Scrutiny of Acts and Regulations Committee

Alert Digest No 8 of 2006

Tuesday, 8 August 2006

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Catchment and Land Protection (Further Amendment) Bill

Introduced: 18 July 2006
Second Reading Speech: 20 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Environment

Purpose

The Bill amends the Catchment and Land Protection Act 1994 (the ‘Act’) to make further provision for notices and declarations as to noxious weeds and pest animals and makes further provision for enforcement of the Act.

The Bill creates revised land owner offences in respect for non-compliance with a land management notice and provides for the service of infringement penalty notices.

The Bill allows authorised officer to –

gain access to municipally-held ratepayer information for name and address details of land owners,
apply for warrants to be issued to enter land for the purposes of noxious weed abatement for periods of time longer than 24 hours,
seize items mentioned in the warrant.

The Bill introduces a prohibition on the possession without a permit, of noxious weeds for the purposes of display, for example at a garden or landscape display.

Committees report and comments

[Clauses]

[2]. A number of provisions in the Bill come into operation on the day after Royal Assent. The remaining provisions of the Bill come into operation on proclamation but not later than by 1 July 2007.

[7]. Substitutes section 46 of the Act to provide an offence for a land owner served with a land management notice who fails to give, within 7 days of the time for compliance with the land management notice, a written notice to the Secretary setting out the prescribed particulars of the measures taken to comply with the notice or the reason why the land owner has failed to comply.

[8]. Inserts new Part 5A of the Act to provide for a new priority area notice to declare an area of land to be a priority area for the control or eradication of any regionally prohibited weed, regionally controlled weed or established pest animal specified in the declaration.

New section 47D provides an offence for an owner of land within a priority area on which there is a noxious weed or pest animal specified in a priority area notice who fails to take measures to control or eradicate the weed or animal within the time specified in the notice, provided the land owner has been served with a copy of the notice.

New section 47E provides an offence for a land owner served with a copy of a priority area notice who fails to give, within 7 days of the time for compliance with the priority area notice, a written notice to the Secretary setting out the prescribed particulars of the measures taken to comply with the notice or the reason why the land owner has failed to comply.

[13]. Inserts new sections 70B, 70C and 70D into the Act to provide for a new directions notice to be served by the Secretary as to measures to be taken for the control or eradication of any regionally prohibited weed, regionally controlled weed or established pest animal specified in the notice. New section 70D provides an offence for a land owner on whom a directions notice has been served who fails to give, within 7 days of the time for compliance with the directions notice, a written notice to the Secretary setting out the prescribed particulars of the measures taken to comply with the notice or the reason why the land owner has failed to comply.

[14]. Amends section 71(1)(b) of the Act to provide an offence for a person who, without a permit from the Secretary, displays, plants or propagates a noxious weed, the seeds of a noxious weed or any part of a noxious weed capable of growing.

[16]. Substitutes section 81(1)(c) of the Act to permit an authorised officer to enter land after giving notice to the occupier of the land in order to ascertain whether a priority area notice, a directions notice or a direction under section 70 or 72 of that Act in respect of the land has been complied with.

[17]. Substitutes section 82(4)(c) of the Act to enable an authorised officer who enters land without notice under section 82 to take samples of plants or parts of plants and samples of an animal or part of an animal as well as samples of soil, sand, gravel, stone, fodder or grain.

[18]. Amends section 83 of the Act to allow a Magistrate to issue a warrant permitting an authorised officer to enter land on more than one day.

[19]. Substitutes section 83A of the Act to enable an authorised officer to seize or take a sample of a thing described in a warrant, or a thing that is not described in the warrant in certain circumstances.

[20]. Inserts new section 83O to permit authorised officers to gain access to ratepayer details held by local government.

[23]. Inserts a new section 85A requiring a person served with a land management notice, a priority notice or a directions notice who is not at the time of the service of the notice the owner or occupier of the land to which the notice relates must within 7 days inform the Secretary in writing that he or she is not the owner or occupier of the land. It is an offence to fail to advise the Secretary – Penalty 10 penalty units.

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’ – onerous provisions placed on citizens attracting civil or criminal penalties where intent to commit an offence is absent.

The Committee notes the amendment made by clause 23 makes it an offence to fail to advise the Secretary if the person served with a prescribed notice is not the owner or occupier of the subject land.

The Committee will seek further information from the Minister concerning whether service is to be personal service or some other form of substituted service and how a person so served is to be informed or cautioned of the penalty provision for failure to advise the Secretary that they are not the owner or occupier of the land to which the relevant prescribed notice relates.

Pending further advice the Committee draws attention to the provision.

The Committee makes no further comment.

