ALERT DIGEST 6 of 1995

1.1

This Bill was introduced into the Legislative Assembly on 3 May 1995 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

1.2

The purposes of the Bill are:-

• to replace the Commission with a statutory corporation to be known as Victoria Legal Aid and to make consequential amendments to other Acts;
• to facilitate the implementation of a civil litigation assistance scheme to be known as the Law Aid Scheme;

1.3 _¯ Part II - Victoria Legal Aid

Clause 6 substitutes a new Part II into the Legal Aid Commission Act 1978. It establishes Victoria Legal Aid ("VLA"), sets out its objectives, functions, duties and powers. Clause 10 provides that the VLA may by instrument delegate its powers to nominated individuals and committees. Clause 11 provides for a Board of Directors nominated by the Attorney-General and the Commonwealth Attorney-General. New section 12A enables the managing director, subject to the direction of the Board, to delegate to an officer of VLA any power of the managing director.

New section 12K establishes a community consultative committee. New section 12M provides that the Attorney-General after consultation with the Commonwealth Attorney-General may give written directions to the Board in relation to its performance or policies. Any direction given, cannot relate to the grant of legal aid to any specific person and must be tabled in both Houses of Parliament within 10 sitting days after notice of the direction is given.

1.4 _¯ Part 3 - Law Aid Scheme

Clause 7 inserts a new Part VI which establishes the Law Aid Scheme. New section 40C enables assisted persons to enter into fee agreements under which the assisted person is required to pay a fee if the litigation is successful. That fee may be expressed as a percentage but cannot be more than 10 per cent of the award or settlement, excluding costs or the market value of any property that may be recovered. The Committee notes the comments in the Second Reading Speech:-

"In order to achieve long-term self-funding viability of the scheme, Law Aid will require the agreement of assisted persons to pay to the capital fund:

(i) fees representing up to 10 per cent of any award or settlement (excluding costs) in successful cases;

(ii) where the assisted litigant recovers an order for costs or a settlement including costs - the part of costs or a settlement representing disbursements incurred, to be reimbursed to the fund; and

(iii) application fees;"

New section 40D allows for contingency fees. However sub-section (4) does not permit a solicitor who is acting for an assisted person to enter into such an agreement under which the amount payable to the solicitor or barrister is calculated by reference to the amount of the award or settlement or the value of the property that may be recovered in the legal proceeding. New section 40G ensures the rights of a person assisted by Law Aid to recover costs as if that person was not receiving assistance.

1.5 _¯ Part 4 - Miscellaneous

Clauses 9 and 12 are transitional provisions. Clause 10 and 11 makes consequential amendments.

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

Clause 8 inserts a new section 49A which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an action of a kind referred to in section 30(17) or 40B.

New section 40B provides that no action lies against a trustee or a member of the committee in respect of anything done or omitted to be done in good faith in the performance of duties under the Act.

Section 30(17) as a result of the amendment of clause 10(q) transfers to a director of the Board the indemnity currently granted to a member of the Commission in relation to a hearing or proceeding under section 30. The Committee notes the comments in the Second Reading Speech:-

"In relation to proposed section 40B which grants immunity from suit to the Law Aid trustees and members of the Law Aid Committee, the rationale for granting such immunity is clear. The establishment and operation of the Law Aid scheme is to be the responsibility of the private legal profession represented by the Law Institute of Victoria in conjunction with the Victorian Bar Council. The success of the Law Aid scheme will be largely dependent on attracting suitable members from the legal profession to volunteer their services as Law Aid trustees or as members of the Law Aid Committee assisting the trustees. In order to attract persons of the highest calibre to administer the Law Aid Scheme, it will be essential to assure such persons that the voluntary duties which they undertake will not be subject to legal action.

Proposed section 40B will provide such protection from legal action to the trustees and Committee members for acts done or omitted to be done in good faith in the performance or purported performance of duties in administering the scheme.

The inclusion of a reference to section 30(17) in proposed section 49A (clause 8) arises from a consequential amendment to section 30(17) under clause 10(q) of the Bill. The effect of clause 10(q) will be to transfer to a director of the Board, the indemnity currently granted to a member of the Commission in relation to a proceeding or hearing brought under section 30. Accordingly, clause 10(q) does not introduce a new limitation of jurisdiction on the Supreme Court; it merely transfers an existing indemnity to the new Board."

The Committee is of the view that the proposed provision is appropriate and desirable in all the circumstances.

2.1

This Bill was introduced into the Legislative Assembly on 3 May 1995 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

2.2

This Bill makes miscellaneous amendments to the Planning and Environment Act 1987.

