ALERT DIGEST 12 of 1995
Part 5

TRUSTEE AND TRUSTEE COMPANIES (AMENDMENT) BILL

9.1

This Bill was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

9.2

The Bill amends the Trustee Act 1958 and the Trustee Companies Act 1984. Its purposes are:-

  • to enable the trustees to invest in any kind of investment provided that the investment is prudent having regard to the circumstances of the trust;
  • to make provision for the participation of trustees in the Reserve Bank Information Transfer System;
  • to provide for an administration fee in relation to perpetual trusts;
  • to make further provision in relation to investments in common funds.

9.3 ¯ Part 2 - Amendments to the Trustee Act 1958

Clause 3 omits the definition of "authorised investments" from the Act. Clause 4 substitutes a new Part 1 which relates to investments. It replaces the list of "authorised investments" with a general "prudent person" power of investment. The Committee notes the comments in the Second Reading Speech:-

"This is a substantial alteration to the law relating to the investment of trust funds. Attempts have been made since 1990 without success, to secure the agreement of the States and Territories to proposals for uniformity throughout Australia on authorised trustee investments. The Government, like the South Australian Government has determined that it is appropriate for this matter to progress rather than waiting for uniformity to occur, which may be years away, if ever. The amendments are based on recent amendments to the South Australian legislation - which were modelled on legislation enacted in New Zealand six years ago ...

The "prudent person" rule requires the trustee to act prudently in determining the suitability of a particular category of investment as well as when considering actual proposals for investment ... A trustee whose profession, employment or business is or includes acting as a trustee or investing money on behalf of others is required to exercise the care, diligence and skill of a prudent person engaged in that profession, employment or business in managing the affairs of others - this requires a higher standard for professional trustees."

Clauses 5 and 6 make consequential amendments.

9.4 ¯ Part 3 - Amendments to the Trustee Companies Act 1984

Clause 7 inserts a new section 21A which enables trustee companies to charge an administration fee with respect to perpetual trusts. The Committee notes the comments in the Second Reading Speech:-

"The nature of perpetual trusts is such that trustees are unable to claim commission with respect to distributions of capital for a substantial number of years after the trust is committed to the company. This amendment is necessary to enable trustee companies to recover their costs in administering the trust during the period until the capital is finally distributed. The provisions safeguard trusts from being charged twice with respect to the same acts of a trustee."

Clauses 8, 9 and 10 make consequential amendments. Clause 11 inserts a transitional provision with respect to common fund provisions in section 40. Clause 12 inserts a new section 41A dealing with investment of money in trust funds. Clause 13 substitutes for Schedule 2 of the Act an updated list of authorised trustee companies. Schedule 1 contains consequential amendments.

The Committee makes no further comment.

FISHERIES BILL NO.2 ("Bill No.2")

10.1 ¯ Background

By way of background Fisheries Bill No.1 ("Bill No.1") was introduced into the Legislative Assembly on 8 March 1995 by the Honourable Geoff Coleman MP with the Honourable Bill McGrath MP. The Committee received a written submission from the Victorian Fishing Federation. The Committee received a written response in respect of the submission from the Department of Conservation and Natural Resources. The Committee also had a meeting with Mr Peter Sheehan, Dr Geraldine Gentle and Mr Tim Harding, officers from the Department of Conservation and Natural Resources on 10 April 1995 to discuss its concerns in respect of Bill No.1. The Committee wrote to the Minister on 17 March 1995 regarding its concerns in Bill No.1. The Minister responded by way of letter dated 27 March 1995. The relevant correspondence is incorporated into Alert Digest No.3 of 1995. The Committee reported on Bill No.1 in Alert Digest No.3 of 1995 on 11 April 1995. Debate on Bill No.1 was adjourned over the Parliamentary recess until the Spring Sittings to allow further consultation. Bill No.1 was withdrawn.

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

"Since March, modifications to the legislation have been discussed in detail with representatives of the Victorian Fishing Industry Federation, Victorian Recreational Fishing Peak Body, the Australian Finance Conference, the aquaculture industry and conservation organisations. I am grateful to these people for the considerable amount of time and effort they have devoted to this process. In addition, a series of ten regional public meetings and four meetings with aboriginal communities have been conducted.

As a result, there has been significant change in some of the detailed provisions of the Bill. I am therefore introducing a clean Bill instead of House Amendments"

10.2

Bill No.2 was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.

10.3

The purposes of the Bill No.2 are:-

  • to provide a modern legislative framework for the regulation, management and conservation of Victorian fisheries including aquatic habitats;
  • to reform the law relating to Victorian fisheries;
  • repeal the Fisheries Act 1968;
  • make consequential amendments to other Acts;

10.4

Part 1 contains preliminary provisions. It includes the objectives and definitions. The Act applies to Victorian waters. Part 2 relates to the Commonwealth and State Management of fisheries. "Joint Authority" is the Authority established under Part 5 of the Commonwealth Act of which the Minister is a member. Clause 16 sets out the Joint Authority's power of delegation which must be made by instrument in writing. Clause 16 is the same as the previous clause in Bill No.1. The Committee made the following comment and the Minister responded in Alert Digest No.3 of 1995.

