ALERT DIGEST 14 of 1994

Part 4

OFFICE OF THE REGULATOR-GENERAL (AMENDMENT) BILL

12.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Ian Smith MP with The Honourable Alan Stockdale MP.

12.2

This Bill amends the Office of the Regulator-General Act 1994 in order to widen the scope of the Office's power to obtain and distribute information, subject to specified safeguards.

12.3

The Bill commences operation on the day it receives Royal Assent (Clause 2). Clause 3 introduces a new part 3A containing new sections 27A - 27G. These sections permit the Office, where "it has reason to believe that a person has information or a document" which may help in its functions, to require the person to give the information or a copy of the document to the Office on request (new Section 27A(1)). Severe penalties apply for failure to comply without a lawful excuse (new Section 27A(4)). One example of a "lawful excuse" is given in new section 27A(5) and it is that the information or document may incriminate the person or make him or her liable for any other offence. The same penalty applies if a person gives false or misleading information (new section 27A(6)) and if a person threatens or causes detriment to another person who complied, or intended to comply, with a requirement to supply information or a document (new section 27A(7)).

A right of appeal against a requirement of the Office is supplied under new section 27B. Appeal grounds are specified (new section 27B(2)) and it is provided that the Office bears the onus of establishing that its decision was made in accordance with law and is reasonable (new section 27B(5)).

Confidentiality provisions are amended such that the Office will be able to disclose confidential or commercially-sensitive information if it is of the opinion that disclosure will not be detrimental to the person supplying it (new section 27C(3)(i)) or that the public benefit outweighs any detriment caused by the person supplying the information (new section 27C(2)(a)(ii)). In both cases, the office must have the opinion that if any detriment to any other person would be caused by disclosure, the public benefit outweighs disclosure (new section 27C(2)(b)(ii)). Also notice must be given to the person supplying information of the Office's wish to disclose, indicating a right of appeal as well as the new rules concerning reports. Appeal must be commenced by notice lodged within 7 working days after receipt of the notice (new section 27D(3)). The Office bears the onus of establishing a decision to disclose information was made in accordance with law and was reasonable (new section 27D(4)). Appeals are governed by section 38 of the Act (new section 27D(5)).

A limitation on disclosure is provided by new section 27E which prevents disclosure of any exempt document within the meaning of the Freedom of Information Act 1982. New section 27F provides that the annual report must include statistics of notices issued and appeals lodged, with the outcomes of the appeals. New section 27G provides that the Minister is to re-examine the operation of this Part before 1 January 1998.

12.4

Clause 4 repeals section 32 (3) of the Act. That sub-section relates to limitations on the use of confidential or commercially-sensitive information given to an inquiry. Proposed Part 3A now covers this.

Clause 5 amends publication of determinations made under the Act, removing the impractical and expensive requirement to publish the entire text of a determination in the newspaper and permitting publication of a summary in its place, together with sending copies of determinations to participants and regulated entities to which the determination applies (new sub-section 27(2), (2A) and (2B).

Clause 6 protects witnesses to inquiries by substituting a new, specific section 32(7) for the current provision.

Clause 7 introduces a new manner of a final report, which may now be divided into two separate documents - one for general release, and one containing confidential commercially-sensitive information for the Minister alone.

Clause 8 inserts a new section 39A creating a new, punishable offence of disclosing confidential or commercially-sensitive information by a member of staff of the office or a consultant to the office. Using such information to obtain any advantage also becomes an offence. The penalty in both instances is 100 penalty units or 2 years' imprisonment. Disclosure in certain situations is authorised under new section 39A(3) and includes disclosure in legal proceedings (new section 39A(3)(C)) and disclosure with consent (new section 39A(3)(G)).

The Committee makes no further comment.

FIRE AUTHORITIES (MISCELLANEOUS AMENDMENTS) BILL

13.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Patrick McNamara, MP with The Honourable Jan Wade, MP.

13.2

The purpose of the Bill is to amend the Country Fire Authority Act 1958 to improve standards of fire prevention in country Victoria with parallel amendments to the Metropolitan Fire Brigades Act 1958 to introduce similar procedures in the metropolitan fire district.

