ALERT DIGEST 3 of 1995
Part 3

FISHERIES BILL continued

3.11 ¯ Part 9 - Consequential and transitional

Part 9 contains consequential and transitional provisions. It also repeals the Fisheries Act 1968. In particular, pursuant to clause 140, on the appointed day the holder of specified licences are entitled to be issued the equivalent licence under the new Act. Any person who is aggrieved by the Secretary's decision in respect of a licence is may apply for review of that decision under clause 121 and in the Administrative Appeals Tribunal.

3.12 ¯ Capital Gains Tax Implications and the Right of Survivorship

Capital Gains Tax

The Submission from the Victorian Fishing Industry Federation raises potential problems in respect of capital gains tax which may be imposed. The Committee notes that the Response to the Submission states that:-

"The Department has been advised by the Office of the Commissioner of Taxation that the Bill does not increase the capital gains tax liability of licence holders."

The Committee has requested a copy of the advice from the Commissioner of Taxation.

The Right of Survivorship

The Submission from the Victorian Fishing Industry Federation points out that the Act does not provide for a right of survivorship in respect of a licence in the Estate of a deceased licence holder. The Committee notes the Response to the Submission which states that the Department has already agreed to negotiate with the Victorian Fishing Industry Federation with respect to the right of survivorship.

3.13 ¯ Variation of Section 85 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968

Clause 128 provides that no compensation is payable to any person for any loss or damage as a result of the enactment and the repeal of the Fisheries Act 1968. In particular it includes the following:-

  • the conversion of a licence or permit;
  • the failure of licensees to achieve their quotas or otherwise take fish in accordance with any licence or permit;
  • the seizure, detention or forfeiture of any fish, protected aquatic biota, declared noxious aquatic species, equipment or property in accordance with this Act;
  • the making and carrying out of an order under section 79(4),ie: the authorised seizure and removal of noxious aquatic species;
  • the suspension, cancellation or refusal to issue or renew any licence or permit in accordance with the Act.

Clause 129 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining actions of a kind to which section 128 applies. The Committee notes the Minister's explanation in the Second Reading Speech:-

"Clause 129 provides that it is intended to alter or vary the Constitution Act to the extent necessary to prevent the Supreme Court from awarding compensation for any loss or damage as a result of the enactment of this Act and the repeal of the Fisheries Act 1968. The reason for preventing the Supreme Court from awarding compensation is as follows: The Crown intends to change the nature of various types of fishing licences and permits but does not intent thereby to affect unfairly the rights and interests of individual licence and permit holders. The existence of these interests and rights and claims for compensation based on them could delay or prevent a change in the types of licence that are intended to benefit the community as a whole and in particular the commercial fishing industry."

Clause 128(2)(c) provides that no compensation is payable in respect of the seizure, detention or forfeiture of any fish, protected aquatic biota, declared noxious aquatic species, equipment or other property in accordance with the Act.

If such seizure, detention etc has been done by authorised officers in accordance with the Act, why is it necessary to remove the jurisdiction of the Supreme Court? On the face, it appears to be unnecessary to remove the jurisdiction of the Supreme Court if in fact such seizure, detention etc has been done by authorised officers in accordance with the Act. The Committee wrote to the Minister on 17 March 1995.

Similarly, clause 128(2)(d) provides that no compensation is payable in respect of the making and carrying out of an order under section 79(4). Section 79(4) provides that noxious aquatic species may be destroyed, even though other fish or aquatic species may also be destroyed if the Secretary is satisfied of certain matters. Again the same question may be asked. If such activities are authorised and carried out in accordance with the Act, why is it necessary to remove the jurisdiction of the Supreme Court? On the face, it appears to be unnecessary to remove the jurisdiction of the Supreme Court if in fact such destruction has been done by authorised officers in accordance with the Act and if the Secretary has authorised it.

The reason given by the Minister for the removal of compensation in respect of various matters is that the Crown "intends to change the nature of various types of fishing licences." The Committee does not see how the explanation given relates to the two matters mentioned above. The Committee is of the view that a much more detailed explanation of the particular reasons for the insertion of such clauses would be of great assistance in its deliberations.

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:-

"Clauses 128 and 129

Virtually all legislation affects certain rights of some persons. It is up to Parliament to determine whether such effects are justified in the wider public interest.

I am advised that even where the actions of an authorised officer are in accordance with valid Acts of Parliament, this may not necessarily prevent the Supreme Court from awarding compensation where property is lawfully damaged or destroyed. The absence of such certainty can inhibit the implementation of legislation and frustrate the will of Parliament. For example, I am advised that the fish disease provisions (Part VIA) of the Fisheries Act 1968, although enacted in 1980, have never been implemented because of this uncertainty with respect to compensation.

