ALERT DIGEST 4 of 1995
Part 2
6.1
This Bill was introduced into the Legislative Assembly on 12 April 1995 by The Honourable Marie Tehan MP with The Honourable Phil Gude MP.
6.2
The purposes of this Bill are to:-
- make changes concerning the membership of the committees of management of ambulance services and the Ambulance Officers Training Centre;
- amend the Cemeteries Act 1958 to provide for the incorporation of public cemetery trusts and other miscellaneous matters;
- make various miscellaneous amendments to the Health Act 1958 and to extend a statutory defence in that Act relating to blood and tissue donations to cases involving Hepatitis C in certain circumstances.
6.3 ¯ Part 2 - Amendments to the Ambulances Services Act 1986
Clause 3 amends section 17 which relates to the membership of committees of management. It enables the composition of committees of management to be between 4 and 12 members. The Committee members are still appointed by the Governor in Council on the recommendation of the Minister. The obligatory retirement age of 72 years is abolished. Clause 4 makes consequential amendments. Clause 5 amends the composition of the membership of the committee of the Ambulance Officers Training Centre in line with the changes made in clause 3.
6.4 ¯ Part 3 - Amendments to the Cemeteries Act 1958
Clause 8 inserts a new section 2B which provides for the interpretation of references to trustees in the Act. Clause 9 substitutes new sections 3 - 6. It provides for the creation of incorporated cemeteries trusts and for the Governor in Council to make regulations with respect to such trusts. The trust members are appointed by the Governor in Council on the recommendation of the Minister. The new provisions do not apply to the Trustees of the Necropolis Spring Vale as it remains incorporated under the Cemeteries Act.
Clause 11 provides that a member of a cemetery trust is not personally liable for anything done in good faith in respect of functions carried out under the Act. Clause 13 amends section 21 and omits the requirement for the space around a coffin buried in a mausoleum to be filled up after a burial. Clause 14 amends section 77 and enables certain bodies which have been exhumed or brought from overseas to be cremated in Victoria.
6.5 ¯ Part 4 - Amendments to the Health Act 1958
Clause 15 repeals certain definitions in the Health Act 1958. Clause 16 amends section 24 to provide that a consultative council has the power to co-opt persons with special expertise to assist the council in a particular manner. Such councils may now publish in all documents, not just annual reports non-identifying information. Clause 18 substitutes a new section 31 which enables Councils to share environmental health officers or medical officers.
6.6
Clause 20 amends section 130 which relates to the collection of HIV information. It provides that where research is carried out, a written record must be kept in respect of any information relating to each newly diagnosed person required by the regulations. The Chief General Manager keeps such records for the prescribed period in accordance with sub-section (1). The existing sub-section (5) provides that a medical practitioner must not give information to a person in charge of a prescribed place which would identify the person whose blood is tested is repealed. A new sub-section (8) is also substituted. Its effect enables the Chief General Manager to give a copy of any document given to him to any prescribed person, organisation or body engaged in research.
The Chairman made telephone enquiries in respect of the amendments to Section 130. The Minister responded by way of letter dated 20 April 1995. The relevant extract is set out:-
"As regards amendments to section 130 of the Health Act 1958 made by the Health Acts (Amendment) Bill, the main thrust of these is to enable notifications of HIV to be required in a similar manner to that required for AIDS. The notifications will include coded identification of the patient, being the first two letters of the given name and of the surname.
Sub-sections (5) and (6) of the present section 130 prohibit any information being kept or supplied that may identify the person whose blood is tested. Advice from Parliamentary Counsel confirms that coded information is also prohibited.
The proposed substitution of section 130(8) is basically cosmetic. Criticism has been levelled at the structure of the present sub-section which presently includes two named organisations with more being able to be prescribed by regulations.
The criticism revolves around the perception that the two organisations named in the Health Act 1958 have a preferential status over any organisation that may be prescribed. The intent of the amendment proposed is to make all organisations prescribed.
I trust this letter answers your concerns."
Clause 21 extends the statutory defences in relation to blood or tissue donations to include Hepatitis C as well as HIV. The provision was originally designed to cover those donations relating to HIV matters. Clause 22 inserts a transitional provision in respect of statutory defences in relation to Hepatitis C. The statutory defence only applies from 5 February 1990 onwards. Clause 23 makes changes to modernise the terminology in respect of the provisions which deal with the notification of births. Notification of a birth may now be given by facsimile transmission.
6.7
Clause 24 makes minor amendments. Clause 25 deletes the requirement under section 242 for the Chief General Manager to refer to the Food Standards Committee any objection by a manufacturer importer or selling agent to a prohibition by the Chief General Manager on the sale of a disinfectant, germicide, antiseptic, preservative or household insecticide. The Committee has written to the Minister requesting further details.
Clause 26 inserts two new sub-sections into section 374 of the Act to permit local councils in relation to premises to incorporate more than one registration under relevant provisions of the Food Act 1984 or the Health Act 1958. Clauses 27, 28 and 29 make minor amendments and repeal certain unproclaimed provisions.