Coptic Orthodox Church (Victoria) Property Trust Bill

Introduced: 18 July 2006
Second Reading Speech: 19 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill establishes a corporate trustee for the Coptic Orthodox Church within the Diocese of Melbourne and Affiliated Regions (the ‘Church’) to hold property for the benefit of the Coptic Orthodox Church in that Diocese. The Act establishes the Coptic Orthodox Church (Victoria) Property Trust (the ‘Trust’).

Note: The property of the Church is currently held by the Bishop of the Diocese and by certain incorporated associations. On the ‘appointed day’ the trust property (and liabilities) will vest in the Coptic Orthodox Church (Victoria) Property Trust created under the Act and the incorporation of the associations are, from that time, cancelled.

Committees report and comments

[Clauses]

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

[5 to 7]. Establishes the Trust and sets out its functions and provides for the members of the Trust and like matters.

[12]. Provides power to pool investments of one or more trusts in a common fund on the basis that the income and losses of the common fund are shared between the several trusts in proportion to the amount contributed to the fund by each trust.

[13 and 14]. Provides that certain property is divested from the Bishop and the associations and vested in the Trust, and that certain liabilities cease to be liabilities of the Bishop and the associations and become liabilities of the Trust. The incorporation of each of the Church associations is declared to be cancelled.

[15]. Provides that certain gifts, dispositions and trusts of property do not fail but take effect, on or after the appointed day, as gifts, dispositions and trusts in favour of the Trust.

[16]. Provides that trust funds that, before the appointed day, were in favour of the Bishop, the Church or a Church association do not fail but take effect in favour of the Trust.

[17]. Provides that nay transaction necessary to be made because of the provisions in the Act are to be free of duty and taxes imposed under any other Act.

The Committee makes no further comment.

Coroners and Human Tissue Acts (Amendment) Bill

Introduced: 18 July 2006
Second Reading Speech: 20 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General and Minister for Health

Purpose

This Bill amends the Coroners Act 1985 and the Human Tissue Act 1982.

The Bill clarifies that certain prescribed professionals such a mortuary technicians, may assist in tissue removal under the general supervision of a pathologist or doctor responsible for performing an autopsy under either Act.

The Bill will also clarify the understanding within the health sector that certain health service providers may lawfully remove some kinds of tissue in areas not involved in tissue donation.

The Bill facilitates timely access to health records information between relevant health professionals involved in transplantation of human tissue.

Committees report and comments

[Clauses]

[2]. The provisions in the Bill, except section 13(4), to come into operation on the day after Royal Assent. Section 13(4) relates to the definition of a registered dentist and will commence when the relevant provision of the Health Professions Registration Act 2005 comes into operation.

Note: There is a forced commencement provided for the Health Professions Registration Act 2005 of 1 September 2007.

The Committee notes that it received advise from the Minister concerning the necessity of a delayed commencement provision in respect to the Health Professions Registration Act 2005 and noted this in Alert Digest No. 13 of 2005.

Coroners Act 1985

[4]. Inserts a new sub-section (1A) into section 27 and deals with coronial autopsies and sets out who the coroner may direct to perform an autopsy on a body and makes it clear that a mortuary technician, forensic technician or scientist, who is under the general supervision of the pathologist or doctor responsible for the performance of the autopsy, may remove or assist in the removal of tissue during that autopsy.

[5 and 6]. Amends the objects and functions of the Victorian Institute of Forensic Medicine.

Retrospective validation

[7]. Validates anything done under the Act before the commencement of this Bill that would have been validly done if this Bill had been in operation at the time that the thing was done.

Human Tissue Act 1982

[8]. Substitutes a new section 25(b) to provide for a broader group of prescribed persons who may remove tissue from a deceased person.

[11]. Inserts a new section 30(1A) to make it clear that a mortuary technician, forensic technician or scientist, who is under the general supervision of the registered medical practitioner responsible for the conduct of the autopsy, may remove or assist in the removal of tissue during that autopsy.

[13]. Substitutes a new section 42(1)(a) and inserts a new section 42(1)(ab) to clarify that the Act does not apply to the removal of tissue from a person in certain circumstances where the removal of tissue in the course of the provision of treatment to a patient or detection of disease in a patient. An example is where a dentist removes regenerative or non-regenerative tissue from a living person in the course of dental treatment which is carried out with consent and in the interests of the health of the person.

Health records may be disclosed

[15]. Inserts two new sub-sections into section 45. Section 45 deals with disclosure of information. New section 45(4) permits hospitals, the Institute and tissue or organ donation services, as well as a donor's registered medical practitioner, to collect, use and disclose health information for specified purposes in connection with the removal of tissue from the body of a deceased person.

Note: Extract from the explanatory memorandum – The main reason for this amendment is to ensure that responsible practitioners can have access to relevant health information in relation to such a person to assess whether their tissue would be suitable for transplantation, and whether the criteria in the Act that authorise removal have been met. Information can also be collected, used or disclosed in order to locate the senior available next of kin of the donor. Such contact details are often held on a person's health record. It may be necessary to use this information to locate the senior available next kin to ascertain whether the deceased may have objected to donation, or to seek consent of the next of kin.