13.3

New almost identical provisions are inserted into both the Country Fire Authority Act 1958 and the Metropolitan Fire Brigade Act 1958 about fire prevention notices and their service, objectives to notices and appeals against notices, compliance with notices, fire prevention infringement notices and issue of notices by the Chief officer or the Chief Fire officer, respectively (Clauses 15 and 18).

A duty of fire prevention is placed on every municipal council and metropolitan Victoria, giving those bodies power to "do anything" that is necessary or expedient to fulfil that duty (Clauses 8 and 14)

Wide, general powers are given to the County Fire Authority and the Metropolitan Fire Brigades Board to do all things necessary or convenient to be done for or in connection with the performance of their duties and functions (Clauses 4 and 16).

Regulation provisions are rewritten in both pieces of legislation (Clauses 6 and 19); regulation - making powers extended in relation to fire prevention notices (Clauses 6 and 19); evidence of ownership or occupancy is provided for (Clauses 11 and 20); and parallel provisions concerning the application of penalties are introduced (Clauses 12 and 21).

The Bill also repeals section 8 of the Fire Authorities (Contributions) Act 1989, which is a sunset provision, to allow proper time for a new system of funding of the Country Fire Authority to be developed.

The Committee notes that there appears to be a minor drafting error in new section 90 (i) of the Metropolitan Fire Brigades Act which incorrectly refers to section 41B and not section 89 as would appear to be correct (Clause 18). The Committee has written to the Minister.

The Committee makes no further comment.

CONSTITUTION (COURT OF APPEAL) BILL

14.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jan Wade, MP, with The Honourable Patrick McNamara, MP.

14.2

The Bill amends the Constitution Act 1975 and the Supreme Court Act 1986 with consequential minor amendments to a range of other Acts.

14.3

The purpose of the Bill is to alter the structure of the Supreme Court, by creating a Court of Appeal and a Trial Division in that Court, which will hear appeals in both civil and criminal matters (Clause 20).

Clause 5 amends section 75 of the Constitution Act 1975 in relation to the numbers and titles of Judges and Masters of the Court. The old-fashioned term "puisne Judge" is repealed (Clause 10, 12 etc).

The new Divisions of the Court are created by proposed new sections 75A and 75B of the Constitution Act. (Clause 6)

New section 78B of the Constitution Act 1975 establishes seniority of Judges with the Chief Justice to have seniority over the next most senior judge, the President of the Court of Appeal. Judges of Appeal have seniority over other Judges of the Court, all based upon dates of their commissions. (Clause 9)

Salaries are established under new sections 82 (1A) and (1B). (Clause 15)

The jurisdiction of the Court of Appeal is found in substituted new Division 2 of Part 2 of the Supreme Court Act (Clause 20). The Court of Appeal is to comprise any 3 or more Judges of Appeal, or if the President of the Court of Appeal so determines, 2 Judges of Appeal. (new section 11 (1)) Sittings may be held concurrently (new section 11 (2)). Judges are prevented from sitting on the hearing of an appeal from their own judgement in the Final Division, except where otherwise expressly enacted (new section 13)

Clause 29 contains transitional provisions.

The Committee makes no further comment.

PORTS ACTS (AMENDMENT) BILL

15.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Alan Stockdale, MP with The Honourable Ian Smith, MP.

15.2

The purpose of the Bill is to transfer responsibility for 'associated ports' (other than the Port of Hastings) to local Committees of Management established under the Crown Land (Reserves) Act 1978; and

facilitate greater competition in the provision of port services; and
apply certain provisions of the State Owned Enterprises Act 1992 to the Ports authorities viz Port of Melbourne, Port of Geelong and Port of Portland.

15.3

Clauses within Parts 4, 5 and 6 of the Bill reflect each other, presumably bringing similar changes to each of the Port Authorities at the same time.

