ALERT DIGEST 9 of 1995

DRUGS POISONS AND CONTROLLED SUBSTANCES (AMENDMENT) BILL

1.1

This Bill was introduced into the Legislative Assembly on 31 May 1995 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

1.2

The purpose of the Bill is to establish a mechanism for the admission of certificates of analysis issued by analysts and botanists in other States and Territories as evidence in proceedings under the Drugs, Poisons and Controlled Substances Act 1981. It gives effect to a recommendation arising from the 1992 Australasian Crime Conference and Seminar.

The Committee makes no further comment.

EXTRACTIVE INDUSTRIES DEVELOPMENT BILL

2.1

This Bill was introduced into the Legislative Assembly on 31 May 1995 by the Honourable Jim Plowman MP with the Honourable Phil Gude MP.

2.2

The Bill makes provision for extractive industries. Its purposes are:-

• to provide a co-ordinated assessment and approvals process for extractive industries;
• ensure that extractive industry operations are carried out with safe operating standards and in a manner that ensures the rehabilitation of quarried land to a safe and stable landform;
• provide a procedure for notification of proposed extractive industries to licence holders under the Mineral Resources Development Act 1990;
• provide for the payment of royalties for stone extracted from Crown land.

2.3 _¯ Part 2 - Authorisations and permits

Clauses 8 and 9 make it an offence to carry on an extractive industry without an authority or search for stone without a permit. Application for a permit to search for stone must be made to the Minister. Holders of search permits must obtain the particular consent of the relevant Ministers. Application may be made to the Administrative Appeals Tribunal for review of a decision.

Pursuant to clause 13, the Minister may authorise any person to enter any private land for the purpose of the carrying on by the Department of any survey and search for stone. Clause 29 is the compensation provision. The Crown must reach agreement with any relevant landowner in the event of damage to property. In the absence of any agreement, compensation will be determined by the Magistrates' Court.

A person who applies for a work authority to carry out an extractive industry must lodge a work plan with the Secretary under clause 17. A work plan must include a rehabilitation plan. A work authority must be obtained from the Minister under clause 19. Any cancellation of the work authority by the Minister may be reviewed in the Administrative Appeals Tribunal.

2.4

Clause 24 gives the Minister the power to prepare, adopt and approve amendments to any planning scheme, to set out policies relating to extractive industries and to enable the carrying out of an extractive industry on land with a planning permit. Parliament may still exercise its power to revoke an amendment. The Committee notes the comments in the Second Reading Speech:-

"This will enable extractive industry to become a permit required use. This provision will not be used to amend planning schemes in the case of urban zones where it would not be practical to establish an extractive industry. In other areas it will enable extractive industry applications to be considered through the normal planning approvals process."

Clause 27 provides that a person who is the holder of a current work authority is only entitled to compensation for the deprivation of possession of the whole or any part of the surface of the land and for the opportunity to extract stone from the whole or any part of the land. Clause 28 provides for the payment of royalties.

Clause 29 governs compensation for owners and occupiers of land by the Crown. In the absence of agreement, the amount of compensation is to be determined by the Magistrates' Court.

2.5 _¯ Part 3 - Rehabilitation, Part 4 - Quarry Managers, Part 5 - Enforcement

Part 3 provides for the rehabilitation of the land. Rehabilitation plans must be approved by the Secretary. Clause 33 provides for rehabilitation bonds. Holders of work authorities must appoint quarry managers under clause 38. Quarry managers must be certified. Clause 41 provides for the appointment of inspectors. Clause 43 sets out the powers of inspectors. Subclause (l) of clause 43 provides that inspectors may "exercise any other powers that may be necessary". The Committee has written to the Minister to suggest the insertion of the word "reasonably" before the word "necessary".

Under clause 44 it is an offence to obstruct inspectors in the exercise of their duties. Clause 45 provides for quarrying infringements. Clause 50 sets out the offences by corporations. Clause 53 is the secrecy provision which ensures that officers do not misuse information.

2.6 _¯ Part 6 - Miscellaneous

Clause 51 relates to occupiers liability. Clause 53 is the secrecy provision. Clause 54 is the delegation provision. Clause 56 is the regulation making provision.

The Committee makes no further comment.

ROAD TRANSPORT CHARGES (VICTORIA) BILL

3.1

This Bill was introduced into the Legislative Assembly on 31 May 1995 by the Honourable Alan Brown MP with the Honourable Phil Gude MP.

