ALERT DIGEST 6 of 1994
Part 4
APPROPRIATION (INTERIM 1994-5) BILL
This Bill was introduced into the Legislative Assembly on 26 April 1994 by The Honourable Alan Stockdale, The Treasurer with The Honourable Jeff Kennett, The Premier.
9.1
This Bill makes interim provision for the appropriation of moneys out of the Consolidated fund for recurrent services and certain works for the period July to October 1994.
9.2
Clause 2 is the commencement provision.
Clause 3 defines "works".
Clause 4 provides that the Treasurer may issue out of the consolidated fund, $4,722,051,000 dollars for works and services. The distribution of those moneys is set out in Schedule 1. The estimates are based on salary rates which applied as at 31 March 1994. Note that pursuant to sub-clause (2) if the amount payable in respect of the salaries is increased after 31 March 1994, then the Treasurer may issue the appropriate amount to accommodate the increase out of the Consolidated Fund.
The total estimated costs of new works projects together with estimated expenditures on these for the period July to October 1994 and the full 1994-5 financial year are set out in Table 1.
Clause 5 of the Bill provides for individual revenue items received as user charges or specific purpose payments from the Commonwealth to be credited to a department’s appropriation, subject to agreement between the Treasurer and the Minister concerned. Details of appropriations annotated pursuant to Clause 5 are included in Table 2. The Bill will lapse on the passing of the 1994-5 Appropriation Bill.
The Committee makes no further comment.
APPROPRIATION (PARLIAMENT) (INTERIM 1994-5) BILL
This Bill was introduced into the Legislative Assembly on 26 April 1994 by The Honourable Alan Stockdale, the Treasurer with The Honourable Jeff Kennett, the Premier.
10.1
This Bill makes interim provision for the appropriation of moneys out of the Consolidated Fund for recurrent services and for certain works for the Parliament for the period July to October 1994.
10.2
Clause 2 is the commencement provision.
Clause 3 defines "works".
Clause 4 provides that the Treasurer may issue out of the Consolidated Fund, $8,409,000 dollars for the works and services associated with the operation of Parliament. The distribution of those moneys for the various Parliamentary departments is set out in Schedule 1. The estimates are based on salary rates which applied as at 31 March 1994. Note that pursuant to sub-clause 92), if the amount payable in respect of the salaries is increased after 31 March 1994, then the Treasurer may issue the appropriate amount to accommodate the increase out of the Consolidated Fund.
The total estimated cost of new works projects together with the estimated expenditure during the period July to October 1994 and the full financial year are set out in Table 1.
Clause 5 provides that the Presiding Officers acting jointly or the Treasurer may determine that an amount or an item of recurrent expenditure be transferred to an item of recurrent expenditure of another program. If the Presiding Officers acting jointly, authorise a transfer, they must ensure that particulars of the transfer are given to the Treasurer as soon as practicable.
The Committee makes no further comment.
STAMPS (SECURITIES CLEARING HOUSE) BILL
11.1
This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Alan Stockdale, the Treasurer with The Honourable Ian Smith.
11.2
This Bill makes technical amendments to the Stamps Act 1958. In particular, it makes provision for the introduction by the Australian Stock Exchange by the Australian Stock Exchange of the new electronic transfer and settlement system for marketable securities known as "CHESS". It also repeals certain exemptions from the stamp duty payable on notices of acquisition and applications to register motor vehicles which are currently available to municipalities and certain water boards. The Committee notes the comments in the Second Reading Notes: -
"The Clearing House electronic sub-register system developed by the Australian Stock Exchange will facilitate the speedy settlement of share transactions. Pursuant to CHESS, transfers of marketable securities quoted on the Stock Exchange will be transferred electronically, without a need for an instrument of transfer. Amendments to the Stamps Legislation of each jurisdiction are required to allow CHESS to be operative. The proposed amendments are the result of significant consultation between the stock exchange and the revenue authorities of each state and territory.....
Arrangements have been made between the Australian Stock Exchange and all the relevant jurisdictions whereby the participants are to pay the relevant duty to the Securities Clearing House which will then forward the duty to each jurisdiction........It is anticipated that CHESS will become operational on 1 July 1994....."
11.3
Clause 2 is the commencement provision.
Clause 4 sets out the definitions.
