ALERT DIGEST 5 of 1995
Part 3

MEDICAL PRACTICE AND NURSES ACTS (AMENDMENT) BILL

13.1

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

13.2

The purposes of the Bill are:-

to amend the Medical Practice Act 1994 and the Nurses Act 1993 to make further provision for the transitional arrangements under those Acts; and
to make other minor amendments to the Medical Practice Act 1994; and
to amend the registration provisions of the Nurses Act 1993 to make other minor amendments to that Act;

13.3 _Ż Amendment of the Medical Practice Act 1994

Clause 6 inserts a new section 102A. Any activities which are the subject of an inquiry by the Board which were conducted prior to the commencement of the Act are governed by the law that applied at the time of the relevant conduct. Clause 7 amends Schedule 1 by changing references in the Infertility (Medical Procedures) Act 1984. The Committee notes the comments in the Second Reading Speech:-

"The Bill also reverses an unintended consequence to certain provisions of the Infertility (Medical Procedures) Act 1984 which was made by Schedule 1 to the Medical Practice Act. The term "registered medical practitioner" in many provisions of the Infertility (Medical Procedures) Act.

The amendment in this Bill is made so that the local medical practitioner of a woman residing interstate or overseas, rather than only a Victorian registered medical practitioner, may continue to be able to perform the statutory preliminary examination or treatment required under the Infertility (Medical Procedures) Act not less than 12 months prior to a fertilization procedure being carried out by a Victorian registered medical practitioner."

13.4 _Ż Amendment of the Nurses Act 1993

Clause 9 amends section 7(3) of the Nurses Act 1993. The Nurses Act 1993 closed the register for mothercraft nurses to new entrants commencing study from 1994 onwards. The amendment makes it clear that students enrolled in and commencing a course in 1994 may not rely on this course as a qualification for registration. Clause 10 adds a further type of restricted registration under section 8 where the applicant's qualifications are not recognized in Victoria but the Nurses Board is of the opinion that the applicant should be registered to enable the applicant to study or train further in Victoria. Clause 11 amends section 68 to provide that a member of the Board must not hold office for more than a period of 3 years. Clause 12 inserts a new section 68 and sets out the application of the Act to conduct occurring before the commencement of the Act. It ensures that the Nurses Board has the power to inquire into matters of professional conduct which occurred before the commencement of the Act. The law which will be applied by the Nurse Board will be that which applied at the time of the relevant conduct.

The Committee makes no further comment.

STATE DEFICIT LEVY (REPEAL) BILL

14.1

This Bill was introduced into the Legislative Assembly on 3 May 1995 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

14.2

The Bill repeals the State Deficit Levy Act 1992. Clause 4 is a savings provision.

The Committee makes no further comment.

MELBOURNE AND OLYMPIC PARKS (AMENDMENT) BILL

15.1

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

15.2

The purposes of the Bill are:-

to amend the National Tennis Centre Act 1985;
to change the title of that Act to the Melbourne and Olympic Parks Act 1985;
replace the National Tennis Centre Trust with the Melbourne and Olympic Parks Trust;
provide for the administration of Olympic Park and further provide for the administration of the National Tennis Centre;
amend the Melbourne Cricket Ground Act 1933 to further provide for the appointment of deputies for Trustees and other matters;
amend the Melbourne Cricket Ground Act 1984;
make other related provisions;

15.3 _Ż Part 2 - Amendments to the National Tennis Centre Act 1985

Clause 6 substitutes new purposes into the Act. Clause 7 amends various definitions. Clause 8 inserts new Parts 2 and 3 which relate to the reconstitution of the Trust which is called the Melbourne and Olympic Parks Trust. New section 7 sets out additional powers of the Trust which include the imposition of fees and charges. The 12 members of the Trust are appointed by the Governor in Council. The Chairperson is appointed by the Governor in Council from the members of the Trust.

New section 9 provides that a member of the Trust shall not hold an office or place of profit under the Crown. It appears that the provision represents a substantive change in respect of the position of members of Parliament and the payment of monies thereto. It appears that the provision falls foul of the original rationale in respect of members of Parliament and offices of profit. The Committee is of the view that new section 14 should be amended to include members of Parliament so that there is no entitlement to fees should a member of Parliament be a member of the Trust. The Committee notes that this is the second provision of this nature introduced into legislation this year.

The Committee has written to the Minister requesting an appropriate amendment The Committee is also seeking advice as to whether there is any intention to pay members of Parliament should they be so appointed.

New section 14 provides that members may be paid fees which are fixed from time to time by the Governor in Council. New section 16C provides that a member is not personally liable for anything done or omitted to be done in good faith. New section 16E provides that the Trust may delegate its powers and functions to the groups or people specified. Pursuant to new section 16F the Trust must prepare a business plan.

