ALERT DIGEST 13 of 1995
Part 5

CLASSIFICATION (PUBLICATIONS, FILMS & COMPUTER GAMES) (ENFORCEMENT) BILL

14.1

This Bill was introduced into the Legislative Council on 25 October 1995 by the Honourable Haddon Storey MLC.

14.2

The purpose of the Bill is to give effect to the Commonwealth/State/Territory scheme for the classification of publications, films and computer games set out in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth by:-

providing for the enforcement of classification decisions made under that Act; and
prohibiting the publishing of certain publications, films and computer games; and
prohibiting certain material on on-line information services.

14.3 _Ż Part 2 - Films
Part 2 - Publications

Clause 3 sets out various definitions. Clauses 8 and 9 set out the offences in relation to the exhibition of various films. Clauses 10 to 14 set out offences in relation to attendances at various films. Clauses 15 to 20 set out offences in relation to the sale of films. Clause 21 gives the police the power to demand the name, age and address of individuals who may be reasonably suspected of committing specified offences. Clauses 22 to 24 set out further offences. Clauses 25 to 33 sets out various offences in relation to publications.

14.4 _Ż Part 4 - Computer Games
Part 5 - Advertisements
Part 6 - On-line information services
Part 7 - Call-in provisions

Clauses 34 to 42 set out offences in relation to computer games. Again in clause 43, the police are given the power to demand the name, age and address of individuals who may be reasonably suspected of committing specified offences. Clauses 44 and 45 set out further offences. Clauses 46 to 55 set out offences in relation to advertising. Clause 56 sets out various definitions. Clauses 58 and 59 set out offences in relation to on-line information services. Clauses 60 to 62 set out the provisions in relation to the calling in of publications, computer games and advertisements.

14.5 _Ż Part 8 - Exemptions
Part 9 - Enforcement
Part 10 - General
Part 11 - Repeals, consequential amendments and transitional provisions
Part 12 - Amendment of the Crimes Act 1958

Clause 63 empowers the Director of the Classification Board to exempt any film, publication or computer game or advertisement from the requirements of the Act. Clause 66 provides that the Director may by notice published in the Government Gazette approve an organisation for the purposes of the Part. Clause 69 enables a member of the police force to enter any place for the purposes of search and seizure with the informed consent of the occupier of the place or with a warrant obtained from a Magistrates' Court. Clause 71 governs the application for a search warrant. Pursuant to clause 72 a member executing a search warrant must announce that he or she is authorised to do so. Clause 74 governs the seizure of things. Clause 75 governs the forfeiture of things.

Clauses 76 and 77 are general provisions which relate to restricted publications area. Clause 84 is the regulation making provision. Clauses 85 to 87 are saving and transitional provisions. Clause 88 inserts a new subdivision 13 into the Crimes Act 1958 which sets out certain offences in respect of child pornography.

The Committee makes no further comment.

FARM PRODUCE WHOLESALE (AMENDMENT) BILL

15.1

This Bill was introduced into the Legislative Council on 25 October 1995 by the Honourable Bill Baxter MLC.

15.2

The purposes of the Bill are:-

to repeal the Farm Produce Wholesale Act 1990; and
to make interim arrangements for the administration of that Act by the Melbourne Market Authority until its repeal; and
to make consequential amendments to the Melbourne Market Authority Act 1977.

15.3

Clause 6 amends the regulation making power. Its effect is to enable the Registrar to delegate to the Deputy Registrar any of the Registrar's powers under the Act. Clause 8 amends the procedures for applications for the renewal or transfer of a licence. The Committee has written to the Minister seeking advice as to the reason for the removal of the right of a person to object to the renewal of a licence. Clause 9 amends section 13(1) by substituting 'Authority' for 'Minister'. It also adds sub-sections (g) and (h) which set out further matters which may be taken into consideration in respect of the granting, renewal or transfer of a licence.

Clause 10 inserts new section 13A which sets out the particular matters in respect of a 'fit and proper person'. The Committee notes the comments in the Second Reading Speech:-

"Section 13(1) of the Farm Produce Wholesale Act 1990 provides that a licence may not be granted or renewed and the transfer of a licence may not be approved, if in the opinion of the Minister or the Registrar, the applicant or transferee is not 'a fit and proper' person. Two recent challenges, one of which resulted in the decision of the Minister for Agriculture being reversed in the Administrative Appeals Tribunal, highlighted deficiencies in these provisions. It is proposed to amend the Act to provide a better definition of 'fit and proper' and to take account of association with a person who is not 'fit and proper'."