These changes include-

applying provisions of the State Owned Enterprises Act 1992 relating to the preparation of corporate places, giving information to the Treasurer, notifying the Treasurer and the Minister of significant matters and providing half-year reports to each of those persons. (Clauses 8, 17 and 22);
empowering the Minister to give overriding written directions to each Authority in relation to matters within to exclusive control, where the direction is considered necessary or desirable for completion or for access to the port for providing the services nominated in the directory (Clause 11, 16 and 26). A copy of these directors must be included in the Authorities ' Annual Reports (Clauses 13, 20 and 27); and
permitting certain prescribed services to be delivered by one Authority at another port (Clauses 13, 20 and 27).

The Committee makes no further comment.

LAND TITLES VALIDATION BILL

16.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jeff Kennett MP with The Honourable Pat McNamara MP.

16.2

The purposes of this Bill are to:-

validate, in accordance with the Native Title Act 1993 of the Commonwealth, past acts are invalidated because of the existence of native title;
provide for compensation rights for the holders of native title which has been affected by past acts attributable to the State;
confirm existing rights;

16.3 _Ż Part 2 - Validation of past acts

Clause 2 is an open-ended commencement provision. The Committee notes the comments in the Second Reading Speech:-

"This approach has been adopted in order to maintain flexibility in commencement, which is necessary because negotiations are continuing with the Commonwealth regarding compensation. It is essential that the Commonwealth agree to an equitable cost sharing arrangement in order that the financial burden arising from native title may be borne nationally."

Clause 4 ensures that the words and expressions in the Bill have the same meaning as those used in the Commonwealth Act. Clauses 6 to 10 validate "past acts" of the State so there is no inconsistency between the Commonwealth and the State legislation. Clause 11 provides that an extinguishment of native title under Part 2 does not confer a right to eject an aboriginal person who resides or exercises access over land or waters covered by a pastoral lease. Clause 12 preserves any reservations or conditions for the benefit of Aboriginal peoples, notwithstanding validation of past acts under Part 2. Clause 13 sets out the compensation entitlement of native title holders for the validation of a past act of the State.

16.4 _Ż Part 3 - Confirmation of rights

Clause 14 confirms State ownership of and access to various natural resources in accordance with section 212(1) of the Commonwealth Act. Clause 15 confirms public access to beaches and waterways in accordance with section 212(2) of the Commonwealth Act. Clause 16 provides that any confirmation does not extinguish or impair native title rights and interests, does not affect any conferral of land or waters or an interest in land or waters under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders. Clause 17 repeals the Land Titles Validation Act 1993.

The Committee makes no further comment.

CROWN LANDS ACTS (AMENDMENT) BILL

17.1

The Committee reported on the Crown Lands Acts (Amendment) Bill in Alert Digest No. 13 on 15 November 1994. The Committee made the following comments:

"Agricultural leases

Clause 8 inserts a new division 8 which sets out new provisions relating to agricultural leases. Under the new provisions, the Minister may grant a lease for agricultural purposes on such terms, conditions and restrictions that he or she thinks fit. Under the previous section, leases were granted by the Governor in Council on the recommendation of the Minister after certification by the Surveyor-General. The Committee notes that previously the granting of such leases was sufficiently important to be done by the Governor in Council. The Committee is of the view that there should be some reporting mechanism either by way of Government Gazette or tabling in the Parliament.

Agricultural licences

Clause 10 substitutes a new section 130 which provides for the granting of licences for agricultural purposes. The Minister may grant an agricultural licence on such terms and conditions as he or she thinks fit. Under the previous provisions the Governor in Council granted grazing licences. The Committee notes that previously the granting of such licences was sufficiently important to be done by the Governor in Council. The Committee is of the view that there should be some reporting mechanism either by way of Government Gazette or tabling in the Parliament."

The Committee wrote to the Minister on 16 November 1994. The Minister responded by way of a letter dated 21 November 1994. The relevant extract is set out:-

"1. Grant of agricultural leases or licences

As the Committee noted, some agricultural leases and licences under the Land Act 1958 are currently issued by the Governor in Council. The vast majority, however, are issued by myself as Minister or by persons authorised by me. One of the purposes of the Bill is to consolidate the existing range of tenure provisions into three categories - lease, licence and agistment permit. In amending the Act to achieve this aim, the decision was made to provide for a common authority to issue tenures.

Under the current provisions of the Land Act:

Grazing leases and cultivation leases may be granted by the Governor in Council. In practice, there have been no new grazing leases granted since 1970 when the Land Conservation Council was established, and there are no current leases. There are 17 cultivation leases since 1977 when the LCC published its Mallee Area Recommendations. Current departmental practice is for new leases to be allocated through a public tender process.

Grazing licences may be issued by the Governor in Council or by persons authorised by the Governor in Council. Unused roads and water frontage licences may be issued by myself as Minister or by persons whom I authorise. Agistment permits may be issued by the Secretary to the Department or by a person authorised by him. In practice, all licences and permits are issued by authorised persons.

The Bill proposes that new agricultural licences would be issued after public advertisement (new section 133G). There are presently 4775 grazing licences, 22867 unused road licences and 10192 water and frontage licences.

From the above, you will see that the vast majority of agricultural tenures are granted under delegation. It is also the case that most licences were first issued many years ago and have since been regularly renewed to the original licensees or their successors. Only rarely are licences granted over land not previously licensed.

It is not clear to me, therefore, what purpose would be served by amending the Bill to require publication or tabling of notices relating to the grant of leases and licences. Further, given that the Governor in Council decisions are not automatically required to be published or tabled, I do not understand why a requirement for publication or tabling is considered to be necessary in consequence of the change from Governor in Council to Minister. Finally, I note that the government's intentions in relation to longer-term licences have already been subject to wide public notice and discussion."

17.2

The Committee made the following comments in respect of clause 17 in the Alert Digest:-

"7.9 _Ż Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 17 of the Bill amends section 412 of the Land Act 1958 to declare its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in the circumstances where section 133C(4) or 133F(3) provides that no compensation is payable.

Clause 11 of the Bill inserts new sections 133C and 133F(3). The Committee notes the comments in the Second Reading Speech: -

"The Land Act as proposed to be amended by clause 11 of the Bill will include compensation provisions and it is for this reason that the ability of the Supreme Court to award compensation is restricted. In the case of termination of a lease, the Land Acquisition and Compensation Act will apply. In the case of termination of a licence, there will be a pro rata refund of the licence fee. Where a lease or licence is terminated because of non-compliance with its terms, compensation would not be appropriate and will not be payable. However, a lessee or licensee will be entitled to remove improvements which he or she owns whether the lease or licence is terminated because of non-compliance or otherwise."

The Committee is of the view that clause 17 together with new sections 133C(4) and 133F(3), (clause 11) may contravene section 4D(a)(i)(ii) and (iii) of the Committee's Terms of Reference. The Committee has made inquiries and confirmed that although the Minister's decision in respect of new 133C is reviewable in the Supreme Court, no compensation is payable in respect of the vesting of improvements in the Crown, the forfeiture of money to the Crown or the extinguishment of any interest, right or privilege. A lessee or licensee is only entitled to remove improvements which he or she owns.

In respect of new section 133F(3), where a licence may be cancelled even if there is no breach, the only compensation payable is the amount of the licence fee refunded by the Minister. The decision to cancel the licence may be reviewed in the Supreme Court but not the compensation which is payable under the provision."

The Committee wrote to the Minister. The Minister responded by way of a letter dated 21 November 1994. The relevant extract is set out:-

"Clause 17 of the Bill

In light of the comments made by the Committee, clause 17 was deleted by house amendment in the Legislative Assembly on 17 November. During the debate, Mr Coghill asked that consideration be given to enabling appeals to be taken to the Administrative Appeals Tribunal in the first instance rather than the Supreme Court. I am advised that the AAT does not presently have any jurisdiction in relation to either commercial or residential tenancies. It seems, therefore, that the Supreme Court is the appropriate forum.

I hope the above comments are of assistance to the Committee."

17.3

The Committee notes that the Minister introduced a House Amendment into the Parliament which deleted clause 17 in its entirety. The Committee's concerns have been resolved.

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