Alert Digest No.
10 of 1996
3 December 1996
ARTS INSTITUTIONS (AMENDMENT) BILL
1.1
This Bill was introduced into the Legislative Assembly on 14 November 1996 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP.
1.2
The purposes of the Bill are:-
- to amend legislation relating to the State's arts institutions; and
- to extend the Public Records Act 1973 to certain bodies;.
The Committee notes the comments in the Second Reading Speech:-
"The purpose of this Bill is to amend the Libraries Act 1988, the Museums Act 1983 and the National Gallery of Victoria Act 1966 to provide for improved management and governance of the State Library of Victoria, the Museum of Victoria and the National Gallery of Victoria, and in particular to give them power to employ staff directly. It will also amend the Ministry for the Arts Act 1972 to remove the limitation on membership numbers of the Victorian Council for the Arts and the Public Records Act 1973 to provide that records of privatised public bodies (created while they were public bodies) remain as public records.
The Museums Advisory Board and the Libraries Board of Victorian, Advisory Boards to the Minister for the Arts on museum and library matters, are abolished by the Bill. As a consequence, the functions of the councils of the museum of Victoria are amended to incorporate relevant advisory functions. In addition, the functions of the councils of the three institutions are redefined in relation to the State collections and amended to provide each council with a statewide leadership role."
1.3 Part 2 - Libraries Act 1988
Part 2 makes amendments to the Libraries Act 1988. Clause 11 gives additional functions to the Board. Clause 15 governs the membership of the Board. Clauses 19 and 20 set out new requirements in relation to conflicts of interests and procedures at meetings. Clause 22 substitutes a new delegation provision. Clause 26 gives the Board the power to employ any staff necessary for the purposes of the Act. Clause 28 gives the Board borrowing powers in accordance with the Borrowing and Investment Powers Act 1987. Clauses 30 and 33 provide for the transfer of the staff.
1.4 Part 3 - Museums Act 1983
Part 4 - National Gallery of Victoria Act 1966
Part 5 - Ministry for the Arts Act 1972
Part 6 - Public Records Act 1973
Part 7 - Other Amendments
Clauses 34 to 49 of Part 3 make the changes outlined above to the Museums Act 1983. Clauses 68 to 82 of Part 4 make the changes outlined above to the National Gallery of Victoria Act 1966. Clause 84 of Part 5 amends section 11 of the Ministry for the Arts Act 1972 to remove the restriction of not more than 12 people in relation to the Victorian Council of the Arts. Clause 87 of Part 6 inserts new sections 2A and 2B which make provision for public records in relation to the various institutions. Clauses 88 to 91 of Part 7 make minor amendments to other Acts.
The Committee makes no further comment.
ACCIDENT COMPENSATION (FURTHER AMENDMENT) BILL
2.1
This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.
2.2
The purpose of the Bill is to make further amendments to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993.
2.3 Part 1 - Part 2 - Accident Compensation Act 1985
Clause 2 is the commencement provision. The Committee notes that sub-paragraph (2) contains a retrospective element in that it deems clause 33 to have come into operation on 28 June 1996. Clause 33 provides that the day fixed by proclamation for the commencement of the remaining provisions of the Accident Compensation (Occupational Health and Safety) Act 1996 is deemed to be 2 July 1996. The Committee reported on the Accident Compensation (Occupational Health and Safety) Act 1996 in Alert Digest No.3 of 1996 on 18 June 1996.[1] The Committee notes that the only comments made in respect of the Accident Compensation (Occupational Health and Safety) Act 1996 were in respect of clarification of the operation of the Section 85 provision.
The Committee notes the standard commencement provision of the Accident Compensation (Occupational Health and Safety) Act 1996 which provides as follows:-
"2. Commencement
(1) This Part and section 9 come into operation on the day on which this Act receives the Royal Assent.
(2) Subject to sub-section (2), the remaining provisions of this Act come into operation on a day to be proclaimed.
(3) If a provision referred to in sub-section (2) does not come into operation within a period of 6 months beginning on and including the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period."
The Committee notes that sections 1, 2 and 9 of the Accident Compensation (Occupational Health and Safety) Act 1996 came into operation on the day of Royal Assent which was 28 June 1996. The remaining provisions of the Act came into force on 2 July 1996 by proclamation in Government Gazette No.26 on 4 July 1996 at page 1666.
The Committee also wrote to the Minister on 26 November 1996 seeking further advice. The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-
"I refer to your letter of 26 November 1996 in which you sought advice on a number of matters raised by the Scrutiny of Acts and Regulations Committee in respect of the Accident Compensation (Further Amendment) Bill 1996.