Retrospective validation

[16]. Inserts new section 45A to validate anything done under the Act before the commencement of this Bill that would have been validly done if this Bill had been in operation at the time that the thing was done, and had persons referred to in regulation 4A of the Human Tissue Regulations 2006 been prescribed to remove tissue of any kind.

Note: Extract from the explanatory memorandum – For instance this clause ensures that where the relevant authorising criteria in the Act have been met, if a scientist at the Institute, rather than a medical practitioner, has removed tissue for transplant (such as musculoskeletal tissue) prior to commencement of the Bill, that their involvement in that removal is authorised.

Regulations to have retrospective application

[17]. Inserts a new section 47 being a transitional provision deeming persons referred to in the Human Tissue Regulations 2006 to have been prescribed to remove tissue of any kind and their duties are deemed to include removal of tissue of any kind.

Note: Extract from the explanatory memorandum – This ensures that from the day of commencement of this Bill until new regulations are made under the Act (as amended by clause 8), persons prescribed under the Human Tissue Regulations 2006 are able to continue to remove tissue in the course of their employment or work, if the removal is otherwise authorised under the general criteria in the Act.

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’ – retrospective validation of acts – existing legal proceedings.

The Committee notes that clause 7 and 16 are validation provisions respectively concerning amendments made to the Coroners Act 1958 and the Human Tissue Act 1982.

The Committee will seek further advice from the Attorney-General and the Minister for Health whether these validating provisions may extinguish any rights in proceedings commenced before the introduction of the amendments in the Bill.

Pending further advice from the respective Ministers the Committee draws attention to the provisions.

The Committee makes no further comment.

Energy Legislation (Hardship, Metering and Other Matters) Bill

Introduced: 18 July 2006
Second Reading Speech: 19 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Minister for State and Regional Development

Purpose

This Bill amends the Electricity Industry Act 2000, the Energy Safe Victoria Act 2005, the Gas Industry Act 2001 and the Pipelines Act 2005.

Amendments made to the Electricity Industry Act and the Gas Industry Act respectively require energy retailers to develop, and submit for the approval of the Essential Services Commission, financial hardship policies which are designed to provide greater support for energy consumers who are experiencing genuine incapacity to pay their bills.

The Bill also deals with advanced metering infrastructure.

Committees report and comments

[Clauses]

[2]. Other than Part 4 the Bill comes into operation on the day after Royal Assent. Part 4 is to commence when the Pipelines Act 2005 is set to come into operation, which subject to earlier proclamation, must come into operation on 1 July 2007.

Electricity Industry Act 2000 and Gas Industry Act 2001

[3 and 5] Provide that a licence to sell respectively, electricity or gas will be subject to a deemed condition requiring the licensee to submit a financial hardship policy to the Essential Services Commission for approval, and if required to do so, to the Minister and empowers the Commission to issue guidelines in relation to the development and implementation of financial hardship policies. A licence will be subject to a deemed condition prohibiting the licensee from disconnecting service supply to a domestic customer if the customer has entered into, and is complying with, an agreement under the licensee's approved financial hardship policy.

The Committee makes no further comment.

Environment Protection (Amendment) Bill

Introduced: 19 July 2006
Second Reading Speech: 20 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Environment

Purpose

The Bill amends the Environment Protection Act 1970 (the ‘Act’) to —

modernise licensing provisions in the Act by providing for the amalgamation of licenses for multiple premises, simplifying reporting requirements and introducing a single definition of ‘Scheduled Premises’;
introduce Environment and Resource Efficiency Plans as part of a scheme to promote increased environmental resource use efficiency;
introduce a Metropolitan Waste Management Group to replace the four existing metropolitan Regional Waste Management Groups and provide for a new metropolitan wide strategic waste planning process;
introduce a capacity to regulate the free provision of plastic bags by retailers to consumers;
improve the administration of pollution abatement notices;
streamline the use of the sustainability covenant underpinning provisions;
from 1 July 2007, introduces a differential landfill levy for prescribed industrial waste disposal based on the classification of the waste;

Note: The waste categories will be defined through changes to the Environment Protection (Prescribed Wastes) Regulations 1998. The levy for disposal of asbestos will remain unchanged.
introduce a capacity to direct a corporation to accept responsibility for clean up and on-going management liability of its subsidiary, associated or related entity in certain circumstances;
remove the defence of a director or person concerned in the management of a corporation of having no knowledge of a contravention of the Act by a relevant corporation;

Note: This brings the provision in the Act into line with changes in director’s duties and due diligence obligations in the Corporations Law.
introduce enforceable undertakings as a tool to enforce the Act;
allow for the translation of a national environment protection measure into regulations;
introduces a capacity to consent to an indictable offence to be heard summarily in the defendants absence.

