Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2006

Tuesday, 22 August 2006

<Back to Table of Contents>

Charities (Amendment) Bill

Introduced: 8 August 2006
Second Reading Speech: 10 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

This Bill amends the Charities Act 1978 to make further provision for charitable trusts and will amend the Religious Successory and Charitable Trusts Act 1958 and the Property Law Act 1958.

Committees report and comments

[Clauses]

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

Charities Act 1978

[3]. Inserts a new ‘Part IB—Charitable Trusts’ (new sections 7J to 7M).

New section 7K extends the powers of the trustees of a charitable trust to include the power to provide money, property or benefits to or for an eligible entity or for the establishment of an eligible entity that, but for its connection to government, would be a charity to or for which, or for the establishment of which the trustees could make that provision in accordance with the trust instrument.

Note: The explanatory memorandum provides – The clause will have the effect of overriding any contrary provision in a trust instrument only if the conditions set out in the new section 7K(1), are satisfied. The clause does not authorise the provision by trustees of money, property or benefits under the new section 7K(1) if this is contrary to a specific condition in the trust instrument. For example, the trust instrument of a particular trust may require the trust to distribute only to charities, but specifically prohibit the trust from distributing to public hospitals. In these circumstances, the clause would not authorise trustees to distribute to Government linked public hospitals, as such a distribution could not have been made in accordance with the trust instrument, as required by the new section 7K(1).

The clause defines “eligible entity” as a deductible gift recipient within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth. The clause defines “government” to mean any government of any State or Territory, the government of any municipality of any State or Territory, or the Commonwealth Government.

Retrospective validation – The clause also validates retrospectively the provision before the commencement of the Bill by the trustees of a charitable trust of money, property or benefits to or for an eligible entity or for the establishment of an eligible entity that, but for its connection to government, would be a charity to or for which, or for the establishment of which, the trustees could make that provision in accordance with the trust instrument.

New section 7L will enable administrators and trustees of all charitable trusts to seek leave from the Supreme Court to apply trust funds for additional and incidental purposes that are complementary to trusts’ existing purposes.

[5]. Changes the name of the ‘Religious Successory and Charitable Trusts Act 1958’ to the ‘Religious and Successory Trusts Act 1958’ as the provisions relating to charitable trusts are to be repealed by the Bill.

The Committee makes no further comment.

Conveyancers Bill

Introduced: 8 August 2006
Second Reading Speech: 10 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

This Bill provides for non-lawyer conveyancers to be subject to a new system of regulation and licensing.

Committees report and comments

[Clauses]

[2]. The Bill will come into operation on proclamation but not later than by 1 July 2008.

Note: Extract from the explanatory memorandum – The Bill introduces a new system of regulation and licensing for conveyancers. Almost two years have been allowed for the development of the system which will include a number of regulations and education programs about the new system software before the provisions of the Bill come into operation by default.

[4]. Contains an important definition for what constitutes ‘conveyancing work’.

[5]. Defines who are ‘disqualified persons’ for the purposes of the Act.

[8 to 44]. Establishes a regime for licensing by the Business Licensing Authority of conveyancers. It is an offence for a person who is not a licensee or a legal practitioner to carry on business as a conveyancer. The Part provides for the eligibility, qualifications and competencies for conveyancers to be licensed.

If a licensee becomes a disqualified person, they must notify the Authority of that fact immediately. A contravention of this provision is an offence.

Clauses 29–31 set out the circumstances in which a person may apply to the Authority for permission to hold a conveyancer’s licence.

Clause 30 provides that a person with a criminal record may apply to the Authority for permission to hold a licence. The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

Clause 31 provides that a company may apply to the Authority for permission to hold a licence despite the presence of a disqualifying factor.

Clause 33 provides that the Director may apply to VCAT at any time for the holding of an inquiry into the conduct of a licensee.

[41 to 44]. Provides that a licensee must hold the required professional indemnity insurance which must be disclosed to the conveyancer’s clients.

[45 to 61]. Deals with the conduct and management of conveyancing businesses. A licensee must not employ any person who is disqualified under section 5 of the Act.

[62 to 95]. Deals with trust money and trust accounts and provides for the annual auditing of trust accounts by approved auditors.

[95 to 143]. Provides for external interventions by statutory managers in certain circumstances such as the insolvency or incapacity of the licensee or on request by the licensee. The Part details the eligibility for appointment as a statutory manager and their powers.

