ALERT DIGEST 14 of 1995

MELBOURNE CITY LINK BILL

1.1

This Bill was introduced into the Legislative Assembly on 25 October 1995 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

1.2 _¯ Clause 110 - Averments of police officers

The Committee reported on the above Bill in Alert Digest No.13 of 1995 on 14 November 1995. The relevant section is set out:-

"Clause 110 provides that averments (assertions) of police officers and authorised officers and for certificates of the MCLA to be admitted as evidence in legal proceedings as evidence of the asserted facts. The Committee believes that this is an unusual provision which appears to have been inserted at the request of the police. The Committee has sought further material from the legal officers of the Department of Transport relating to the necessity of its insertion and the effect that it may have on the common law."

1.3

An "averment" is a legal term which is not well known to the public. The following paragraphs explain the nature of an averment and its effect in the legislation.

1.4

The Committee received a letter from the Minister dated 15 November 1995. The relevant extract is set out:-

"I refer to your Committee's request, as noted in yesterday's 'Alert Digest' report on this Bill, for further material relating to the necessity for clause 110(1) and the effect that it may have on the common law. I understand that your Committee has also requested that my Department obtain advice from senior government lawyers on the issue.

The Victorian Government's Solicitor's advice has now been obtained and a copy is attached.

You will note that the advice merely states that the clause merely simplifies proof of elements of an offence. It is apparent that there is nothing in the clause that is unusual or repugnant to the common law.

In the circumstances, I consider that cl.110(1) is appropriate and the Government will support its retention in its current form."

The relevant extract from the Victorian Government's Solicitor's advice dated 15 November 1995 is set out:-

"Background

The Committee was considering the Melbourne City Link Bill. Messrs Neve & Miller were appearing before the Committee and questions were raised concerning Clause 110 of the Bill. Those concerns have now been set out in the Committee's Alert Digest of 14 November 1995. The relevant section of the Digest is as follows:

''Clause 110 provides that averments (assertions) of police officers and authorised officers and for certificates of the MCLA to be admitted as evidence in legal proceedings as evidence of the asserted facts. The Committee believes that this is an unusual provision which appears to have been inserted at the request of the police. The Committee has sought further material from the legal officers of the Department of Transport relating to the necessity of its insertion and the effect that it may have on the common law.'

Clause 110

Clause 110 of the Bill is as follows"

'110 Evidence as to area being marked off

(i) In any proceeding under this Act, if a member of the police force or an authorised officer avers that a person was inside or an event occurred inside, a restricted access area, the averment is evidence of that fact.

(ii) In any proceedings under this Act, a certificate signed by the Chief Executive Officer of the Authority, certifying that an area was a restricted access area is evidence of the facts stated in the certificate.

Clause 106 allows the Authority to mark off or cause to be marked off certain areas as restricted access areas and clause 109 makes it an offence to enter any part of restricted access areas unless that person is authorised.

Advice

What is an averment? It is not easy to find any explicit and authoritative statement of what, in modern times, is precisely meant by an 'averment'. In olden times, averments commanded a field of importance far greater than they do today and much of the learning on that subject has now become obsolete. Averments found their chief habitat in civil pleadings. In Brady v Thornton (1947) 75 CLR 140 Starke J held:

'the word 'averment' has no very definite meaning. It may include both allegations of law and allegations of fact. But under this particular section, the averment is taken to be prima facie evidence 'of the fact only'. The section that Starke J was concerned with was s.243 of the Income Tax Assessment Act 1936-1946 which stated that every averment of the prosecutor contained in the information shall be prima facie evidence of the matter averred. In my view, averment as used in clause 110 means an allegation of fact. The allegation will be that a person was inside, or an event occurred inside, a restricted access area. The resort to an averment is only a means of facilitating proof of the offence.

There is nothing novel in the averment technique for many old statutes and even the common law contained provisions or principles which relieved the prosecution from proof of some element. The averment is designed merely to provide evidence to go to the court. It is still open to a person charged to tender evidence in denial of the matter averred either by himself or someone else who knows the facts. For example, if a person was being charged with being in a restricted area, the policeman would give evidence to that effect, it would then be open to that person to give evidence of that fact that he was not the person referred to or that he was not in the area and also call corroborating evidence. It is up to the court after hearing the whole of the evidence whether the prosecution has established guilt of the accused.

