Alert Digest No. 10 of 1995
3 October 1995

1.1

This Bill was introduced into the Legislative Assembly on 5 September 1995 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

1.2

The Bill appropriates moneys out of the Consolidated Fund for recurrent services and for certain works and services for the Parliament for the financial year 1995-6.

The Committee makes no further comment.

2.1

This Bill was introduced into the Legislative Assembly on 5 September 1995 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

2.2

The Bill provides appropriation for payments from the Consolidated Fund by departments for recurrent services and works and services for the financial year 1995-6 including payments made under the Appropriation (Interim 1995-6) Act 1995.

The Committee makes no further comment.

3.1

This Bill was introduced into the Legislative Assembly on 6 September 1995 by the Honourable Rob Maclellan MP with the Honourable Bill McGrath MP.

3.2

The Bill amends the Local Government Act 1989. It makes changes with respect to:-

• the election of Councils;
• the size of Councils;
• the payment of allowances to Councillors.

3.3

Clause 3 provides that the number of councillors may be between 5 and 12. Clause 4 amends section 13(3) to make it consistent with section 13(1). Clause 5 removes the requirement for the voters' role to be in a prescribed form. Note however that the voters' role must still contain the prescribed particulars. Clause 6 makes a minor amendment. Clause 7 extends the time for review of a municipal council electoral tribunal. Clause 8 makes it an offence for a person who has agreed to return a postal ballot-paper not to do so in time for counting. The Committee wrote to the Minister seeking further information about clause 8 on 14 September 1995. The Minister responded by way of letter dated 27 September 1995. The relevant extract is set out:-

"Clause 8

The creation of an offence where a person who agrees to post a ballot -paper on behalf of a voter and fails to post the ballot-paper in accordance with the agreement is being inserted as part of the new provisions required because of the option for elections to be conducted by way of postal voting.

During discussions on the Bill and draft regulations in relation to postal voting, the Office of Local Government was advised that during the Tasmanian postal elections persons claiming to be authorised collectors of ballot-papers on behalf of voters and then failed to do so. The right to vote, and to have that vote counted, is considered to be of such fundamental importance that it was seen as desirable to protect that right from any abuse.

It is a defence to a charge under this provision "if the ballot-paper was received by the returning officer in time for the ballot-paper to be counted in the election.

The penalty for the proposed offence was set at 5 penalty units on the basis that it reflects the importance of the proposed offence. It is also consistent with the proposed penalty for the offence contained in clause 9 which is a more serious offence. The proposed penalty for both offences are consistent with the penalties for similar offences relating to ballot-papers contained in section 58 of the Local Government Act 1989."

Clause 9 inserts a new section 58A which makes it an offence to interfere with postal ballot materials.

3.4

Clause 10 removes the office of deputy-Mayor and deputy-Lord Mayor. The Committee notes the comments in the Second Reading Speech:-

"The Act currently provides for the election of deputy-mayors and a deputy-Lord Mayor. In practice deputy-Mayors have very limited roles. In any case of the Mayor is absent and no deputy-Mayor has been elected, the Council must appoint one of the Councillors to act as Mayor. The Local Government Board has recommended that the office of deputy Mayor and deputy-Lord Mayor be removed.

Clause 11 enables the levels of remuneration for Councillors and Mayors to be set by Order in Council. The Committee wrote to the Minister regarding the scrutinising of such remuneration on 14 September 1995. The Minister responded by way of letter dated 27 September 1995. The relevant extract is set out: -

"Clause 11

The mechanism of fixing the levels of remuneration for councillors and mayors by Order in Council was introduced to enable the final recommendations of the Local Government Board to be implemented in time for the March 1996 local government elections. The recommendations were not available when the Bill was being drafted. It was considered essential that the facility to set levels of remuneration should offer maximum flexibility.

I note that there is other legislation which provides a flexible mechanism to deal with the fixing of payments such as the State Owned Enterprises Act 1992 where the terms and conditions of directors may be set by Order in Council. The Water Act 1989 provides that the authority itself sets the rate of remuneration for its employees.

It was not considered appropriate that the fixing of the levels of remuneration for councillors to be effected by way of regulation or as disallowable instruments for the purposes of the Subordinate Legislation Act 1994 as you suggest."

The Committee notes that the levels of remuneration were previously set by regulation. As to whether or not the clause contravenes section 4D(a)(v) is a matter for the Parliament to debate.

The new section 74 does not apply to the Melbourne City Council. New section 74A provides that the Melbourne City Council must pay the allowances specified in the Order in Council from time to time. Allowances of up to 50% more may be paid to the Melbourne City Councillors. The Committee notes the comments in the Second Reading Speech:-

"The demands on the Lord Mayor and other councillors of a capital city are different from those in other councils. The ability to set allowances of up to 50% higher for the Melbourne City Council reflects this fact."

Clause 13 ensures that the "nomination day" is in line with that proposed for elections by postal voting which is 30 days before election day. Clause 14 limits the circumstances in which a candidate can retire by removing the ability to retire for ill health or "any other personal reason". A candidate can retire if the effect of the retirement is that the election will not be contested.

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

"The Bill limits the provisions in relation to the retirement of candidates by removing the ability to retire because of ill health or "any other personal reason". This ability has been removed to overcome the incidence of "orchestrated retirements" on such spurious grounds as pressure of work which have resulted in added costs to genuine candidates as well as councils."

The Committee was concerned that the provision would not cater for those who wish to genuinely retire because of some serious personal problem or commitment. The Committee wrote to the Minister on 14 September 1995. The Minister responded by way of letter dated 27 September 1995. The relevant extract is set out:-

"Clause 14

There is considerable evidence that the existing provision that allows a candidate to retire on the grounds of ill-health or "other personal reason" has been abused in the past to the disadvantage of genuine candidates. It also appears to have been used, as was stated in the Second Reading Speech to "orchestrate" retirements on such spurious grounds as pressure of work.

