ALERT DIGEST 5 of 1995
Part 2

ROYAL BOTANIC GARDENS AND VICTORIAN CONSERVATION TRUST (AMENDMENT) BILL

7.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Geoff Coleman MP with The Honourable Phil Gude MP.

7.2

The purposes of the Bill are:-

to confer additional powers and functions on the Royal Botanic Gardens Board and make various other amendments to the Royal Botanic Gardens Act 1991;
to amend the Conservation, Forests and Lands Act 1987 to enable the issuing of infringement notices for contravention of regulations under the Royal Botanic Gardens Act 1991;
to amend the Victorian Conservation Trust Act 1972 to change the name of the Trust to the Trust for Nature (Victoria) and to make amendments to the powers and functions of the Trust;

7.3 _Ż Amendments to the Royal Botanic Gardens Act 1991

Clause 5 widens the Board's functions to include the provision of specialist advice and services. Clause 6 amends section 14 to provide that the Board may sell or dispose of plants but may not carry on the business of selling plants. Clause 7 extends the maximum term of a lease from 15 to 21 years. It also provides that the Board may grant a lease for residential purposes of any residence in the botanic gardens. Clause 8 inserts a new section 41A which provides for the appointment of an acting director. Clause 9 amends section 50 to provide that authorized officers as defined in the Conservation, Forests and Lands Act 1987 may take proceedings. Clause 10 inserts a new section 50A which sets out certain offences. Clause 11 amends section 51, the regulation making provision to reduce the penalty unit which may be imposed from 50 to 20 units.

7.4 _Ż Amendments to the Conservation, Forests and Lands Act 1987

Clause 12 amends section 83 of the Conservation, Forests and Lands Act 1987 to provide that a specified member of staff or specified class of members of staff of the Royal Botanic Gardens Board may be authorized officers for the purposes of the Part.

7.5 _Ż Part 3 - Amendments to the Victorian Conservation Trust Act 1972

Clause 14 amends the name of the "Victorian Conservation Trust" to the "Trust for Nature (Victoria)". Clause 15 amends the objects and functions of the Trust. It also makes provision for the payment of remuneration to the Chairman, Deputy Chairman or a trustee. Clause 16 amends section 3A which relates to covenants. The effect of the amendment is to remove the requirement to advertise proposed covenants, variations and releases of covenants in the Government Gazette and local newspapers. The Committee notes the comments in the Second Reading Speech:-

"The advertisement process involves considerable time and expense and has not often yielded responses in the past, largely because covenants generally do not vary existing land uses. Removing the requirement to advertise covenants will streamline the process considerably. It should be noted, however, that covenants must still be submitted for Ministerial review and there is power under the Act to seek submissions from abutting landowners if it is considered that they could be affected by a covenant."

Clause 17 changes the number and terms of appointment of trustees. Clause 18 inserts a new section 5A which provides that a trustee is not personally liable for anything done or omitted to be done in good faith in the exercise of functions and powers under the Act. Clause 19 to 21 make miscellaneous amendments. Clause 22 is a transitional provision.

The Committee makes no further comment.

TRADE MEASUREMENT BILL

8.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Vin Heffernan MP with The Honourable Phil Gude MP.

8.2

The purpose of this Bill is to enact uniform trade measurement legislation in Victoria which was agreed to by the Commonwealth and all States and Territories, except Western Australia on 1 January 1990. The Agreement establishes a co-operative scheme and obliges each State to pass the model Uniform Trade Measurement legislation but leaves the administrative arrangements to be determined by each individual state in a separate Trade Measurement (Administration) Act. Under the terms of the Agreement, any amendment to the Model Legislation must be unanimously approved by the Ministerial Council of Consumer Affairs. Uniform Trade Measurement legislation under the terms of the 1990 Agreement has already been enacted in New South Wales, Queensland.

8.3 _Ż Parts 1, 2 and 3

Part 1 sets out the various definitions and the application of the Act. Part 2 sets out the provisions, including the various offences, which relate to the use of measuring instruments for trade. Part 3 relates to verification, re-verification and the certification of measuring instruments.