Clause 12 amends section 15(1) in relation to the suspension and cancellation of a licence by substituting 'Authority' for 'Minister'. It also sets out further matters which may be taken into consideration. Clause 14 amends section 20. A decision to impose a condition on the granting or renewal of a licence is reviewable by the Administrative Appeals Tribunal. Clause 15 substitutes a new section 22 which empowers the Registrar to determine that a producer has suffered a pecuniary loss as a result of the failure of a licensee to pay for produce. Clause 16 amends section 24 to certify that a producer has suffered a pecuniary loss, if the Registrar is satisfied that a licensee is unable to pay an amount owed to a producer. Clause 17 amends section 32 to provide for the transfer of responsibility for the Market Reporting Service from the Registrar to the Melbourne Market Authority. Clause 21 inserts new section 3A which provides that the market land is to be treated as a market for the purposes of paragraph (j) of the definition of a public place in section 3 of the Summary Offences Act 1966. Clause 24 is a transitional provision.

LIQUOR CONTROL (FURTHER AMENDMENT) BILL

16.1

This Bill was introduced into the Legislative Assembly on 25 October 1995 by the Honourable Vin Heffernan MP with the Honourable Geoff Coleman MP.

16.2

The purpose of the Bill is to amend the Liquor Control Act 1987 to:-

make further provision for the control of the drinking of liquor by persons under the age of 18 years;
provide for a system of proceeding against persons who have committed offences against the Act by way of infringement notices;
to make provision for other minor matters.

16.3

Clause 4 inserts new definitions. Clause 5 substitutes a defence to a charge brought under section 127. Clause 6 inserts a defence to a charge brought under section 128. Clause 7 creates an offence of falsely representing one's age. Clause 8 inserts new section 131A which creates an offence where a person wrongfully deals in an evidence of age document. Clause 9 inserts new section 151A which provides for the issue of proof of age cards. Clause 10 inserts new section 152A which provides for the seizure of the evidence of age document by a member of the police force or the licensee or an employee of the licensee. Any documents seized must be given to a member of the police force. Clause 11 inserts new section 175C which is a transitional provision.

16.4 _Ż Part 3 - Infringement notices
Part 4 - Miscellaneous amendments

Clause 12 inserts sub-section (4) into section 101 which enables the Commission to have regard to the fact that the licensee or permittee has paid a penalty for an offence for which an infringement notice has been issued under the Act. Clause 13 inserts new Division 4 of Part 6 which provides for the issue and service of infringement notices. Clause 14 extends the functions of the Chief Executive Officer. Clause 15 removes the prohibition on the licensing premises used primarily as cinemas. Clause 16 amends section 103 to enable the Commission to disqualify a person who directly or indirectly is concerned in or takes part in the management of licensed premises. This appears to reflect existing sub-section (e). Clause 17 enables a person who is under 18 years of age to be on licensed premises for the purposes of employment or work experience. Clause 18 enables a licensee to lawfully permit a person under the age of 18 years to sell liquor on licensed or authorised premises without being in breach of section 130 , provided that person is engaged in a training program approved by the Minister. Clause 19 sets out a further exception to section 131. Clause 20 amends the regulation making provision to enable the Governor in Council to make regulations with respect to encouraging responsible practices in the service, supply and promotion of liquor. Clause 21 provides that the Liquor Licensing Commission shall continue to exist despite the recommendation of the Public Bodies Review Committee in its final report with regard to the Commission. The Committee notes the comments in the Second Reading Speech:-

"Members would be aware that the Public Bodies Review Committee recently tabled the report of its inquiry into the Liquor Licensing Commission.....The Public Bodies Review Committee has identified some opportunities to further improve them (the laws).

The Parliamentary Committees Act does not require the Government to accept the recommendations of the Public Bodies Review Committee. The Act, does, however, provide that where the Committee recommends that a body should cease to exist, as is the case in respect of the Liquor Licensing Commission, that body shall cease to exist at the 12 month anniversary of the tabling of the report being the 3 October 1996, unless both Houses of Parliament resolve otherwise.

The Bill provides that the Liquor Licensing Commission will continue to exist. A complete analysis of the Committee's report and identification of any appropriate amendments to liquor law and policy will be undertaken."

The Committee makes no further comment.

PUBLIC SECTOR MANAGEMENT AND PARLIAMENTARY OFFICERS (AMENDMENT) BILL

17.1

This Bill was introduced into the Legislative Assembly on 1 November 1995 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP.

17.2

The Bill amends a number of Acts. In particular, it amends the Public Sector Management Act 1992 to improve the administration of that Act; and

to amend the Parliamentary Officers Act 1975 to make new provisions in relation to the appointment and employment of parliamentary officers; and
to amend the Ombudsman Act 1973 in relation to the functions of the Deputy Ombudsman; and
to amend the Parliamentary Salaries and Superannuation Act 1968; and
to make consequential amendments to the Employee Relations Act 1992.

17.3 _Ż Part 2 - Public Sector Management Act 1992

Clause 4 applies the merit and notification provisions to fixed term, temporary and casual employees. Clause 5 amends the period of notice provisions. Clause 6 amends section 49. It repeals the provision which provides the entitlement of an executive officer to approved leave with pay. The Committee has written to the Minister seeking further explanation as to the operation of the provision and the effect of new sub-section (5).