"The Committee is of the view that the delegation clause may be too wide in that any powers can be delegated to any person. However the Committee is also of the view that the problem can be overcome by the insertion of the word "shall" instead of the word "may" thus providing the certainty necessary. The Committee wrote to the Minister on 17 March 1995. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-

"Clause 16

Clause 16 of the Bill is a re-enactment of section 9E of the Fisheries Act 1968 and was inserted together with the rest of Part 1A of that Act by the Fisheries (Commonwealth-State Arrangements) Act 1981, which in turn gave effect to the Commonwealth-State Offshore Constitutional Settlement Agreement of 1977. This Agreement was made between the Commonwealth and the States as a result of the High Court decision in the Seas and Submerged Lands Case (New South Wales v. Commonwealth (1975) 135 CLR 337).

As explained in the explanatory memorandum to the Bill, with the exception of sub-clauses 13(2), 13(3) and minor drafting improvements, these provisions mirror similar provisions in equivalent legislation of the Commonwealth and other States, and facilitate intergovernmental co-operation, including by the establishment and operation of joint authorities to manage fisheries. I am advised that for this reason, these provisions could not be materially changed without the agreement of the Commonwealth, and the other States and territories.

The purpose of clause 16 is to enable a Joint Authority established pursuant to a Commonwealth-State agreement to delegate some or all of its powers. (No such Joint Authority has ever been established with respect to Victorian waters.) The possibility of such delegates not being officers in the service of the Commonwealth or a State was presumably envisaged. Indeed, the 1993 Report of the Senate Standing Committee on Industry, Science, Technology, Transport, Communications and Infrastructure on a review of Commonwealth fisheries legislation makes a good case for delegation to persons other than public servants, such as a single Minister or statutory corporation. Sub-clause (3) of clause 16 simply enables delegation by reference to a specified position in the service of the Commonwealth, another State or a Territory, rather than the name of a person. The substitution of the word "shall" for "may" would prevent delegation to a specific person by name, and without other amendments would prevent a Joint Authority from delegating to Ministers, statutory corporations or even its own staff unless such staff are in the service of the Commonwealth or a State. Nevertheless, I shall bear your comments in mind during the next round of Commonwealth-State negotiations on this Agreement."

The Committee recognises that this clause emanates from Commonwealth/State Ministerial Agreements. It highlights one of the dangers in these type of agreements in that it appears that the delegation provision is too broad and not in keeping with current Victorian drafting practices. The Committeerecommends that the clause be amended either to specify the powers to be delegated or the class of people to whom the power is to be delegated.

Clauses 21 and 22 sets out the functions of the Joint Authority and provide that the Joint Authority is to exercise certain powers instead of the Minister. Clause 26 gives the Minister the power to enter into agreements with other Ministers.

10.5 ¯ Part 3 - Management plans

Part 3 relates to the preparation, content and declaration of management plans. Clause 32 governs the consultation of the fishery management plan. Before declaring a management plan, the Minister must consult with the relevant consultative body. The Minister may appoint a person or persons as a review panel to review the submissions, the draft management plan and report to the Minister.

10.6 ¯ Part 4 - Regulation of fisheries

Part 4 provides for the regulation of fisheries. Pursuant to clause 36, a person must hold an authorised licence to engage in controlled activities which are specified. The relevant penalties are set out. The Governor in Council may specify exemptions by Order in Council under clause 37. Clause 38 relates to access licences. It specifies when access licences may be cancelled by the Secretary. It also sets out what happens in the event that the holder of the licence dies. Such an access licence is deemed to be an asset of the estate of the deceased. Clause 39 governs commercial fishing licences. It specifies the activities in which the holder of a commercial licence is authorised to engage. A commercial fishing licence is not a transferable fishery licence. Clause 40 governs recreational fishing licences and aquaculture licences. It specifies the activities in which the holder of a recreational fishing licence is authorised to engage. Clause 41 is the regulation making provision. Clauses 42 and 43 provide that the Secretary may issue a fishery licence subject to conditions if appropriate.

10.7

Clause 44 enables the Secretary to vary a licence or any condition by notice in writing to the holder. The holder may apply to the Secretary for a variation. Clause 45 specifies the procedures for the transfer, deferral or refusal of the transfer of transferable fishery licences by the Secretary, on the application of the holder or a prescribed financial interest together with the proposed transferee. Clause 46 allows the holder of an access licence, a commercial fishing licence or any prescribed class of renewable fishery licence to apply to the Secretary for the renewal of the fishery licence. Clause 47 sets out the powers of the Secretary in respect of fishery licences. Clause 48 provides that the holder of a fishery licence must give the details of a prescribed financial interest to the Secretary. Clause 49 governs the cancellation of a transferable access licence. An appeal against the cancellation by the Secretary of a transferable access licence may be brought before the Licensing Appeals Tribunal. Clause 50 specifies the procedures for registered prescribed financial interests to apply to a court for recovery of equity in a forfeited boat.