Committees report and comments

[Clauses]

[2]. Part 2 (Scheduled Premises) will commence on 1 July 2007. Part 4 (Metropolitan Waste Management Group) and clause 54 (amendment to section 50S) come into operation on proclamation but not later than by 31 December 2007. The remaining provisions will commence on the day after Royal Assent.

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 – Committee Practice Note No. 1 of 2005.

The Committee will seek further information from the Minister concerning the delayed commencement of Part 4 and clause 54.

[5]. Substitutes a new section 19A into the Act to clarify the acts and things which cannot be undertaken by an occupier of a scheduled premises except in accordance with a works approval, licence or notice issued by the Authority.

Self-incrimination – information provided in annual performance statement (annual report)

[23]. Inserts a new section 31D in respect to a requirement to submit annual performance statements (reporting by licence holders). It is an offence to fail to submit a statement or give false or misleading information in such a statement. Section 31D(7) provides a protection against self-incrimination and will prevent information in a performance statement being used as evidence in proceedings for an offence (except for the offence of providing false or misleading information or concealing information).

[40]. Amends Schedule A of the Act to allow for the issue of penalty infringement notices in response to offences established under proposed sections 26F, 26J, 26M or 26O.

[41 and 42]. Inserts new Divisions into Part IX of the Act concerning the establishment of the Metropolitan Local Governments' Waste Forum (representatives of metropolitan councils) and the Metropolitan Waste Management Group as a body corporate.

[45]. Amends section 71 of the Act to introduce new heads of power to enable the making of regulations prescribing design criteria to define a "plastic bag" and prohibiting the provision of a plastic bag by a retailer in the course of a retail transaction without charging a minimum prescribed amount. The provisions provide exemptions from the prohibition where the plastic bag is provided for an approved prescribed purpose, where the annual turnover of a retailer is less than a prescribed amount or a retailer has entered into a plastic bag reduction scheme accredited by the Authority which contains prescribed requirements.

[55]. Amends section 55 of the Act to enable an authorized officer to require a corporation that has been issued a notice to clean up pollution or take on-going management measures in relation to the liability of its subsidiary, associated entity or related entity.

[58]. Inserts a new section 59AD into the Act to enable consent for an indictable matter to be heard summarily to be given in a defendant's absence by an Australian legal practitioner or a ships' agent.

[62]. Amends section 66B of the Act to remove the defence that a director had no knowledge of a contravention by his or her corporation under section 66B(1A)(a) and 66B(4B)(a).eople concerned in the management of a corporation. This brings the Act into line with changes in directors duties and due diligence obligations.

[63]. Inserts new sections 67D to 67G into the Act to provide for the making and acceptance of enforceable undertakings in relation to an offence under any Act or regulations in respect of which the Authority may take proceedings.

The Committee makes no further comment.

Heritage Rivers (Further Protection) Bill

Purpose

The Bill amends the Heritage Rivers Act 1992 (the ‘Act’) to prohibit the construction in all heritage river areas of new impoundments, artificial barriers and structures that impede the passage of water fauna, and amend the provisions relating to management plans for the heritage river areas the 26 natural catchment areas protected under the Act.

Committees report and comments

[Clauses]

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

[4 and 5]. Amends section 8 and inserts sections 8A to 8C in relation to management plans for heritage river areas and natural catchment areas and requires prescribed authorities, if requested by the Minister, to prepare a management plan in relation to all, or any part of the area, within the time specified, and must include the matters specified by the Minister.

Proposed section 8A provides a House of the Parliament the power to disallow the making, amending or revoking of a management plan or part of a management plan made under section 8. Proposed section 8C requires the Clerk of the Parliaments to cause notice of any disallowance of a management plan or part of a management plan to be published in the Government Gazette.

[7]. Substitutes a new section 10(1) to prohibit the construction or extension of an impoundment in a heritage river area. Clause 3 defines ‘impoundment’ as a barrier or structure that impedes the passage of water fauna. Clause 10 provides that an existing impoundment may be replaced or maintained.

Note: A new barrier, structure or impoundment would require an amendment to the Act.

The Committee makes no further comment.

Mineral Resources Development (Sustainable Development) Bill

Introduced: 18 July 2006
Second Reading Speech: 20 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Minister responsible: Hon. Theo Theophanous MLC
Portfolio responsibiliy: Minister for Resources

Purpose

The Bill amends the Mineral Resources Development Act 1990 (the ‘Act’) to –

rename the Act; and
include sustainable development principles; and
further regulate exploration or mining work in prohibited areas; and
require licensees to carry out community consultation; and
require licensees to offset the environmental impact of exploration or mining work; and
provide further for the rehabilitation of land affected by exploration or mining work; and
provide for the direct allocation of licences relating to coal; and
provide for the appointment of advisory panels to advise the Minister; and
provide for the making of codes of practice; and
provide for further inspection powers; and
make other amendments to that Act to improve its efficiency and operation; and

The Bill also makes consequential amendments to the Environment Protection Act 1970 and to other Acts.