As stated there is nothing novel in the averment technique it has been used extensively by the Commonwealth since 1901. See Customs Act 1901, section 255; Excise Act 1901, section 144. An example at common law is the doctrine of recent possession where a mere possessor of goods recently stolen may be regarded as the actual thief or a guilty receiver and convicted without specific evidence of the offence charged.

Clause 110 merely simplifies proof of elements of an offence. Similar provisions currently exist in other Victorian legislation. See for example section 83 and 84 of the Roads Safety Act 1986, section 89 of the Prostitution Control Act 1994 and section 141 of the Liquor Control Act 1987 which uses the same language as clause 110.

The provisions of clause 110 can be compared with other provisions where the onus of proof is actually reversed. See for example section 69 of the Wildlife Act 1975 where a defendant charged with the killing of wildlife in Victoria, must prove that the killing occurred outside Victoria.

In my view, there is nothing repugnant to the rule that the Crown must prove the guilt of an accused beyond reasonable doubt in statutory provisions which permit averments, because it is open to the tribunal at the end of and on the whole of the case to acquit the accused if it is not satisfied of guilt beyond a reasonable doubt. Woolmington v Director of Public Prosecutions (1935) AC 462."

1.6

The Committee received a further letter from the Minister dated 16 November 1995. The relevant extract is set out:-

"In response to your Committee's request for further clarification of the necessity for clause 110(1), the following is provided.

The intention of the section is merely to simplify proof that an incident in issue occurred in a restricted access area. It does not propose that the officer's evidence will carry any special weight or that it cannot be rebutted by the defence.

To prove that an area is a restricted access area, it would be necessary to prove every element of the offence defined by the legislation. The prosecution would have to adduce evidence that;

• a temporary fence or signs were erected at a certain time and place;
• the person who did so was authorised to erect those fences or signs;
• the placement had occurred in a licensed area or temporary construction site;
• the licensed area or temporary construction site was restricted in accord with the Act;
• the person was in this area;

The proposed clause 110(1) addresses this last point. It would allow police to give evidence that the defendant was in a restricted access area. I am advised that this may otherwise be technically inadmissible as a statement of opinion.

Unlike analogous trespass provisions, breaches of the Melbourne City Link Act may occur in areas not easily defined geographically or which are not permanently sited. It is envisaged that restricted areas will shift as construction sites shift. Furthermore, fences or markings may be removed or relocated by trespassers. In any of these circumstances it may be difficult to adduce evidence which is technically admissible of the location of an event or incident in relation to a fence or area at any given time.

As indicated in the advice of the Victorian Government Solicitor (provided with my letter of 15 November), provisions of this nature have been included in Commonwealth and State Acts for many years."

1.7 _¯ Planning scheme amendments

The Committee made the following comments in respect of the planning scheme amendments in Alert Digest No.13 of 1995:-

"(1) Clause 117(a) - See section 39(7) and (8) of the Planning and Environment Act 1987 as modified by clause 21 of the Bill

Clause 117(a) declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from reviewing or entertaining actions of the kind described in section 39(7) and (8) of the Planning and Environment Act 1987 (as modified by clause 21 of this Bill).

Background in relation to the amendment of planning schemes

By way of background, clause 14 ratifies the Agreement set out in Schedule 1. Pursuant to clause 14, the Agreement is to take effect as if it had been enacted in the Act. As defined in the Schedule at page 122, "PSA" is a planning scheme amendment. Pursuant to 5.1, "Planning Scheme Requirements and Remediation" at page 182 in the Schedule, the Company and the Trustee are required to comply with the requirements of PSAs. The State is to bring into effect the PSAs by no later than the first date by which the State is required to make the first parcel of land available but no earlier than 5 business days after Financial Closing. Exhibit O to the concession deed is available for inspection in the Parliamentary library.