Clause 5 makes a number of technical amendments to marketable securities. It provides that the "Transfer of Marketable Securities: Direction as to certain shares" as set out in section 55A does not apply to a "SCH-regulated transfer" (security clearing house regulated transfer). Statements of sales of marketable securities as set out in section 59 of the Act do not apply to SCH-regulated transfers. It inserts a new provision into section 60B headed the "Duty on sales and purchases by brokers". It amends the record keeping provisions so that records can be kept on computers.
Clause 6 inserts a new section 60D which relates to the payment of duty. It provides that if the transfer on the sale or purchase is not an SCH-regulated transfer to which the dealer is a party, the Victorian dealer must endorse the transfer with a statement to the effect that the stamp duty has been paid. It also provides that if the transfer is an SCH-regulated transfer to which the dealer is a party as an SCH participant, the Victorian dealer must include the participant’s identification code in the transfer document.
It also sets out the penalties for failure to comply with the provisions of the section.
Clause 7 inserts a new section 60AE into the Act which relates to the duty which must be paid on certain SCH-regulated transfers, ie: regulated transfers of marketable securities.
It sets out who must pay the duty and specifies what records must be kept. It sets out what particulars are to be included in the transfer documents. It also provides that the Securities Clearing House must be registered and lodge monthly returns.
Clause 8 makes further provisions in relation to marketable securities. Section 60F provides that marketable securities are not to be registered unless they are stamped. The clause ensures that SCH-regulated transfers are not subject to Section 60F. It inserts a new paragraph 1A to impose duty at the rate of 60 cents for every $100 and any fractional part of $100 in relation to SCH regulated transfers. It also insert three new exemptions from the paying of duty in respect of entrepot accounts, error transactions and securities lending transactions.
Clause 9 repeals two exemptions which currently exempt certain water boards and local government bodies from paying duty in relation to notices of acquisition and applications to register motor vehicles. This amendment is to operate from 1 October 1994.
The Committee makes no further comment.
CASINO CONTROL (MISCELLANEOUS AMENDMENTS) BILL
12.1
This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Jan Wade, the Attorney-General with The Honourable Phil Gude.
12.2
The purpose of this Bill is to enable a casino operator to conduct approved betting competitions in a casino and to make miscellaneous amendments to the Casino Control Act 1991.
12.3
Clause 2 is the commencement clause. The Committee commends the forced commencement procedure.
Part 2 makes miscellaneous amendments and inserts various definitions.
Clause 5 amends section 29 of the Act which defines controlled contracts. The clause inserts a new sub-clause (ca) which provides that certain contracts which are approved by the Authority with a specified person for the supply of goods and services are not "controlled contracts" within the meaning of section 29.
Clause 6 amends the definition of "special employee" to include security and surveillance staff of the Casino. Such staff will be required to obtain a special employee's licence.
The Committee makes no further comment.
12.4 ¯ Junkets and Exclusion orders
Clause 9 amends section 69 which enables regulations to be made in relation to junkets. A Junket is a term commonly understood in the Casino Industry as referring to an arrangement whereby a group of persons or an individual is introduced to the casino operator by a junket organiser or promoter who receives a commission based on the turnover of play accrued by the patron or patrons introduced by the organiser or promoter. A Premium Player Arrangement is an arrangement in which the casino operator agrees to give a patron a commission in cash or kind based on the patron's turnover or results of play. In the case of a Premium Player Arrangement there is no promoter involved.
The amendments exclude "complementaries" (free discounted travel, accommodation and food) from the definition of junkets and enable regulations to be made with respect to Premium Player Arrangements.
Clause 10 amends section 72 of the Act which relates to exclusion orders which the Director or casino operator can make to prohibit a person from entering a casino. The amendment makes it clear that a person may voluntarily apply for a self-exclusion order which prevents him or her from entering the casino. There is a right of appeal to the Authority to have the order overruled in accordance with the other provisions of the Act.
The Committee makes no further comment.
12.5
Clause 12 extends the prohibition on gambling in the Casino from special employees to include special employees and those persons who have a "special relationship" (that is, one who has significant influence with respect to the operations of the Casino).
Clause 13 inserts a new section 79A which prohibits special employees from accepting gratuities, whether inside or outside the casino, if the gratuity is related to his or her performance of duties as a special employee. This provision closes an old loophole in the Act.