The existing grounds on which a candidate can retire have been a contentious issue for some time. Concern about the current provision has been raised consistently with the Office of Local Government by participants in local government elections and by peak agencies such as the State Electoral Office.

General provisions such as the present clause 8 in Schedule 2 which enables candidates to retire on general grounds of ill-health or for personal reasons are always open to abuse. It has proved difficult in the past for magistrates to distinguish between genuine and non-genuine reasons for retirement. It was therefore considered necessary to introduce a ground for retirement which will eliminate any possibility of disrupting the electoral process.

I am advised that there is no capacity for a candidate to retire on any ground in a State or a Federal election."

The Committee notes the reduction in an existing statutory right. The Committee refers the question of whether the reduction is due or undue to the Parliament to debate.

Clause 15 makes a minor amendment. Clause 16 repeals various provisions relating to:-

• polling booths and places;
• scrutineers;
• the issue of ballot papers;
• identification of voters;
• places where votes to be counted and procedures if counted at polling booth or place, procedure if counted at central counting place;
• returning officer to determine number of first preferences etc.

The Committee wrote to the Minister requesting further information on 14 September 1995. The Minister responded by way of letter dated 27 September 1995. The relevant extract is set out:-

"Clause 16

The provisions in Schedules 2 and 3 to which you refer relate to attendance voting only. They are being recast in the draft Regulations as part of the rationalisation process of all the provisions in the Act and the Regulations which relate to the conduct of local government elections. As stated in the Second Reading Speech, the intention is that all matters contained in the Act be common to all types of elections. The draft Regulations have now been published, together with a Regulatory Impact Statement. A copy is enclosed for your reference."

4.1

This Bill was introduced into the Legislative Assembly on 6 September 1995 by the Honourable Bill McGrath MP with the Honourable Marie Tehan MP.

4.2

The purpose of the Bill is to amend the Prevention of Cruelty to Animals Act 1986 to:-

• extend its application;
• provide for further enforcement of the Act and the taking of remedial action in certain circumstances.

4.3

Clause 3 extends the definition of "animal" to include crustaceans. Clause 5 amends the application of the Act. The Act does not apply to recreational fishing, commercial fishing or processing. It removes a provision which excludes from the scope of the Act the slaughter of poultry for human consumption in accordance with the requirements of an established religion. Clauses 7 & 8 increase penalties for cruelty. Clause 9 increases the levels of penalties for contravention of a disqualification order and specifies when a further disqualification order takes effect. Clauses 10, 11 and 12 increase penalties for baiting, luring, trap-shooting and leghold traps.

4.4

Clause 15 makes it an offence to drive with an unsecured dog on a tray unless the dog is being used to assist in the movement of livestock. Clause 17 inserts a new section 18A which provides for the appointment of specialist inspectors by the Minister in writing. Clause 20 amends section 21 to create various inspectors' powers. The Committee wrote to the Minister on 14 September 1995 requesting further information in relation to the common law definition of "dwelling". The Minister responded by way of letter. The relevant extract is set out:-

"Thank you for your letter of 14 September 1995 advising that your Committee has considered the Prevention of Cruelty to Animals (Amendment) Bill and requesting advice on the common law definition of "dwelling".

Your request was referred to Parliamentary Counsel for advice. I have enclosed a copy of a letter dated 26 September 1995 from Parliamentary Counsel which provides a response to the Committee's request.

Essentially Parliamentary Counsel has indicated that, in the context of section 21 of the Prevention of Cruelty to Animals Act, "dwelling" means a "place of residence or abode; a house."

Set out is the letter from Ms Diana Fagan, Parliamentary Counsel dated 26 September 1995: -

"The Chairman of the Scrutiny of Acts and Regulations Committee has requested advice as to the common law definition of "dwelling". The term has been considered in numerous legal contexts, for example landlord and tenant, parliamentary franchise, covenants as to the use of buildings, burials, bankruptcy, taxation, matrimonial and building. I would direct the Committee's attention to Stroud's Judicial Dictionary (5th edition, London, 1986) and Words and Phrases legally defined (3rd edition, London, 1989 and supplements). Without further information on the Committee's concern with the use of the word "dwelling", it is impossible to isolate the appropriate judicial interpretation.

In the context of section 21 of the Prevention of Cruelty to Animals Act 1986, "dwelling" is intended to have its usual meaning of "a place of residence or abode; a house (The Macquarie Dictionary, 2nd edition). I note that the word already appears in section 21(1)(a) and (b).

If the Committee requires further information please contact me on 9603 6728."

Clause 22 inserts a new section 22A which sets out the powers of specialist inspectors. The specialist inspector may exercise the additional powers set out with the written authority of the Minister. Clause 25 inserts new sections 24A to 24D. Under these provisions the Minister may authorise the seizure of an animal provided the Minister has given 7 days notice in writing. An animal which has been seized may be sold by public auction or tender. Under new section 24C the proceeds of the sale must be applied to the costs incurred in the removal, transport and sale of the animal. Under new section 24D a seized animal may be destroyed.

4.5

Clause 31 amends section 33 to allow appeals against a decision of the Secretary rather than the Chief General Manager to the Administrative Appeals Tribunal in accordance with the new amendments. Clause 32 substitutes the Secretary for the Chief General Manager in the provision which allows for the delegation of certain powers. Clauses 33 and 34 make a technical amendments.

The Committee makes no further comment.

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