ALERT DIGEST 6 of 1995
Part 3

5.1

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

5.2

The main purposes of the Bill are:-

to regulate the use of in-vitro and other fertilisation procedures and donor insemination procedures;
to regulate access to information about treatment procedures carried out under this Act and the Infertility (Medical Procedures) Act 1984;
to regulate research using human gametes, zygotes and embryos;
to promote research into the incidence and causes of infertility;
to establish the Infertility Treatment Authority and the Standing Review and Advisory Committee on Infertility;
to repeal the Infertility (Medical Procedures) Act 1984 and amend various other Acts.

5.3 _Ż Part 2 - Treatment procedures

Clause 3 sets out various definitions. Clause 5 sets out the guiding principles under which the Act is to operate. Clause 6 provides that only doctors approved under Part 8 may carry out fertilisation procedures. Clause 8 provides that only married women may undergo treatment procedures. The Committee notes that there is no substantial change to the law but that it is possible that the provision could conflict with the Commonwealth Sex Discrimination Act.

Clause 12 sets out the requirements for donors. Clause 14 sets out the requirements as to consent. Clause 15 provides for objections by a later spouse if the donor marries after he or she has given the relevant consent. Clause 17 sets out the requirements in respect of the giving and receiving of information. Clause 20 sets out the circumstances in which the donor procedure may be used. Clause 21 relates to information and advice and ensures that a woman who undergoes a donor treatment and her husband are advised in writing of their rights and the rights of any person born as a result of that procedure.

5.4 _Ż Part 3 - Research

Clause 22 provides that only persons approved under Part 8 may carry out research. Research may only be undertaken in licensed places pursuant to clause 23.

Consent of the spouse of the donor must also be obtained under clause 28. Clause 33 gives the Authority the power to impose requirements in relation to approved research. Clause 37 provides that a person who gives consent under Part 2 or 3 may withdraw it at any time before the procedure is carried out. Clause 38 specifies when a consent lapses.

5.5 _Ż Part 5 - Offences

Division 1 sets out prohibited procedures and the respective penalties. There is a ban on the mixing of human and animal gametes unless the procedure is that of mixing animal ova with human sperm and is prescribed by the regulations and is carried out for diagnostic purposes. (Clause 45) Cloning is also banned. (Clause 47) Sex selection is banned is banned except where it is necessary for the child to be of a particular sex so as to avoid the risk of transmission of a genetic abnormality or disease to the child. (Clause 50)

Division 2 relates to the storage of gametes and embryos. The maximum length of storage of gametes is 10 years unless the Authority approves otherwise. The storage period for zygotes and embryos is 5 years unless the Authority approves otherwise. Division 3 contains general offences. It is an offence to import or export gametes, zygotes and embryos. (Clause 56)

5.6 _Ż Part 6 - Surrogate motherhood

Clause 59 makes it an offence to agree or enter into a surrogacy arrangement for payment or reward. Clause 60 prohibits advertising in respect of surrogacy. All surrogacy agreements are void pursuant to clause 61.

5.7 _Ż Part 7 - Records and access to information

Division 1 relates to the keeping of records. A register must be kept at a licensed centre under clause 62. A register is also to be kept by a doctor carrying out donor insemination under clause 63. Information is to be given to the Authority by licensed centres within one month of the expiration of every prescribed three month period pursuant to clause 64. Clause 70 enables persons who are over the age of 18 years of age in respect of whom information is kept may inspect the Register for relevant information during ordinary business hours. Division 2 relates to information to be given by licensed centres and doctors. Any information which may be given to a woman who undergoes a donor treatment which will/may identify the donor, can only be done so with the donor's consent. (Clause 71). Similarly, any information which may be given to a donor in respect of a woman who undergoes a donor treatment which may identify the woman and her spouse, can only be done so with the consent of the woman and her spouse. (Clause 72)

5.8

Division 3 relates to information may be given from a central register. Clause 75 provides that the Authority may give information about a donor to parents if the donor has first consented to the giving of such information. Clauses 76 and 77 provide that the Authority may give information to a donor about persons born as result of donor treatment procedures and parents of such persons if both parents have consented or in the case of a person who has attained 18 years, the person has consented.

