ALERT DIGEST 6 of 1994
Part 1
The Committee has considered the following Bills
Treasury Corporation of Victoria (Amendment) Bill
Local Government (Competitive Tendering) Bill
Financial Agreement Bill
Control of Weapons (Amendment) Bill
Victorian Institute of Marine Sciences (Amendment) Bill
Land Conservation (Amendment) Bill
Subdivision (Further Amendment) Bill
Public Prosecutions Bill
Appropriation (Interim 1994-95) Bill
Appropriation (Parliament)(Interim 1994-95) Bill
Stamps (Securities Clearing House) Bill
Casino Control (Miscellaneous Amendments) Bill
The Committee reports on the following Bills
Treasury Corporation of Victoria (Amendment) Bill
Local Government (Competitive Tendering) Bill
Financial Agreement Bill
Control of Weapons (Amendment) Bill
Victorian Institute of Marine Sciences (Amendment)
Bill
Land Conservation (Amendment) Bill
Subdivision (Further Amendment) Bill
Public Prosecutions Bill
Appropriation (Interim 1994-95) Bill
Appropriation (Parliament)(Interim 1994-95) Bill
Stamps (Securities Clearing House) Bill
Casino Control (Miscellaneous Amendments) Bill
Drugs, Poisons and Controlled Substances (Amendment)
Bill
City of Greater Bendigo Bill
Consideration is proceeding on the following Bills
Art Institutions (Amendment) Bill
Vocational Education and Training (Amendment) Bill
Gaming and Betting Bill
Magistrates' Court (Amendment) Bill
Tertiary Education (Amendment) Bill
TREASURY CORPORATION OF VICTORIA (AMENDMENT) BILL
1.1
This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Alan Stockdale, the Treasurer with The Honourable Ian Smith.
1.2
This Bill amends the Treasury Corporation of Victoria Act 1992. In particular, it provides for certain bodies to be participating authorities under the Act. It also validates certain acts, transactions and agreements.
1.3
Clause 2 is the commencement clause. Sub-clause (2) provides that section 5 is deemed to have come into operation on 1 January 1993. The Committee notes that the effect of this clause, as per section 5 is to validate certain retrospective transactions (discussed at 1.3 below) and makes no further comment.
Clause 4 amends the definition of "public authority" to include Victorian Housing Bonds Limited A.C.N. 006 955 577, the Home Opportunity Loans Scheme Trust and its trustee to be accepted by the Treasury Corporation as participating authorities. This will enable the Treasury Corporation to enter into transactions with these public Authorities.
Clause 5 inserts a new section 50. Sub-section (1) provides that if VicFin entered into a transaction with a body or entity that was not a participating authority (within the meaning of the Victorian Public Authorities Finance Act 1984) prior to the transitional provisions, then the transaction may be enforced as if it were authorised under that Act. The effect of the provision is to validate certain retrospective acts or transactions. The Committee notes the comments in the Second Reading Speech: -
"The Bill also amends the Principal Act to insert provisions validating previous transactions entered into by the Victorian Public Authorities Finance Agency, known as VicFin. The corporation was established under the Principal Act as the successor to VicFin in 1992. The Corporation assumed responsibility for VicFin’s rights and obligations."
The Committee makes no further comment.
Sub-section (2) provides that the validity of an act of VicFin’s successor in law, cannot be challenged on the basis that the body with whom either VicFin or VicFin’s successor entered into a transaction was not a participating authority within the meaning of the Act.
Sub-section (3) provides that the validating provisions are not to result in a civil wrong for the Corporation, the State or any other person or to cause the termination or modification of any agreement or the release of any obligee from its obligations.
1.4
Clause 6 amends the Victorian Debt Retirement Fund Act 1990. It defines "state debt" to mean the "liability of the State incurred through the Capital Works Authority". The previous clause defined "state debt" to include the "liability of the Capital Works Authority in respect of financial accommodation provided to or assumed by it". The Committee notes the comments in the Second Reading Notes: -
The Bill also amends the definition of state debt in the Victorian Debt Retirement Fund to include liabilities of the State in respect of financial accommodation whether incurred or assumed directly by the State or through the capital works authority. This amendment is consequential to the government’s decision to abolish the capital works authority."
The Committee makes no further comment.
Clauses 7 and 8 amend the financial reporting provisions in the Victorian Debt Retirement Fund Act 1990.
Clause 9 corrects minor typographical errors in the Principal Act.
The Committee makes no further comment.
LOCAL GOVERNMENT (COMPETITIVE TENDERING) BILL
2.1
This Bill was introduced into the Legislative Council on 30 March 1994 by The Honourable Roger Hallam.
2.2
This Bill amends the Local Government Act 1989. It introduces compulsory competitive tendering to councils which means that councils will be required to participate in competitive tendering arrangements with respect to a specified percentage of their total expenditure.
2.3 Competitive Tendering Arrangements
Clause 2 is the commencement clause. The Committee commends the forced commencement procedure.
Clause 3 inserts a new Division 3 into the Act to provide for competitive tendering arrangements.