Committees report and comments

[Clauses]

[2]. Other than the specified provisions the provisions in the Bill will come into force on the day after Royal Assent. Clauses 6(2), 26(2), 27(4), 28 and 56 will come into operation on 1 October 2007, unless they are proclaimed to come into force at an earlier time.

Mineral Resources Development Act 1990

[4]. Amends the title of the Principal Act to the Mineral Resources (Sustainable Development) Act 1990.

[11]. Amends sections 25 and 26(2) to provide that the Minister can impose conditions about providing and implementing environmental offsets on the licensed land or any other land.

[25]. Inserts new section 39A to establish that a licensee has a duty to consult with the community throughout the licence period by sharing information about activities authorised by the licence that may affect the community and giving members of the community a reasonable opportunity to express their views about those activities.

[37]. Inserts a new Part 4A to enable the Minister to appoint an advisory panel to consider and advise on any matter referred by the Minister, relating to exploration, mining or the administration of the Act.

[41]. Inserts a new section 79A to introduce a new requirement for a rehabilitation liability assessment. The Minister may require a licensee to undertake an assessment of its rehabilitation liability under section 78 for the purpose of determining or reviewing the amount of a rehabilitation bond and may require a licensee to engage an auditor to certify an assessment.

[44]. Inserts new section 81A to state that the Minister may require a licensee or a former licensee to engage an auditor to certify that land has been rehabilitated for the purpose of deciding whether to return a bond.

[45]. Inserts a new Part 8A relating to codes of practice. The new Part sets out powers for the Minister to make or vary or revoke codes of practice. The new Part also states that breach of a code of practice is not an offence and sets out requirements for the use of a code of practice as evidence in legal proceedings.

Enforcement provisions

[48]. Substitutes section 92 to introduce identity card requirements for inspectors.

[49]. Inserts new Divisions 2 to 11 into Part 8 of the Act to set out provisions relating to the powers and functions of inspectors. The powers include search and entry and Division 5 sets out requirements in relation to search warrants in accordance with the provisions and forms and procedures of the Magistrates’ Court Act 1989. Division 6 places limitations on entry powers in respect of residential premises. Division 8 sets out the powers of inspectors to require the name and address of persons. Division 10 sets out offences in relation to inspections.

Privilege against self-incrimination – does not apply to documents

Division 11 inserts new sections 95S and 95T.

New section 95S provides a protection against self-incrimination except in respect to a document the person is obliged to produce under the Act or in respect to giving their name and address.

New 95T provides specifically for the preservation of legal professional privilege as it applies to the Act or regulations made under the Act.

The Committee makes no further comment.

Owners Corporations Bill

Purpose

The Bill creates a legal framework for the governance of bodies corporate (which are to be known as ‘owners corporations’) created under the Subdivision Act 1988. The Bill facilitates the regulation of these separate legal entities responsible for managing common property where there are multiple owners of that property.

The Bill provides greater duties, functions, powers and responsibilities for owners corporations to manage common property than currently is provided by the Subdivision (Body Corporate) Regulations 2001. It also sets out principles of conduct and standards of care to apply to managers, developers (‘initial owners’) and owners corporations committee members. A new register of managers is established, to apply to professional managers, which will enable lot owners and members of the public to have access to information about registered managers. Paid managers will be required to register will the Business Licensing Authority and be required to hold professional indemnity insurance.

A three tier dispute resolution regime is established involving internal resolution, conciliation or mediation through Consumer Affairs Victoria and where dispute resolution has been exhausted parties may apply to VCAT.

The Bill provides a framework and a structure that enables various or tiered requirements for the operations of bodies corporate. These include the introduction of a category of ‘prescribed’ or larger owners corporations, which will require higher standards of financial reporting and be subject to maintenance obligations.

The Bill will also apply to bodies corporate created under other earlier legislation relating to the subdivision of land and buildings.

Committees report and comments

[Clauses]

[2]. The Act comes into operation on a day to be proclaimed but not later than by 31 December 2007.

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 – Committee Practice Note No. 1 of 2005.

The Committee will seek further information from the Minister concerning the delayed commencement of the provisions in this Bill.

[4 to 22]. Part 2 sets out the powers and functions of an owners corporation. An owners corporation has a common seal, may bring legal proceedings, employ staff and may delegate its powers and functions to a relevant person(s) connected with the owners corporation.

