ALERT DIGEST 9 of 1994
Part 2
EMERALD TOURIST RAILWAY (AMENDMENT) BILL
3.1
This Bill was introduced into the Legislative Council by the Honourable Haddon Storey MLC on 7 September 1994.
3.2
This Bill amends the Emerald Tourist Railway Act 1977. More specifically it:-
- redefines the responsibilities and functions of the Emerald Tourist Railway Board;
- changes the membership of the Board;
- exempts the Board from any damage caused by the Emerald Railway being fenced off.
3.3
Clause 4 inserts a new section 3 and broadens the responsibilities of the Board.
Clause 5 inserts the limitation that not more than two members of the Board may be managers or other officers or employees of the Board. Pursuant to section 6 all members of the Board are appointed by the Governor in Council.
Clause 6 provides for the appointment of a Deputy Chairman.
Clause 10 provides that contracts of more than $200,000 must be approved by the Minister. The previous limit was $20,000.
Clause 11 enables the Board to enter into the grant of leases, licences and easements without reference to the Minister.
3.4 ¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 13 extends the Board's exemptions from the Fences Act 1968. It provides that the Board is not liable for any damage which may be caused by the Board's land not being fenced off.
Clause 14 inserts a new section 48A into the Act which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions relating to damage caused by reason of the Emerald Tourist Railway not being fenced in or fenced off.
The Committee notes the comments in the Second Reading Speech:-
"It is essential that the Board is able to proceed with the enhancement of the operations of the railway without being impeded by such claims for compensation."
The previous section 48 provided that "the Board shall not be liable under the Fences Act 1968 to make any contribution towards the construction or repairing of any dividing fence between the land of any occupier and any land vested in the Board for the purposes of this Act."
The Committee wrote to the Minister on 13 September 1994 requesting further information as to the exemption. The Minister responded to the Committee on 22 September 1994. The relevant extract is set out:-
"Thank you for your correspondence of 13 September 1994, seeking my advice as to whether the proposed section 48A of the Emerald Tourist Railway Act 1977 mirrors provisions in other railway legislation and why it is necessary to extend the exemption to the Fences Act 1968.
This provision does mirror the provisions of section 249(2) of the Transport Act 1983 which relate to the operation of tourist railways. That section provides inter alia that "....a person operating a tourist railway.....must not..... be required to fence or contribute to the fencing of any portion of the railway and is not liable for any damage which may be caused by reason of the railway not being fenced in or fenced off...."
However, the Emerald Tourist Railway is not a tourist railway for the purposes of section 249 of the Transport Act 1983 and it is seen as important and indeed necessary that all tourist railways, whether established by their own statute (Puffing Billy) or via a Governor in Council authorisation under section 247 of the Transport Act 1983 should, as far as practicable, be covered by similar legislative provisions. Thus, the inclusion of section 48A in the Emerald Tourist Railway Act 1977 ensures parity with other tourist railways. Formal advice from the Department of Justice supports this view that ".....in the interests of the consistency, this Department has no objection to the inclusion of the immunity you propose in S.48 of the Act...."
Given that this section is an immunity provision, it has been necessary to limit the jurisdiction of the Supreme Court as per the section 85 statement in my Second Reading Speech, hence the consequential amendment contained in clause 14 of the Bill.
I hope this information will assist your Committee in its deliberations. If you require any further information, I suggest you make contact with Tourism Victoria's Cabinet and Legislation Liaison Officer."
The Committee thanks the Minister for his response and reports that the proposed provision is appropriate and desirable in all the circumstances.
FINANCIAL MANAGEMENT (AMENDMENT) BILL
4.1
This Bill was introduced into the Legislative Assembly on 7 September 1994 by the Honourable Ian Smith MP with the Honourable Alan Stockdale MP.
4.2
This Bill amends the Financial Management Act 1994. The main purposes of the Bill are:-
- to provide for supply management in the public sector;
- establish the Victorian Government Purchasing Board and make other minor amendments to other Acts.
4.3
Clause 4 inserts a new Part 7A which establishes the Victorian Government Purchasing Board and sets out its functions and powers. The functions of the Board in relation to the supply of goods, works and services to departments and the management and disposal of goods by departments are to:-
- to develop, implement and review policies and practices;
- to provide advice, staff training and consultancy services;
- to monitor departmental compliance with supply policies, Ministerial directions and to report irregularities to the relevant Minister;
- to foster improvements in the use and application of purchasing systems and electronic trading;
- to establish and maintain a comprehensive data base of purchasing data of departments and supply markets for access by departments.
It also includes provisions for payment of members, membership of the Board, procedures of the Board, members' pecuniary interests and improper use of information.
4.4 ¯ Section 4D(a)(v) of the Parliamentary Committees Act 1968 - Insufficiently subjects the exercise of legislative power to parliamentary scrutiny
The new section 54D provides that the Board consists of a chairperson and at least six other members appointed by the Minister.
The new section 54E provides that a member is entitled to receive the fees and allowances that are fixed from time to time by the Minister.
The new section 54J provides that the Board may delegate certain powers in writing. The new section 54M requires an annual report to be given to the Minister and laid before the Parliament.