8.4 _Ż Parts 4 and 5

Part 4 contains the provisions which relate to transactions by measurement. Clause 25 sets out special provisions for the sale of meat. Part 5 contains provisions which relate to pre-packed articles. It sets out various offences. Clause 35 sets out the seller's general defence. Clause 38 provides that the administering authority may issue permits for the sale of pre-packed articles.

8.5 _Ż Part 6 - Licensing

Part 6 contains the provisions with respect to licensing. Clauses 44 and 45 set out the application procedures and grounds for refusal in respect of licences for a public weighbridge. Clauses 48, 49 and 50 provide that conditions on particular licences may be imposed. Clause 59 provides that a person may appeal to the Administrative Appeals Tribunal in respect of a decision of the licensing authority.

8.6 _Ż Part 7 - Inspectors

Part 7 sets out the powers of inspectors. Clause 60 sets out the general powers of entry. An inspector in not entitled to enter residential premises unless he/she obtains the consent of the occupier or obtains a search warrant. Clause 66 provides that a person is not excused from answering any question or producing any record, if required to do so under the Act on the ground that the answer or the record might tend to incriminate the person or make the person liable to a penalty. However, any answer given or document produced by a person is not admissible against the person in any criminal proceedings other than for an offence under section 73; false and misleading statements.

8.7 _Ż Part 8 - Miscellaneous

Part 8 contains miscellaneous provisions. Clause 80 is the regulation making provision. Clause 81 provides that nothing in the Act affects the operation of the Consumer Affairs Act 1972 or the Fair Trading Act 1985.

The Committee makes no further comment.

TRADE MEASUREMENT (ADMINISTRATION) BILL

9.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Vin Heffernan MP with The Honourable Phil Gude MP.

9.2

This Bill is cognate with the Trade Measurement Act 1995. The purposes of the Bill are:-

to provide for matters relating to the administration of the Trade Measurement Act 1995;
to repeal the Weights and Measures Act 1958 and make provision for consequential matters;

9.3 _Ż Part 2 - Administration

Part 2 contains administrative provisions. Clause 5 provides for the appointment of a Director. Clause 9 sets out the powers of the Director. The Director may appoint any person or body to be an authorized agent of the Director and to perform such functions as may be specified.

9.4 _Ż Part 3 - Fees and Charges

Clause 10 provides that certification fees may be prescribed. Clause 11 sets out various fees which may be made pursuant to regulations under the Act.

9.5 _Ż Part 4 - General, Part 5 - Repeal and Consequentials

Part 4 contains general provisions. Clause 14 provides for appeals to the Administrative Appeals Tribunal. Clause 16 enables an inspector, with the approval of the Director to apply to a magistrate for the issue of a search warrant in relation to particular premises. Clause 17 sets out the requirements in relation to service. Clause 25 is the regulation making provision. Part 5 repeals the Weights and Measures Act 1958 and contains transitional provisions. The Weights and Measures Union will be dissolved upon proclamation of the Act.

The Committee makes no further comment.

APPROPRIATION (INTERIM 1995-6) BILL

10.1

This Bill was introduced into the Legislative Assembly on 2 May 1995 by The Honourable Alan Stockdale MP with The Honourable Jeff Kennett MP.

10.2

This Bill makes interim appropriation of moneys out of the Consolidated Fund for recurrent services and for certain works and purposes for the period July to October 1995. Clause 4 provides that the Treasurer may issue specified moneys out of the Consolidated Fund for recurrent works and services. Clause 5 provides for the appropriation of receipts in accordance with the Schedule.

The Committee makes no further comment.

APPROPRIATION (PARLIAMENT) (INTERIM 1995-6) BILL

11.1

This Bill makes interim appropriation of moneys out of the Consolidated Fund for recurrent services and for certain works and purposes for the Parliament for the period July to October 1995. Clause 4 provides that the Treasurer may issue specified moneys out of the Consolidated Fund for recurrent works and services. Clause 5 provides for the alteration of items of Parliamentary Expenditure.

The Committee makes no further comment.