AUSTRALIAN FOOD INDUSTRY SCIENCE CENTRE BILL
7.1
This Bill was introduced into the Legislative Assembly on 12 April 1995 by The Honourable Bill McGrath MP with The Honourable Phil Gude MP.
7.2
The purpose of the Bill is to establish the Australian Food Industry Science Centre.
7.3 ¯ Part 2 - The Australian Food Industry Science Centre
Clause 5 establishes the Australian Food Industry Science Centre. Clauses 6 and 7 set out its functions and powers. Clause 9 provides that the Centre may delegate any function or power to a director or the chief executive officer. Pursuant to clause 11 the directors are appointed by the Governor in Council on the nomination of the Minister. Clause 15 provides that a director is not personally liable for anything done or omitted in the exercise of powers or performance of functions under the Act.
Clause 17 governs the pecuniary interests of Ministers. Clause 18 governs the proceedings of the Board. Clause 21 provides for the appointment of a Chief Executive Officer. Clause 22 provides for the establishment of advisory committees. Clause 24 establishes the Australian Food Industry Science Centre Fund. Clause 25 provides that the Board must prepare a corporate plan each year.
7.4 ¯ Part 3 - General
Clause 27 revokes the reservation of specified land at Werribee. On the appointed day the Centre land is deemed to be unalienated Crown land and is deemed to be temporarily reserved for the purposes of research and education. Clause 30 is a transitional provision.
7.5 ¯ Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 28 provides that no compensation is payable by the Crown in respect of anything done under or arising out of section 27. Clause 29 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court awarding compensation in respect of anything done under or arising out of section 27. The Committee notes the explanation in the Second Reading Speech:-
"Clause 29 of the Bill is intended to alter or vary section 85(5) of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in respect of the change of the status of the reserved land at Werribee which is to be controlled and managed by the Australian Food Industry Science Centre.
The reason for preventing the Supreme Court from awarding compensation is as follows:
To enable a change to be made to the status of the reserved land, it is necessary to ensure that the land is no longer subject to any interests and rights arising out of its former use. The existence of such interests and rights and claims for compensation based on them on the former use of the land could delay or prevent a change in the use or status of the land."
It appears that the land being dealt with is in fact Government land and that there are in fact no private legal interests which may be affected. On the face, the Committee believes that there is no need for a Section 85 provision. Again, this appears to reflect an overly cautious drafting practice. The Committee notes that Governments of both persuasions have adopted the policy of using these type of provisions. However the Committee is required under Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act to examine each Section 85 provision and assess whether it is "appropriate and desirable" in all the circumstances. The Committee has a responsibility to determine whether there may be more appropriate or better ways of achieving the same ends. The Committee does not find that the provision is appropriate and desirable in all the circumstances.
The Committee has written to the Minister. The Committee is examining this issue in a Discussion Paper on Section 85 which will be released shortly.
PLANT HEALTH AND PLANT PRODUCTS BILL
8.1
This Bill was introduced into the Legislative Assembly on 12 April 1995 by The Honourable Bill McGrath MP with The Honourable Pat McNamara MP.
8.2
This Bill amends the Agricultural Industry Development Act 1990 and repeals the Fruit and Vegetables Act 1958, the Seeds Act 1982 and the Vegetation and Vine Diseases Act 1958. Its purposes are to:-
- provide for the monitoring, controlling and eradicating of plant pests and diseases;
- provide for the packaging, labelling and description of plants and plant products;
- provide for industry funded schemes for pest and disease control measures and for compensating producers for the costs of controlling certain pests and diseases.
8.3 ¯ Part 2 - Plant Pest and Disease Control
Clause 6 sets out the general prohibitions on the importation of plants, plant products etc. Clause 7 provides for the notification of plant pests or diseases. Clause 9 provides for the declaration of declared areas and any necessary prohibitions by the Governor in Council. Clause 10 provides for the destruction and disposal of plants etc at the direction of the Minister. Clause 11 provides for the seizure, treatment or disposal of diseased plants by inspectors. Clauses 12 and 13 provide for infested land notices and control notices. Clause 14 provides for the disposal of plant refuse etc.
8.4 ¯ Part 3 - Exotic Pests and Diseases
Clauses 15 and 16 set out the application of the Act. Clause 17 provides for the declaration of a quarantine area by an order published in the Government Gazette. Notice of the order must be circulated in a newspaper generally in the relevant area. Pursuant to clause 19 a permit must be obtained for entry or exit in a quarantined area. A permit may be issued by an inspector and may be subject to conditions. Clause 20 provides for the declaration of a restricted area by order published in the Government Gazette. Pursuant to clause 21 a permit must be obtained for activity in any restricted area. Clause 22 provides for further orders which may be made in respect of quarantined or restricted areas.
Clause 24 to 27 set out the various prohibitions which may be made on imports. Clause 28 sets out the offences in relation to possession or administration of exotic diseases.