The Committee wrote to the Minister in respect of sections 54D and 54E on 20 September 1994. The Committee was concerned that the provisions may contravene section 4D(a)(v) of the Parliamentary Committees Act 1968. The Minister responded by way of a letter dated 29 September 1994. The relevant extract is set out:-
"Thank you for your letter dated 20 September 1994, outlining the Committee's concerns relating to section 54D, 54E and 54M of the Financial Management (Amendment) Bill. The following advice is provided as requested.
1 Section 54D and 54E
The appointment and remuneration of Victorian Government Purchasing Board members, as prescribed by Section 54D and 54E of the Bill had been drafted to reflect, in part, the existing Supply Management Regulations 1994 - Sections 7(1) and 7(4) respectively. However, on reviewing this matter a House amendment has been arranged which will empower the Governor in Council to appoint and set remuneration levels of the members of the Board.
2 Section 54M
The Board carries out specific functions and it is deemed that the reporting of these functions is appropriate. If Section 54M was not inserted into the Bill, the reporting of the Board's work and activities would be subsumed within the Department of Finance's report in accordance with Part 7 of the Financial Management Act 1994."
Chairman's Note:
The Chairman wishes to thank the Minister on behalf of the Committee for his prompt and positive response. The Chairman is of view that the response addresses the Committee's concerns.
4.5
Part 3 amends various definitions in the Financial Management Act 1994.
Clause 8 inserts new Part 7B which provides that the Minister may compulsorily acquire land for the construction, completion or extension of any public works or for any related purpose. The Committee notes the comments in the Second Reading Speech:-
"The Bill also repeals provisions in the Public Lands and Works Act 1964. In particular, the Bill empowers the Minister, under the Financial Management Act, to purchase by agreement or to compulsorily acquire land in accordance with the Land Acquisition and Compensation Act 1986."
4.6
Part 4 makes minor amendments to various other acts.
The Committee makes no further comment.
LIQUOR CONTROL (AMENDMENT) BILL
5.1
This Bill was introduced into the Legislative Assembly on 7 September 1994 by the Honourable Alan Stockdale MP, the Treasurer pursuant to a motion on his behalf by the Honourable Ian Smith MP with the Honourable Vin Heffernan MP.
5.2
This Bill amends the Liquor Control Act 1987. Its main purpose is to facilitate the recovery of licence fees and other amounts payable under that Act. It gives effect to the plans to transfer the collection of licence fees payable under the Act from the Liquor Licensing Commission to the State Revenue Office.
5.3 ¯ Recovery of fees and evidentiary provisions
Clause 4 inserts the definition of "Commissioner of State Revenue" into the Act.
Clause 6 amends section 142, the evidentiary provisions of the Act. The effect of the amendment is that a certificate signed by the Chief Executive Officer is admissible evidence and proof of the matters contained in it. The matters include notice of a determination of a fee and fees payed or owing for a licence.
Clause 7 inserts a new section 142A which provides that the production of a notice of a determination of the Chief Executive Officer is evidence of the due making of the determination and that all the particulars are correct.
Clause 9 inserts a new division 3 of Part 6 which sets out provisions for the recovery of fees and fines. The new section 145A provides that any amounts due under the Principal Act are debts due to the Crown and payable to the Commission. The Commission can therefore recover these monies in the Magistrates Court or any other court of competent jurisdiction.
The new section 145B enables the Chief Executive Officer to collect money from a third person who owes money to the licensed person.
The Committee notes the comments in the Second Reading Notes:-
"This Bill introduces modern recovery provisions into the Act which are based upon recovery provisions in the Business Franchise (Tobacco) Act 1974. These provisions will make legal proceedings for the recovery of fees of outstanding fees payable under the Act more simple. The amendments will also enable the recovery of outstanding licence fees from any third party who owes money to the licensed person. This is similar to recovery powers under other revenue Acts.
....It introduces recovery and evidentiary provisions which are consistent with other regulatory legislation by which licence fees are collected. These provisions will facilitate the efficient collection of licence fees and protect revenue by enhancing compliance with the Act."
The Committee is concerned that the new section 145B infringes section 4D(a)(i) of the Parliamentary Committees Act 1968 and has written to the Minister suggesting that there be means for disputed debts to be properly determined in a court of appropriate jurisdiction.
The new section 145C provides for service of process.
5.4 ¯ Extended investigation powers to the Commissioner of State Revenue - the power to demand entry
Clause 10 amends section 154 which relates to the entry onto licensed premises to provide that the Commissioner of State Revenue or authorised staff will have the power to demand entry at any time to any licensed premises. Previously, this power was restricted to the Commissioner, Deputy Commissioner, an officer or employee of the Commission authorised in writing by the Commission, an authorised member of the police force or a licensing inspector.
Clause 11 amends section 158 which relates to the power for licensing fund assessors to search licensed premises. The effect of the amendment is that the Commissioner of State Revenue or authorised staff have the same powers as those of licensing assessors to search licensed premises.
Clause 12 makes minor amendments to the Act.
The Committee makes no further comment.
