Scrutiny of Acts and Regulations Committee

Alert Digest No 1 of 2007

Tuesday, 13 February 2007

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Control of Weapons Amendment (Penalties) Bill 2006

Introduced: 19 December 2006
Second Reading Speech: 20 December 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

The Bill amends the Control of Weapons Act 1990 (the ‘Act’) to increase the penalty for importing, causing to be imported, manufacturing, selling, purchasing, displaying for sale or advertising for sale, possessing, carrying or using a prohibited weapon without an exemption or an approval. The Bill also increases the penalty for possessing, carrying or using a controlled weapon without lawful excuse.

The Committee notes this extract from the Second Reading Speech –

The Control of Weapons Act 1990 regulates access to non-firearms weapons in order to protect the community. Under the Act, non-firearms weapons are divided into three classifications – prohibited weapons, controlled weapons and dangerous articles.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on a day to be proclaimed but not later than by 1 July 2007.

[3]. Amends section 5(1) of the Act (possessing, carrying, using, displaying or advertising for sale, selling, purchasing, causing to be imported or manufacturing a prohibited weapon without an exemption under section 8B or an approval under section 8C of the Act) and provides that the penalty for an offence under that section is 240 penalty units or imprisonment for 2 years.

Note: The current penalty is 120 penalty units or imprisonment for 6 months.

[4]. Amends section 6(1) of the Act (possessing, carrying or using a controlled weapon without lawful excuse) and provides that the penalty for an offence under that section is 120 penalty units or imprisonment for 1 year.

Notes:

The current penalty is 60 penalty units or imprisonment for 6 months.

Lawful excuse in section 6 includes—

the pursuit of any lawful employment, duty or activity; and

participation in any lawful sport, recreation or entertainment; and

the legitimate collection, display or exhibition of the article –

but does include for the purpose of self-defence.

[5]. Provides for the automatic repeal of this amending Act on 1 July 2008.

The Committee makes no further comment

Interpretation of Legislation Amendment Bill

Introduced: 19 December 2006
Second Reading Speech: 20 December 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Interpretation of Legislation Act 1984 (the ‘Act’) and provides for the updating of Acts and statutory rules to bring them into conformity with current drafting style.

Note: The Act makes provision for the construction, operation and shortening of language used in Acts and subordinate legislation (regulations). For example, the Act provides for a number of useful definitions commonly found in Acts and subordinate legislation (section 38) and provides for the commencement of Acts (sections 10 and 11).

Content and Committee comment

[Clauses]

[2]. The provisions in the bill come into operation on Royal Assent.

[3]. Inserts new subsections (2A) and (2B) in section 10 of the Act to provide that the Clerk of the Parliaments must substitute the word “Bill” for the word ‘Act’ in a Bill’s title after it has received passage through both Houses of the Parliament and before it is presented to the Governor for assent. The Act provides that the Clerk’s alteration is not to be taken as an amendment of the Bill.

[4]. Inserts new subsections (3) and (4) in section 21A of the Act to provide that in reprinting an Act the Government Printer may omit the indorsement on the Act of the date of its passing.

[5]. Inserts a new section 54A in the Act which provides that the Chief Parliamentary Counsel, in preparing an Act or statutory rule for reprinting or other publication, may authorise an alteration to be made to text or other matter forming part of the Act or statutory rule to give effect to the style changes set out in Schedule 1 to the Act (being inserted by clause 6).

[6]. Inserts a new Schedule 1 to the Act introducing a number of style changes that may be made such as the removal of the hyphen for a range of words used in legislative drafting which begin with the word ‘sub’ (for example, “sub-section” will become “subsection”); the drafting of a heading for a Division or Subdivision will now only have the initial word of the heading and any proper noun capitalised; when words are defined in Acts or statutory rules they will now appear in bold italics with the double quotation marks being omitted; and section notes are to be set out in a different format.

[7]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.
The Committee makes no further comment.

The Committee makes no further comment

Murray-Darling Basin Amendment Bill 2006

Introduced: 19 December 2006
Second Reading Speech: 20 December 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Water, Environment and Climate Change

Purpose

The Bill amends the Murray-Darling Basin Act 1993 (the ‘Act’) to approve and ratify 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.

The Committee notes this extract from the Second Reading Speech –

As some members would be aware, the Murray-Darling Basin Agreement is an agreement between the Commonwealth, NSW, Victoria, South Australia, Queensland and the ACT, that articulates how governments will work together to manage the shared water, land and environmental resources of the Murray-Darling Basin. In doing so, it creates both a Ministerial Council and a Commission.

