ALERT DIGEST 4 of 1994

Part 3

ENVIRONMENT PROTECTION (GENERAL AMENDMENT) BILL

6.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Geoff Coleman with The Honourable Phil Gude.

6.2

This Bill amends the Environment Protection Act 1970. It makes a number of reforms to project approval processes, improved development processes for statutory environmental policies and clarification of lenders’ environmental liabilities. In particular it establishes an accredited licensee system.

6.3 _Ż Definition of occupier - Lender liability clarification

Clause 3 adds the definition of "financial institution" to the Act. It does this by excluding passive lenders from the definition of occupier under the Act. It also limits the liability of financial institutions who act as a mortgagee in possession, controller or managing controller to make the site safe (ie: abate any existing hazard) and ensure any further operation does not cause pollution. It also makes clear that where the costs of clean up cannot be recovered from an occupier, those costs can become a charge placed on the land of which the occupiers’ premises formed a part.

The Committee makes no further comment.

6.4 _Ż Environment protection - Declaration of policy

Clause 5 repeals section 17(2) of the Act which made the contravention of a State environment protection policy or industrial waste management policy an offence. The Committee has written to the Minister to request his advice as to the reason for the repeal of the section.

Clause 6 adds new sections 18A-D to the Act. The amendments establish a revised process for the preparation of State environment protection policies and industrial waste management policies. The Authority must:-

advertise the intention to make or vary a policy and invite comment;
prepare a draft policy;
prepare a policy impact assessment outlining the key social, environmental and financial impacts of the proposed policy and principal alternatives;
advertise a draft policy and draft impact assessment for public comment for a period of at least three months;
consider and respond to all submissions received in writing;
if required by the Minister, submit a recommended policy and impact assessment to a review panel for advice on the adequacy of the impact statement;
recommend the policy and impact assessment to the Governor-in-Council, together with any advice received from the review panel;
table the policy before both Houses of Parliament. It must submit to the Scrutiny of Acts and Regulations Committee copies of the policy, policy impact assessment, summary of any submissions received, the Authority’s evaluation of the submissions and any advice received from the review panel.
review a policy every ten years and publish the result of the review in its Annual Report.
Where the Minister certifies that a policy is administrative in nature or needs to be declared straightaway, without the need for a policy impact assessment or public comment, those policies will be submitted to the Governor-in-Council, the Scrutiny of Acts and Regulations Committee and both Houses of Parliament.

The Committee considered the legislative processes in its report tabled in November 1993, Report upon an Inquiry into the Operation of the Subordinate Legislation Act 1962. The Committee recommended that the legislative processes be amended to ensure that they are subject to rigorous impact assessment, public consultation and independent review. The amendments reflect this.

6.5 _Ż Consideration of Order by Parliament and the Scrutiny of Acts and Regulations Committee pursuant to Section 18D State Environment Protection Policy

The new section 18D(I) provides that the Authority must ensure that a copy of every Order made under section 16 (State Environment Protection Policy) is laid before both Houses of Parliament on or before the sixth sitting day after the Order is published in the Government Gazette.

In particular, the new section 18D requires the Authority to:-

(a) ensure that a copy of the final policy impact assessment;

(b) ensure that a copy of the summary of the submissions made under section 18A (2) (f) received by the Authority;

(c) ensure that a copy of the statement of the Authority’s evaluation of the submissions and of any changes made to the draft declaration or variation of policy as a result of the Authority’s considerations of the submissions;

(d) ensure that a copy of the review panel’s advice (if any) under section 18C (4) and the Authority’s response-

is given to the Scrutiny of Acts and Regulations Committee. The Committee must then, pursuant to the new section 18D(3) consider the Order laid before Parliament. If the Committee considers that an Order laid before Parliament: -

(a) does not appear to be within the powers conferred by this Act: or

(b) has been prepared in contravention of this Act; or

(c) contains any matter in contravention of this Act-

the Committee may report to each House of Parliament as set out in sub-section (4). The Report of the Committee may contain such recommendations as the Committee considers appropriate including a recommendation that the Order be disallowed in whole or in part or amended as suggested in the Report.

The Committee welcomes the initiative as being a partial implementation of the recommendations of its Report.

6.6 _Ż Works approval timing

Clause 8 amends section 19B(7) of the Act to require the Authority to refuse or issue a works approval within 4 months from the receipt of the application, instead of 6 months.