15.4

The new Part 3 contains provisions which relate to the National Tennis Centre. New section 16I provides that the Trust may delegate to the Association its powers other than those under section 18. Clause 10 makes necessary amendments to section 17 in respect of the National Tennis Centre Fund. Clause 11 inserts a new section 17A which establishes the Olympic Park Fund. Clause 12 extends the guarantee provisions to Olympic Park. Clause 13 gives the Governor in Council the power to make regulations with respect to the matters set out. Clause 14 extends the powers of removal of persons who contravene regulations to Olympic Park. Clause 16 inserts a new Part 6 which relates to Olympic Park land.

15.4 _Ż Part 3 - Transitional provisions

Clauses 18 to 23 are transitional provisions. Pursuant to clause 21 a person who was a member of the staff of the Committee before the commencement of the new provisions, is deemed to be employed by the new Trust on the same terms and conditions.

15.5 _Ż Part 4 - Melbourne Cricket Ground Act 1933

Clause 25 substitutes a new section 5A into the Act which provides for the appointment of trustees of the Melbourne Cricket Club. Clause 26 makes consequential changes.

15.6 _Ż Part 5 - Amendment of the Melbourne Cricket Ground Act 1984

Clause 28 substitutes new sub-sections (3) to (6) into section 3 which set out the Orders which a Minister may make in respect of floodlights. Any such order must be published in the Government Gazette. Previously, such activities were approved by Order of the Governor in Council.

The Committee makes no further comment.

GAMING ACTS (AMENDMENT) BILL

16.1

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

16.2

The purposes of the Bill is to make miscellaneous amendments to gaming and betting legislation including provisions:-

to make technicians and gaming operators who install gaming equipment at approved venues responsible for certifying that the equipment is functioning in the manner in which it is designed and programmed to function;
to enable persons holding bingo employee's licences under the Lotteries Gaming and Betting Act 1966 to obtain a licence giving comparable authority under the Casino Control Act 1991 or the Gaming Machine Control Act 1991
to give to the Director of Gaming and Betting power to suspend venue operators, special employees and technicians licensed under the Gaming Machine Control Act 1991 who have been charged with certain offences;
to give to the Director of Casino Surveillance power to suspend special employees licensed under the Casino Control Act 1991 who have been charged with certain offences;
to permit the grant of provisional operator's licences for bingo centres and provisional bingo employee's licences under the Lotteries Gaming and Betting Act 1966;
to increase the percentage to be paid to the prizes fund and to reduce the duty payable by the participants under the Club Keno Act 1993.

16.3 _Ż Part 2 - Amendment of the Casino Control Act 1991

Clause 4 inserts various definitions. Clause 5 amends section 45A to provide for an application by a licensed bingo employee for a casino special employee's licence to be expedited. Clause 6 amends section 52 to provide additional grounds for disciplinary action which enable the Director to suspend a licensed employee or cancel a licence.

16.4 _Ż Part 3 - Amendment of the Gaming Machine Control Act 1991

Clause 3 inserts various definitions. Clause 11 enables the Authority or Director to authorize the possession of a gaming machine for the purposes of promotion of sales and display. Clause 12 amends section 27 to provide that an amendment proposed by a venue operator to a licence is subject to a prescribed fee. Clause 13 amends section 30 to insert a power to suspend a venue operator's licence, if the venue operator or an associated person has been charged with an offence in one of the specified categories. It also provides corresponding power for the Authority to take disciplinary action where the person has been convicted or found guilty of such an offence. Clause 14 amends section 52 to insert a power to suspend a special employee's licence where the employee has been charged with an offence in one of the specified categories. It includes a corresponding power for the Authority to take disciplinary action where the person has been convicted or found guilty of such an offence.

Clause 16 amends section 56 to provide for an application by a licensed bingo employee for a special employee's or technicians licence to be expedited. Clause 17 amends section 77 to increase the accountability of technicians who install gaming equipment etc. The installation must be certified by the technician. It is an offence to sign a certificate knowing it to be false. Clause 18 amends section 107A to enable the Authority to delegate to a committee of 3 members, any power or function of the Authority under Division 4 of Part 3.

16.5 _Ż Part 4 - Amendment of the Club Keno Act 1993

Clause 21 increases the amount which must be returned to players in club keno games. Clause 22 reduces the tax rate on club keno.

16.6 _Ż Amendment of the Gaming and Betting Act 1994

Clause 24 extends the Authority's powers to approve totalisator equipment to equipment which is used in connection with an approved betting competition. Clause 26 amends section 92A to remove a superfluous reference. The delegation power is still limited.