[143 to 151]. Provides for compensation from the Victorian Property Fund and entitles a person who suffers pecuniary loss by reason of a defalcation committed by a licensee, or an officer or employee of a licensee, in the course of carrying on a conveyancing business, to claim compensation from the Fund.

[152 to 177]. Provides enforcement provisions to give effect to the purposes of the Act.

A licensee must at all reasonable times, at each place at which the licensee carries on a conveyancing business, keep all documents relating to the business available for inspection by an inspector.

An inspector may require a licensee, ‘specified person’ (defined in clause 154) or other person with control over relevant documents and information to answer questions, supply information and produce documents.
An inspector, with the written approval of the Director, may apply to the Magistrates’ Court for an order requiring a person to answer questions or supply information relating to a licensee’s conveyancing business.
An inspector has power to enter and search any premises with the consent of the occupier for the purpose of monitoring compliance with this Bill or the regulations.

An inspector has power to enter and search without consent or warrant any premises at which a conveyancing business at any time that the premises are open for business or between the hours of 9 am and 5 pm.

An inspector, with the written approval of the Director, may apply to a magistrate for a search warrant. The rules, forms and procedures pursuant to the Magistrates’ Court Act 1989 are to be followed.

It is an offence to give false or misleading information or to produce a document that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

An inspector may serve an infringement notice on a person in respect of a prescribed offence if the inspector has reason to believe that the person committed the offence.

Privilege against self-incrimination does not extend to documents required to be kept

[176]. Provides that it is a reasonable excuse for a person to refuse to give information or do any other thing that is required under this Part if the giving of the information or the doing of the thing would tend to incriminate that person. However this does not extend to refusal or failure to produce a document that the person is required to produce under this Part on the ground that the production of the document would tend to incriminate the person. A person may complain to the Director about the exercise of a power by an inspector under this Part. The Director must investigate any complaint and provide a report on the results of the investigation to the complainant.

[178 to 182]. Provides a number of general administrative provisions including a requirement that the Authority establish and maintain a register to be called the Register of Licensed Conveyancers.

The Director may delegate any of his or her functions or powers, other than this power of delegation, to a person engaged or appointed under section 7(2) or 15 of the Business Licensing Authority Act 1998, or to a person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of the Bill.

[183]. Incorporates into the Bill a number of inspection and enforcement provisions from the Fair Trading Act 1999 which extend and apply to this Bill.

[187]. A person whose interests are affected by a decision of the Authority under this Bill can apply to VCAT for review of the decision.

[188]. Empowers the Governor in Council to make regulations regarding any matter to give effect to the Bill

[189]. Requires the Minister to cause a review to be made and a report of the review to be tabled in the Parliament concerning the exclusion of sale of businesses from the definition of conveyancing work before 1 July 2009.

Schedule 1 provides savings and transitional provisions concerning existing conveyancers.

Schedule 2 contains consequential amendments to various Acts.

The Committee makes no further comment.

Crimes (Sexual Offences)(Further Amendment) Bill

Introduced: 8 August 2006
Second Reading Speech: 10 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill amends the –

• Crimes Act 1958 to further provide for the use of jury warnings in sexual offence cases where there has been a delay in reporting the alleged offence;

• Evidence Act 1958 to further provide for alternative arrangements for the giving of evidence in proceedings that relate to a charge for a sexual offence; and

• Magistrates’ Court Act 1989 to provide for a Sexual Offences List in the Magistrates’ Court.

Committees report and comments

[Clauses]

[2]. Part 1 comes into operation on the day after Royal Assent. Part 3 comes into operation immediately after the coming into operation of section 38 of the Crimes (Sexual Offences) Act 2006. The remaining provisions come into operation on proclamation but not later than by 1 December 2006.

Crimes Act 1958

[3]. Inserts new section 61(1)(b)(ii) to provide stricter parameters around a warning to a jury by providing that a judge must not warn, or suggest in any way that the credibility of the complainant is affected by a delay in reporting a sexual assault unless, on the application of the accused, the judge is satisfied that there exists sufficient evidence in the particular case to justify such a warning.