Clause 79 governs applications by persons born as a result of a donor treatment procedure or descendant for information. Pursuant to clause 80, the Authority must give any such information, including information which may identify the donor if the Authority is satisfied that the applicant has been offered counseling. Prior to the giving of the information, the Authority must make reasonable efforts to advise the donor that the information is about to be given and that he or she may need counseling. The Committee notes the comments in the Second Reading Speech:-

"A child born as a result of a donor treatment procedure using gametes or a zygote or embryo donated under this Bill will be, when he or she is 18 years of age or older, entitled to obtain information about the donor, including information from which the donor will or may be identified. This right is available regardless of whether the donor consents to the disclosure of that information. Such an entitlement to identifying information does not exist under the 1984 Act. The Committee (the Standing Review and Advisory Committee) recommended that a person born as a result of a donor procedure should have such a right."

Clause 82 establishes a donor treatment procedure information Register. Clause 85 is a general provision which states that if a person has applied for information under that part of the Act or the regulations and the person to whom the application has been made considers the disclosure of information might be prejudicial to the physical or mental health or well-being of the applicant, the person to whom the application has been made may decide not to disclose the information to the applicant but to disclose it instead to a medical practitioner nominated by the applicant.

Clause 89 is the confidentiality provision. The Committee is concerned that the way the provision is currently drafted its precise meaning is not clear. The Committee is of the view that the provision should be redrafted more simply so that it is apparent who is protected and under what circumstances information can be released. The Committee has written to the Minister.

5.9 _Ż Part 8 - Licences, approvals and designated officers

Clause 93 provides for applications to be made to the Authority for a licence to carry out treatment procedures. Clause 94 provides for applications to be made to the Authority to undertake approved research activities. Clause 97 provides that the Authority may grant or refuse a licence to the applicant. An application for approval to carry out research must be referred to the Committee. The Authority may only grant an application for approval if the Committee has advised that the application should be approved. (Clauses 98 and 99) Clause 101 governs applications for approval of doctors and scientists. Division 4 relates to approved counselors. Division 5 contains general provisions about licences, approvals and exemptions. Clause 106 sets out the power of the Authority to impose conditions in an approval or a licence. Clause 108 enables the Authority to vary conditions of licences. Clause 112 sets out the procedure for the application for renewal of licences. A licence may be suspended or canceled. Clause 116 enables the Authority to make orders with the Minister's approval if it has canceled or suspended a licence. Such orders must be published in the Government Gazette. Pursuant to clause 119, a designated officer must be employed for a licensed centre at all times.

5.10 _Ż Part 9 - Infertility Treatment Authority

Clause 121 establishes the Infertility Treatment Authority. Clause 122 sets out its powers, functions, duties and consultation requirements. The Authority consists of not more than 7 members nominated by the Minister and appointed by the Governor in Council. Terms of office are for the period and conditions specified in the instrument of appointment. Clause 134 enables the Authority with the approval of the Minister to delegate to a committee established under section 135 specified powers. Clause 136 empowers the Authority to fix fees. Such fees are to be published in the Government Gazette. The Committee is of the view that the fees fixed by the Authority should be subject to regulation so they can be scrutinized. The Committee has written to the Minister.

Clause 138 establishes the Infertility Treatment Authority Fund. The Authority may invest money.

5.11
Part 10 - Standing Review and Advisory Committee on Infertility
Part 11 - Review of decisions Part 12 - General

Clause 140 establishes the Standing Review and Advisory Committee on Infertility. It consists of not more than 14 members nominated by the Minister and appointed by the Governor in Council. Clause 149 provides for the review of decisions in the Administrative Appeals Tribunal except those which relate to the approvals to carry out research under Division 2 of Part 8 and section 40 which governs the transfer of gametes for research. These exceptions are discussed later at 5.13.

Clause 152 provides for conscientious objections. A person who has a conscientious objection to research involving the use of gametes, zygotes or embryos or to a treatment procedure does not have to participate in that research or procedure unless it is necessary to do so because it is likely that a person who is or was a participant in the research or procedure will otherwise die. The Committee has written to the Minister requesting further information with respect to the type of situations it is envisaged this provision will cover.

Clause 155 provides for the appointment of authorized officers. Clause 156 sets out the powers and duties of members of the Authority and authorized officers. Pursuant to clause 162 a member of the police force and the Authority may apply to magistrate for a search warrant. Clause 163 set out which offences are indictable.

5.12
Part 13 - Regulations
Part 14 - Repeals, Amendments and transitional provisions.

Clause 165 is the regulation making power. Note (c) includes the terms and conditions to be included in licences (other than licences to undertake approved research) and approvals under this Act.

Part 14 makes amendments to various Acts and repeals the Infertility (Medical Procedures) Act 1984. It also contains transitional provisions. Clause 194 abolishes the former Committee. Its members go out of office. Clause 195 sets out the application of the Act to de facto partners.

