4 amends the rates and thresholds in the Land Tax Act 2005, and extends capping increases, for the 2007 tax year.

Part 5 makes amendments to the Pay-Roll Tax Act 1971 to reflect a series of general rate reductions as announced in the 2006–07 Budget.

The Committee makes no further comment.

Transport Legislation (Further Amendment) Bill

Introduced: 30 May 2006
Second Reading Speech: 1 June 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibiliy: Minister for Transport

Purpose

The Bill amends the –

Transport Act 1983 —
- to provide for the accreditation of drivers of commercial passenger vehicles and private bus services; and
- to provide for approved public transport education programs; and
- to make further provision for the accrediting of transport companies that engage authorised officers; and
- permitting the divulgence of information to law enforcement agencies.
Rail Corporations Act 1996 with respect to the powers of Rail Track and to make other minor amendments to that Act;
Rail Safety Act 2006 to make miscellaneous and minor and transitional changes; and
Transport Legislation (Further Miscellaneous Amendments) Act 2005 and the Public Transport Competition Act 1995.

The Committee notes this extract from the explanatory memorandum –

The three key proposals to be enacted by this Bill are bound together by the theme of protecting members of the community, especially vulnerable persons, and striving against the effects of disadvantage. These key proposals will —

introduce a new scheme for the accreditation of drivers of commercial passenger vehicles (buses, taxis and hire cars) and private bus services;
strengthen the existing scheme for the accreditation of public transport companies and associations who engage or employ their own authorised officers to carry out law enforcement functions on public transport;
provide the Courts with an alternative measure for dealing with certain public transport offenders, namely, participation in an approved public transport education program.

Committees report and comments

[Clauses]

[2]. Provides for the commencement of the various provisions of the Bill. Most provisions will come into operation on proclamation but not later than by 1 July 2007. Sections 8 to 14 (the new driver accreditation scheme) comes into operation on proclamation but not later than by 1 August 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’

Delayed commencement – ‘one year rule’

The Committee notes the delayed commencement of clauses 8 to 14 and will seek further information from the Minister for Transport concerning the need or desirability for such an extended delay in bringing these provisions into force.

The Committee draws attention to its Practice Note No. 1 of 2005 concerning the ‘one year rule’ for the commencement of Acts or legislative provisions in Acts.

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

Transport Act 1983

[8 to 14]. Makes provision for the proposed driver accreditation statutory scheme.

[14]. Inserts new Division 6 of Part VI (new sections 163 to 169Z), to establish the new accreditation scheme for drivers of commercial passenger vehicles and vehicles used in the provision of private bus services.

New section 164 describes the public care objective which governs the new accreditation scheme.

New section 165 prohibits the driving of a commercial passenger vehicle or a vehicle used for the operation of a private bus service if the driver is not accredited under the new Division.

New section 166 and 167 empowers the Director of Public Transport to accredit drivers under the scheme, and provides the application process.

New section 168 provides for the term of accreditation—a maximum of 3 years—and for the process of accreditation renewal.

New section 169 describes the grounds on which the Director makes decisions on an application for issue or renewal of accreditation. New section 169A enables the Director to impose conditions on a driver accreditation. New section 169C enables the Director, when refusing accreditation, to disqualify the applicant from further applying for up to 5 years.

New section 169G requires the Director to notify the accredited driver of a decision to consider disciplinary action. New section 169H allows the accredited driver to make a written submission to the Director in relation to a notification under section 169G (or section 169K).

New section 169I describes the range of disciplinary action the Director may take.

New section 169J requires the Director to notify the accredited driver of the decision to take disciplinary action, and the reasons.

New section 169K empowers the Director to impose an interim suspension if satisfied that this is necessary having regard to the public care objective.

New section 169N enables a person affected by a mandatory refusal to issue or renew accreditation, or a mandatory cancellation of accreditation, to apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order that accreditation be issued, renewed or reinstated. 169O deals with general reviews by VCAT.

New sections 169Q to 169X provide for a number of offences, in particular 169T requires an accredited driver to notify the Director of any finding of guilt or charge of a disqualifying offence or of becoming subject to the sex offender reporting obligations or supervision order referred to in new section 169(2).

New section 169Z provides power for the making of regulations.

Information may be divulged

[15]. Inserts new paragraphs (c) and (d) in section 218B(6D). The new paragraphs permit the divulgence of information acquired under section 218B to the Sheriff's Office and for law enforcement purposes. Statute law revision amendments are also made. The sub-section as amended (underlined) will provide –

(6D) An authorised officer or a member of the police force must not divulge to any other person or use for any purpose any information received by the officer or member in response to a request made under sub-section (6A), except—

(a) in connection with the administration of this Act or the regulations; or

(b) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of such proceedings.

(d) for any other law enforcement purposes.

Penalty: 50 penalty units.

Note: Sub-section (6A) refers to the powers of police or an authorised officer to require evidence of correctness of name and address where the officer suspects the name and address given may be false.