The clause also clarifies the circumstances in which a warning may be given by the judge to the jury about the effect that delay in reporting has on the ability of the accused to put forward a defence. The new sub-sections provide that a warning relating to forensic disadvantage caused by delay may not to be given unless an application is made by the accused; and the judge is satisfied that the accused has in fact suffered significant forensic disadvantage due to the consequences of the delay in reporting. The clause specifies that no particular form of words need to be used when giving the warning but that the judge must not suggest that it would be “dangerous or unsafe to convict” the accused because of any demonstrated forensic disadvantage.

[4]. Provides that the amendments made by clause 3 apply to any proceeding that commences on or after the commencement of this Bill, irrespective of when the offence is alleged to have been committed.

Evidence Act 1958

[6]. Inserts a new section 37CAA to specifically provide for alternative arrangements for giving evidence by a complainant in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence. This new section does not apply to child complainants or complainants with a cognitive impairment.

These arrangements are –

• permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;

• using screens to remove the defendant from the witness’ direct line of vision;

• permitting a person chosen by the witness and approved by the court for this purpose, to be beside the witness while he or she is giving evidence for the purpose of providing emotional support to him or her.

This clause also provides that the court cannot determine to direct that the evidence be given in court unless the prosecution has made an application for this to happen.

If a court directs that alternative arrangements be made for the giving of evidence by a witness, the judge must warn the jury not to draw any inference adverse to the defendant or give the evidence any greater or lesser weight because of the making of those arrangements.

[8]. Inserts a new section 159 to provide that the amendments made to the Act by the Bill apply to any proceeding that commences on or after the commencement of clauses 5, 6 and 7, irrespective of when the offence to which the proceeding relates is alleged to have been committed.

Magistrates’ Court Act 1989

[9]. Inserts new section 4R to provide statutory recognition of the establishment of a Sexual Offences List in the Magistrates’ Court.

The Committee makes no further comment.

Funerals Bill

Introduced: 8 August 2006
Second Reading Speech: 10 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill –

• provides for the regulation and operation of the funeral industry,

• improves protection for consumers,

• provides for improved funeral industry price and information disclosure,

• provides for the development of a code of practice for the funeral industry,

• repeals the Funerals (Pre-paid Money Act) 1993, which regulates the investment of
  pre-paid funeral funds, and incorporates it into the Bill, which has enhanced inspection powers to provide for improved protection of pre-paid funeral funds,

• establishes a register of funeral providers operating in Victoria, which will be accessible to the public. The Bill also empowers the Director to establish a public register of pre-paid funeral contracts should this be considered necessary in future, and

• provides for the establishment of a Funeral Industry Ministerial Advisory Council.

Committees report and comments

[Clauses]

[2]. The Act will commence on proclamation but not later than by 1 November 2007.

Part 2—Funeral Industry Ministerial Advisory Council

[4 to 6]. Establishes a new body called the Funeral Industry Ministerial Advisory Council and sets out its membership, functions and how meetings of the Council should function.

[7 to 19]. Provides for a register of funeral providers and deals with contents of, access and amendments to the register. The Part provides that a register of pre-paid funeral contracts may be established by the Director. Regulations may be made to prescribe information that a funeral provider must give to the Director for inclusion on the register of pre-paid funeral contracts. A purchaser under a pre-paid funeral contract may apply to the Director to have information on that pre-paid funeral contract removed from the register.

Clause 19 creates an offence for a person to give false or misleading information in any application to have information placed on the register, or altered or removed from the register.

[20 to 24]. Part 4 deals with funeral services and provides that a funeral provider must give a price list to any person who asks in person about the price of funeral goods or funeral services, or upon request and must maintain a separate coffin price list or provide a price range of coffins available.

A funeral provider must give a written itemised statement of goods and services purchased to a customer before entering into any agreement for the provision of funeral goods or funeral services.

[25 to 44]. Part 5 re-enacts Parts 2 and 3 of the Funerals (Pre-paid Money) Act 1993, which will be repealed by the Bill.

[45 to 48]. Part 6 provides that the Director may, with the approval of the Minister for Consumer Affairs, and must, at the direction of the Minister for Consumer Affairs, submit a draft code of practice for funeral providers, and persons employed or engaged by funeral providers, to regulate fair trading and funeral practices, including the storage, handling and treatment of deceased bodies.

[47]. Provides that the Minister for Consumer Affairs may recommend to the Governor-in-Council that regulations be made prescribing a code of practice.