8.5 ¯ Part 4 - Plants and Plant products
Clause 31 sets out the offences in respect of the labelling of seeds. Clause 32 makes it an offence to sell prohibited seeds. Clauses 33 to 39 set out the various requirements in respect of the packaging of fruit, vegetables and nuts. Clause 39 requires that plants, bulbs etc must be identified by their common name or description.
8.6 ¯ Part 5 - Certification Schemes
Clause 40 provides the Minister may certify schemes for the testing and certification of plants. Varietal names may only be used in respect of a declared variety of plant if a certification scheme is in operation. Clause 42 restricts the use of certain terms unless used in accordance with a scheme approved under section 40.
8.7 ¯ Part 6 - Compliance Agreements
Pursuant to clause 43, the Secretary on behalf of the Crown may enter into compliance agreements in connection with the application of particular procedures under the Act in respect of plants, plant products etc.
8.8 ¯ Part 7 - Administration
Clause 44 provides that the Minister may delegate to any person or class of persons employed in the administration of the Act any power of the Minister except those under sections 17, 20 and 46, ie; the power of delegation, the powers to declare quarantine and restricted areas in respect of exotic pests or diseases and the power to fix fees. Clause 45 enables the Secretary to delegate to any person or class of persons, by instrument, any power of the Secretary.
The Committee is of the view that clauses 44 and 45 contravene section 4D(a)(ii) of the Parliamentary Committees Act in that they make rights, freedoms or obligations dependent upon insufficiently defined administrative powers. The Committee believes that either the powers to be delegated should be specified or those people to whom the powers are given should be specified. The Committee has written to the Minister seeking his advice as to whether an amendment can be made.
8.9
Fees and charges may be levied under clause 46. Notice of such charges must be published in the Government Gazette.
The Committee believes that the provision contravenes section 4D(a)(iv) of the Parliamentary Committees Act 1968 in that it inappropriately delegates legislative power. The Committee is of the view that the provision should be amended so that the fees and charges are set by regulation. The Committee has written to the Minister.
Clause 47 protects persons from personal liability where they have assisted inspectors. Clause 48 sets out the requirements for the service of orders, directions or notices issued or given under Part 2. Pursuant to clause 49, if a person fails to comply with an order of the Minister or a direction by the Secretary or any other requirement under the Act, an inspector may cause the order, direction or requirement to be carried out. The Minister may then determine that all reasonable costs incurred by an inspector as a result of the failure of any person to comply with an order may be recovered by the Minister from the person to whom the order or direction was given. The Minister's determination may be reviewed by the Administrative Appeals Tribunal.
Clause 50 provides that where a person is aggrieved by any decision of an inspector he or she may apply to the Secretary for a review of that decision. Any person aggrieved by a decision of the Secretary may apply to the Minister for review of that decision. The Minister and the Secretary may conduct any review in any manner that they think fit.
8.10 ¯ Part 8 - Enforcement
Clause 51 gives the Secretary the power to authorise inspectors by instrument. Clause 52 sets out the general powers of inspectors. Clause 53 and 54 set out the inspectors' powers of detention and seizure. Clause 56 gives an inspector the power to enter private property to lay baits etc after giving the appropriate notice. Road barriers may be erected under clause 57.
Clause 58 gives inspectors additional powers in respect of exotic diseases and pests. An inspector may use reasonable force where it is necessary to do so. The Committee notes the comments in the Second Reading Speech:-
"The powers of inspectors contained in the Bill reflect those currently available to inspectors appointed under the current legislation. Powers with respect to exotic diseases are more extensive. Any significant delays in taking action to isolate an outbreak of exotic diseases could result in devastating losses to plant industries. These powers are only to be utilised in exceptional circumstances, probably no more than once in every 10 or 20 years."
Clause 58 is subject to the general powers set out in Clause 52. In particular, Clause 52(3) provides that an inspector may not exercise any powers under the Act if the inspector fails to produce, on request, his or her identification certificate for inspection by the occupier of the place or the person in charge or apparent control of the plant, plant product, package or agricultural equipment.
The Committee is of the view that it is not clear to an ordinary citizen reading the legislation that in fact clause 58 is to be read in conjunction with clause 52 and that an inspector must produce identification on request when exercising powers. The Committee believes that it should be made clear to citizens that inspectors are in fact under particular obligations. The Committee is of the view that it may be appropriate to repeat and insert clause 52(3) as a new sub-clause (3) in clause 58. The Committee has written to the Minister.
Clause 59 sets out the power of an inspector to obtain information. A person's failure to give the relevant information, record or document may constitute an offence. If an inspector believes that a person has committed an offence an infringement notice may be served under clause 60. Penalties are to be paid for offences under infringement notices. Charges may be made and filed by a member of the police force or by authorised inspectors pursuant to clause 66. Clause 71 sets out the offences in relation to enforcement.
8.11 ¯ Part 9 - Regulations, Part 10 - Repeals, Amendments and Transitional provisions
Clause 72 gives the Governor in Council the power to make regulations. Clauses 73 to 76 make minor amendments, repeal various Acts and include savings and transitional provisions.
Committee Room
19 April 1995
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