The Committee notes this extract from the Second Reading Speech –

In addition, this Bill contains a proposal to amend section 218B of the Transport Act to enable name and address information obtained from passengers by police officers to be entered on to Victoria Police’s database and also compared with the database at the Sheriff’s office. This will benefit law enforcement considerably by ensuring that information held on offenders is accurate.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(iv) of the Parliamentary Committees Act 2003, – ‘unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000’.

The Committee notes the submission made to it by the Victorian Privacy Commissioner concerning the amendments made to section 218B by clause 15.

The Committee notes that the amendments appear to give wide information disclosure powers of personal information in circumstances where the offence in question may relate to fare evasion or other similar summary offences. The Committee observes that where other evidence is provided and subsequently the name and address is confirmed as correct, the ‘other evidence’ may be retained and as it would appear, be used for other purposes. It would appear to the Committee that where name and address is confirmed as correct and the officer’s suspicion turns out to be unfounded, the records of ‘other evidence’ should be deleted.

The Committee will write to the Minister for Transport to seek further advice whether in all the circumstances the proposed amendments are too wide in their intended application and may ‘unduly require or authorise acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000. In particular the Committee will seek further advice whether information other than name and address may used for ‘any other law enforcement purpose’?

The Committee will forward the Privacy Commissioner’s comments to the Minister for his consideration.

Pending further advice the Committee draws attention to the provisions.

[18]. Inserts new section 227A, which enables the court to order a public transport offender to undertake a public transport education program approved by the Director.

[22]. Inserts new section 228DB which prohibits a passenger transport company, bus company of the Bus Association Victoria from employing or engaging an authorised officer without being accredited under the Division.

[32]. Inserts new sections 13G, 13H and 13I into the Rail Corporations Act 1996.

New section 13G empowers Rail Track to enter land for the purpose of constructing and of maintaining, altering or using any works supporting any rail signalling system. The section provides for who may exercise the power, the times at which it may be exercised and the requirement to give notice.

New section 13H imposes requirements on Rail Track in relation to the exercise of the powers under new section 13G, including causing as little harm and inconvenience as possible, leaving the land as nearly as possible in the condition it was in before entry and co-operating with the owner and any occupier of the land.

New section 13I requires Rail Track to compensate the owner and any other person with an interest in the land in relation to any damage to the land.

[45]. Inserts additional regulation making powers in sections 105, 108 and 110 of the Rail Safety Act 2006.

[48]. Amends section 125 of the Rail Safety Act 2006 which amends and clarifies the proposed self-incrimination provision to be inserted as new section 228ZZP in the Transport Act 1983.

The Committee makes no further comment.

Victoria Racing Club Bill

Introduced: 4 May 2006
Second Reading Speech: 30 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Minister responsible: Hon. John Pandazopoulos MLA
Portfolio responsibiliy: Minister for Racing

Purpose

The purposes of this Act are to —

provide for the powers, functions and responsibilities of Victoria Racing Club Limited (the ‘VRC Limited’) in respect of the management of Flemington Racecourse;
transfer the Crown lease vested in the Chairman of the committee of the Victoria Racing Club to VRC Limited;
transfer all other property, rights and liabilities held by the Victoria Racing Club or the Chairman of the committee of the Victoria Racing Club on behalf of the Victoria Racing Club to VRC Limited;
repeal The Victoria Racing Club Act 1871 and four other related Acts.

The Committee notes this extract from the Second Reading Speech –

The Victoria Racing Club is currently governed by the Victoria Racing Club Act 1871, an Act which is now outdated and often impracticable.

The Victoria Racing Club has become incorporated pursuant to corporations law and this Bill fulfils a government obligation to help facilitate this corporatisation.

…

The Bill will transfer all existing rights, property, assets, debts, liabilities and obligations currently vested in the chairman of the Victoria Racing Club to Victoria Racing Club Ltd.

This means Victoria Racing Club Ltd will not have to go through the costly and time-consuming administrative exercise of individually novating every agreement and contract that it is party to.

Committees report and comments

[Clauses]

[2]. The Act will come into operation on a day to be proclaimed but not later than by 1 January 2007.

[4 to 7]. Sets out the functions, powers and responsibilities of VRC Limited in respect of the use of the Flemington Racecourse land as a site for use of the land as a public racecourse.

[8]. The VRC Limited must not charge or borrow against the Flemington Racecourse land.

[9]. The VRC Limited must ensure that all buildings on the Flemington Racecourse land are maintained.

[13 to 19]. Provides for the maintenance, inspection and notice to repair in respect to the Flemington Racecourse Land.

[20]. The Minister for Racing may make regulations for the purposes of the Act.

[26 to 39]. The clauses (Part 3) have the effect of transferring all existing rights, property, assets, licences, debts, liabilities and obligations currently vested in the chairman of the Victoria Racing Club to VRC Limited.

[40]. Repeals the following Acts —

The Victoria Racing Club Act 1871;
Victoria Racing Club Act 1881;
The Victoria Racing Club Act 1930;
The Victoria Racing Club Act 1956;
The Victoria Racing Club (Amendment) Act 1993.

The Committee makes no further comment.