2.3

Clause 3 amends section 6(2) to enable a planning scheme to require specified information to be provided with an application for a permit. Clause 4 removes redundant provisions in the Act relating to regional planning authorities. Clause 5 substitutes new matters into section 60 which a responsible authority must consider before deciding on an application. Clause 6 inserts a new (c) into section 97B setting a new criteria under which the Minister may direct a responsible authority to refer an application for a permit to the Minister for the Minister's decision. Clause 7 amends section 149A so that the Administrative Appeals Tribunal can arbitrate on a dispute about a requirement, in an enforcement order, that something be done to the satisfaction of the responsible authority or other bodies.

2.4

Clause 8 amends section 156 so that a planning authority or person requesting an amendment pays panel fees or allowances unless the Minister otherwise directs. The Committee notes the comments in the Second Reading Speech:-

"When planning authorities prepare amendments to schemes, a panel is commonly required to independently hear and consider community view about the proposal.

Currently, planning authorities only need to pay panel fees if the Minister directs them to do so. The Minister requires payment in virtually all cases, in accordance with user pays principles. Administration of the Act would be streamlined if the provision stated that payment must be made in all cases, unless the Minister grants an exemption. Clause 8 changes the relevant provisions of the Act accordingly."

Clause 9 changes relevant provisions in the Act so an agreement affecting part of any land may be ended and so that the Registrar of Titles has the authority to cancel registration of an agreement affecting any part of any land. The Committee notes the comments in the Second Reading Speech:-

"The Act currently provides for owners and responsible authorities to enter agreements to generally facilitate use and development in accordance with planning objectives. These agreements can be registered on title so that future owners remain bound by their terms.

Agreements are sometimes entered into with owners intending to subdivide land. It was always intended that the registration of the agreement could be removed on individual subdivided lots before the lots are sold, if the ending of the agreement in relation to those lots is supported by the responsible authority......The Registrar has pointed out that the drafting of relevant provisions in the Act does not clearly give the Registrar the power to cancel registration of agreements on a lot by lot basis....The proposed change has the support of the Registrar and the Law Institute."

Clause 10 amends section 188 so that a responsible authority may delegate to its staff the power to enter certain agreements under the Act. The Committee notes the comments in the Second Reading Speech:-

"Currently, a responsible authority cannot delegate the entering into of an agreement to a committee or to staff. Clause 10 changes provisions of the Act so that a responsible authority may delegate this power, provided that the agreement does not provide for the sale or purchase of land. This will streamline planning administration in relation to relatively minor agreements for those authorities that wish to allow staff to exercise these powers."

The Committee makes no further comment.

3.1

This Bill was introduced into the Legislative Assembly on 3 May 1995 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

3.2

The main purpose of the Bill is to amend the Planning and Environment Act 1987 in relation to development contributions.

3.3

Clause 3 inserts a new Part 3B into the Act which relates to development contributions. New section 46J provides that a development contributions plan may provide for the imposition of a development infrastructure levy or the imposition of a community infrastructure levy. The Committee notes the comments in the Second Reading Speech:-

"It (the Bill) splits development contributions into two components: the first being for predominantly physical infrastructure required as development commences and the second for community infrastructure required as homes are built and the community develops. Community infrastructure includes facilities such as health centres, pre-school and day care centres, community halls, libraries and recreational or sporting facilities.

The timing of collection of the two components reflects the timing at which the infrastructure is required. The first ("development infrastructure") component is a contribution, or security guarantee collected from the developer as a condition of a planning permit where a permit is required. The second ("community infrastructure") component is a contribution or security guarantee collected from the owner or builder prior to the issuing of a building permit."

Pursuant to new section 46L, a limit of $450 on the levy payable in respect of dwellings is imposed. In any other case, 0.25 cents in the dollar of the cost of the building work for the development is the maximum amount payable. New section 46M provides that the Minister may issue written directions to planning authorities in relation to the preparation and content of development contributions plans. Such directions must be published in the Government Gazette.

3.4

Clause 4 inserts a new section 62(2)(h) into the Act which sets out the conditions which may be included when the responsible authority grants a permit. More particularly, it enables the responsible authority to include conditions on permits to obtain development contributions for works related directly on or to the land and to share the costs. Such a permit condition requiring a levy for services or facilities is prohibited except in accordance with an approved development contribution plan or under a section 173 agreement. Clause 5 provides that a building permit must not be issued until the levy has been paid or an agreement to pay it has been entered into under the Part.

The Committee makes no further comment.

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