5.13 _ŻVariation of Section 85 of the Constitution Act 1975 (section 4D(b)(i)ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 164 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from:-

(a) entertaining an action in which a decision or purported decision of the Authority or the Committee under section 98(8) or 99(1) or a decision or purported decision of the Authority under section 106 or 107 in relation to an approval under section 99(1) is sought to be appealed against, reviewed, challenged, quashed or called in question; or

(b) entertaining an action of the kind referred to in section 151.

Sections 98(8) and 99(1) relate to applications for approval to carry out research. Section 106 empowers the Authority to impose conditions in respect of licences granted for research. Section 107 provides that relevant information must be provided to the Authority at its request. Section 151 protects a person from proceedings claiming the person has carried out research or a treatment if the person did not know that consent had been withdrawn.

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

"Clause 22 provides that research involving zygotes, embryos, parthenogenesis etc can only be carried out if certain conditions are met, including the prior approval of the Infertility Treatment Authority. Upon receiving an application for such approval under clause 98, the Authority must refer the application to the Standing Review and Advisory Committee on Infertility.

Clause 98(8) provides that the Committee must advise the Authority as to whether it considers that the application should be approved. Clause 99 enables the Authority after receiving advice from the Committee to grant or refuse an application for approval for any reason it thinks fit. Clause 106 empowers the Authority to impose conditions, limitations or restrictions on an approval to conduct the research. Clause 107 provides that it is a condition of such an approval that certain information be provided to the Authority at the direction of the Authority.

It is the intention of clause 164 that advice or a decision or a purported decision to approve or refuse to approve research of this kind or a decision or purported decision under clauses 106 or 107 in relation to such an approval are to be final and not reviewable. The Authority and Committee are bodies with the expertise necessary to make decisions or give advice of that kind and it is inappropriate for such a decision or advice to be subject to review.

Clause 164 also protects a person from proceedings claiming the person has carried out research or a treatment procedure after withdrawal of the relevant consent or the lodging of an objection if the person did not know and could not reasonably be expected to know that the consent had been withdrawn or the objection lodged, proceedings do not lie."

Insofar as clause 164 relates to section 152, the Committee is of the view that it is appropriate and desirable. However the Committee has some concerns insofar as clause 164 relates to sections 98(8), 99(1), 106 and 107. In respect of sections 98(8), 99(1), 106 and 107, it is not clear to the Committee that there is a need to remove the jurisdiction of the Supreme Court. The only actions which may be reviewed in the Supreme Court are those where there has been an error of law or those which may be challenged on other common law administrative grounds. If in fact the Authority has acted improperly in any way, there should be some avenue of redress. The Committee has written to the Minister.

In the circumstances the Committee is unable to say that the provision is appropriate and desirable in all the circumstances. The Committee is releasing a Discussion Paper on the use of Section 85 provisions shortly.

CONSUMER CREDIT (VICTORIA) BILL

6.1

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

6.2

The purpose of the Bill is to:-

regulate the provision of consumer credit;
amend the Credit Act 1984;
amend the Credit (Administration) Act 1984.

The Bill is part of National Scheme Legislation. In May 1993, the Ministerial Council on consumer affairs reached unanimous agreement on broad principles to be contained in uniform consumer credit legislation. Later, in the same year, all States and Territories formally entered into an agreement known as the "Uniform Consumer Credit Laws Agreement 1993." Queensland introduced consumer credit legislation which was agreed to by all parties. Each other State and Territory is obliged to pass legislation applying the Queensland legislation or introduce its own legislation.

6.4

Clause 5 applies the Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act to Victoria. Clause 8 confers jurisdiction on the Credit Tribunal. Clause 9 provides that the Director has the functions of the Government Consumer Agency. Clause 11 provides that a person must not carry on the business of providing credit unless registered as a credit provider. Clause 12 set out the exemptions. Clause 19 ensures that the Registrar keeps the Register of Credit Providers. Credit providers must lodge annual statements with the Registrar. Clause 24. Clause 25 enables the Director to make such enquiries as he or she thinks fit about a credit provider, an officer or employee of a credit provider. Similarly, the Chief Commissioner of Police must make inquiries and report any results to the Director. Pursuant to clause 26, the Director may request a credit provider to give an undertaking.

6.5

An objection to registration may be lodged with the Registrar under clause 28. The Authority after giving the objector and the credit provider an opportunity to be heard, must determine whether or not to hold an inquiry. If the Authority is satisfied that the credit provider has contravened the provisions of the Act, (Sub-sections (2)(a) to (f)) the Authority may impose conditions on the provider, suspend the registration or cancel the registration. An appeal may be brought in the Supreme Court against the suspension, cancellation of the registration of a credit provider or the imposition of a condition on the registration under clause 34.

