ALERT DIGEST 6 of 1995
Part 5
GRAIN HANDLING AND STORAGE BILL
14.1
This Bill was introduced into the Legislative Assembly on 10 May 1995 by the Honourable Alan Stockdale MP with the Honourable Ian Smith MP.
14.2
The purpose of the Bill is to make provision for the sale of certain assets of the Grain Elevators Board and to make provision for regulating the handling and storage of grain.
14.3 ¯ Part 2 - The Agreement, Part 3 - Office of the Regulator-General
Part 2 provides for the ratification of the Agreement which is set out in Schedule 1 between the State and Vicgrains Operations Ltd. Clause 12 provides for the superannuation of employees of the Grain Elevators Board. ("GEB") Clause 15 sets out the powers of the Office of the Regulator-General with respect to price regulation. It sets out the various matters the Office must have regard to in respect of prescribed prices.
Clause 16 provides that unless the Office otherwise determines, a facility used in the provision of prescribed services (ie: those set out under clause 15 (1)(c)) is a significant infrastructure facility and is to be regulated in accordance with the Competition Principles Agreement. The Committee notes the comments in the Second Reading Speech: -
"The economic regulation covers.....
An access regime consistent with the Competition Principles Agreement entered into between the States and the Commonwealth at COAG on 11 April 1995. The access regime requires the purchaser to provide third party access to services on reasonable terms and conditions and to use reasonable endeavours to accommodate the requirements of third parties seeking access. Where the owner of the essential facilities (the purchaser) and a third party cannot agree on terms and conditions for access, the third party may refer the dispute to the Office of the Regulator-General which has the power to resolve the dispute."
Clause 20 provides that the owner of declared grain storage facility must not permanently close the facility unless the owner has complied with the section. Clause 23 provides that the Office must conduct an inquiry to determine whether or not a facility has ceased to be a significant infrastructure facility. Clause 25 gives the Office the power to make price determinations.
14.4 ¯ Part 4 - Transfer of property, Part 5 - General, Part 6 - Amendments and repeal
Part 4 provides for the transfer of property. Part 5 contains general provisions. Clauses 35 and 36 provide for the construction and operation of works at Portland and the rights in respect of port facilities at Geelong. Part 6 repeals the Grain Elevators Act 1958.
The Committee makes no further comment.
15.1
This Bill was introduced into the Legislative Assembly on 10 May 1995 the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.
15.2
The purposes of the Bill are to:-
- enable greater trading in water;
- facilitate the administration of the Act in relation to bulk water entitlements;
- make other miscellaneous amendments.
15.3
Clause 5 inserts a new Division 3 in Part 4 which relates to the management of bulk entitlements and licences. It provides that the Minister may require a water resource management plan to be prepared for an area by an Authority. The Minister has the power to approve or refuse the plan and grant to the Authority a bulk water entitlement. Clause 6 makes consequential amendments as a result of the insertion of new Division 3. Clause 7 applies sections of the Subordinate Legislation Act 1994 to certain Orders under the Act. Clause 10 provides that a bulk entitlement can be granted from the works of another Authority or a spring. Clause 13 makes it clear that an Authority can transfer a bulk entitlement in whole or in part to one or more Authorities. It also sets out the ways in which an Authority can sell a bulk entitlement and the advertisement procedures which it must follow before such sales take place.
15.4
Clause 16 inserts new sections 47A, 47B and 47C. New section 47A ensures that Authorities comply with the terms of an Order granting a bulk entitlement. New section 47B provides that the Minister may request an Authority to make an application for a bulk entitlement and for the conversion of existing entitlements. If the Authority fails to make the application, the Minister may give notice that he or she intends to grant a bulk entitlement or convert an existing entitlement. The Committee notes the comments in the Second Reading Speech:-
"Under the Act at present a bulk entitlement can only be granted if an Authority formally applies. It is proposed to enable the Minister as a last resort and with opportunity for the Authority to have input, to initiate definition of a bulk entitlement. This reserve power will speed up the establishment of bulk entitlements."
New section 47C enables Authorities to acquire licences under section 51 or water rights made available under section 222(1)(b) and then be granted bulk entitlements for the equivalent amounts of water. The Minister may set any terms and conditions of a conversion to a bulk entitlement that the Minister thinks fit or refuse to allow the conversion. Clause 19 enables bulk entitlements to be granted from water which is part of the bulk entitlement of another Authority. Clause 20 amends section 229 to give an Authority power to sell additional water rights if it can show the Minister that it has water surplus to its existing obligations to supply water.