[48]. Provides that a person must comply with the code of practice prescribed under the Bill. The maximum penalty for breach of a code of practice is 20 penalty units.

[49 to 52]. Provides that funeral providers must establish and maintain a complaints handling procedure that complies with any guidelines issued by the Director under clause 52, or is in accordance with complaints handling procedures prescribed in regulations.

[53 to 79]. Part 8 deals with enforcement powers. The Part extends and applies to the Bill a number of enforcement provisions from the Fair Trading Act 1999. These provisions relate to applications for injunctions or other court orders where any provision of the Bill is being contravened.

The part sets out an inspector’s power to apply to a magistrate for a search warrant. The forms and procedures provided pursuant to the Magistrates’ Court Act 1989 apply accordingly.

Clause 66 provides for the payment of compensation by the Minister for any damage caused by an inspector in the exercise of any power conferred by the Bill, except where the damage is caused during an inspection that reveals that there has been a contravention of the Bill.

Clauses 69 and 70 set out the power of an inspector when exercising a power of entry under the Bill to require a person to give information and produce documents and give reasonable assistance to the inspector. It is an offence for a person to refuse or fail to comply with the request without reasonable excuse. It is an offence for a person to give false or misleading information.

Privilege against self-incrimination does not apply to documents

[71]. Provides that it is a reasonable excuse for a person to refuse to give information or do any other thing that is required under this Part if the giving of the information or the doing of the thing would tend to incriminate that person. However it is not a reasonable excuse for a natural person to refuse to produce a document, which the person is required to produce under this Part, on the grounds that the production of the document would incriminate the person.

[81]. Provides that the Director may delegate any powers in the Bill, except the powers under clause 53 or this power of delegation, to any person employed under Part 3 of the Public Administration Act 2004.

[82]. Provides that regulations may be made under this Act.

[89]. Repeals the Funerals (Pre-Paid Money) Act 1993.

The Committee makes no further comment.

Human Services (Complex Needs) (Amendment) Bill

Introduced: 8 August 2006
Second Reading Speech: 9 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibiliy: Minister for Health

Purpose

This Bill extends the operation of the Human Services (Complex Needs) Act 2003 (the ‘Act’) for a further two years and increases the number of members on the Multiple and Complex Needs Panel.

Committees report and comments

[Clauses]

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

[3]. Amends section 6(1) of the Act which deals with the constitution of the Multiple and Complex Needs Panel. The clause increases the number of Panel members appointed by the Minister from 5 to 12.

[5]. Section 33 of the Act provides that the Act expires on the third anniversary of the day on which section 5 came into operation. Section 5 came into operation on 31 May 2004. This clause amends section 33 to extend the operation of the Act for a further two-year period, to 31 May 2009.

The Committee makes no further comment.

Murray-Darling Basin (Further Amendment) Bill

Introduced: 8 August 2006
Second Reading Speech: 9 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Water

Purpose

The Bill amends the Murray-Darling Basin Act 1993 (the ‘Act’) to approve an amendment to the Murray-Darling Basin Agreement to facilitate the operation of the Murray-Darling Basin Commission’s water business on appropriate commercial principles.

Committees report and comments

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation.

Note: The explanatory memorandum provides – This is to enable the timing of the commencement of the Act to coincide with the commencement of the corresponding Commonwealth of Australia, New South Wales, Queensland, South Australian and Australian Capital Territory Acts.

[4]. Inserts new section 5B into the Act to provide that the Amending Agreement is approved.

[5]. Inserts Schedule 3 after Schedule 2 to the Act which contains the Murray-Darling Basin Agreement Amending Agreement 2006 as signed by the Prime Minister of the Commonwealth of Australia, the Premiers of Victoria, New South Wales, Queensland and South Australia and the Chief Minister of the Australian Capital Territory.

The Committee makes no further comment.

Surveillance Devices (Workplace Privacy) Bill

Introduced: 8 August 2006
Second Reading Speech: 9 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

This Bill amends the Surveillance Devices Act 1999 (the ‘Act’) to implement one of the recommendations of the Victorian Law Reform Commission’s (‘VLRC’) Final Report on Workplace Privacy which was released in October 2005.

Note: The VLRC recommended that surveillance in private areas of the workplace such as workplace toilets, washrooms, lactation rooms and change rooms be prohibited.