Clause 8 also provides that where a works approval has been advertised jointly with an Environments Effects Statement , any submissions on the works approval must be made together with any submissions on the Environments Effects Statement. The Committee notes the comments in the Second Reading Notes:-

"The Bill provides for the integration of public environmental assessment processes for major processes which undergo both EES and works approval...Currently, once an EES is required, consideration of any works approval by EPA effectively stops. On the completion of the EES, works approval recommences. This is confusing and time wasting for all concerned. By integrating all public concerns into one process, a more informed final decision can be made....Where there is an EES and a works approval, the Bill provides for joint advertisement, public comment and consideration by the EEs panel with no further third party process. This reform is consistent with recent amendments to the Planning and Environment Act 1987 which allow the Minister for Planning to integrate planning and EES approvals."

The Committee makes no further comment.

6.7 _Ż Approval process for research, development and demonstration projects

Clause 9 establishes an approvals process for research, development and demonstration projects. The Authority determines which proposal constitutes a research, development and demonstration project and may grant the application subject to whatever conditions it considers necessary within 30 days of receipt of a complete application.

The Committee makes no further comment.

6.8 _Ż Accredited licensees

Clause 12 inserts new sections 26A-E into the Act to establish accredited licensees. Licensees will be able to apply to the Authority for accreditation as an accredited licensee for a particular premises under section 26A. The Authority will be able to grant an application for accreditation if it is satisfied that the licensee has a high level of environmental performance and a capacity to maintain and improve environmental performance.

The Authority will have to advertise its decision to grant accreditation in the Victorian Government Gazette. Accredited licensees must submit annual performance reports to the Authority. The Authority must review the accreditation at least once every five years. Under section 26D, accredited licensees will have reduced licence fees and will not be required to obtain a works approval for works occurring within their licence conditions except for significant works as defined.

The Committee makes no further comment.

6.9 _Ż Statements of environmental audit

Clause 16 inserts into the definitions, the "statement of environmental audit". Statements of environmental audit can specify the particular beneficial uses which are protected in an identified segment of the environment.

The Committee makes no further comment.

CITY OF GREATER BENDIGO BILL

7.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Rob Maclellan with The Honourable Phil Gude.

7.2

This Bill establishes a Greater Bendigo City Council. The Greater Bendigo City Council replaces five former councils, namely, the City of Bendigo, the rural City of Marong, the Borough of Eaglehawk, the Shire of Huntly and the Shire of Strathfieldsaye. It also appoints Commissioners to administer the City of Greater Bendigo until an election is held and provides for consequential and transitional matters to enable the effective implementation of the restructuring.

7.3 _Ż City of Greater Bendigo

Clause 5 establishes the Greater Bendigo City Council. It provides that the boundaries are fixed as described in Schedule 1 and that the named councils cease to exist. The Commissioners appointed under section 7 are deemed to be the Councillors and administer the Council as if they were elected Councillors.

Clause 7 provides for the appointment of the Commissioners by the Governor-in-Council.

Clause 8 sets out the functions and powers of the Commissioners. Clause 10 sets out the duties of the Commissioners.

Clause 11 is a transitional provision which ensures that all members of staff of the former councils become members of staff of the Greater Bendigo City Council on the same terms and conditions as those with the former councils.

Clause 13 deals with the first election of Councillors and the restoration of an elected council. The date of the election is to be 5 August 1995 and before that time new ward boundaries will need to be drawn.

The Committee welcomes this provision as it adopts its recommendations made in respect of the City of Greater Geelong Bill.

7.4 _Ż Orders made by the Governor-in-Council Rights, freedoms or obligations dependent upon non-reviewable decisions (Section 4D(a)(iii) of the Parliamentary Committees Act 1968)

Clause 15 provides for Orders to be made by the Governor-in-Council. Section 15(2)(c) provides that the Governor-in-Council may make an order that "any party to a dispute to bear the costs of resolving the dispute"

This may offend section 4D(a)(iii) of the Parliamentary Committees Act 1968 in that it may make rights, freedoms or obligations dependent upon non-reviewable decisions.

The Committee has written to the Minister requesting his response.

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

Clause 23 of the Bill prevents proceedings being brought in the Supreme Court against any person in respect of any action taken or purported to have been taken or proposed to be taken to sections 7(1), 7(2), 7(3), 7(4), 13(3), 14(3) or 15 of the Bill.

Clause 24 declares its intention to alter or vary section 85 of the Constitution Act 1975 to prevent the Supreme Court entertaining the applications referred to in section 23.