The new 208A requires councils to become parties to competitive arrangements so that in any financial year, the council must have competitive arrangements that have a total value of 50% or more of the total expenses set out in the council’s operating statement for that year. Over the next two years, the phase-in period, the targets for the competitive arrangements are 20% and 30% respectively.
The new 208B defines a competitive arrangement as -
- any contract for the supply of goods or services to a council or for the undertaking of works for a council, which is in writing and made after the competitive process has been conducted by the council;
- any in-house agreement;
- any contract for the supply of goods or services, by a council to, or for, another person entered into by the council to in writing, after it submitted a tender as part of the competitive process to conducted by that person;
- any contract in writing or in-house agreement that has been approved by the Minister under section 208F.
The contract can be no longer than 5 years. Employment contracts are not competitive arrangements. Councils can enter contracts jointly and can conduct the competitive process jointly.
The new 208C defines the "competitive process". The competitive process entails: -
- tenders are called for by public notice;
- consideration is given to all written tenders;
- the contract is awarded to a person who submitted a written tender. The winning tender need not be the lowest tender.
- any other requirement specified in the regulations must have been complied with.
The new 208D provides that an "in-house agreement" is an agreement which is entered into by the council after the competitive process has occurred; is in writing; describes the goods or services to be supplied and sets out the annual cost of, and performance criteria relating to the goods services or works.
The new 208E sets out how the total value of competitive arrangements are to be determined.
The Committee makes no further comment.
2.4 Minister may approve alternative arrangements -
Insufficiently subjects the exercise of legislative power to parliamentary scrutiny (section 4D(a)(v) of the Parliamentary Committees Act (1968)
The new 208F gives the Minister the discretion to approve as competitive arrangements, contracts or in-house agreements which are entered into without the council engaging directly in the competitive process. An approval must be in writing and specify the reasons why it was given.
The Committee wrote to the Minister on 26 April 1994 requesting information on the way in which the section would operate as it was concerned that the provision may insufficiently subject the exercise of legislative power to parliamentary scrutiny.
The Committee thanks the Minister for his prompt response by way of letter dated 3 May 1994. The contents of the letter are set out: -
"Thank you for your draft of the Committee’s Alert Digest for the Local Government (Competitive Tendering) Bill. I note the Committee’s comments on the Bill and make the following comments in relation to the two issues which were of concern to the Committee:
208F(1)(a) - Minister’s discretion to approve competitive arrangements entered into by a council where the council has not engaged directly in a competitive process.
This clause is intended to allow for the approval of arrangements which are the result of a competitive process, though not one which has been conducted by the council itself. In the case of group purchasing schemes, for example, the Minister would need to be persuaded that the scheme had selected its preferred suppliers through a competitive process and, if so persuaded, would approve the scheme rather than the individual council members.
Consideration was given to providing criteria but these could not be provide the flexibility required for the different situations which are likely to present. Instead, the Bill requires the Minister to give any such approval in writing, with reasons.
It is also proposed that the Minister make an annual statement to Parliament on the implementation of CCT, and the reasons for approvals under 208F would be put before the House in that document.
In addition, each council is to make an annual competitive tendering statement, have its auditor give a report on it and publish the statement in its annual report. The CCT statement will be the subject of regulations which could also require councils to refer to any approval given by the Minister under 208F."
2.5 Reporting requirements
The new 208G requires a council to prepare a competitive tendering statement and submit it to its auditor and the Minister, if the Council has not complied with the percentage target set for the year. The Council must provide a written explanation to the Minister as to its failure to comply with the percentage target.
Clause 5 requires a council to include the competitive tendering statement in its annual report with any explanation as to why it failed to comply with the percentage target required for that year. The council’s auditor is also obliged to report on the competitive tendering statement and must give a copy of the report as soon as practicable to the Minister and the council after it has been prepared.
The Committee makes no further comment.
2.6 Restriction on power to enter into contracts
Clause 6 provides that before a council enters into a contract to the value of $50,000, it must give public notice of the purpose of the contract and invite tenders and expressions of interest. The tenders and the expressions of interest must be registered. The council is not obliged to accept the lowest tender.
Contracts which are entered into in an emergency are exempted from the above requirements. Whenever practicable, a council must give effective and substantial preference to contracts for the purchase of goods, machinery or material manufactured or produced in Australia or New Zealand.
The Committee makes no further comment.
2.7 Regulation making power - Inappropriately delegates legislative power (section 4D(a)(iv) of the Parliamentary Committees Act 1968)
Clause 7 provides the Governor-in-Council with the power to make regulations in relation competitive tendering arrangements. The Governor-in-Council is given the power to make regulations with respect to "the resolution of disputes arising from contracts and in-house agreements".
The Committee wrote to the Minister requesting his response as it was concerned that the provision may inappropriately delegate legislative power. The Committee thanks the Minister for his prompt response by way of letter dated 3 May 1994. The contents of the letter are set out: -
"If and when such regulations were proposed, they could be discussed with your Committee at an early stage to avoid any risk of a regulation amounting to inappropriate legislative delegation."
3.1
This Bill was introduced into the Legislative Assembly on 20 April 1994 by The Honourable Alan Stockdale, the Treasurer with The Honourable Ian Smith.
