ALERT DIGEST 10 of 1994

Part 1

The Committee has considered the following Bills
Emergency Management (Amendment) Bill
Road Safety (Further Amendment) Bill
Local Government (Amendment) Bill
Estate Agents (Amendment) Bill
Impounding of Livestock Bill
Transport Accident (General Amendment) Bill
Therapeutic Goods (Victoria) Bill
Valuation of Land (Amendment) Bill

The Committee reports on the following Bills
Emergency Management (Amendment) Bill
Road Safety (Further Amendment) Bill
Local Government (Amendment) Bill
Estate Agents (Amendment) Bill
Impounding of Livestock Bill
Transport Accident (General Amendment) Bill
Therapeutic Goods (Victoria) Bill
Valuation of Land (Amendment) Bill

EMERGENCY MANAGEMENT (AMENDMENT) BILL

1.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Pat McNamara MP with The Honourable Phil Gude MP.

1.2

This Bill amends the Emergency Management Act 1986. Its purposes are:-

to improve the effectiveness of Victoria's emergency prevention, response and recovery arrangements;
to make consequential amendments to the Victoria State Emergency Service Act 1987.

1.3 Part 2

Clause 3 inserts a new purpose into the Emergency Management Act 1986.

Clause 4 inserts various definitions into the Act. Clause 5 inserts new objectives into the Act. The objectives ensure the organisation of a structure which facilitates planning, operational co-ordination and community participation in the response and prevention of emergencies and the mitigation of their effects. Clause 6 amends the responsibilities of the Co-ordinator in Chief.

Clause 7 amends certain names and terms. Note that the "State Disasters Council" is now the "Victoria Emergency Management Council". Clause 8 amends various definitions in section 13 of the Act which relates to co-ordinators.

Clause 9 changes the information required under "DISPLAN". Note that pursuant to section 4 of the Act, DISPLAN means the state disaster response plan. Clause 10 inserts a new section 16A which relates to the control of emergency responses other than fire.

1.4 _Ż Recovery planning and management - Responsibilities of Municipal Councils

Clause 11 inserts a new Part 3A which introduces recognition of planning recovery and management. It designates a government agency, the Department of Health and Community Services to be responsible for the co-ordination of recovery management and the formal establishment of recovery regions and co-ordinators and agencies. It also provides a head of power for the State emergency recovery plan.

Section 4D(a)(iv) Inappropriately delegates legislative power

New section 17C provides that the State Recovery Co-ordinator, may by instrument "delegate to any person any power or function of the State Recovery Co-ordinator under this Act or the regulations or any other Act". The Committee notes that the power of delegation is unlimited and that this may contravene section 4D(a)(iv) of the Parliamentary Committees Act 1968. The Committee also notes that this power of delegation is identical to the power of delegation given to the Co-ordinator in Chief pursuant to section 7 of the Emergency Management Act 1986.

The Committee accepts that there is a need for powers to be delegated in emergency situations. However, the Committee has written to the Minister requesting his advice as to whether there is a need for the provision to be so broad and a need to delegate these powers to persons other than the Deputy Co-ordinator.

Clause 12 inserts a new Part 4 which sets out the responsibilities of municipal council. This replaces the old Part 4 which set out the role of municipalities. Councils are required to prepare and maintain municipal emergency management plans. Provision is made for the audit of the plan during the period from 1 July 1995 to 31 December 1996 and thereafter every three years.

1.5 _Ż Compensation - Declaration of an "emergency area"

Clause 14 sets out when compensation is payable. Compensation is payable if a volunteer emergency worker suffers personal injury or loss of or damage to property. This clause extends the circumstances to include volunteer emergency workers who were not covered under the old provision. Note that compensation for volunteer fire fighters is provided under a separate scheme established under the Country Fire Authority Act 1958.

Section 4D(a)(i) Trespasses unduly upon rights or freedoms

Clause 18 inserts new sections 36A-36C which provide for the declaration and enforcement of an "emergency area". New section 36B sets out the powers of the police in respect of an emergency area. The Committee notes the comments in the Second Reading Speech:-

"The Bill provides for the declaration by police of an emergency area in an area affected by an emergency under circumstances in which normal community activities and freedom of movement must be restricted because of the unusual size, nature or location of an emergency, and when the extreme powers available under a declared state of disaster are not needed or would take too long to implement."

The Committee notes that technically there is a reduction in rights in that freedom of movement may be restricted where an area is declared an "emergency area". However the Committee also notes that the reason for the insertion of the provision is to protect people from potential harm in those "emergency" situations.