Clause 79 of the Bill is a re-enactment of section 43D of the existing Act. If Parliament is still of the opinion that clause 79 is justified, then sub-clauses 128(2)(c) and (d) are also necessary before clause 79 can be implemented. Please note that clause 128(3) does not prevent any action or proceedings for compensation with respect to any loss or damage as a result of negligence."

The Committee wrote a further letter to the Minister on 31 March 1995. The Committee raised continuing concerns as to the need for detailed reasons. The Committee also raised further concerns in relation to clause 128(2)(c). The Committee requested a copy of the original advice which was cited as authority for the proposition that notwithstanding the fact that authorised officers have acted in accordance with the Act, a Supreme Court may award compensation where property is lawfully destroyed.

The Minister responded by way of letter. The relevant extract is set out:-

"Your interpretation of my previous letter is correct. Parliamentary Counsel have advised that notwithstanding the fact that authorised officers have acted in accordance with the Act, a Supreme Court could still award compensation where property is lawfully destroyed. Legal advice is being sought on the authorities for this view.

I am advised that sections 105(2) and 138 of the Livestock Disease Control Act 1994 are in fact more restrictive than clauses 128 and 129 of this Bill.

As you are no doubt aware, it is Government policy that where there is a "no compensation" provision in a Bill, there is also to be a Section 85 of the Constitution Act provision. Discussion of this policy is a matter within the Attorney-General's portfolio rather than that of the Minister for Natural Resources.

Whether the risk exposure of the Crown justifies such a "no compensation" provisions in the Bill is a matter my officers would be pleased to discuss in detail with your Committee at the meeting on Monday."

The Committee held a meeting with officers from the Department of Conservation and Natural Resources on 10 April 1995 to discuss its concerns in respect of the Bill. At that meeting, the Committee discussed the Section 85 provisions in great detail with the officers.

The Committee is of the view that sub-clauses (1), (2)(a)(b)(d) and (e) and (3) are appropriate and desirable in all the circumstances.

Sub-clause (2)(c) provides that no compensation is payable because of the "seizure, detention or forfeiture of any fish, protected aquatic biota, declared noxious aquatic species, equipment or other property in accordance with the Act". The Committee was informed that the provision was inserted as a result of advice from Parliamentary Counsel. The Committee has requested a copy of that original advice. The Committee was advised that the use of the words in the sub-clause " or any other property in accordance with the Act" refers to those actions specified in clause 95, ie; the authorised officers' powers of seizure. In the event that the clause is amended to limit the clause to the actions specified in clause 95, the Committee is of the view that the clause would be appropriate and desirable in all the circumstances.

ASSOCIATIONS INCORPORATION (AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 6 September 1994 by The Honourable Jan Wade MP with The Honourable Phil Gude MP.

4.2

This Bill makes minor amendments to the Associations Incorporation Act 1981. The Committee makes no further comment.

DENTAL TECHNICIANS (AMENDMENT) BILL

5.1

The Committee reported on the Dental Technicians (Amendment) Bill in Alert Digest No.2 of 1995 on 21 March 1995. The relevant extract is set out:-

"Clause 9 extends the regulation making powers under paragraph (e) which relate to infection control procedures and to incorporate documents. In particular it also provides that a regulation may apply, adopt or incorporate any matter contained in any document as in force or as issued. The Committee notes the explanatory memorandum which states:-

"These additional powers are being sought in anticipation of the adoption of national standards such as the NHMRC "Guidelines for the Prevention of Viral Infection in Dentistry" in regulations governing the practice of advanced dental technicians."

The Committee has written to Chief Parliamentary Counsel requesting her advice as to the origins of this type of provision."

5.2

The Committee received a letter from Chief Parliamentary Counsel dated 4 April 1995. The relevant extract is set out:-

"I refer to your letter dated 17 March 1995 about the origins of provisions for the incorporation by reference of NHMRC Standards or similar materials in Statutory Rules.

An Act may authorise incorporation of material in Statutory Rules by including an appropriate empowering clause in the Act itself.

In the case of the Dental Technicians Act 1972, no power presently exists. The amendment proposed by the Bill to the regulation making powers in section 32 of the Act will enable the making of regulations which can adopt certain NHMRC guidelines.

The practice of incorporation by reference is long standing. It is particularly used where it is considered appropriate to adopt Standards of codes of practice. Section 32 of the Interpretation of Legislation Act 1984 sets out a number of rules and requirements about prescribing matters by reference to other documents. Section 32 has recently been amended to introduce a simpler system for the tabling of copies of the incorporated material."

Committee Room
10 April 1995

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