3.2
This Bill approves a new financial agreement between the Commonwealth, the States and the Territories. The new agreement will be given effect by the passage of complementary Commonwealth, State and Territory legislation and will not become effective until legislation has been enacted in all jurisdictions.
3.3
More specifically , the Bill: -
- provides for the continued existence of a loan council with a broadly specified role and powers and sets out certain obligations in respect of past borrowings;
- removes obsolete provisions under the present agreement;
- simplifies administration and provides for formal membership of the loan council for the Australian Capital Territory and the Northern Territory;
- abolishes the restriction on States borrowing in their own names and removes the Commonwealth’s explicit power to borrow on behalf of the States;
- removes the requirement for future Commonwealth and State borrowings to be approved under the provisions of the agreement and removes references to the National Debt Sinking Fund;
- provides for the establishment of a trust account for the administration of the purchase, redemption and repayment of Commonwealth debt allocated to the States and the Northern Territory;
3.4
Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.
Clause 3 defines the "1994 financial agreement" as approved by section 4 and as amended by any subsequent agreement approved by the Parliament.
Clause 4 provides for the approval of the agreement as set out in the Schedule.
Clause 5 provides that the consolidated fund is appropriated to the extent necessary for the purpose of carrying out the agreement.
The Committee makes no further comment
CONTROL OF WEAPONS (AMENDMENT) BILL
4.1
This Bill was introduced into the Legislative Assembly on 20 April 1994 by The Honourable Pat McNamara with The Honourable Phil Gude.
4.2
This Bill amends the Control of Weapons Act 1990. More specifically, it: -
- removes knives from the category of dangerous articles; and
- extends the power of police officers to search without a warrant.
4.3 Removal of knives from the category of dangerous articles
Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.
Clause 4 removes knives from the category of dangerous articles as set out in section 3 of the Principal Act. This will eventually enable "knives" to be placed in the category of regulated weapons. This will be done by prescribed regulations. The Committee notes the comments in the Second Reading Speech: -
"Police have expressed growing concern about the prevalence of knife carriage in public, notably by gang members because "self-defence" is currently a lawful excuse for the carriage of a knife in public.
The real difficulty with the current law is that it is impossible for police to differentiate between those who legitimately carry knives for self-defence purposes and those who have a more sinister aggressive purpose. The proposed amendment will simply remove knives from the category of dangerous articles within the Control of Weapons Act 1990 and enable their placement in the category of regulated weapons.
The advantage of placing knives in the regulated weapons category is that people will continue to be able to carry knives for non self-defence purposes eg: as part of their employment, recreational or sporting pursuits, but gangs will effectively be disarmed of knives. At the same time, people will legitimately be able to continue to carry items other than knives for self-defence purposes, should they consider this necessary in view of their personal experiences, time of travel etc.
As regulated weapons must be listed through the regulatory impact statement process, public imput and comment will be able to be obtained on the proposal to remove self-defence as a lawful excuse for the carriage of knives in public before it becomes fully operational."
The Committee makes no further comment.
4.4 Creation of combined search power for police, without warrant for prescribed and regulated weapons in public places
Clause 5 creates a combined search power for police, without a warrant for prescribed and regulated weapons in public places. It provides that if a member of the police force has a reasonable belief that a person is carrying or has in his or her possession in a public place a prescribed or a regulated weapon, contrary to the Act, then the officer may search that person without a warrant and seize and detain any weapon.
However, before searching the person, the police officer must inform the person of the grounds of his or her belief and must give his or her name, rank and place of duty if requested by the person about to be searched.
The Committee commends this provision as it ameliorates what might otherwise reduce rights.
Note that pursuant to section 6 of the Act, a person may carry a regulated weapon with "lawful excuse". "Lawful excuse" is defined to include the pursuit of any lawful employment, duty or activity, any lawful sport recreation or entertainment and the legitimate collection, display or exhibition of weapons.
The Committee notes the comments in the Second Reading Speech: -
"Included in the Bill is a search power, without warrant, for regulated weapons where police have a reasonable belief these items are being carried in public contrary to the Act.
Police already possess a search power without warrant for prescribed weapons, but it is virtually impossible for them to determine when an item is prescribed (eg: a dagger or a flick knife) or where it is simply a dangerous article (eg: a kitchen knife) when they are acting on a report or their own observation from a distance. The current proposal will remove this difficulty by creating a broader search power. Under the existing provision, allegations of police misuse are exceptionally rare.
Despite the existing provision operating virtually without complaint, as an additional safeguard it is proposed that police must explain to the person suspected of carrying the regulated or prescribed weapon the police reasons for formulating the reasonable belief that the weapon is being carried contrary to the Act.
The Government believes this Bill will assist in making Victorian streets and other public places eg: discos, safer places in which to travel or congregate. At the same time, all current legitimate uses of knives will continue to remain lawful."
The police already possess a search power, without warrant for prescribed weapons. The Committee notes that although this amendment increases the power of the police, it will not affect the lawful use and enjoyment of any regulated weapons, such as knives, for the average citizen and will enable the police to seize weapons from those people who carry them with harmful purposes in mind. The Committee makes no further comment.