15.5 ¯ Part 3 - Water Trading
Clause 21 relates to the temporary transfer of water offered for sale under section 222(1)(c). It gives the Minister the power to prohibit or limit transfers where there is no bulk entitlement in an irrigation district and he or she believes transfers may result in a serious increase in water usage. Such a prohibition must be published in the Government Gazette. Clause 22 inserts new sections 224A and 224B which relate to the temporary transfer of water rights interstate. Clause 25 relates to the permanent transfer of water rights. Transfers may only be made with the approval of the seller's Authority, the buyer's Authority and any person with a prescribed interest in the seller's holding. Clause 26 inserts a new section 226A which provides for the conversion of licences into water rights. A person may apply to the Administrative Appeals Tribunal for review of a decision of an Authority to refuse to approve an application for conversion.
15.6
Clause 28 inserts new sections 46A and 46B which provide for the temporary transfer of bulk entitlements to irrigators. It also provides for the temporary transfer of a bulk entitlement by an Authority, with the approval of the Minister to a person outside Victoria. Clause 29 inserts a new Division 4 into Part 4 which provides for the recording of periodic amendment of entitlements. If the Minister considers it appropriate, the Minister may amend a bulk entitlement of an Authority by notice given to the holder of an entitlement. Clause 30 inserts a new Part 4A which provides for the delivery of interstate water. The Minister may adjust volumes of entitlements to be applied to transfer by Order published in the Government Gazette. Clause 32 enables licences issued from transferred water rights to be for an unlimited period.
15.7 ¯ Part 4 - Miscellaneous amendments, Part 5 - Transitional
Clause 33 clarifies that executors, administrators and trustees have power to enter into access agreements and community agreements. It also provides that access rights may be granted between properties in common ownership. Community agreements are set out in clause 35. Clause 35 also provides for community water supply agreements to be set up to primarily supply farms. Clause 36 amends section 218 of the Act so that drainage course declarations may be made according to the formula used in the Drainage of Land Act 1975. Clause 37 deletes the requirement that all owners and occupiers of land in an area to be declared a groundwater supply protection area must be given notice by post. The requirement to advertise in a newspaper circulating generally in the area is retained. Clause 42 amends section 101 to ensure that a successor Authority is substituted as a party to any proceedings before the Administrative Appeals Tribunal as well as proceedings before a court.
The Committee makes no further comment.
HEALTH SERVICES (METROPOLITAN HOSPITALS) BILL
16.1
This Bill was introduced into the Legislative Assembly on 3 May 1995 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.
16.2
The purposes of the Bill are:-
- to provide for the aggregation of certain hospitals;
- to adopt the Medicare Principles and Commitments set out in Health Insurance Act 1973 of the Commonwealth.
16.3
Clause 6 inserts a new Part 2A which incorporates Medicare Principles and Commitments agreed between the States and the Commonwealth. Clause 8 inserts a new Division 4A into the Act which provides for the incorporation of metropolitan hospitals. New sections 40D provides for a board of directors. Between 6 and 9 directors are to be appointed by the Governor in Council on the recommendation of the Minister. Such directors may be paid remuneration in accordance with the instrument of appointment.
New section 40J provides that a director of a board of a metropolitan hospital is not liable to an action or other proceedings for damages for or in relation to an act done or omitted to be done in good faith in performance of his or her obligations. New section 40L provides for the appointment of advisory committees.
16.4
Clause 9 amends section 64 which relates to proposals for amalgamation. It provides that for twelve months after the commencement of the Act, no proposals for amalgamation are to be given to the Minister by the Chief General Manager. The effect is to ensure that any aggregation of metropolitan hospital must take place under new Division 9A. The Committee notes that the clause removes the existing statutory right for persons to make submissions in respect of amalgamations to the Chief General Manager on proposals for amalgamations. Persons may still make those submissions to the Metropolitan Planning Board. In the circumstances, the Committee refers the question of whether the reduction in rights is due or undue to the Parliament to debate.
Clause 10 inserts a new Division 9A into Part 3 which provides for the aggregation of metropolitan hospitals. New section 65C provides that if the Minister considers that the provision of health services by 2 or more metropolitan hospitals may be more effective, the Minister may recommend that such an Order be made. The Governor in Council may make such an Order by publishing it in the Government Gazette. The aggregation procedure is for a period of 12 months pursuant to new sub-section (3) of section 65C.
New section 65L provides for the transfer of aggregated hospital staff to the new hospital on the same terms and conditions as those that applied immediately before that date to that person. New section 65M provides that any of the terms and conditions of employment of a transferred aggregated hospital employee may be altered by or under any law or award of agreement.
Clause 13 inserts a new Schedule 3 into the Act. The Schedule lists the metropolitan hospitals and have been removed from Schedule 1.
16.5 ¯ Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 11 inserts a new section 157A which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining an action, proceedings or an application referred to in section 17A, 40J or 65O.
New section 17A incorporates the Medicare Principles and Commitments. New section 40J gives directors personal immunity for their actions or performance. New section 65O provides that nothing in new Division 9A gives rise to any cause or right of action or application before any court or tribunal. The Committee notes the comments in the Second Reading Speech:-
"It is the intention of this Bill to alter or vary section 85(5) of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining an action, proceedings or an application of the type referred to in section 17A, 40J or 65O of the Bill.