Clause 15 amends section 128E to enable the Minister to determine who is to be responsible for building control in respect of the Melbourne Casino Site and "area". The Committee note the comments in the Second Reading Notes: -
"The Casino Control Act presently enables the Minister administering the Building Control Act to determine who is to be responsible for building control in respect of the Melbourne Casino Site. Ancillary works outside the site will be required. It has always been intended that all works necessary for the Casino should be subject to one body responsible for building control. The Bill therefore gives effect to this intention."
Clause 16 substitutes new sections 149 and 149A into the Act. Section 149 relates to liquor licence control. Pursuant to the amendments, the Casino is deemed to be premises licensed under the Liquor Control Act. The Casino is deemed to hold an extended hours permit and provides for restaurants immediately adjacent to the Casino approved by the Victorian Casino Control Authority to be licensed premises with extended hours permits.
The Committee makes no further comment.
12.6 ¯ Sportsbetting - Approved betting competitions
Part 3 relates to approved betting competitions and inserts a new Part 5A into section 81 of the Act. It provides that the Minister may approve a betting competition thereby enabling sportsbetting to be operated. The Committee notes the comments in the Second Reading Notes: -
"Sportsbetting will enable patrons to bet on national and international races. Sportsbetting will only be available to patrons placing bets within the Casino. There will be no telephone betting.
While the Bill would enable Sportsbetting to be offered, it is not intended that it should operate as a second TAB. The Bill therefore will enable the responsible Minister to withhold approval in the case of betting on any horse, harness or greyhound race at a race meeting in Australia or New Zealand. In making a determination, the Minister must take into account whether TAB betting is available on the race. It is intended that if TAB betting is available, approval will only be given in special circumstances.
The Minister for Gaming will be empowered to give notice to the Casino Operator not to conduct a class or kind of betting where that betting would be offensive or would be contrary to public policy. For example, betting on the number of casualties in a war or betting on the outcome of a trial may invoke this section."
The new section 81A provides that the Minister may approve betting competitions and must not approve them if they are contrary to public interest. Section 81B sets out which betting competitions may be approved. Sections 81C and D set out the conditions for the notice of approval. Section 81G provides that betting is not to be conducted without betting rules. Section 81H provides that the Casino Operator must make betting rules in relation to the carrying on of games and competitions. Section 81I sets out the various commissions and section 81J sets out the tax requirements. Section 81L provides for dividends and section 81M sets out the requirements in respect of unclaimed refunds and prizes.
Clause 19 enables regulations to be made in relation to betting rules and Clause 20 contains consequential amendments.
The Committee makes no further comment.
DRUGS, POISONS AND CONTROLLED SUBSTANCES (AMENDMENT) BILL
13.1
The Committee reported on the Drugs, Poisons and Controlled Substances (Amendment) Bill in Alert Digest No. 3 on 29 March 1994. The relevant extract is set out: -
"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 on 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 Act1968 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 wrote to the Minister on 28 March 1994 requesting her response. The Minister responded to the Committee in a letter dated 26 April 1994, the relevant extract of which is set out:-
"Thank you for your letter of 28 March 1994 in which you advise me that the members of your Committee had considered the above Bill.
In your letter, you have sought my response to the comments of your Committee on clause 7.
The matter raised by your Committee is of significance because it has potential implications for other legislation. In the circumstances, it is appropriate that a response appear on the record.
Clause 7, as you mention, inserts a new section 123B into the Drugs, Poisons and Controlled Substances Act 1981.
Proposed paragraph (f) provides that the regulations may-
confer powers or discretions or impose duties on any personThe 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."
While I can understand why the Committee may take this view, it is important that proposed new section 132B(f) be read in context.
Part XI contains the powers to make regulations under the Act and, as the Committee will be aware, these powers are extremely wide. Regulations made under the Act, among other things, need to confer powers, discretions and duties on a whole range of people in a variety of circumstances.
These include medical practitioners; pharmacists; dentists; veterinary surgeons; persons engaged in the manufacture, sale, supply, dispensing, administration, prescription and distribution of drugs and poisons; ship’s masters and owners of yachts; ambulance officers; nurses; directors of state emergency services; and, of course, the Chief General Manager and officers of the Department of Health and Community Services.