3.2

The purpose of the Bill is to adopt national road charges for heavy vehicles. It forms part of a scheme to create national road charges as envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth. More particularly, the scheme is designed to:-

• improve the safety and efficiency of transport on roads and on other areas that are open to or used by the public;
• reduce the costs of the administration of that transport.

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

"The Bill will operate in conjunction with regulations under the Road Safety Act and is planned to come into effect on 1 January 1996. The Bill affects those vehicles with a gross vehicle mass over 4.5 tonnes. The Bill does not affect the granting of concessions on registration fees to certain classes of road users or the charging of administration fees in Victoria."

3.3

Clause 5 limits the ability of regulations to prescribe amounts for registration or renewal of registration to amounts equal to the amount payable as a charge under the Commonwealth Act. In the event that the prescribed fees differ, the prescribed fees are to be those of the Commonwealth.

The Committee makes no further comment.

STAMPS (FURTHER AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 31 May 1995 by the Honourable Alan Stockdale MP with the Honourable Geoff Coleman MP.

4.2

The purpose of the Bill is to reduce the rate of duty on the transfer of listed marketable securities.

4.3

Clause 4 amends various provisions, the effect of which is to reduce by half the rate of stamp duty payable on transfers of listed marketable securities. The reduction is effective for all transfers on or after 1 July 1995.

The Committee makes no further comment.

UNIVERSITY ACTS (FURTHER AMENDMENT) BILL

5.1

This Bill was introduced into the Legislative Assembly on 31 May 1995 by the Honourable Don Hayward MP with the Honourable Phil Gude MP.

5.2

The purposes of the Bill are to:-

• make amendments to the Acts establishing Victorian Universities and to the Victorian College of the Arts Act 1981;
• provide for extension of borrowing powers, changes in company formation mechanisms;
• provide for changes in decision making mechanisms using new forms of communication;
• miscellaneous other amendments to streamline the administration of tertiary institutions and remove unnecessary constraints on their operations.

5.3 _¯ Part 2 - Amendment of Monash University Act 1958

Clause 4 inserts new sections 20A and 20B to make provision for the Council to make resolutions without meetings and provides for approved methods of communication for council meetings. Clause 9 makes provision for the University to borrow or obtain financial accommodation for the purpose of performing any of its powers or carrying out any of its duties. Clause 11 provides for the formation and membership of companies and joint ventures.

5.4
Part 3 - Amendment of Melbourne University Act 1958
Part 4 - Amendment of La Trobe University Act 1964

Part 3 makes similar amendments to the Melbourne University Act 1958. Part 4 contains amendments to the La Trobe University Act 1964. Clause 20 makes provision for prescription of certain matters by regulation under statutes. The same provisions are made for Council resolutions without meetings and financial accommodation. Clause 25 makes provision for the indemnification of members of council and members of committees constituted or appointed by the Council.

5.5
Part 5 - Amendment of Deakin University Act 1974
Part 6 - Amendment of Victorian College of the Arts Act 1981
Part 7 - Amendment of Victoria University of Technology Act 1990

Provision is made in Part 5 for Council resolutions without meetings, financial accommodation and the ability to form joint ventures and companies with respect to Deakin University. The same provision is made for the Victorian College of the Arts and for the Victoria University of Technology.

5.6
Part 8 - Amendment of Swinburne University of Technology Act 1992
Part 9 - Amendment of Royal Melbourne Institute of Technology Act 1992
Part 10 - Amendment of the University of Ballarat Act 1993

Clause 58 alters the term used for the non-academic staff of the Swinburne University, removes the limitations on the number of terms which can be served by a member of Council and provides for completion of terms of office of Council members on 31 December in the relevant year. Part 8 allows for Council resolutions without meetings and the formation of joint ventures and companies in respect of Swinburne University. Clause 65 provides that the approval of the Minister must be obtained before alienation of land granted to the University.

The same provisions in respect of Council resolutions and financial accommodation are made to the Royal Melbourne Institute of Technology Act 1992 in Part 9 and to the University of Ballarat Act 1993 in Part 10.

The Committee makes no further comment.

Ministerial Responses relating to Bills passed in the 1995 Autumn Session

PUBLIC TRANSPORT COMPETITION BILL

6.1

This Bill was introduced into the Legislative Assembly on 10 May 1995 by the Honourable Alan Brown MP with the Honourable Bill McGrath MP.