Clause 21 of the Bill relates to the amendment of planning schemes. Clause 21 has effect despite any requirements in the Planning and Environment Act 1987 in respect of planning schemes. Pursuant to section 38 of the Planning and Environment Act 1987, a planning scheme amendment is revocable by resolution of either House of the Parliament.

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

"Clause 117(a) provides that it is intended to alter or vary section 85 to the extent necessary to prevent the Supreme Court reviewing matters or entertaining actions of the kind described in section 39(7) and (8) of the Planning and Environment Act 1987 as modified by clause 21.

Section 39(7) currently provides that an approved planning scheme amendment is not made invalid by any failure to comply with certain specified provisions of that Act.

The specified provisions are Divisions 1,2 and 3 of Part 3 and Part 8. They relate to the exhibition and notice of planning scheme amendments, public submissions on proposed planning scheme amendments, the process for adoption and approval of amendments and the appointment of panels to consider submissions on proposed amendments. Section 39(8) provides that a person cannot bring an action in respect of a failure to comply with the same specified provisions in respect of a planning scheme amendment which has not yet been approved, other than the process prescribed by section 39 itself.

Clause 117(a) affects the jurisdiction of the Supreme Court in relation to three categories of matters.

The first category consists of matters which are described in the provisions of the Planning and Environment Act to which section 39(7) and (8) currently refers but which will be modified by clause 21.

Clause 21 of the Bill will modify a number of provisions specified in section 39(7) and (8) in respect of their application to the Project by clause 21. Thus, the limitation on jurisdiction already contained in section 39(7) and (8) is indirectly extended to cover the modifications to the listed provisions.

The second category relates to section 12(1) of the Planning and Environment Act . Section 12(1) sets out certain duties of planning authorities. Clause 21(5) proposes to modify section 39(7) so that an amendment is not invalid because of a failure to comply with section 12(1). Clause 21(6) proposes to modify section 39(8) so that a person cannot bring an action in respect of a failure to comply with section 12(1).

The third category is the exclusion, by clause 21(6) of the review process set out in section 39 itself.

The reason why the Supreme Court is not to have jurisdiction in these matters is as follows:-

By enacting this Bill, the Parliament will be giving its explicit approval to the construction and operation of the Link on the terms set out in the Bill and the Agreement. Clause 21 will authorise the Minister for Planning and Environment to amend planning schemes applying to any land in the Project so as to facilitate the Project. These planning schemes amendments will, in effect, be consequential on the Parliament's decision to approve the Project. Many of the necessary amendments have already been identified in the Project documents referred to in the Agreement. In these circumstances, the usual processes and criteria for the development and evaluation of proposed planning scheme amendments and criteria for the development and evaluation of proposed planning scheme amendments are unnecessary and inappropriate. For the same reason, the exclusion of the Supreme Court's jurisdiction is necessary to prevent actions which challenge the validity of the amendments on the grounds of non-compliance with the Planning and Environment Act as modified by this Bill."

The Committee notes that similar provisions have been used previously several times in "major projects legislation" like the Casino legislation and the MCG lights legislation. Under section 4D(b) of the Parliamentary Committees Act 1968, the Committee is required to examine each Section 85 provision on its merit and form a view as to whether the provision "is in all the circumstances desirable and appropriate". To some extent, the view which the Committee is asked to form involves policy considerations. The Committee members come from three different political parties. There are policy differences between the parties in relation to this matter. The Committee members have agreed that the appropriate forum for the resolution of this policy dispute is the Parliament, not the Committee room. The Committee refers the question of whether the proposed provision is appropriate and desirable in all the circumstances to the Parliament to determine."

1.8

The Minister wrote to the Committee on 15 November 1995 and made the following comment in respect of planning scheme amendments:-

"In relation to issue of planning scheme amendments, I wish to draw the Committee's attention to a point which is not mentioned in the Alert Digest. Drafts of the proposed planning scheme amendments are set out in Exhibit 'O'. They therefore form part of 'the Agreement' (as defined by cl.3) ratified and enacted by cl.14. In effect, Parliament is being invited to establish the planning rules for this Project."

CONTINUE browsing Alert Digest No. 14 of 1995

Last update 28/7/99 ©Parliament of Victoria