[23 to 65]. Part 3 deals with an owners corporation’s financial powers including the levying of fees, borrowing money, insurance, powers of investment, keeping of financial records and the auditing of accounts. The Part also deals with the duty to maintain and repair common property and other matters relevant to asset management.

[66 to 99]. Part 4 deals with first, annual, special and general meetings of owner corporations and related procedural and like matters.

[100 to 118]. Part 5 deals with the membership, powers and functions of committees of owners corporations. Clause 118 provides a legal immunity to committee members for actions taken in good faith in respect to an owners corporation with any liability attaching to the owners corporation instead.

[119 to 127]. Part 6 provides for the appointment and removal of owner corporation managers. If a manager is to be paid, the manager must be registered, and must hold sufficient professional indemnity insurance. The provisions deal with the mangers duties and functions.

[128 to 137]. Part 7 sets out the duties and rights of lot owners and occupiers including provisions in respect to care of common property.

[138 to 143]. Part 8 provides for the rules that may be made by an owners corporation (also refer to Schedule 1). The rules may not be inconsistent with any relevant State enactment.

[144 to 151]. Part 9 sets out the records that owners corporations must keep.

[152 to 177]. Parts 10 and 11 deal with internal dispute resolutions of complaints by means of conciliation and mediation and makes provision for applications to VCAT where internal resolution is unsuccessful.

[178 to 199]. Part 12 deals with the registration and eligibility for registration of managers of owners corporations. It is an offence for a person to act as a paid manager unless the person is registered under the Part. The Part also establishes a requirement that a register of managers must be kept and provides for the inspection of the register.

[200 to 205]. Part 13 provides a range of general provisions and states that a provision of a contract is void to the extent that it purports to exclude, modify or restrict the operation of the provisions in the Act. The Part also provides a regulation making power.

Subdivision Act 1988

[211]. Substitutes a new Part 5 (sections 27 to 34H) dealing with the creation of owner corporations. New section 34A provides that an owners corporation, an owner of land affected by an owners corporation or a purchaser may apply to VCAT for an order determining a dispute under the Act or the regulations.

[Schedule 1]. Sets out the matters for which an owners corporation may make rules by special resolution, as provided for in clause 138 of the Act.

Note: Model rules will be included in the regulations as set out in clause 139, and these will apply if the owners corporation does not make any rules or revokes all its rules.

[Schedule 2]. Sets out the transitional arrangements to apply in relation to existing bodies corporate. Body corporate rules will continue in force and are deemed to be the rules of the owners corporation to the extent that they are not inconsistent with the new Act or regulations.

[Schedule 3]. Provides for the Acts listed in the Schedule to be consequentially amended as set out in the Schedule.

The Committee makes no further comment.

Transport (Taxi-Cab Accreditation and Other Amendments) Bill

Introduced: 18 July 2006
Second Reading Speech: 20 July 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibiliy: Minister for Transport

Purpose

The Bill amends the Transport Act 1983 (the ‘Act’) to provide for the accreditation of taxi-cab licence holders, taxi-cab operators and providers of taxi-cab network services. The Bill also enables penalties for transport infringements and ticket infringements to vary depending on whether they are issued by members of the police force or authorised officers.

The Bill also makes minor amendments to the Transport Legislation (Further Amendment) Act 2006 (not yet in force).

Committees report and comments

[Clauses]

[2]. Some provisions commence on Royal Assent and others may commence by proclamation not later than by 31 December 2007. Clause 19 commences on the second anniversary of the coming into force of the provisions in Part 2 of the Bill (taxi-cab accreditations).

Note: Clause 19 commences on the second anniversary of the coming into operation of Part 2. The clause sunsets regulations made under new section 137E (as provided in the Bill) that may exempt any provider of taxi-cab services from the requirement to be accredited under the relevant part of the Act. In effect the clause will remove a temporary power for the making of regulations providing for certain exemptions from the requirement to be accredited.

The Committee will seek further information from the Minister concerning the delayed commencement of the provisions in this Bill.

[3]. Inserts a new Division 4 into Part VI of the Act (new sections 130 to 137E) to establish an accreditation scheme for certain participants in the taxi-cab industry.

Note: Extract from the explanatory memorandum – Under the scheme, taxi-cab licence holders, taxi-cab operators and the providers of taxi-cab network services will be required to be accredited. A taxi-cab licence holder is, in all cases, the person who holds the relevant taxi-cab licence. A taxi-cab operator is the taxi-cab licence holder if the right to operate a vehicle under the relevant licence has not been assigned under section 150 of the Act or, if that right has been assigned, the assignee (see the amendment made by clause 18(d)). Taxi-cab network services are defined in new section 130A inserted by this clause. These services are typically provided by taxi depots and other associations of operators and drivers known as secondary networks.