NATIONAL PARKS (YARRA RANGES AND OTHER AMENDMENTS) BILL

12.1

This Bill was introduced into the Legislative Assembly on 2 May 1995 by The Honourable Geoff Coleman MP with The Honourable Bill McGrath MP.

12.2

The purposes of the Bill are to amend the National Parks Act 1975 so as to:-

(i) establish Yarra Ranges National Park and other new parks, vary the boundaries of existing parks and rescind Yea River Park;

(ii) provide for the inclusion of certain water supply catchment areas in Kinglake National Park and Yarra Ranges National Park;

(iii) provide for the protection of those catchment areas;

(iv) provide for the maintenance of the water quality and otherwise for the protection of the water resources in the area;

(v) provide for the restriction of human activity in those areas for the purposes of sub-paragraphs (iv) and (v);

(vi) enable Melbourne Water Corporation to exercise its appropriate functions and powers as a water supply authority in those catchment areas;

(vii) change the name of the Director of National Parks and Wildlife;

(viii) make various amendments to the special provisions relating to particular parks;

(ix) make various provisions relating to the carriage or use of weapons;

(x) increase certain penalties;

(xi) make other minor amendments;

Other purposes include:-

to amend the Forests Act 1958 so as to include within the definition of "fire protected area" certain areas managed by Melbourne Water Corporation;
to amend the Schedule to the Alpine Resorts Act 1983 so as to remove Mount Donna Buang as an alpine resort and to excise areas from the Lake Mountain Alpine Resort;
to revoke the proclamation of the Central Highlands Sanctuary;

12.3 _Ż Part 2 -Designated water supply catchment areas

Clause 6 amends section 17 to establish additional duties of the Director. Before exercising any power, the Director must in so far as necessary consult with Melbourne Water Corporation. Clause 8 inserts new sections 32AG and 32AH which provide that the Minister may enter into an agreement with Melbourne Parks and Waterways for recreational purposes of specified picnic areas. New section 32AH provides that the Minister may grant to a land owner reasonable right of access to his or her freehold land where it is abutting or surrounded by Yarra Ranges National Park.

Clause 9 inserts new sections 32H to 32N relating to the protection and management of designated water supply catchment areas. New section 32I provides for a management agreement between the Melbourne Water Corporation and the Director. If there is a dispute in respect of the management of a particular area, the submission of any unresolved dispute is to be determined by the Minister administering the Melbourne Water Corporation Act 1992 and the Minister administering section 17 of the State Owned Enterprises Act 1992. New section 32 provides that the Minister may by notice published in the Government Gazette, prohibit, regulate or control access of persons to that part of a designated water supply catchment, if the Minister is of the opinion that to prevent access is necessary for the protection of the area. Part 5 of the Subordinate Legislation Act 1994 applies to such a notice.

12.4

Clause 10 amends section 33 to provide that moneys received by the Melbourne Water Corporation from the taking, sale or disposal of forest produce under section 32L does not have to be paid into the Consolidated Fund. Clause 11 amends section 38 to give an additional power to an authorized officer to give directions. Clause 12 inserts a new section 38A which sets out the powers of authorized officers within catchment areas. Clause 13 makes it an offence to fail to comply with directions. Clause 15 amends section 48 to insert additional regulation making powers for the Governor in Council.

12.5

Clause 19 divests from Melbourne Water Corporation land within the Maroondah and Wallaby Creek catchments. Clause 23 inserts a new section 31AB which enables the Minister to grant a new tenancy over O'Shannassy Lodge when the existing lease expires and specifies certain matters relating to a new tenancy. Clause 25 excises land from reserved forest which is to be included in Yarra Ranges and Kinglake National Parks. It also provides for Mount Donna Buang Alpine Resort which is to be included in Yarra Ranges National Park to cease to be an alpine resort and for the excision of areas from the Lake Mountain Alpine Resort. It also closes several road reserves to be included in Yarra Ranges National Park.