The Murray-Darling Basin Agreement, and its predecessor, the River Murray Waters Agreement, has been in operation since 1914 and, over the years, has been refined to reflect our better understanding of best practice water management.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on a day to be proclaimed.

Note: The explanatory memorandum provides that commencement by proclamation enables the timing of the commencement of the Act to coincide with the commencement of the corresponding Commonwealth, New South Wales, Queensland, South Australian and Australian Capital Territory Acts.

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

[5]. Inserts Schedule 3 in the Act containing 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 on 14 July 2006 and as revised by the Ministerial Council on 29 September 2006.

[6]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.
The Committee makes no further comment.

The Committee makes no further comment

Public Prosecutions Amendment Bill 2006

Purpose

The Bill amends the Public Prosecutions Act 1994 (the ‘Act’) to enable –

the Victorian Director of Public Prosecutions (‘DPP’) and Crown Prosecutors to receive and exercise powers to prosecute offences of another Australian jurisdiction in accordance with the authority conferred by the other jurisdiction; and
the Directors of Public Prosecutions of other Australian jurisdictions or their legally qualified staff to be appointed as Crown Prosecutors so that they can prosecute Victorian offences.

The Committee notes this extract from the Second Reading Speech –

Under longstanding cooperative arrangements, the Victorian Director of Public Prosecutions and Commonwealth Director of Public Prosecutions have been able to prosecute offences against the laws of the other jurisdiction. This power is typically used to prosecute drug offences involving both Commonwealth (e.g., importation) and Victorian (e.g., trafficking) offences. It is a practical arrangement, which has worked effectively.

It avoids the need for two prosecutions to be run by two separate prosecution agencies in relation to the one case for their own jurisdiction's offences.

To facilitate those arrangements, the Public Prosecutions Act 1994 (Vic) enables the Commonwealth DPP and his or her staff to be appointed as Victorian Crown prosecutors so that they can prosecute Victorian offences. Conversely, the Victorian DPP and Crown prosecutors are authorised under the Commonwealth's Director of Public Prosecutions Act 1983 to prosecute Commonwealth offences. However, unlike the Commonwealth Act, the Victorian Act does not contain an explicit basis on which the Victorian DPP and Crown prosecutors can receive and exercise this Commonwealth authority. The Bill will remedy that gap.
On occasions, the Victorian DPP or Crown prosecutors may be authorised to prosecute another State or Territories offences.

Such authorities may be given where, for example, there may be a perceived conflict of interest in the other jurisdiction prosecuting one of its own staff. There is currently no explicit basis in the Public Prosecutions Act 1994 on which the Victorian DPP or Crown prosecutors receive such an authority or exercise powers under it. The Bill will make explicit their ability to do so.

There is also a possibility of such a conflict-of-interest situation arising in Victoria. Currently, there is no explicit means under the Public Prosecution Act 1994 of authorising another jurisdiction's DPP or staff (other than the Commonwealth) to prosecute a Victorian offence in this situation. The Bill will provide that another jurisdiction's DPP or his or her staff may be appointed a Crown prosecutor to enable them to initiate and conduct the prosecution of Victorian offences.

These amendments will provide an explicit statutory foundation for these cooperative arrangements to operate and assist to avoid any technical legal challenges in cases conducted under them.

Content and Committee comment

[Clauses]

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

[3]. Amends section 22(1) of the Act by inserting a new paragraph (cc) to provide the DPP (with the consent of the Attorney-General) with a function of prosecuting the offences of other Australian jurisdictions in accordance with any authority to do so.

Note: Clauses 3 and 5 – An immunity from personal liability for anything necessarily or reasonably done or omitted to be done in good faith by the DPP in the performance of his or her functions under the Act (s. 46) will extend to this function.

[4]. Amends section 32 of the Act by inserting a new sub-section (3A) to allow the DPP of another Australian jurisdiction or his or her legally qualified staff to be appointed as a Victorian Crown Prosecutor. Such an appointment will enable the appointed person to institute, prepare and conduct proceedings in relation to a Victorian offence.

[5]. Amends section 36(1) of the Act by inserting a new paragraph (ba) to provide a Crown Prosecutor, with the consent of the DPP, with a function of prosecuting the offences of other Australian jurisdictions in accordance with any authority to do so. A DPP of another jurisdiction, or a member of the staff of the office of that Director, who is appointed a Crown Prosecutor in Victoria under section 32(3A) does not require the consent of the Victorian Director of Public Prosecutions to prosecute offences in their home jurisdiction.

[6]. Inserts a new section 55 to validate actions taken before the commencement of the amendments made by this Bill that would have been valid had the amending Act been in operation at the time.