6.6
Part 5 - Miscellaneous _Ż Part 6 - Transitional _Ż Part 7 - Consequential amendments

Clause 38 provides that the Consumer Credit Fund established under the Credit (Administration) Act 1984 is the fund into which are to be paid amounts of civil penalty payable under section 106 of the Consumer Credit (Victoria) Code. Clause 39 provides that a credit contract is unenforceable if the annual percentage rate exceeds 48. Under clause 40, a mortgage relating to a credit contract where the annual percentage rate exceeds 30 is void. Clause 41 is the regulation making provision.

Clause 51 inserts new sections 19A and 19B into the Credit Act 1984 which sets out the application of the Act. Clause 53 inserts a new section 86A into the Credit Act 1984 which enables payments to be made to the Consumer Credit Fund if the Tribunal so determines.

Clause 55 amends definitions in the Credit (Administration) Act 1984. Clause 58 inserts a new Part 5A into the Credit (Administration) Act 1984 which establishes in the Public Account as part of the Trust Fund an account known as the Consumer Credit Fund. New section 88AC establishes an Advisory Committee consisting of persons appointed by the Minister.

The Committee makes no further comment.

PUBLIC PROSECUTIONS (AMENDMENT) BILL

7.1

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

7.2

The purposes of the Bill are:-

to provide for the appointment of Associate Crown Prosecutors;
to enable the Attorney-General to request the Chief Crown Prosecutor or a Crown Prosecutor to perform the functions or exercise the powers of the Director of Public Prosecutions where the Director has requested the Attorney-General to perform those functions or exercise those powers;
to enable the Attorney-General to lay annual reports under the Public Prosecutions Act 1994 and the Financial Management Act 1994 before Parliament in a consolidated form;
to make further provision with respect to the term of appointment of the Director of Public Prosecutions, the Chief Crown Prosecutor and Senior Crown Prosecutors;
to make further provision with respect to the delegation powers of the Director of Public Prosecutions;
to make further provision with respect to the briefing of Counsel other than Crown Prosecutors or Associate Crown Prosecutors;
to make further provision with respect to the pension entitlement of any Senior Crown Prosecutor who is appointed as a Supreme Court judge.

7.3

Clause 4 enables the Director, Chief Crown Prosecutor and Senior Crown Prosecutors to be appointed for up to 20 years. Clause 5 amends sections 20, 29 and 36. It enables the Attorney-General to request the Chief Crown Prosecutor or a Crown Prosecutor to perform certain functions where the Director has asked the Attorney-General to perform those functions. In that instance, the Director cannot give directions to the Chief Crown Prosecutor. Neither the Director nor the Chief Crown Prosecutor can give directions to the Crown Prosecutor. Clause 6 removes the ability of the Director to delegate functions or powers to the Solicitor and instead gives the Director the power to delegate functions or powers to a Crown Prosecutor.

7.4

Clause 7 inserts a new Part 5A which provides for the appointment of Associate Crown Prosecutors by the Governor in Council. Clause 8 enables the Director to establish guidelines on the classes of proceedings in which he or she is to be consulted before counsel other than Crown Prosecutors or Associate Crown Prosecutors are briefed to appear. In all other cases, the Solicitor is permitted to brief counsel other than Crown Prosecutors and Associate Crown Prosecutors without first consulting the Director. The Committee notes the comments in the Second Reading Speech:-

"The principal Act permits the Solicitor for Public Prosecutions to brief outside counsel after consultation with the Director of Public Prosecutions. The obligation to consult in every case is seen by both the current Director and Solicitor as unduly onerous. The Bill will permit the Solicitor to brief outside counsel in individual matters without first consulting with the Director except in cases that fall within a class or category of matters that the Director has indicated require consultation."

Clause 9 enables the Attorney-General t o consolidate in one document any 2 or more of the Annual Reports submitted by the Director, the Solicitor and the Committee for Public Prosecutions. Clause 10 makes consequential amendments. Clause 12 amends the Constitution Act 1975 to permit any period of service as a Senior Crown Prosecutor to count for pension purposes as service as a judge of the Supreme Court where a Senior Crown Prosecutor is appointed to the Supreme Court bench.

The Committee makes no further comment.

CONTINUE browsing Alert Digest No. 6 of 1995

ALERT DIGEST 6 of 1995 Part 3

ALERT DIGEST 6 of 1995
Part 3