Clause 2
The provisions of the Accident Compensation (Occupational Health and Safety) Act 1996 affected by the amendment inserted in that Act by clause 33 of the Bill are all of the provisions of that Act other than Part 1 and section 9. These provisions effected the transfer to the Victorian WorkCover Authority of the powers and functions under, and the staff who administered, the State's health and safety legislation.
Under section 2(2) of the Accident Compensation (Occupational Health and Safety) Act 1996, these provisions were to come into operation on a day to be proclaimed. Two July 1996 was fixed as the commencement date for these provisions in a Proclamation made by the Governor in Council on 2 July 1996. The publication of that Proclamation was effected in Special Gazette No. S 75 which was published on that date.
Due to an error in the publication of the Proclamation in the Government Gazette, a doubt has subsequently been raised as to the validity of the commencement of these provisions on 2 July 1996. It is believed that the error has not vitiated the commencement of the provisions and the Office of the Chief Parliamentary Counsel has treated the Proclamation as valid.
However, it was considered desirable to put the question beyond doubt and clause 33 of the Bill is designed to do that."
Clause 9 inserts a new section 91 in relation to the assessment of impairment. The Committee notes the comments in the Second Reading Speech:-
"This Bill introduces a requirement that an impairment assessment required to be made in accordance with the Guides or prescribed methods will only be recognised if the practitioner making the assessment has successfully completed a training course in the application of the Guides or methods where such a course has been approved by the Minister...
To ensure that the classification of serious injury remains within the bounds originally envisaged by the Government, the Bill provides that, in assessing a degree of impairment in accordance with the American Medical Association's Guides or the prescribed methods, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
This amendment will not affect situations where the psychological or psychiatric impairment does not arise as a consequence of, or secondary to, a physical injury, for example, in the case of a bank teller who is the subject of a bank robbery and is traumatised by the actual event."
Clause 9 changes the way impairment is assessed. The Committee notes that "regard must not be had to any psychiatric or psychological injury or symptoms arising as a consequence of or secondary to a physical injury" in the assessment of impairment. The Committee also notes the comments in the Second Reading Speech that "The Government intends that the amendments relating to impairment assessments take immediate effect, and accordingly, the Bill provides that they will commence with effect from today'. The Committee also received a submission from Headway Victoria.[2]
The Committee wrote to the Minister in respect of a number of matters on 26 November 1996. The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-
"Clauses 9 and 35 - Assessment of impairment
The Committee's concern as to the possible element of retrospectivity contained within these clauses is noted. However, the reality is that the secondary psychiatric or psychological impairment component of the test for serious injury has become an avenue to the attainment of serious injury status in a way which was never intended.
In any change to a law there are people who may be positively or adversely affected by the timing. That is the nature of things. Clause 9 is aimed at removing a loophole in the legislation which is enabling large and increasing numbers of injured workers to attain serious injury status in a way which was never intended.
The Government has acted at the earliest possible opportunity after confirmation of this trend, with immediate effect. In a very real sense, the exceptional category is not those now precluded from access to the "serious injury" category, but those who have taken advantage of the loophole before the Government could act.
Regrettably, when making changes to legislation foreshadowing the changes can sometimes have serious consequences. For example, when the Government foreshadowed changes to the common law provisions of the WorkCare scheme in the second reading speech of 30 October 1992, over 11,000 writs were issued before the commencement date of 1 December 1992, including 3,426 received on the last day. The ultimate cost of these "old common law" writs to WorkCover amounted to over $300 million.
When changes to section 135B ("old common law") of the Accident Compensation Act were foreshadowed in April 1994 following the Robarts vs Matchplan decision of December 1993, 4438 writs were received during the "window of opportunity" period to June 1994. The estimated cost is $140 million.
Most recently, when changes were foreshadowed to section 135A ("new common law") of the Act earlier this year as a result of the "Hanrahan "decision, 946 writs were issued in the County Court between 10 May 1996 and 25 June 1996 and these are estimated to cost over $170 million.
It should be noted that amendments made to remedy the effects of both the "Robarts" and "Hanrahan" judicial decisions were merely technical amendments to restore the original intent of the legislation.
Action is necessary because the impact of assessments of secondary psychological or psychiatric injury on the viability of the WorkCover scheme is becoming very significant. The number of cases achieving the serious injury category substantially relying on this factor is estimated to have increased from one in eight in 1993/4 to one in four in 1995/6 and is still rising. It is openly acknowledged by members of the legal profession that this is the loophole through which they are able to achieve serious injury status for many of their clients.