Committees report and comments

[Clauses]

[2]. The provisions in the Bill come into operation on 1 July 2007.

[3]. Inserts a new Part 2A into the Act (new sections 9A to 9D).

New section 9A defines ‘Employer’, ‘Firm’, ‘Washroom’, ‘Worker’ and ‘Workplace’ for the purposes of the new Part.

New section 9B inserts a new prohibition into the Act making it an offence for an employer to knowingly install, use or maintain an optical surveillance device or listening device to observe, listen to, record or monitor the activities or conversations of a worker in workplace toilets, washrooms, change rooms or lactation rooms.
There are some limited exceptions to this general prohibition. Section 9B(2) permits surveillance to be conducted in accordance with a warrant or emergency authorisation or a corresponding warrant or emergency authorisation; in accordance with a law of the Commonwealth; or if required by a condition of a liquor licence granted under the Liquor Control Reform Act 1998.

Note: There is an existing regime in place which permits surveillance in licensed venues in accordance with the requirements of a liquor licence issued under the Liquor Control Reform Act 1998.

New 9C provides that where surveillance has taken place in accordance with one of the exceptions set out in section 9B(2), then section 9C indicates that a record or report of any conversation or activity obtained from that surveillance must only be communicated or published in accordance with that exception.

The Committee makes no further comment.

Water (Governance) Bill

Introduced: 8 August 2006
Second Reading Speech: 9 August 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Water

Purpose

The Bill amends the Water Act 1989 and related legislation –

• To require water authorities to have regard to principles of sustainable management;

• To provide a stronger governance framework for water authorities;

• To bring Melbourne Water under the Water Act 1989;

• To establish the role of storage manager and to set out the functions of this role;

• To provide consultative processes for the decommissioning of dams;

• To introduce ‘on the spot’ fines for permanent water savings plans and drought response plans or water restriction by-laws;

• To provide for the protection of public land by making it clear that water authorities are exempt from adverse possession claims.

The Bill amends the Catchment and Land Protection Act 1994 –

• The catchment management authorities will be established under the Catchment and Land Protection Act 1994 and their governance arrangements will be clearly outlined.

The Bill repeals the Melbourne and Metropolitan Board of Works Act 1958 and the Melbourne Water Corporation Act 1992.

The Bill amends the Werribee South Land Act 1991 –

• It provides for amendments and makes further provision for leasing powers that will facilitate proposals for development of a marina at Werribee South by redefining the area of Crown land to be leased and extending the maximum term over which leases may be granted.

Committees report and comments

[Clauses]

Amendments to the Water Act 1989

[54]. Substitutes a new Part 6 into the Act. The new Part 6 provides for water corporations. The current water authorities under the Act and Melbourne Water Corporation will be established as water corporations under the Act pursuant to new section 85. New section 93 requires a water corporation to have regard to various principles including the management of water resources for sustainable use, the encouragement of community involvement and the conservation of biological diversity. New sections 108 to 118 make provision for directors and directors’ remuneration.

New section 122B sets out powers of delegation of water corporations.

New section 122G in new Part 6A provides for the continuation of Authorities to have the same districts as they had under the previous legislation. New section 122J provides for the declaration of new irrigation districts and new section 122K provides for the declaration of new waterway management districts. New section 122XA provides for the Minister to determine environmental or recreational areas and to nominate the responsible authority.

New Part 6B sets out the duties of water corporations. New section 122ZG requires a water corporation to enter into a scheme approved by the Essential Services Commission to deal with customer disputes.

New Part 6C provides for storage managers. New section 122ZJ provides for the appointment of an Authority as a storage manager for water storage or land. It sets out any consultation that must be undertaken.

[56]. Inserts new sections 139A to 139E into the Act. They provide a more transparent process to be followed by an Authority proposing to abandon or decommission any major works. It includes notification requirements, a submission process, the consideration of any submissions and the appointment of a panel to report to the Minister.

[57]. Includes a new section 141A which applies to Melbourne Water Corporation. It ensures that Melbourne Water Corporation continues to be required to supply water to retail licensees, bulk entitlement holders and other persons to the extent required.

[68]. Inserts a new section 170CA requiring publication of a permanent water saving plan or variation or revision of a plan following its adoption by an Authority.