Clause 7 makes provision for the holders of prerogative offices and allows those offices to be declared authorities under Part 8 of the Public Sector Management Act 1992. Clause 8 substitutes the reference to 'Administrative Officer (AM8)' with 'Victorian Public Service Officer (VPS4)'. Clause 9 amends section 79 to make further provision in relation to excessive salaries. Clause 10 inserts new section 81AA which governs transfer conditions. Clause 11 includes 'judicial employees' to the application of the Employee Relations Act 1992. Clause 12 inserts new Part 9B which provides for judicial employees.

17.4 _Ż Part 3 - Parliamentary Officers Act 1975

Clause 15 substitutes new sections 5,6 and 6A which provide for the Clerk of the Parliaments, Department heads and offices in a department. Under the new provision the Speaker and the President may create, abolish or otherwise deal with any officer in their respective departments. They must also determine the work value and remuneration applicable to each office. The Committee notes the comments in the Second Reading Speech:-

"Part 3 of the Bill will allow for a more appropriate treatment of the functions currently performed by the Governor in Council. This involves transferring many of the Governor in Council's functions to the presiding officers and providing the function of making recommendations to the relevant department head.

Following the enactment of the Bill, the creation and abolition of positions, the determination of the work value and remuneration of offices and making appointments to offices other than that of department head will be the function of the relevant presiding officer acting upon the recommendation of the relevant department head."

Clause 16 substitutes new section 7 which provides for the appointment of officers. Clause 17 substitutes new section 8 which sets out the matters to be taken into account in respect of the recommendations for a particular position. Clauses 19 and 20 substitute new sections 10 and 11 which govern the transfer of an officer to the Public Service and the dismissal of an officer of the Parliament. Clause 22 inserts new sections 12A,B,C,D and E. New section 12E limits the jurisdiction of the Supreme Court. This is discussed later at 17.6.

Clause 23 amends the regulation making provisions. Additional provisions allow regulations to be made with respect to procedures for dealing with personal grievances and discipline. Clause 24 inserts new sections 14, 15,16 and 16A which establish a discipline procedure for department heads. The Governor in Council may appoint a Board of Inquiry. Clause 26 is a transitional provision.

17.5 _Ż Part 4 - Ombudsman Act 1973
Part 5 - Parliamentary Salaries and Superannuation Act 1968
Part 6 - Employee Relations Act 1992

Clause 27 allows for the appointment of an acting Ombudsman where there is a vacancy in the office. It also allows for the appointment of an acting Deputy Ombudsman where there is a vacancy in that office. Clause 28 vests the responsibilities, powers, authorities and duties of the Deputy Ombudsman in the Ombudsman during any period where there is a vacancy in the office. Clause 29 amends a reference. Clause 30 makes consequential amendments to the Employee Relations Act 1992 in relation to its application.

17.6 _Ż Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 13 inserts new sub-section (4) 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 for compensation in respect of which the Act, as amended by the Public Sector Management and Parliamentary Officers (Amendment) Act 1995 provides that no compensation is payable. The Committee notes the comments in the Second Reading Speech:-

"Clause 22 introduces a number of provisions into the Parliamentary Officers Act. One of those provisions, proposed section 12E provides that it is the intention of that section to vary or alter section 85 of the Constitution Act 1975. This provision precludes the Supreme Court from entertaining applications for prerogative relief where those applications are prohibited by the Parliamentary Officers Act as amended by the Bill. The provision also precludes the Supreme Court from entertaining any action relating to a complaint under the Equal Opportunity Act 1995 where a person has chosen another venue of review in relation to that matter under the Parliamentary Officers Act as amended by the Bill.

The reasons for limiting the jurisdiction of the Supreme Court by clause 22 are these. The main purpose of Part 3 of the Bill is to improve the administration of the Parliamentary Officers Act. To this end, and in the interests of increased efficiency it allows for employment conditions under the Act to be more flexible. A multiplicity of appeals and review processes and the delays which follow from them, tends to reduce the efficient operation of the Parliament and make employment conditions less flexible. It is for this reason that prerogative remedies have been excluded in relation to certain employment related matters and also that a person dissatisfied with the decision under the Act as amended by the Bill may choose only one forum of appeal or review under the Act or may complain to the Equal Opportunity Board but cannot choose all of these forums.

Clause 13 introduces a new sub-section into the Public Sector Management Act , section 105(4). That provision also provides that it is the intention of that section to alter or vary section 85 of the Constitution Act . That provision precludes the Supreme Court from entertaining actions for compensation where the Public Sector Management Act as amended by the Bill provides that no compensation is payable.

The reason for limiting the jurisdiction of the Supreme Court by clause 13 is as follows. The main purpose of Part 2 of the Bill is to improve the administration of the Public Sector Management Act. The Bill provides in part for the termination of employment in the public sector in certain circumstances. It would reduce the effectiveness of the Act if compensation were payable or action could be entertained in relation to these matters."

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

CONTINUE browsing Alert Digest No. 13 of 1995

ALERT DIGEST 13 of 1995 Part 5

ALERT DIGEST 13 of 1995
Part 5