New section 36C sets out the offences and penalties for failure to comply with a directive of the police in an "emergency" situation. Clause 19 gives a volunteer emergency worker personal immunity from suit unless the loss or injury sustained is caused by the negligence or wilful default of the worker. This is a rewording of the old section 37.

1.6 _Ż Part 3

Clauses 20 to 25 make consequential amendments to the Victoria State Emergency Service Act 1987. Clause 26 provides for injured members and probationary members of the Victorian State Emergency Service the same return to work program for volunteers as established under the new section 28(2), (clause 15) of the Emergency Management (Amendment) Bill.

ROAD SAFETY (FURTHER AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Alan Brown MP with The Honourable Phil Gude MP.

2.2

This Bill amends the Road Safety Act 1986. Its purposes are to:-

enable agencies to be charged fees in connection with their accreditation for the purposes of drink-driving education programs;
extend the period within which a vehicle owner served with a parking infringement notice may supply the name and address of the person who was in charge of the vehicle at the relevant time;
facilitate the use on driver licences of digitised images instead of photographs;

2.3

Clause 4 inserts a new section 49A into the Act. It enables accredited agencies to be charged fees prescribed by the regulations in respect of the making of the application, the processing of an application including any visits made to the applicant. Pursuant to subsection (3), the Chief General Manager of the Department of Health and Community Services may grant approval to conduct a drink-driving program subject to any limitations or restrictions specified in the approval.

Clause 5 extends the period within which a vehicle owner served with a parking infringement may supply the name and address of the driver of the vehicle from 14 to 28 days.

Clause 6 amends item 22 of Schedule 22 to include the "digitised images" as well as photographs on driver licence documents. Clause 7 includes the applications for approvals in the subject matter for the making of regulations in Schedule 2 of the Act.

The Committee makes no further comment.

LOCAL GOVERNMENT (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Rob Maclellan MP with The Honourable Phil Gude.

3.2

This Bill amends various Acts. Its purposes are:-

to alter the dates of the municipal financial year and the date of Council elections;
to alter its provisions concerning the creation and operation of regional corporations;
to transfer provisions concerning regional waste management groups from the Local Government (Miscellaneous) Act 1958 to the Environment Protection Act 1970;
to repeal the Local Government (Miscellaneous) Act 1958 and the Prahran Market Act 1979.

3.3 _Ż Part 2 - Amendments to the Local Government Act 1989

Clause 3 amends the Act to move councils onto a 1 July-30 June financial year. Clause 5 brings forward the Council election dates to the third Saturday in March. It also changes the dates for the election of mayor and deputy mayor to the second Friday in April. Clause 6 enables a Council to decide that all voting is to be by means of postal voting. Clause 8 amends section 81 of the Act to make minor changes to the register of interest provisions.

Clause 9 amends section 94 of the Act to require all senior positions, other than acting positions of less than 12 months, to be advertised externally before any new appointments are made. Clause 10 amends section 95A to remove the requirement that a written contract must have an expiry date between 1 to 5 years of its signing. Instead, the written contract must have an expiry date which is "more than 5 years" after it is signed.

Clause 11 amends section 196 and sets out the provisions relating to council agreements to form regional libraries. A regional library becomes a body corporate. Clause 12 inserts sections 197-197G into the Act. They provide for restrictions on the power of a regional library to borrow, restrictions on the power of a regional library to delegate its power, the appointment of an auditor, winding up provisions, a corporate plan and restrictions on the power to make local laws. Clause 15 provides for discontinued roads on Crown land to vest in a council where the new road is to be on private land. The Committee notes that this will enable a council to exchange the land in the discontinued road with the land needed for a new road.

Clause 16 inserts additional competitive tendering arrangements. Clause 22 provides that the regulations may direct how the total remuneration of an officer is to be calculated. Clauses 22 to 26 repeal certain Acts and make minor amendments.

3.4 _Ż Part 3 - Amendments to the Environment Protection Act 1970 - Regional Waste Management Groups

Clause 27 inserts new Divisions 2A and 2B into Part IX of the Environment Protection Act 1970. New section 50E provides that on the recommendation of the Minister, the Governor in Council may declare any municipal district to be a waste management region. The Minister must consult the relevant councils of the municipal districts before making the recommendation. New section 50E provides that if the Minister approves the draft constitution for a waste management group, its creation may be declared by Order published in the Government Gazette. Its membership consists of all the councils in the waste management region that wish to be members of the group. The Minister must consult all councils in the waste management region that were not a party to the submission of the draft constitution.