10.8

Clause 52 provides that the Minister may make declarations in respect of fisheries by notice published in the Government Gazette. Clause 53 provides for a declaration of a quota managed fishery. Clause 54 specifies the rules and procedures relating to individual quota. Clause 55 sets out the penalties in relation to individual quota offences. Clause 56 provides that the declaration of an input managed fishery may specify rules or procedures for the management or protection of the fishery. Clause 57 provides that the declaration of a developing fishery may specify rules or procedures for the development, management or protection of the fishery. Clause 58 provides that the Secretary may issue developing fishery permits. Clause 59 sets out the offences in relation to developing fisheries. Clause 60 provides for declarations in relation to export fisheries. Pursuant to clause 61, where an access licence is cancelled in accordance with the provision, compensation is determined by the Secretary in accordance with the relevant provisions of the Land Acquisition and Compensation Act 1986. That means that where there is a dispute in respect of a determination, it is to be referred to a Board or a court for determination. Clauses 63 and 64 provide for fishing closures and emergency fishing closures and set out the relevant penalties.

10.9 ¯ Part 5 - Protection of fisheries

Clause 69 provides for the declaration of protected aquatic biota by Order in Council. The Secretary may issue a protected aquatic biota permit pursuant to clause 72. Pursuant to clause 75 the Governor in Council may make declarations in respect of noxious aquatic species. Clauses 78 and 79 provide for the declaration of regulated and established noxious aquatic species. Clause 85 provides for the seizure and removal of noxious aquatic species. Clause 88 provides for the declaration of fisheries reserves by Order in Council. Clause 89 provides that the Minister may establish a committee of management for a fisheries reserve.

10.10 ¯ Part 6 - Co-Management

Clause 90 establishes a Fisheries Co-Management Council. A report must be submitted to the Minister every year on the operation of its functions. Clause 93 provides for the establishment of fishery committees. Clause 95 provides that the Minister may declare by notice in the Government Gazette "recognised peak bodies". Bodies corporate and associations may be formed pursuant to clause 96 provided that the relevant memorandum and articles of association are approved by the Minister and accord with the purposes of the Act. Draft codes of fishing practice may be prepared and recommended to the Minister pursuant to clause 97. Clause 9 governs the approval of a code of fishing practice and the method of publication.

10.11 ¯ Part 7 - Enforcement and legal proceedings

Part 7 relates to enforcement and legal proceedings. Clause 102 sets out the authorised officers' powers of entry and inspection. An authorised officer may at any reasonable time enter upon any land or protected waters or any premises, other than a dwelling house for the purposes specified in (a) to (i). An authorised officer or a member of the police force may at any time without warrant search any parcel, basket, boat, aircraft or vehicle or any premises other than a house for any document or thing, An authorised officer may upon reasonable notice require the production of any records and make extracts, copies or notes of such contents. Clause 103 provides that a magistrate may issue a warrant to an authorised officer or a member of the police force to enter a dwelling house specified in the warrant at any time. Clause 105 specifies the authorised officers' powers of seizure. An officer or a member of the police force may seize any fishing equipment, the use of which is prohibited. Anything includes boats, motor vehicles, diving equipment, tools, provisions or office equipment may be seized to prevent the commission, repetition or continuation of an offence.

The provision is identical to that in Bill No.1. The Committee made the following comment in Alert Digest No. 3 of 1995.

"The Committee notes that the effect of the provision enables an authorised officer or a member of the police to seize almost anything. However the Committee also notes that the reasons for the insertion of such powers are to protect our natural resources and prevent illegal fishing. The Committee notes that these powers accord with those set out in the Fisheries (Amendment) Act 1994."

The Committee wrote to the Minister on 17 March 1995 seeking advice as to the meaning and purpose of "office equipment" in this context and the sort of things it is envisaged it will cover. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-

"Clause 95

I am advised that the main type of office equipment which might need to be seized would evidence of offences by organised crime found on the hard disks of personal computers, in which case the relevant computer hardware would need to be seized (under the technical supervision of departmental computers experts). If facsimile machines are used to commit offences, they might need to be seized as well."

Clause 106 provides that any fishing equipment seized, the use of which is prohibited is forfeited to the Crown and may be disposed of as the Minister directs. Clause 107 governs the disposal of live fish or perishable things. Pursuant to clause 109 any person found offending must give his or her name and address on demand by an authorised officer. Clause 110 governs the hot pursuit of persons and boats beyond the coastal waters of Victoria by authorised officers. Clause 111 sets out the offences with respect to authorised officers. Clauses 112 to 120 set out various offences. Clauses 121 and 122 set out the evidentiary provisions. The simplification of proof provision is the same as section 73 of the Fisheries Act 1968. Clause 128 establishes a demerits points system.

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