12.6 _Ż Part 3 - New and altered Parks, Part 4 - Miscellaneous amendments

Clause 30 closes road reserves and extinguishes any rights, easements and privileges existing or claimed either by the public or any other body and incidental to any past dedication. Part 4 makes miscellaneous amendments to the Act. Clause 38 inserts a new section 32F into the Act to enable the Minister to issue a licence to graze cattle within part of the area being added to Lysterfield Park. Clause 40 amends section 37 to enable the Director to authorize other weapons to be used in the hunting of deer by stalking in parks where that activity is permitted. The Committee notes the explanatory memorandum which states that this will apply particularly to cross-bows. It also amends section 37 to provide for deer hunting by stalking to occur in a specified part of Baw Baw National Park. Clause 41 inserts a new section 37AA which provides that the Director may by notice published in the Government Gazette authorize weapons, other than firearms to be carried in the park. The Committee notes the comments in the Second Reading Speech:-

"This is to allow spear-guns to be taken through a park to adjacent coastal waters."

Clause 42 amends the Act by increasing the number of penalty units for offences against the Act and the regulations.

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

Clause 27 provides that no compensation is payable by the Crown in respect of anything done under or arising out of this Part. Part 2 relates to designated water supply catchment areas. Clause 28 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 this Part.

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

"Clause 28 provides that it is intended to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in respect of anything done under or arising out of Part 2 of this Act.

"The reason why this is necessary is as follows: To enable the Crown to change the status of land, it is necessary to ensure that the land is no longer subject to interests and rights arising out of its former use, other than those expressly provided for in the Bill. The existence of other interests and rights, and claims for compensation based on them or on the former use of the land, could delay or prevent a change in the use or status of the land that is in the greater interest of the community as a whole."

It appears that the land being dealt with is in fact Government land. 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 types of provisions. However the Committee is required under Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968 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.

The Committee notes the argument used in respect of these types of provisions. During the debate in the Legislative Assembly on the Australian Food Industry Science Centre Bill, a letter from Chief Parliamentary Counsel to the Attorney-General was made available. The relevant extract is set out:-

"No compensation provisions are included in Bills that change the status of Crown land for at least 2 reasons: -

(a) in order to ensure that no claims arise from members of the public on the grounds that the privileges of the public have been taken away (for instance rights of access to the land, rights of way or any other rights arising from the public nature of the Crown land);

(b) in order to ensure that no private claims arise from persons who may have had a lease, licence or other right in respect of the land which. although unknown to the Government has not been revoked.

It is usual to make detailed enquiries about the land and any rights that may exist. If it is intended to preserve the operation of a lease, licence or other right, a Bill will expressly reserve the right. However, if it is intended that a clear title be given to the land, then it is necessary to deal with the land freed and discharged from all possible encumbrances and interests.

A change to the long established practice in these matters needs very careful consideration. The absence of a "no compensation" provision raises the implication that the Government is prepared to accept claims for compensation. Such claims would be uncertain in nature and extent and could expose the Government to unknown liability.

In the case of the land at Werribee, the Crown land has been used for many years for the purposes of a State research farm and I understand enquiries have not revealed the existence of any interests. This indicates that the Bill is unlikely to affect private rights but public rights may still be claimed.

It must also be remembered that record of Crown land do not provide protections of the kind provided through the Transfer of Land Act. It is quite possible for interests in Crown land to exist with no formal record appearing in any of the usual Government records.

Perhaps the reply to Mr Perton could be along the following lines:

"There is a need to include clause 28 in this Bill to provide that no compensation is payable by the Crown in respect of anything done under or arising out of section 27.

This is the usual provision in a Bill dealing with Crown land to ensure that the Government is not exposed to unforeseen claims by the public that their privileges in respect of Crown land have been removed or that any private right has been interfered with. The usual enquiries have been made in this case to ascertain whether the revocation of the Crown grant adversely affects any rights and no private right is known to exist.

In these circumstances, the inclusion of the usual provision in the Bill is for the complete protection of the State."

The Committee is of the view that there is insufficient justification for extinguishing rights of private citizens. The Committee is of the view that a preferable approach may be to insert a clause which prevents action being brought to hinder the Government's use of the land but specifically preserves the individual's right to compensation .

CONTINUE browsing Alert Digest No. 5 of 1995

ALERT DIGEST 5 of 1995 Part 2

ALERT DIGEST 5 of 1995
Part 2