Report to the Parliament pursuant to section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’.

The Committee notes the retrospective effect of the validating provision proposed by new section 55.

The Committee will write to the Attorney-General to seek advice whether he is aware of any person who has a legal proceedings on foot that may be adversely affected by the validating provision.

Pending further advice the Committee draws attention to the provision.

The Committee makes no further comment

Senate Elections Amendment Bill 2006

Purpose

The Bill amends the Senate Elections Act 1958 (the ‘Act’) as a consequence of amendments to the Commonwealth Electoral Act 1918 to reduce the period for the close of the rolls for a Senate election.

The Committee notes this extract from the Second Reading Speech –

This Bill is necessary because of recent changes made by the Federal government to electoral processes.

The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) (the federal act) was passed by the federal Parliament in June 2006. The Federal Act amended the Commonwealth Electoral Act 1918 to reduce the close of rolls period.

Prior to the amendments, the Act provided for the rolls to close seven days after the writs for an election had been issued.

The Commonwealth Electoral Act 1918 now provides that the rolls for a Federal election will close for new enrolments on the day the writs for the election are issued with the exception of 17-year-olds who turn 18 before election day and applicants for citizenship who will become citizens before election day. The rolls will close for enrolment updates on the third working day after the issue of the writs.

The Governor-General, on the advice of the Prime Minister, issues the writs for the House of Representatives and the four territory senators, but the Senate is the States House so the individual States issue the writs for Senate elections in their respective States. In Victoria, this is done under section 4 of the Senate Elections Act 1958.

Section 4 provides that the date fixed for the close of rolls for Senate elections shall be seven days after the issue date of the writ.

Once the amendments to the Commonwealth Electoral Act 1918 commenced operation, section 4 of the Victorian Senate Elections Act 1958 became inconsistent by virtue of the operation of section 109 of the Australian Constitution. The proposed amendments will bring the timing of the close of the rolls for federal Senate elections into line with the Commonwealth Electoral Act 1918 by providing that the rolls close three working days after the issue date of the writ.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill will commence operation on the day after Royal Assent.

[3]. Amends section 4 of the Act to ensure consistency with the Commonwealth Electoral Act 1918 on the timing of the closure of the rolls for Federal Senate elections.

Notes:

1. The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) (the Federal Act) was passed by the Federal Parliament in June 2006. The Federal Act amended the Commonwealth Electoral Act 1918 to reduce the close of rolls period. Prior to the amendments the Commonwealth Electoral Act provided for the rolls to close 7 days after the writs for an election had been issued.

2. Section 7 of the Charter recognises that a human right may be subject to limits as can be demonstrated or justified in a free and democratic society and recognises that human rights are, in general, not absolute rights, but must be balanced against each other and against other competing public interests.

The factors that may be taken into account when assessing whether a human right may be limited include[1] –

the nature of the right,

the importance of the purpose of the limitation,

the nature and extent of the limitation,

the relationship between the limitation and its purpose and

any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

3. The Charter provides –

18. Taking part in public life

(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

(2) Every eligible person has the right, and is to have the opportunity, without discrimination —

(a) to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and

(b) to have access, on general terms of equality, to the Victorian public service and public office.

4. Section 9 of the Australian Constitution provides –

Section 9 – Method of election of senators

The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Times and places

The Parliament of a State may make laws for determining the times and places of elections of senators for that State.

Report to the Parliament pursuant to section 17 of the Parliamentary Committees Act 2003.

1. Section 17(a)(i) – ‘trespasses unduly on rights or freedoms’

2. Sections 17(a)(viii) incompatible with Charter rights – Taking part in public life (section 18).

1. Section 17(a)(i) – Trespasses unduly on rights or freedoms

The Committee observes that the amendments made to the Act will have the effect of closing enrolments for a Federal election on the issue of the writs for the election and that a Federal election may be called spontaneously and with little or no public notice of the issue of the writs.

The Committee observes that potential electors that would otherwise be entitled to seek enrolment may be disenfranchised for that election.

The Committee refers to the Parliament the question whether closing eligibility for new enrolments at an election on the day writs are issued constitutes an undue abridgment to the right to vote.

2. Incompatible with Charter Rights – section 18 – Taking part in public life

The Committee notes that the right to vote in free and democratic elections for representatives in the legislature is a fundamental human right recognized in International law and by the Charter.

The Committee observes that the amendments made to the Victorian Act are necessary to avoid any inconsistency of a State law with Commonwealth laws under section 109 of the Australian Constitution.