The advice given to me is that, on this basis, it would be almost impossible to specify in proposed section 132B(f) all the classes of persons and every particular circumstance in which powers, discretions and duties could be delegated.
This is not to say that section 132B(f) is either intended, or will allow, the unfettered delegation of legislative power. It should be kept in mind that proposed section 123B(f) has to be read down. In other words, it applies only to the regulation making powers of the Act and only enables powers, discretions and duties to be delegated in those circumstances where directly authorised by the regulation making powers.
It should also be noted that the proposed section 132B(f) is not novel. The provision is comparable to similar provisions which have been incorporated into other Acts and will no doubt be proposed in other legislation in the future for similar reasons.
I therefore suggest to the Committee that, given the nature of the Drugs, Poisons and Controlled Substances Act, and, especially, the broad regulation making
powers in Part XI, proposed 132B(f) is not only necessary but also does not constitute an inappropriate delegation of power."
14.1
The Committee reported on this Bill in Alert Digest No. 4 on 19 April 1994. The Committee made the following comments in respect of certain provisions in the Bill:-
"7.4 ¯ 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 ¯ 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.
.....Because 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."
The Minister replied to the Committee in a letter dated 29 April 1994, the contents of which are set out: -
"Thank you for your letter of 14 April 1994 which raises concerns regarding several provisions of the City of Greater Bendigo Bill.
It is not my intention to proceed with the Bill and arrangements will be made to withdraw the Bill at the appropriate time. However, I offer the following in response to your concerns you have raised in your letter -
Clause 15 - Orders in Council
Clause 15 is identical to clause 21 of the City of Melbourne Act 1993 on which the Committee raised similar concerns. It remains my view that it is not possible to anticipate and deal with all the implementation issues that may arise in relation to primary legislation. The ability for the Governor in Council to make Orders in relation to the implementation of the Bendigo area restructuring is critical to the success of the proposal.
There has traditionally been an ability to deal with the implementation issues through Orders in Council. This was the approach adopted in the Local Government Act 1958 and , more recently, in the Local Government (General Amendment) Act 1993 and the City of Greater Geelong Act 1993.
Each restructuring throws up its own unique issues to be resolved and the Government must be in a position to act promptly. An ability to act through Orders in Council is essential.
Clause 23 - Legal Proceedings excluded (from jurisdiction of the Supreme Court)
Your letter requests that I justify each clause and subclause to which section 23 applies.
Subclauses 7(1), (2), (3) and (4) all deal with the appointment of Commissioners. As with the City of Melbourne, the appointment of Commisssioners is clearly a critical element of restructuring. The existing councillors would go out of office upon the Bill receiving Royal Assent and it is imperative that there be a smooth change over to the Commissioners. It would be most improper that challenges could be brought in relation to the initial or to any subsequent appointments as a means of frustrating the changes being proposed.
Subclause 13(3) relates to the holding of the first elections. I note your concern that an Order could be made creating wards which had differences in voters of greater than 10%. As in all cases of setting ward boundaries by Order, the general principles spelt out in s.220 of the Local Government Act 1989 must be applied. It is clear from s.220 of the Act that ward boundaries must be fair and equitable and the number of voters should not vary by more than 10% from the average number of voters for the entire municipal district. It is important that the first election be able to proceed smoothly and without challenge. It remains my view that the courts are clearly not an appropriate place for settling differences in relation to such matters as new ward boundaries.
Subclause 14(3) provides that the Governor in Council may give directions to provide for any matters in relation to the first meeting of the elected council. The transition from the Commissioners to the newly elected councillors is also a critical period and the process should not be frustrated by challenges.
Clause 15 contains general provisions for the Governor in Council to make any necessary Orders to enable the implementation of the Bill. The restructuring of the Bendigo area should not be frustrated by challenges to matters, which while important to the smooth implementation of the restructure, are essentially housekeeping atters.
Councils have resorted to litigation in the past as a means of frustrating proposals for boundary change as demonstrated recently by the Rural City of Marong in relation to the proposed Order to restructure the Bendigo region and the Cities of South Melbourne and Port Melbourne in relation to the City of Melbourne Act 1993. Clause 23 ensures, as far as possible, that the courts cannot be used to delay and frustrate the implementation of the restructuring of the Bendigo area by bringing proceedings in relation to the matters specified.
I trust my comments will be of assistance."
Committee Room
2 May 1994