Notwithstanding new section 50E, the Governor in Council, may on the recommendation of the Minister declare that a body incorporated under the Corporations Law is to be the regional waste management group for a waste management region.. The Minister must consult all councils in the waste management region. The inability to review the Minister's decision is discussed later at 3.5.

New section 50H sets out the functions and the powers of a regional waste management group. New section 50I sets out the matters which must be adequately provided for in the constitution.

New section 50J governs the membership of a regional waste management group. New section 50K provides that the members of the waste management group are bound by the provisions in the Local Government Act 1989 relating to pecuniary interests and duties. New section 50L governs group budget and contributions. New section 50M sets out the liability for group debts. New section 50N sets out the restrictions on borrowings by the group.

New section 50O gives a regional waste management group the power to compulsorily acquire land. New sections 50P and 50Q set out various restrictions on the acquisition and disposal of land. In relation to section 50Q subclause (2) provides that if a council is interested in buying the land, its market value must be determined by the Valuer-General. Notwithstanding, its market value, the waste management group may sell the land either at the market price or at any lower price it thinks appropriate.

3.5
Section 4D(a)(i) Trespasses unduly upon rights or freedoms
Section 4D(a)(ii) Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers
Section 4D(a)(iii) Makes right, freedoms or obligations dependent upon non-reviewable administrative decisions

New section 50QA governs the resolution of any disputes. If the mechanism provided for in a constitution for the resolution of a dispute fails to resolve the matter, the Minister has the power to make a final decision and resolve the matter. The Minister must arbitrate the matter or appoint a person or a panel of people to arbitrate the matter. The panel may conduct any hearing or any investigation in any manner that he or she thinks is appropriate. The question of costs is left to the discretion of the Minister. Finally, all decisions made under this section by the Minister or an arbitrator appointed by the Minister are final and may not be challenged or appealed in any court or tribunal.

The effect of this clause is to prevent any review of any decision made by the Minister. The procedure in relation to the making of a decision, the appointment of an arbitrator is left completely to the Minister's discretion.

In its current form, the new section 50QA may contravene sections 4D(a)(i)(ii) and (iii) of the Parliamentary Committees Act 1968. The Committee has written to the Minister .

Chairman's Note:

After discussions between the Chairman and the Minister, the Committee has been advised that a House Amendment will be made to ensure that there will be an avenue of appeal to the Supreme Court on questions of law. The exclusion of the jurisdiction of the Supreme Court will only apply to issues of fact.

3.6

New section 50QB which relates to the limitation of the jurisdiction of the Supreme Court is discussed later at 3.7

New section 50QC provides that the Minister may require a regional waste management group to provide him or her with a report. New section 50QC provides for the publication of the winding up of a regional waste management group in the Government Gazette. New section 50R provides for the preparation of a regional waste management plan.

New section 50RA provides that any council whose municipal district is in the waste management region of a regional waste management group must comply with the group's regional waste management plan. The Committee notes that any dispute as to a breach of the Act in this regard is to be finally determined by the Minister pursuant to new section 50QA.

New sections 50RB and 50RC provide for the life of the plan and its amendment and review. New section 50RE provides that the Authority (ie: the Environment Protection Authority) may refuse works approvals if the plan is not observed.

Clauses 28, 29 and 30 make minor and transitional amendments.

3.7 _Ż Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 27, new section 50QB declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining any appeal or challenge from the decision of the Minister, or an arbitrator or panel of arbitrators appointed by the Minister made under section 50QA. The Committee notes the comments in the Second Reading Speech:-

"Clause 27 of the Bill inserts a new section 50QB which is intended to vary or alter section 85(5) of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining any appeal or challenge from the decision of the Minister, or an arbitrator or panel of arbitrators appointed by the Minister under section 50QA.

The reason for limiting the jurisdiction of the Supreme Court is that is not appropriate for a body with a local interest to be able to bring an action in relation to a decision made by independent persons in the regional interest. It is not appropriate that a municipal council or governing body of a regional waste management group with a local interest in the outcome of a dispute should be able to challenge a decision of the Minister, or an arbitrator or panel of arbitrators appointed by the Minister which gives precedence to the interests of the region as a whole. A regional perspective is critical to conserve existing and potential landfill space, cover the costs incurred in managing suitable landfill sites for the disposal of wastes, and manage waste cost-effectively and with minimal impact on the environment."

In its current form, the Committee cannot say that the provision is appropriate and desirable in all the circumstances. The Committee has written to the Minister.

Chairman's Note:

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