New section 131 makes it an offence for the operator of a taxi-cab to operate the taxi-cab, or permit it to be operated, unless the operator is accredited as a taxi-cab operator. New section 131A is a similar provision relating to the providers of taxi-cab network services. However as a transitional provision the regulations (new section 137E(b)) may exempt a taxi-cab network service from the accreditation requirements under the Act (also see clause 2 and 19).

New section 132B empowers the licensing authority to approve an application for accreditation if the licensing authority is satisfied that the applicant is suitable to be accredited and has complied with the application requirements.

New section 132D relates to mandatory refusal of accreditation in cases such as where the applicant has been found guilty of a tier 1 offence (offences in this category are listed in the definition section); or is subject to certain obligations or a certain order referred to in the Working with Children Act 2005.

An applicant to which this section applies has recourse to the Victorian Civil and Administrative Tribunal (VCAT) in relation to a refusal under the section.

New section 132E provides that the licensing authority must refuse an application for accreditation if certain other circumstances apply unless the licensing authority is satisfied that the applicant has demonstrated that the issue of the accreditation is appropriate having regard to the purpose of accreditation set out in section 130.

New section 132F specifies a number of circumstances in which the licensing authority may refuse an application for accreditation.

New section 135 sets out the grounds on which the licensing authority may take disciplinary action against an accredited person in respect of an accreditation held by that person.

New section 135A deals with the forms of disciplinary action that may be taken by the licensing authority in relation to accreditations.

New section 135C empowers the licensing authority, if he or she has decided to serve, or has served, a disciplinary notice on a person and believes on reasonable grounds that it is in the public interest that the accreditation held by the person be suspended as soon as practicable before a decision is made to take disciplinary action against the person, to serve on the person an immediate suspension notice.

New section 136 gives VCAT jurisdiction in relation to a mandatory refusal of an application for accreditation under section 132D(1)(a)(i) or (ii) and a mandatory cancellation of an accreditation under section 135A(3).

New section 136A gives an applicant for accreditation, an accredited person and a relevant person in relation to an applicant or an accredited person, whose interests are affected by a decision of a specified type, a right to apply to VCAT for review of the decision.

New section 137C makes it an offence for a person to falsely represent that the person is accredited or holds an accreditation of a specified kind.

New section 137E contains regulation-making powers including a regulation making power to exempt any taxi-cab network service from the requirement to be accredited.

No compensation payable

[4] Inserts a new sub-section (2) into section 90 (no compensation payable under Part VI of the Act) of the Act to provide that no compensation is payable to any person in respect of, or as a consequence of, a number of specified decisions of the licensing authority under the new provisions inserted in the Act by the provisions in the Bill.

Note: Currently section 90 provides a no compensation provision for licensing decisions or determinations made under that Part of the Act.

[19]. Amends section 131A(1) of the Act and repeals section 137E(1)(b) of that Act, as inserted by this Bill, so as to remove a power to exempt under the regulations any provider of taxi-cab network services or class of provider of taxi-cab network services from the requirement to be accredited under the new provisions inserted by Part 2 of the Bill.

Note: Explanation in note under clause 2 above.

The Committee makes no further comment.

Victorian Renewable Energy Bill

Purpose

The objects of the proposed Act are to –

encourage additional generation of electricity from renewable energy sources;
encourage investment in the generation of renewable energy and the development of renewable energy technologies;
encourage regional investment and employment;
contribute to the diversity of Victoria's energy supplies; and
reduce greenhouse gas emissions.

The Act will promote the development of renewable energy generation through the establishment of a scheme that provides for the creation and acquisition of renewable energy certificates and requires the surrender of renewable energy certificates by relevant entities. Relevant entities are sellers of electricity and wholesale purchasers of electricity.

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

Part 2 of the Bill provides for the creation of renewable energy certificates. Renewable energy certificates can only be created by an accredited power station in respect of electricity generated prior to 1 January 2031.

An accredited power station under the Bill can be situated either in Victoria or in another State or Territory in which an approved interstate renewable energy regime applies. An interstate renewable energy regime can be approved if amongst other things, the approval would complement, and not detract from, the achievement of the purpose and objects of this Bill and the approval would not impose unreasonable costs on purchasers of electricity in Victoria.

Under the Bill a power station is eligible for accreditation if the power it generates is from an eligible renewable energy source.

Eligible renewable energy sources include, for example, hydro, wave, wind, solar, biomass and geothermal.

Renewable energy certificates may be created for electricity generated from new renewable energy generating units that commence commercial operation from 1 January 2007. An individual generator may create certificates for 15 years from the time it starts commercial operation.

Certificates will be electronic and will be traceable to the point of origin by the unique identification code allocated to each certificate.

An audited electricity generation return must be lodged each year detailing the amount of electricity generated by the power station during the previous year, the number of certificates created during that year and other information specified by the rules.