The Committee observes that the amendments may have the effect of disenfranchising new electors who would have been eligible to enrol to vote in the period of seven days after the issue of writs for a Federal election. The Committee observes that unlike fixed term elections a Federal election may be called with little or no prior notice.
The Committee is of the opinion that the Parliament should consider whether the law unreasonably abridges the right of persons to vote and be elected at periodic elections that guarantee the free expression of the will of the electors.

The Committee further observes that had the amendments to this Act been introduced after 1 January 2007 they would have required a statement of compatibility pursuant to section 28 of the Charter and that that statement may have identified the amendments as being incompatible with the Charter rights of the right to vote.

The Committee notes that its reporting functions under section 30 of the Charter commenced on 1 January 2007 and requires the Committee to report to Parliament whether the provisions of any Bill are incompatible with human rights.

The Committee will seek further advice from the Attorney-General whether in his opinion the amendments to the Act may be incompatible with human rights.

Pending the Attorney-General’s response the Committee draws attention to the provisions in the Bill.

[4]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.

The Committee makes no further comment

Water Amendment (Critical Water Infrastructure Projects) Bill 2006

Purpose

The Bill amends the Water Act 1989 (the ‘Act’) to facilitate critical water infrastructure projects and makes a related amendment to the Land Acquisition and Compensation Act 1986.

The Committee notes this extract from the Second Reading Speech –

The purpose of this Bill is to facilitate the fast-tracking of critical water infrastructure projects.

Content and Committee comment

[Clauses]

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

[3]. Inserts new Part 7B (new sections 161L to 161V) into the Act relating to critical water infrastructure projects.

New section 161M provides for the making of a project order, by which a project for the construction and operation of works is declared to be a critical water infrastructure project. The Premier may make a project order on the recommendation of the Minister, after the Minister has consulted with the Treasurer and the Minister administering the Planning and Environment Act 1987.

New section 161P requires the Premier to cause a copy of each order made under section 161M or section 161O to be presented to each House of Parliament within 14 sitting days after the order is made. A copy of the order must be accompanied by a statement of the reasons for making the order. That statement must be signed by the Premier.

Disallowance of Orders

The Committee will write to the Minister to seek further advice concerning whether or not the Orders to be tabled under new section 161O will be subject to disallowance by the Parliament.

New section 161V modifies the Land Acquisition and Compensation Act 1986 in three ways.

First, it provides that where a facilitating Authority exercises the power to acquire land under section 130 of the Act for the purposes of a critical water infrastructure project, section 3(3) of the Land Acquisition and Compensation Act 1986 does not apply to the extent that Part 7B of the Act is inconsistent with the Land Acquisition and Compensation Act 1986.

Section 3(3) of the Land Acquisition and Compensation Act 1986 (‘this Act’) provides that –

If a provision of the special Act is inconsistent with a provision of this Act, the provision of this Act prevails.

Secondly, it modifies the information that must be contained in a notice of intention to acquire land.

Thirdly, it provides that the regulations under the Land Acquisition and Compensation Act 1986 and the forms prescribed under those regulations apply in relation to Part 7B of the Act with any modifications that are necessary to give effect to Part 7B.

Amendment to the Land Acquisition and Compensation Act 1986

[5]. Amends section 5 of the Land Acquisition and Compensation Act 1986 and provides that subsection (1) does not apply in relation to any land in a project area specified under the new Part 7B of the Water Act 1989.

The Committee notes this extract from the Second Reading Speech –

… a water authority responsible for a critical water infrastructure project will be able to commence the formal process of acquiring land compulsorily without having to arrange for the relevant planning scheme to be amended to apply the public acquisition overlay to that land.

Notes:

1. Section 5(1) of the Land Acquisition and Compensation Act 1986 provides that –

Reservation or certification of land required before acquisition

(1) The Authority must not commence to acquire any interest in land under the provisions of the special Act unless the land has been first reserved by or under a planning instrument for a public purpose.

2. Section 20 of the Charter provides –

A person must not be deprived of his or her property other than in accordance with law.

Charter of Human Rights and Responsibilities Act 2006

The Committee notes the amendments made by the Bill to provisions in the Land Acquisition and Compensation Act 1986 (the ‘Act’) relevant to compensation for compulsory acquisition of land. The Committee considers that the amendments do not materially alter a persons right to compensation under the Act and do not appear to be incompatible with rights found in section 20 of the Charter.

[6]. Provides for the automatic repeal of this amending Act on the anniversary of its commencement.

The Committee makes no further comment

Notes
[1]	Examples of laws that may reasonably limit human rights are those necessary to protect security, public order or public safety.