As a result, serious injury classifications have risen from an original estimate of 500-1000 per year to the position where, without action they may exceed 2000 in 1996/7. There have already been 788 additional classifications in the four months to October 1996. This is against a background of an overall reduction of serious physical injury or death in the workplace. It is noteworthy that in a survey of 300 cases, over 55% of workers who reached "serious injury" status through a psychiatric or psychological assessment have never had psychological or psychiatric treatment of any kind, either before or after the assessment.
The impact of this loophole as a future liability on WorkCover is estimated by the Authority to be in excess of $300 million.
It is important to note that persons suffering secondary psychological or psychiatric conditions remain eligible for compensation benefits for their condition. Only their access to the special category of serious injury is altered by these amendments. Further, an avenue to serious injury standing for the purpose of initiating common law action remains open to such persons via section 135A(4) of the Act ("the narrative")
However the proposed amendment seeks to return the application of the serious injury test to that which was previously intended - a means of granting access to higher benefits and to common law actions for negligence for the genuinely seriously work injured person.
The Transport Accident Commission uses the same impairment assessment methodology as WorkCover and has been affected similarly by the secondary psychiatric impairment loophole. Clause 35 amends the Transport Accident Act to likewise address the problem. The same commencement issues apply. As with WorkCover, the change will not affect the medical and related no-fault benefits available to claimants in respect of a psychiatric or psychological condition. Access to common law will also continue to be available through the verbal threshold contained in section 93(17) of the Transport Accident Act."
The Committee received a further letter from the Minister dated 2 December 1996. The relevant extract is set out:-
"I write to confirm the matters discussed with you today consequent upon my letter of 2 December 1996.
Further actuarial calculations confirm that it is simply not practicable to have the Bill take effect in relation to injuries sustained on or after 14/11/96.
This is because:
1) There are thought to be some 4,500 people ultimately capable of contesting the existing Act for the purpose of common law litigation.
2) By virtue of amendments the Government has introduced since 1992 the average settlement of "new" common law claims is now some $190,000 as opposed to the "old" common law figure which averaged $25,000.
3) If the new Act were to apply in the manner originally contemplated, the total common law liability could approach $900 million.
At a personal level I wish that the decisions taken were not so. Unfortunately, we have no option."
Clauses 9 and 35
The Committee is concerned about those people who have already instituted proceedings. The Committee has a particular concern that those people will be retrospectively exposed to costs risks. The Committee is of the view that the retrospective application of clauses 9 and 35 from 14 November 1996 is a reduction in rights. The Committee refers the question of whether the reduction is due or undue to the Parliament to debate.
Clause 11 defines "serious injury" for the purpose of the section.
Clause 11
The Committee is of the view that for those persons dependent upon a determination of 30% pursuant to the Table of Maims assessment, the amendments may represent a diminution of rights. The Committee refers the question to the Parliament to debate.
Clause 14 provides that any amount of compensation for maims under section 98 over $5000 and under section 98A must be paid in equal monthly installments over a 5 year period. The Committee wrote to the Minister seeking his advice as to whether the instalments are regarded as taxable income by the Departments of Social Security and Taxation on 26 November 1996. The Committee also received a submission from Maurice Blackburn & Co.[3] The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-
"Clause 14
The Committee is correct in recognising that the change in the nature of the payment of compensation under sections 98 and 98A of the Accident Compensation Act 1985 from lump sums to instalments raises taxation and social security questions for the recipients of those instalments. At the same time, it is not entirely clear that, even if those questions were not answered entirely in favor of the recipients, the change could be properly regarded as a derogation of rights from the recipients under the Accident Compensation Act 1985.
Be that as it may, advice has been received from the Australian Taxation Office and the Department of Social Security in relation to these questions.
The advice from the Australian Taxation Office makes it clear that the change in the nature of the payment of the amounts of compensation will not affect the characterisation of those amounts for the purposes of the income tax legislation. The Office has advised that "the instalment payments will not constitute assessable income, either in full or in part."
However, the Office has pointed out that the question of the treatment of that part of the instalments which relates to the amount by which the original amount of compensation is increased to preserve the present value of the original amount may be considered in the future as part of a wider review of the taxability of the "interest" component of lump sum payments.
The Department of Social Security has confirmed that the change will not affect the application of the "compensation" provisions of the Social Security Act 1991 of the Commonwealth. The amount of the instalments will not be included in the calculation of a preclusion period under those provisions and will not be subject to the dollar for dollar deduction under those provisions.
The Department has yet to give an official view on how the instalments will be treated for the purposes of the ordinary income and assets test under the Social Security Act. (Currently, lump sum amounts of compensation under sections 98 and 98A of the Accident Compensation Act 1985 are counted for the purposes of the assets test but are not treated as income for the purposes of the income test)
However, unofficial communications from the Department indicate that the assets test treatment of the compensation amounts will not be changed by the proposed change in payment method and it is likely that the Department will not treat the instalments as ordinary income.