The Bill also provides for the creation of certificates by small generation units installed on or after 1 January 2007. A small generating unit is a device that generates electricity from an eligible renewable energy source but is specified by the rules to be small. It is intended that the compliance regime for small units will be simpler than for larger units to reduce the costs associated with this scheme. The key difference will be that a certain number of certificates will be deemed for the life of a small generating unit whereas certificates will only be created by larger units after electricity has been generated.

Small generating units will include, for example, wind generators with a rating of no more than 10 kilowatts and which generate no more than 25 megawatt hours of electricity each year.
Once created, certificates may be registered by the scheme administrator, which is to be the

Essential Services Commission. Certificates that have been registered may be transferred. A certificate may be surrendered, in which case the certificate ceases to be valid. The commission must update its register to show the transfer and surrender of certificates.

…

The renewable power percentage is the mechanism used to determine a relevant entity's renewable energy requirement. It is therefore also the basis for determining how many certificates are required to be surrendered to meet each relevant entity's renewable energy requirement. The renewable power percentage will increase as the interim targets increase.

The Bill provides that a relevant entity must surrender sufficient certificates to cover their renewable energy requirement in each year.

A relevant entity that does not surrender enough certificates in a year is liable to pay a penalty.
The penalty payable by a relevant entity for a year is based on the number of certificates that have not been surrendered and the penalty rate for that year.

The shortfall penalty rate has been set at a level to support compliance and at the same time impose reasonable limits on the costs faced by businesses.

The Bill provides for a review of the operation of the VRET* scheme by the end of 2011.

* Victorian renewable energy target

Committees report and comments

[Clauses]

[2]. The Act commences on proclamation but not later than by January 2007.

[8 to 53]. Part 2 of the Bill deals with the role of the Essential Services Commission (ESC) in administering the Renewable Energy Certificates (‘REC’) scheme in respect to the application, accreditation, registration and the suspension of accreditation process. The Part defines ‘eligible renewable energy sources’ which excludes fossil fuels and their derivatives. The Part allows the Governor in Council to declare new sources in addition to the prescribed sources in section 22 of the Act.

The Part makes provision for the creation, surrender and transfer of certificates by accredited power generators with special provision for small generators. The provisions cover the form and content of certificates and offences for the improper creation of certificates.

[60 to 66]. Part 4 deals with REC shortfalls by accredited power generators and creates civil penalties for a prohibited shortfall which are to be paid to the consolidated revenue. The Part provides methods to calculate the penalty rate.

[70 to 74]. Part 6 deals with civil enforcement where there is a renewable energy shortfall.

[75]. Part 7 makes provision for the review of certain decisions such as accreditation and suspension of registration by the Essential Services Commission (ESC).

[76 to 89]. Parts 8, 9 and 10 provide for ESC’s obligations to keep and maintain registers in respect to power stations and certificates. The ESC is authorised to obtain relevant information and documents in respect to the operation of the Act by giving a person written notice to give the information or produce the document.

[85 to 89]. Deals with information gathering powers of the ESC in respect to information and documents.

[87]. Protection against self-incrimination the clause declares that it is a reasonable excuse for a person to refuse or fail to provide information, evidence or produce a document under the Part if the giving of the information or evidence or the production of the document would tend to incriminate the person.

Powers of authorised officers

[90 to 104]. Part 11 deals with the appointment of Authorised Officers and their powers and functions. An authorised officer may enter premises at any reasonable time to exercise monitoring powers. Entry must be with the occupier's consent or pursuant to a monitoring warrant. An authorised officer may request relevant information or require the production of a relevant document where he or she has entered premises with consent or where he or she has entered premises under warrant.

It is an offence of failing, without reasonable excuse, to answer a question or produce a document.

[101]. Protection against self-incrimination but does not apply to documents

Affords a partial protection against self-incrimination. A person must comply in respect to the production of documents required to be kept under the Act even if the production of the document would tend to incriminate the person.

[104]. An authorised officer may apply to a magistrate for a monitoring warrant. Warrants are to be issued in accordance with the rules, forms and procedures established under the Magistrates’ Court Act 1989.

[105 and 110]. Create offences in respect to disclosure of confidential or commercially sensitive information and provides for exceptions where disclosure is necessary and create offences concerning false or misleading information, failure to provide documents and offences by bodies corporate.

[111]. Requires registered persons and relevant entities to keep records, for five years, of transactions and other activities pursuant to the Bill including records of amounts of electricity generated, certificates created and amounts of electricity acquired.

[114]. Requires a review of the Act to be undertaken by 31 December 2011.

[115 to 117]. Make consequential amendments to the Essential Services Commission Act 2001 concerning the functions of the ESC under the new VRET scheme.

The Committee makes no further comment.