6.2

The Committee reported on the Bill in Alert Digest No. 6 of 1995 on 23 May 1995. The relevant extract is set out:-

"Part 4 contains miscellaneous provisions. Clause 33 exempts drivers of vehicles used by an accredited operator from the need to have a driver's certificate under section 156 of the Transport Act 1983. Clause 34 enables the Secretary to levy fees for services rendered by the Secretary under the Act with the approval of the Minister. Such a determination of fees must be published in the Government Gazette. Clause 35 delegates the Secretary's powers to specified persons or bodies. Clause 38 is the regulation making provision. Clause 39 is a transitional provision. Clause 41 amends section 13 of the Transport Act 1983 to enable the Minister to appoint another 4 members to the Board of the Corporation. The original members were appointed by the Minister. Clause 42 is the delegation provision. The Committee is of the view that the delegation provision is too broad in that the powers may be delegated to, "with the Minister's consent any other person." The Committee is of the view that the provision should be amended to delete the words "any other person" or alternatively specify the classes of people to whom the powers are to be delegated. The Committee has written to the Minister.

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

Clause 37 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 or as a consequence of any decision referred to in section 36(1) or any matter referred to in section 36(2) or entertaining any proceedings referred to in section 36(2).

Section 36(1) provides that no compensation is payable to any person in respect of a decision or as a consequence of any decision of the Secretary in respect of accreditations. Section 36(2) provides that no compensation is payable and no proceedings may be brought in respect of the expiry of a contract for the provision of transport services. Under section 39(6) such a contract will expire two years after the commencement of this Act. The Committee notes the comments in the Second Reading Speech: -

"Clause 36(1) relates to actions taken by the Secretary of Transport in accordance with the Bill in relation to bus operator accreditations, service contracts or prohibiting a person from driving a passenger vehicle. The reason for preventing the award of compensation in such circumstances are to prevent claims for compensation when the Secretary exercises discretions conferred by the Act in what are essentially decisions on regulatory matters made in the broad public interest. This continues the situation that was always applied under the Transport Act 1983.

The Bill makes it clear that a person who has had permission to operate bus services in the past is not thereby exempt from the new accreditation requirements by virtue of that fact. Operators, old and new, should have to qualify for accreditation under the new scheme in the interests of the public. Clause 36(2) is intended to ensure that anyone who may not meet current standards is not entitled to be compensated at community expense and is not able to cause delays to the new scheme by litigation.

Clause 36(2) also prevents claims for compensation or litigation when bus service contracts are brought to an end by clause 39(6). Only contracts which have no fixed expiry date are affected and it is considered that the lengthy period of notice the Bill provides is more than adequate for contract holders to adjust to the new circumstances and provides a fair mechanism for implementing necessary change."

The Committee is of the view that no party should have the right to block the intention of the legislation to terminate the contracts but the legislation should enable the Supreme Courts to entertain claims for compensation. In the all circumstances the Committee is unable to say the clause 37 is appropriate and desirable. The Committee has written to the Minister."

6.3

The Minister responded by way of letter dated 9 June 1995. The relevant extract is set out:-

"Thank you for your letter of 22 May about the Public Transport Competition Bill. I have noted the matters raised by the Committee.

As you will be aware the Government has decided to defer the passage of the Public Transport Competition Bill until the Spring Sittings of Parliament. This will enable further consultation with interested parties to take place in addition to that which has occurred to date. It is also the Government's intention to consider the future operation of school buses in tandem with consideration of changes to route buses.

The Hln. Geoff Craige MLC, my Parliamentary Secretary will lead a team of Parliamentarians who will conduct regional forums to which both operators and local Members of Parliament will be invited. These forums will enable Government to explain the proposed reforms to operators and to seek their feed-back first hand.

The matters raised by the Committee and the views obtained from the regional forums will be considered before the debate on the Bill resumes in Spring."

HEALTH SERVICES (METROPOLITAN HOSPITALS) BILL

7.1

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

7.2

The Committee reported on the Bill in Alert Digest No. 6 of 1995 on 23 May 1995. The relevant extract is set out:-

"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."

7.3

The Minister responded by way of letter dated 8 August 1995. The relevant extract is set out:-

"Thank you for your letter dated 18 May 1995 and apologise for the delay in responding.

I have noted the Committee's concerns about the Health Services (Metropolitan Hospitals) Bill, however I was not prepared to make the amendments required to give effect to the Committee's concerns.

In your letter you refer to comments I made in the Second Reading Speech to the Bill. The new section 650 is essential to ensure that the implementation of the recommendations of the Metropolitan Hospitals Planning Board is not delayed. It is for this reason that it was considered necessary to disallow any review of the new Division 9A. The Section 650 cannot be re-drafted without undermining the entire Division which could place the essential restructuring of Melbourne's hospital system in jeopardy."

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