[69]. Empowers Authorities to make by-laws prescribing certain offences in respect of which an infringement notice may be served. The power is limited to specific offences dealing with restrictions and prohibitions on water use as identified by 4 stages of severity. The Committee notes the power to prescribe ‘on the spot’ fines.

[71]. Sets out the new functions of the Melbourne Water Corporation.

[104]. Inserts new sections 250 and 251. New section 250 requires the board of directors of an Authority to notify the Minister and Treasurer of significant affecting events. New section 251 requires an Authority to provide a report on the progress it is making in achieving any targets or objectives in its corporate plan. [120]. Inserts new Parts 13A and 13B. They provide for the process of transfer of property etc of Authorities. They also set out the procedures for making by-laws.

[121]. Inserts new section 295A which provides that persons authorised in writing may serve infringement notices.

[128]. Inserts new section 324A which sets out the power to make regulations as to elections for the filling of vacancies in the membership of the board of directors of First Mildura Trust. [131]. Substitutes Schedule 1 so that the names of the new water corporations are clear as distinct from former water authorities.

Amendments to the Catchment and Land Protection Act 1994

[151]. Provides for the establishment of Catchment Management Authorities for each catchment and land protection region. It sets out those matters relating to the boards, functions, powers and duties of authorities.

[153]. Makes consequential amendments which deals with the immunity of members required as a result of members being members of the board of Catchment Management Authority. It amends section 19 to provide that such a liability, from which a member would be immune, attaches instead to the relevant Authority.

[154]. Inserts new Division 5 which sets out ‘Other Provisions Relating to Catchment Management Authorities’. It inserts a new section 19F which sets out the powers of delegation of an Authority. The Authority may delegate to ‘… With the consent of the Minister, to any person or body, … any function, power or duty of the Authority other than the power of delegation, the power to make by-laws…’

Amendment and repeal of other Acts

[161]. Inserts a new section 7C in the Limitations of Actions Act 1958. This provides that no claim for adverse possession may be brought in relation to any land of an Authority within the meaning of the Act, a licensee under the Water Industry Act 1994 or the Melbourne Water Corporation Act 1992. The following extract from the Second Reading Speech is set out –

“Protection of public land

Melbourne Water and the regional and rural water authorities hold large tracts of land on behalf of the public, much of which is unfenced and which individuals can easily encroach upon. Such encroachment may not be detected or may only be detected at significant cost.
Although, water authorities under the Water Act 1989 may currently be protected from such claims as representatives of the Crown, to put the matter beyond doubt and to provide protection to all publicly owned water entities, it is proposed that all publicly owned water entities be protected from claims of adverse possession in respect to land held in their name. The rationale for this is to safeguard community interests by preventing the unintended loss of public land to individual claimants.”

[162]. Repeals the Melbourne Water Corporation Act 1992 and the Melbourne and Metropolitan Board of Works Act 1958.

[166]. Inserts new section 60A in the Water Industry Act 1994 which sets out the power to issue infringement notices where there has been a contravention of a permanent water saving plan.

[167]. Substitutes section 78B(3) to require a Schedule to a drought response plan to provide for 4 stages of restrictions and prohibitions on the use of water.

[170]. Amends section 141 of the Water Act 1989. Section 141 of the Water Act 1989 provides that an Authority may reduce, restrict or discontinue water supply under certain conditions if there are shortages. Section 141(4) currently gives immunity to an Authority. It specifically provides that –

“An Authority that reduces, restricts or discontinues the supply of water to a person in accordance with this section is not liable to any claim or demand in respect of the reduction, restriction or discontinuance.”

The Water Act 1989 is being amended by section 58 of the Water (Resource Management) Act 2005. On the day that section 58 of the Water (Resource Management) Act 2005 is fixed to come into operation, the immunity currently conferred on an Authority by section 141(4) will be repealed. This would result in an unintended consequence in that an Authority would be liable to pay compensation under section 155 in relation to anything done under section 141. Section 155 of the Water Act 1989 governs compensation for damage in relation to actions taken pursuant to section 141.

[170]. Therefore simply amends section 141 to ensure that the current immunity remains. It provides that an Authority is not liable under section 155.

Amendments to the Werribee South Land Act 1991

[173]. Changes the maximum period for which a lease may be granted for land within the area dealt with under the Werribee South Land Act 1991 from 50 to 99 years.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria