ALERT DIGEST 3 of 1994

The Committee has considered the following Bills
Financial Management (Consequential Amendments) Bill
Food (Amendment) Bill
Drugs, Poisons and Controlled Substances (Amendment) Bill
Wheat Marketing Bill

The Committee reports on the following Bills
Financial Management (Consequential Amendments) Bill
Food (Amendment) Bill
Drugs, Poisons and Controlled Substances (Amendment) Bill
Wheat Marketing Bill

Consideration is proceeding on the following Bills
Alcoholics and Drug-dependant Persons (Amendment) Bill
Medical Practice Bill

FINANCIAL MANAGEMENT (CONSEQUENTIAL AMENDMENTS) BILL

1.1

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

1.2

This Bill makes consequential amendments to the Financial Management Act 1994. The Committee reported on the Financial Management Bill in Alert Digest No. 20 of 1993 in November 1993. The purposes of that Bill are to: -

(a) to improve financial administration of the public sector;

(b) to make better provision for the accountability of the public sector;

(c) to provide for annual reporting to the Parliament by departments and public sector bodies;

1.3 ¯ Commencement Clause

Inappropriately delegates legislative power; (section 4D(a)(iv) of the Parliamentary Committees Act 1968)

Clause 2 is the commencement clause. Clause 2(2) provides that the "remaining provisions of this Act come into operation on a day or days to be proclaimed." The Committee is of the view that an open- ended commencement date such as this may inappropriately delegate legislative power and may be in breach of section 4D(a)(iv) of the Parliamentary Committees Act 1968.

The Committee suggests that where an open-ended commencement provision is inserted into a Bill, the reasons for not limiting the period by which commencement must be made should be set out in the accompanying memorandum.

The Committee wrote to the Minister on 17 March 1994. The Minister responded in a letter dated 22 March 1994.

"I refer to your letter of 17 March 1994 outlining your Committee’s concerns with this legislation.

I attach a copy of a letter from the Chief Parliamentary Counsel to the Financial Controller, Department of Finance, stating her reasons for including the open-ended commencement provision in the legislation. For the reasons set out in her letter, I consider that the inclusion of the clause is appropriate and should be retained."

Following is the letter from the Parliamentary Counsel to the Minister dated 21 March 1994.

"I refer to the letter dated 17 March 1994 from Mr Perton to the Treasurer.

Mr Perton has drawn attention to the open-ended commencement provision in this Bill. The reasons for not limiting the period by which commencment must be made should have been set out in the accompanying memorandum.

It is the intention that as much of Schedules 1 and 2 as possible be brought into operation on 1 July 1994, the expected date of commencement of the Financial Management Bill.

However, the amendments are technical and, in some cases, it may prove inappropriate to bring them into operation immediately. For instance, some amendments in Schedule 2 relating to reporting requirements may need to be delayed to ensure that the provisions proposed to be repealed remain in force for an authority’s current reporting year.

Questions of this kind may well arise in relation to other proposed amendments and it was considered appropriate in the circumstances to have an open-ended commencement provision to ensure no presently unintended or unforeseen consequences arise."

1.4

Clause 4 relates to Schedule 2. Schedule 2 repeals annual reporting requirements in the existing legislation. The amendments repeal or revise requirements relating to financial reporting and auditing which will in the future be covered by Part 7 of the Financial Management Act 1994.

The Committee makes no further comment.

1.5

Clause 3 relates to Schedule 1. Schedule 1 provides details of amendments and repeals to existing legislation to implement the financial management improvement initiatives provided for in the Financial Management Act 1994. The amendments are directed towards implementing the introduction of global appropriations.

The Committee sought clarification in respect of Clause 3 which amends the Appropriation provisions by substituting the word "available" for the words "appropriated by Parliament". The Committee requested that an officer from the Department be made available to explain the basis of or the purpose of the substitution.

An officer from the Department attended the Committee’s meeting on Monday 28 March 1994 to clarify the Committee’s concerns. The Committee appreciated the attendance of Mr Robert Clark, MP, the Treasurer’s Parliamentary Secretary who briefed the Committee.

The Committee notes that expenditures hitherto recorded by line item in the annual appropriation bill will no longer be reported in a similar form and has sought an assurance that similarly detailed information will be available to the Parliament for debate on the budget.

FOOD (AMENDMENT) BILL

2.1

This Bill was introduced in the Legislative Assembly on 9 March 1994 by The Honourable Marie Tehan with The Honourable Pat McNamara.

2.2

This Bill amends the Food Act 1984 and is part of National Scheme Legislation. The Bill automatically adopts as the food standards for Victoria, those agreed to by a Commonwealth/State Ministerial Council on the recommendation of the National Food Authority and gazetted under the federal National Food Authority Act 1981. In addition, it specifically:-

  • limits the availability of the implied warranty defence in certain contracts for the sale of food;
  • removes the requirement to register food vending machines;
  • enables council health surveyors who are delegates of the Secretary to the Department of Health and Community Services to administer the Act with respect to food premises on Crown land;
  • gives the Secretary to the Department of Health and Community Services the ability to act where food unfit for human consumption is being produced on food premises; and
  • obviates the need for excessive food sampling in those municipal districts with few food premises;

2.3 ¯ Implied warranties defence - limited to where the vendor carries on business in Victoria

Clause 5 relates to section 16(3) of the Principal Act which sets out the defence of implied warranty in a contract of a sale of food. The old section 16(3) applies in respect of a sale of any food for resale where the food is to be delivered or supplied in Victoria. The new section 16(3) applies in respect of a sale of any food for resale where the vendor carries on business in Victoria.

This effectively limits the application of the defence to vendors carrying on business in Victoria rather than to food delivered or supplied in Victoria. The Committee notes the comments in the Second Reading Notes:-

"Section 16(1) states that -

‘in a contract of sale of any food for resale there is an implied warranty on the part of the vendor that there has been no contravention of this Act in relation to that food.’

The defence applies to the sale of any food for resale where the food is to be delivered or supplied in Victoria.

The attention of the government has been drawn to a potential loophole created by this defence.

In this particular case, a prosecution was launched by the City of Swan Hill against a retailer for selling adulterated jam.

The retailer invoked the implied warranty defence and cited the importer in Sydney as the person from whom the jam was purchased. When the importer was subsequently proceeded against, the importer also sought initially to rely upon the implied warranty defence and cited the manufacturer.

The jam was manufactured in Egypt but the importer was finally forced to accept responsibility for the adulteration because the transaction involving the sale by the manufacturer was concluded in New South Wales where the food was delivered.

However, advice given to the Government is that, if the importer had landed the product direct into Victoria, the implied warranty defence would have applied. Obviously, it is essential in the interests of the public health that, if adulterated food is sold in Victoria, there is some person within the State who can be identified as being ultimately responsible for the sale of that food.

With this in mind, the Bill seeks to limit the availability of the implied warranty provision to those vendors actually carrying on business in Victoria rather than to food to be delivered or supplied in Victoria. In other words, the defence will not be available to importers, who, effectively will need to take their own precautions in relation to the foods they import.

It must be emphasised that the change is not intended to disadvantage importers who genuinely take steps to prevent the importation of adulterated foods. Such importers will still be able to rely on the reasonable precautions defence established by section 17 as well as the protection of the third party defence in section 46 of the Act."

The Committee makes no further comment.

2.4 ¯ Powers of Chief General Manager with respect to unclean food premises

Clause 6 inserts into section 19 of the Principal Act, provisions which cover the situation when food is prepared at premises and is unfit for human consumption or is adulterated. The Chief General Manager has the power to close the premises until all the appropriate steps have been taken. The revocation of the orders is provided for in the new Clause 6(3).These provisions are in accordance with the other clauses in section 19.

The Committee makes no further comment.

2.5 ¯ Powers of authorised officers

Clause 7 makes amendments to section 20 of the Principal Act which relates to the powers of an authorised officer. The old section 20(5) prohibits a municipal health surveyor exercising his/her powers in respect of "any premises that are the property of the Crown". The amendments provide that those prohibitions now exist in respect of premises which are "operated by and on behalf of the Crown or on the land that is not part of a municipal district." This overcomes practical deficiencies which have become apparent during the operation of the previous provisions.

The Committee makes no further comment.

2.6 ¯ Food sampling

Clause 8 enables a council to be exempted from compliance with the requirement to take food samples provided that it arranges for the conduct of specified surveys of food premises in its municipal district.

The Committee makes no further comment.

2.7 ¯ Removal of requirement to register food vending machines

Clause 10 has the effect of repealing references in various sections of the Principal Act to food vending machines. As a result, food vending machines will no longer be registrable. Previous exemptions were made pursuant to section 38. Section 38 of the Principal Act provides that the Governor-in-Council may exempt vending machines from registration requirements by an Order published in the Government Gazette. The Committee notes the comments in the Second Reading Notes:-

"The second change to which I would invite the attention of the House is the proposal to repeal the requirement for the registration of food vending machines.

Although on the surface, this may appear to be a novel change, food vending machines have actually been exempted from registration under section 38 of the Act for some years.

Food sold through most vending machines is now pre-packaged and,therefore does not present a particular risk to the public health. Accordingly, neither the registration of such machines nor the continuation of the relevant provisions in the Act serve a valid purpose."

The Committee makes no further comment.

2.8 ¯ Registration fees

Clause 11 amends section of the Principal Act to make registration fees more closely reflect section 368(2) of the Health Act 1958. Clause 11 is drafted along similar lines to section 368(2) The purpose of the amendment is to give councils greater flexibility in striking their fees for the registrations, renewal of registrations and transfers of registrations. Note that any fees determined by the councils must not exceed the amount fixed by the Governor-in-Council and must be published in the Government Gazette.

The Committee makes no further comment.

Clause 12 removes the ceiling of $5.00 which can be prescribed in the regulations for the certification of an entry in a register kept either by the council or the Chief General Manager.

2.9 ¯ Delegations by council

Clause 14 amends section 58A of the Principal Act to allow councils to delegate an officer their powers under section 46(5) of the Act. Section 46(5) relates to the prosecution of persons under the Act. This delegated power is in addition to those already delegated to officers under Parts 111 and VI of the Act.

The Committee notes that a specific power is delegated and makes no further comment.

DRUGS, POISONS AND CONTROLLED SUBSTANCES (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 9 March 1994 by The Honourable Marie Tehan with The Honourable Pat McNamara.

3.2

This Bill amends the Drugs, Poisons and Controlled Substances Act 1981. More specifically, it:-

  • updates the structure for licences, permits, warrants and fees;
  • makes various amendments in relation to the supply of certain drugs and substances and;
  • makes other miscellaneous amendments regarding related matters.

3.3 ¯ Forced commencement provision

Clause 2 is the commencement provision. The Committee commends the forced commencement provisions.

3.4 ¯ Drugs of addiction

Clause 4 amends sections 33, 34 and 35 of the Act which relate to the issue of permits of drugs of addiction. The effect of the clause is to extend the minimum time doctors can prescribe drugs of addiction without requiring a permit from 4 to 8 weeks. This brings Victoria in line with other jurisdictions and will reduce unnecessary paperwork for the profession and the department. It also removes the maximum 4 week life of permits issued for the treatment of drug-dependent patients.

The Committee makes no further comment.

3.5 ¯ Sale of hypodermic needles

Clause 6 amends section 80(5) of the Act which relates to the exemption for lawful sellers of needles, for example pharmacists or other classes of people specified in the regulations. The effect of the amendment is to enable agencies involved in needle exchange programs to be exempted by Order-in-Council and published in the Government Gazette. A list of exemptions must be maintained by the Department of Health and Community Services and available for public inspection and a copy given free of charge, if requested.

The Committee makes no further comment.

3.6 ¯ Inappropriately delegates legislative power (section 4D(a)(iv) of the Parliamentary Committees Act 1968)  - Additional regulation making powers

Clause 7 inserts a new section 132B into the Act which gives additional flexibility to the making of the regulations. The new section 132B(f) provides that the regulations may "confer powers or discretions or impose duties an any person". The Committee is of the view that these extremely broad powers or duties which may be conferred or imposed on any person, may offend section 4D(a)(iv) of the Parliamentary Committees Act 1968 and inappropriately delegate legislative power. Neither the class of persons to whom the powers may be given nor the powers themselves are specified.

The Committee has written to the Minister and requested her response.

3.7 ¯ Licences, permits and warrants

Clauses 8 and 9 amend the Act with respect to the issue of licences, permits and warrants. Clause 8 provides that the Poisons Advisory Committee shall no longer consider the applications for licences and permits and make recommendations to the Chief General Manager. Instead, the applications are to be considered by the Chief General Manger. The Committee notes the comments in the Second Reading Speech:-

"In addition the Bill will provide that applications are to be considered by the Department rather than by the Poisons Advisory Committee although the advice of that Committee will be sought on appropriate occasions.....This change will reduce unnecessary delays in the process of dealing with such applications."

The Committee notes the Minister's explanation and makes no further comment.

In addition, the Bill provides that:-

  • licences and permits will be valid for 12 months from the date of issue;
  • licences, permits and warrants can be amended during their currency;
  • the fees are payable a the time of the application rather than at the time the application is approved
  • licences may be suspended or cancelled in particular circumstances.

The Committee makes no further comment.

3.8 ¯ Wholesaling of poisons

Clause 12 amends section 24 of the Act which relates to the wholesaling of poisons. Section 24 prohibits the wholesale of any poison or controlled substance except a Schedule 5 or Schedule 6 poison. The effect of the amendment is to include Schedule 7 in that list of exceptions. Schedule 7 consists mainly of agricultural poisons used by farmers and industrial poisons.

The Committee makes no further comment.

3.9 ¯ Sale of poisons book

Clause 14 inserts a new section 38 into the Act which obviates the need for retailers to keep a Sale of Poisons Book in favour of an obligation to maintain an accurate record of the transaction. The transaction details must include name and address of the purchaser, the date of sale or supply and the name and quantity of the poison or controlled substance purchased or obtained.

The Committee makes no further comment.

3.10 ¯ Sale of poisons to minors

Clause 15 repeals the old provisions in relation to the prohibition on sales to minors. The old section 40 provided that specified substances must not be sold to minors under the age of 18 or to any person unknown to the vendor unless except in the presence of an adult witness or a member of the police force. The new section 40 simply provides that specified substances must not be sold to a person who is under the age of 18 years.

The Committee makes no further comment.

WHEAT MARKETING (AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 23 March 1994 by The Honourable Bill McGrath with the Honourable Phil Gude.

4.2

This Bill has two main purposes, namely:-

  • to remove a statutory bar preventing the Australian Wheat Board from competing in the domestic barley market in Victoria; and
  • to extend the powers of the Australian Wheat Board to enable it to conduct research and value adding activities on grain or grain products;

4.3 ¯ Functions of the Australian Wheat Board

Clause 4 amends section 6 of the Wheat Marketing Act 1989. It extends the functions of the Australian Wheat Board by allowing it to promote, fund or undertake into matters related to the marketing of grain or grain products of any kind. This follows the transfer of the government's seed testing laboratory from the Department of Agriculture to the Australian Wheat Board's Academy of Grain Technology at Werribee in November 1993. This section resolves any legal uncertainty as to the Board's statutory powers to undertake any research.

Clause 4 also extends the research function so that the Board can engage in "value adding activities".

The Committee makes no further comment.

4.4 ¯ Powers of the Board

Clause 5 inserts a new section 7(5) into the Act. It repeals the statutory bar in the old section 7(5) which prevented the Australian Wheat Board from competing in the domestic barley market in Victoria. The new provision means that the Australian Wheat Board can perform its powers and functions in relation to the intra-state trade in barley, subject to the provisions of the Barley Marketing Act 1993.

The Committee makes no further comment.

Committee Room
28 March 1994

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