16.7 _Ż Part 6 - Amendment of the Lotteries Gaming and Betting Act 1966

Clause 28 inserts a new section 5A which enables the Board to delegate to a committee of 3 members of the Board, powers of the Board with respect to hearings. Clause 31 inserts a new section 6FL to enable the Board to grant a provisional operator's licence to a natural person in respect of a bingo centre. Clause 32 inserts a new section 6FTA into the Act to provide for an application for a bingo employee's licence by a licensed technician or casino or gaming special employee to be expedited. Clause 33 inserts a new section 6FUA which provides that the Director may, pending a decision on an application for an employee's licence grant the applicant a provisional licence. Clause 35 amends sections 18,23 and 66B to provide for gaming offences in another State or Territory to be declared laws corresponding to the offences in those sections. The Committee notes the comments in the Second Reading Speech:-

"This is a technical refinement of an existing provision which provides that gaming offences of another state or a territory may be declared to be laws that correspond to certain Victorian gaming offences. The commission of those corresponding offences may then be considered in imposition of a penalty for a Victorian offence."

The Committee makes no further comment.

AUSTRALIAN FOOD INDUSTRY SCIENCE CENTRE BILL

17.1

The Committee reported on the Australian Food Industry Science Centre Bill in Alert Digest No. 4 of 1995 on 26 April 1995. The relevant extract is set out:-

"7.5 _Ż 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 , 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 1968 to examine each Section 85 provision and assess whether is it "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."

17.2

The Minister responded by way of letter dated 2 May 1995. The relevant extract is set out:-

"I write in response to your letter of 21 April requesting advice as to the need for Section 85 provisions in the Australian Food Industry Science Centre Bill.

I have been informed by Parliamentary Counsel that the no-compensation provision relating to the change of status of Crown land is there for two reasons.

The first is to ensure that members of the public cannot make any claims on the ground that public privileges have been taken away - for example, the right of access to land, rights of way or any other rights arising from the public nature of Crown land.

The second is to ensure that no private claims are made by persons who may have had leases, licences or other rights over the land that, unknown to the Government have not been revoked.

The absence of a no-compensation provision would imply that the Government would be prepared to accept claims for compensation: but such claims would be uncertain in nature and extent and could expose the Government to unknown liabilities.

In the case of Werribee, the Crown land has been used for many years as a state research farm. I understand that inquiries have not revealed the existence of any interests. That indicates that the Bill is unlikely to affect private rights, but public rights might still be claimed if a section 85 provision were not included.

It must also be remembered that Crown land records do not offer protection of the kind provided under the Transfer of Land Act. It is possible for interests in Crown land to exist despite no formal entries appearing in any of the usual government records.

I note that the Committee is examining this issue in a Discussion Paper on Section 85 which will be released shortly."

HEALTH ACTS (AMENDMENT) BILL

18.1

The Committee reported on the Health Acts (Amendment) Bill in Alert Digest No. 4 of 1995 on 26 April 1995. The relevant extract is set out:-

"Clause 25 deletes the requirement under section 242 for the Chief General Manager to refer to the Food Standards Committee any objections 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."

18.2

The Minister responded by way of letter dated 27 April 1995. The relevant extract is set out:-

"Thank you for your letter dated 21 April 1995 requesting advice regarding the amendment to section 242 of the Health Act 1958.

As you point out, 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 reference to the Food Standards Committee in section 242 of the Health Act 1958 is no longer relevant. Before the Food Act 1984 was passed, the Health Act 1958 included provisions relating to food, drugs, substances and things. The constitution of the Food Standards Committee under the Food Act only provides that Committee with expertise on food related issues.

The proposed amendment is therefore designed to remove a reference that should have been repealed at the same time as the commencement of the Food Act 1984.

I trust this answers your concerns."

FISHERIES BILL

19.1

The Committee reported on the Fisheries Bill in Alert Digest No. 3 of 1995 on 11 April 1995.

19.2

The Committee received a letter from the Department of Conservation and Natural Resources dated 12 April 1995. The relevant extract is set out:-

"As requested at our meeting with your Committee on Monday 12 April, I enclose a copy of the letter we received yesterday from the Australian Tax Office confirming that the proposed new licences under clause 140 of the Bill will come within the ambit of the rollover provisions of the relevant capital gains tax legislation. This means that if the original licence was acquired before 20 September 1985, there will be no capital gains tax liability ie: there will be no change to the status quo in this respect for existing licence holders.

With respect to sub-clause 128(2)(c) of the Bill, this was advised by Parliamentary Counsel by way of its inclusion in the first draft of the Bill. Parliamentary Counsel orally explained its necessity along similar lines to the explanation we gave to your Committee. There was no other written advice from Parliamentary Counsel on this point.

Parliamentary Counsel have also suggested that we obtain independent advice from the Victorian Government Solicitor on the likelihood of the Supreme Court awarding compensation as a result of lawful acts by authorized officers. We shall send you a copy of this advice as soon as it becomes available.