The provision is considered necessary to ensure that the implementation of the recommendations of the metropolitan hospitals planning board is not delayed by the challenging of such aggregations in the courts. Such a provision is considered necessary if the essential restructuring of Melbourne's hospital system is to succeed."
Insofar as clause 11 relates to sections 17A and 40J the Committee is of the view that it is appropriate and desirable. The Committee has some concerns in respect of new section 65O. New section 65O provides that nothing in new Division 9A gives rise to any cause or right of action or application before any court or tribunal. The purpose of new section 65O is to ensure that the implementation of the recommendations of the metropolitans hospitals planning board is not delayed or challenged in the courts. The Committee is of the view that insofar as the provision gives the Government the protection to deal with assets, it is too broadly drafted. The Committee is concerned to ensure that citizens' rights are protected.
The Committee is of the view that the provision should be redrafted more narrowly to give specific effect to those intentions of the Government in respect of dealing with assets. In the circumstances, the Committee is unable to say that the clause 11 insofar as it relates new section 65O is appropriate and desirable in all the circumstances. The Committee has written to the Minister.
ELECTRICITY INDUSTRY (AMENDMENT) BILL
17.1
This Bill was introduced into the Legislative Assembly on 10 May 1995 by the Honourable Jim Plowman MP with the Honourable Ian Smith MP.
17.2
The purpose of the Bill is to make further amendments to the Electricity Industry Act 1993.
17.3 ¯ Part 2 - Amendment of the Electricity Industry Act 1993
Clause 6 provides that the Mineral Resources Development Act 1990 as set out in section 12A of the Electricity Industry Act 1993 does not apply to generation companies as set out. Similarly, clause 7 provides that the section which relates to the payment of a brown coal levy does not apply to a generation company as set out. Clause 9 amends section 42 to enable Power Net Victoria or VPX to acquire land. Any acquisition is governed by the Land Acquisition and Compensation Act 1986. Clause 10 inserts new sections 42A and 42B which provides that a corporation with the approval of the Governor in Council may compulsorily acquire an easement for the purposes of erecting and maintaining power lines. The Land Acquisition and Compensation Act 1986 applies. In respect of land in the Latrobe area, a generation company may recommend to the Minister that land be compulsorily acquired. However section 109(2) of the Land Acquisition and Compensation Act 1986 does not apply. That section provides that if the Authority proposes to dispose of any interest in land within eighteen months after the date of the acquisition, then it must, if practicable, first offer the interest for sale to the former owner at the market value of the interest at the date of the acquisition.
17.3
Clause 11 inserts a new section 45B which provides for the cancellation of easements. Clause 12 sets out the rateability of certain property. If there is no agreement between a council and a generation company as to the amounts due, the Governor in Council determines the amount payable. Clause 14 inserts a new section 47A which sets out the application of the Mineral Resources Development Act 1990 to generation companies. The Governor in Council may grant a mining licence over the land within the Latrobe area to a generation company by Order published in the Government Gazette. Clause 26 amends section 158A which enables the Governor in Council to make Orders with respect to prescribed goods and services. Clause 27 inserts new sections 158B and 158C which set out the Governor in Council's power to regulate charges. Clause 29 amends section 163 to enable fees to be determined by the Minister in respect of licences having regard to the proportion of costs of the Office that are incurred in the administration. Previously, such fees were determined by the Office of the Regulator-General. Clause 30 substitutes a new section 163A which relates to the payment of franchise fees by distribution companies. Clauses 31 and 32 amend section 164 which relate to the variation or revocation of licences. It sets out the limitations on an application for variation of a licence. Clause 33 amends section 169 to specify the obligations of a distribution company.
17.4 ¯ New Parts 11B, 13 and 14
Clause 35 inserts a new Part 11B which relates to privatization. Clause 36 inserts a new Part 13 which provides for the separation of generation and the distribution of sectors. It is unlawful for a person to hold a prohibited interest per new section 173. The Office of the Regulator-General may determine that a person who has a prohibited interest must dispose of shares otherwise than to an associate and revoke the relevant licence. New section 180 provides that any appeal against a determination of the Office of the Regulator-General may be made to the Supreme Court. Clause 137 inserts a new Part 14 which provides for the surrender of land in the Latrobe Valley to the Crown. It revokes several reservations of land. It enables the Governor in Council to issue a Crown grant and inserts a new Schedule 3A which list the land to be surrendered to the Crown.
17.5 ¯ Amendment of various Acts
Parts 4 to 10 make amendments to various Acts. Clause 46 amends the relevant provisions of the Office of the Regulator-General Act 1994 to remove references to statements of government policy. Clause 48 substitutes new provisions in respect of delegation.
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