Sections 7(1), 7(2), 7(3) and 7(4) relate to the appointment of the Commissioners for the new Council. Section 13(3) provides for orders in council to be made in relation to the first election of the Councillors. Section 14(3) relates to the first meeting of the elected Council. Section 15 is the general enabling provision which enables orders to be made for a range of purposes associated with the implementation of the Act.

The Committee notes the comments in the Second Reading Speech:-

"This Bill is a critical element of the Government’s reform program for restructuring local government. It establishes a Greater Bendigo City Council.......The proposal before the House follows closely the recommendations of the Local Government Board in its final report on the structure of local government in the Bendigo region.....The Minister for local government has considered the recommendations of the Board’s final report. the Act provides for a new local structure to be put in place by order of the Governor-in-Council.

Baches of the attempt of the rural city of Marong to halt that process, the matter has been brought back to the Parliament to ensure the smooth implementation of the restructure. The proceeding initiated by the rural city of Marong is being opposed in the Supreme Court but legislation is being introduced now to ensure that the benefits of restructure can be implemented without delay.........

The orders which can be made under each of the provisions listed deal with critical aspects of the municipal restructuring proposed in the Bill. It is essential for the successful implementation of the restructuring that the matters addressed in such orders proceed smoothly without challenge.

Councils have resorted to litigation in the past as a means of frustrating proposals for boundary change. The provisions will ensure that the Courts cannot be used to delay and frustrate the implementation of the restructuring."

The Committee is still deliberating as to whether the proposed provisions in respect of section 85 of the Constitution Act 1975 are in all the circumstances appropriate and desirable.

LEGAL AID COMMISSION (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Jan Wade, the Attorney-General with The Honourable Phil Gude.

8.2

This Bill amends the Legal Aid Commission Act 1978. More specifically, it provides for:-

franchising to selected private practitioners, the power to assess applications for legal assistance and to grant legal aid with or without conditions and terminate assistance;
tendering of representation in major trials; and
the appointment of a professional funds manager to handle the investment of moneys in the Fund.

8.3 _Ż Delegation of powers to private practitioners - Franchising

Clause 4 amends section 11(1)(b) to enable the Commission to delegate it powers to private practitioners. This delegation will enable the Commission to franchise to private practitioners its power to grant legal assistance. The powers are to be delegated to a specific group of people, private practitioners. Clause 6 ensures that the decision of a "delegate of the Commission" is subject to the ordinary review procedures set out in section 34 of the Act.

The Committee makes no further comment.

8.4 _Ż Tendering of representation in trials

Clause 5 provides that an assisted person is entitled to select a private practitioner from the names on a referral panel if legal services are to be performed by a private practitioner except where representation is to be provided by a private practitioner who has successfully tendered for the case. This restricts the ability of an assisted person to choose a private practitioner.

The Committee notes the comments in the Second Reading Speech:-

"The Bill will allow the Commission to tender out representation in major trials. Assistance will be granted for an applicant to be represented by a particular practitioner on the basis of the practitioner’s "bid" for the case. A successful tender will not necessarily be the lowest priced bid as a range of factors, such as the skill and experience of the tenderer, will determine which bid is successful. It is anticipated that the tendering process will generate substantial savings for the Commission.

The Bill amends the Principal Act by widening the criteria for the Commission to make guidelines on the allocation of work to private practitioners and to exclude an applicant’s right to choose a private practitioner from a panel of cases which are subject to tender.

These amendments are part of a wider review of the Commission’s operations being undertaken by this Government. The Auditor-General recently conducted a performance audit of the Commission. His recommendations will be considered by a joint Commonwealth/State review of the Commission’s structure and operations to be undertaken later this year. I note that the Auditor-General supported tendering and franchising arrangements as ways to improve the effectiveness of the legal aid dollar."

The Committee notes that although an applicant is now excluded from the right to choose a private practitioner from a panel of cases which are subject to tender, this restriction must be weighed against the competing public interest. As a consequence of the amendments, more people will receive the benefit of legal assistance. The amendments have the support of the Auditor-General whose recommendations will be considered by a joint Commonwealth/State review of the Commission’s structure later this year.

The Committee makes no further comment.

8.5 _Ż Appointment of a professional funds manager

Clause 9 inserts a new section 58A into the Legal Profession Practice Act 1958 to provide for the appointment of a professional funds manager to manage authorised investments from the Solicitors Guarantee Fund.

The Committee makes no further comment.

ALERT DIGEST 4