You may be interested to know that yesterday, our Enforcement Branch advised that the most recent case regarding noxious fish was heard at the Heidleberg Magistrates' Court on 15 March 1995. The defendant was charged with:

keeping noxious fish, to wit 217 Koi Carp, contrary to section 3 9(a) of the Fisheries Act 1968; and

failing to notify the Secretary of the existence and location of noxious fish, contrary to section 40 of the Act.

The value of the fish seized was between $50,000 - $100,000. The fish were forfeited and the defendant was placed on a good behavior bond by the Court.

Our Acting Manager, Enforcement, Mr Murray Donaldson, PSM, advises that to the best of his knowledge (20 years experience with the Department), there has never been a claim for compensation for the seizure or forfeiture of noxious fish, which in his opinion is due to the existence of section 41(4) of the Act. Mr Donaldson advises that the removal or failure to re-enact section 41(4) would significantly hinder enforcement operations relating to noxious fish."

19.3

The Department of Conservation and Natural Resources received a letter from the Australian Taxation Office dated 11 April 1995. The Department made the letter available to the Committee. The relevant extract is set out:-

"Fisheries Bill 1995 - CGT implications of transitional provisions relating to existing licences and permits

We refer to your facsimile message dated 4 April 1995, and to telephone discussions between yourself and Mr Tony Long of this office, concerning the potential capital gains tax implications arising from the introduction of the Victorian Fisheries Bill 1995 (the Bill). You have sought information, in particular, about the effect of the change in licences which is proposed under the Bill.

It is our understanding that under the proposed legislation, the current licences and permits issued under the existing Fisheries Act 1968 are to be replaced by licences issued under the Bill. Clause 140 of the Bill is the transitional provision for existing licences and permits. Under that clause any licence or permit in force prior to the repeal of the Fisheries Act 1968 will continue to be in force until that licence or permit expires or is replaced by a licence or permit issued under the new Act, whichever event occurs first.

On a day appointed by the Governor in Council, holders of existing licences will be entitled to be issued licences under the new legislation. Clause 140(4) of the Bill makes it quite clear that for each type of existing licence there will be a specific "replacement" licence. For the Master Fisherman's Licence there will be a Commercial Fishing Licence and an Access Licence for certain fisheries; for the Abalone Licence there will be a Commercial Fishing Licence endorsed to take abalone and an Access Licence to take abalone; for the Bait Licence an Access Licence for fishing bait; and for other prescribed categories of licence or permit there will be a corresponding licence or permit.

You have asked us to comment on two aspects of this arrangement:

Firstly, that the licences are statutory licences within the meaning of section 160ZZPE of the Income Tax Assessment Act (ITAA) and that the proposed licence replacement scheme under the Fisheries Bill is such that section 160ZZPE would apply;

Secondly, that under clause 140(4) of the Bill, the licences that are continued in force after the repeal of the Fisheries Act 1968 and prior to their replacement under clause 140(4) are also subject to the rollover relief provisions for capital gains tax purposes.

We have examined the information you have provided, including the copy of the draft Bill and Explanatory Memorandum. On the basis of that information, the following comments are offered.

As you know, under paragraph 160ZZPE(4), the term "statutory licence" is defined to mean, inter alia, an authority, licence or permit granted by or on behalf of a government, or a government authority, under a statutory law of the Commonwealth, of a State, or of a Territory.

We advise that the licences are considered to be a statutory licences within the meaning of section 160ZZPE of the ITAA. As such, the issue of replacement licences under the new Act - whether those replacement licences are issued immediately or at some time after the repeal of the Fisheries Act 1968, pursuant to clause 140 will come within the ambit of rollover provisions of the capital gains tax legislation and section 160ZZPE in particular.

If the original licence was acquired before 20 September 1985, the replacement licences(s) will also be taken to be acquired before that date and on the subsequent disposal of the replacement licences(s) there will be no capital gains tax liability.

Where the original licence was acquired on or after 20 September 1985, the replacement of that licence with a "new" licence or licences has no capital gains consequences. The "new" licence which is acquired at the time it is granted to the licensee, has a cost base for capital gains tax purposes equal to the cost base (indexed for inflation) of the original licence at the time it expires plus any amount paid to acquire the new licence. On the subsequent disposal of the "new" licence a capital gain or loss may result. Where there are two licences issued in place of the original licence, the cost base would be apportioned if one of those licences was subsequently sold, in order to determine whether there was a capital gain or loss arising from that sale.

We trust this information is of assistance to you."

Committee Room
8 May 1995

ALERT DIGEST 5 of 1995 Part 3

ALERT DIGEST 5 of 1995
Part 3