Once final advice of the Department's approach to these issues has been received, I shall communicate the substance of that advice to the Committee."
Clause 14
The Committee expresses its grave concern that the legislation could prospectively diminish the entitlement which a person may receive from the Department of Social Security. There is a potential loss of benefit to the recipient in terms of the immediacy of the benefit payable.
Clause 17 inserts new section 99AAA which makes provision for co-ordinated care programs. Clause 21 inserts a new Division 10 which makes provision for agency arrangements. Clause 26 inserts new Part VIIA which prohibits conduct relating to touting for claims.
2.4 Part 3 - Amendment of other Acts
Clause 31 substitutes new section 18 into the Accident Compensation (WorkCover Insurance) Act 1993 in relation to the estimate of rateable remuneration. Clause 34 inserts a definition of "reasonable" into the Transport Accident Act 1986. Clause 35 inserts a new section 46B in relation to the assessment of impairment into the Transport Accident Act 1986. The Committee notes the comments in the Second Reading Speech:-
"In line with the Government's desire to maintain consistency between the Transport Accident Act and the Accident Compensation Act, the Bill amends the Transport Accident Act to provide that, in determining a degree of impairment of a person for the purposes of that Act, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."
Clauses 9 and 35
The Committee is concerned about those people who have already instituted proceedings. The Committee has a particular concern that those people will be retrospectively exposed to costs risks. The Committee is of the view that the retrospective application of clauses 9 and 35 from 14 November 1996 is a reduction in rights. The Committee refers the question of whether the reduction is due or undue to the Parliament to debate.
The Committee is of the view that for those persons dependent upon a determination of 30% pursuant to the Table of Maims assessment, the amendments may represent a diminution of rights. The Committee refers the question to the Parliament to debate.
2.5 Variation or alteration of section 85 of the Constitution Act 1975 (4D(b)(i) of the Parliamentary Committees Act 1968)
(i) Section 85 requirements
(a) Constitution Act 1975
Section 85(5) of the Constitution Act 1975 is set out:-
"(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless-
(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and
(c) the statement is so made-
(i) During the member's second reading speech; or
(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or
(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill."
(b) Section 4D(b) of the Parliamentary Committees Act 1968
Pursuant to section 4D(b) of the Parliamentary Committees Act 1968, the Committee is required to consider any bill introduced into a House of Parliament and to report to the Parliament whether the bill is in all the circumstances appropriate and desirable. Section 4D(b) is set out:-
"(b) to consider any Bill introduced into a House of Parliament and to report to the Parliament-
(i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;
(ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; or
(iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue."
(ii) The new legislation
Clause 30(2) directly amends section 85(9) of the Constitution Act 1975 by inserting the words "and as amended by section 30 of the Accident Compensation (Further Amendment) Act 1996. The Committee notes the comments in the Second Reading Speech:-
"To ensure that the classification of serious injury remains within the bounds originally envisaged by the Government, the Bill provides that, in assessing a degree of impairment in accordance with the American Medical Association's Guides or the prescribed methods, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury...
The Government intends that the amendments relating to impairment assessments take immediate effect and, accordingly, the Bill provides that they will commence with effect from today.
Also, because these measures require amendments to section 135A of the Accident Compensation Act 1985, it is necessary for the Bill to amend section 63 of the Accident Compensation (WorkCover) Act 1992 and the Constitution Act 1975. However, as this involves a direct amendment to the Constitution Act , a statement for the purposes of section 85(5) of that Act is not required."
Two views may be expressed with respect to the requirements of section 85 of the Constitution Act 1975 and section 4D(b) of the Parliamentary Committees Act 1968. First, one view is that because clause 30(2) directly amends section 85 there is no need for a section 85 statement (see section 85(5)). Alternately, it may be argued that pursuant to section 4D(b)(i) and (ii), notwithstanding the clause directly affects section 85, the Committee is required to report as to whether it is in all the circumstances, appropriate and desirable. Arguably, the Committee is obliged to report to the Parliament, albeit in a brief form.
The Committee wrote to the Minister on 26 November 1996. The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-
"Requirements of section 85 versus the Committee's obligations
I understand the dilemma facing the Committee in relation to this issue.
If it will assist the Committee, I can explain that the limitations on the jurisdiction of the Supreme Court, inherent in a number of amendments made by the Accident Compensation (WorkCover) Act 1992 were effected by way of direct amendments of section 85 of the Constitution Act 1975 to overcome a procedural technicality which arose during the passage of the Bill for the former Act through the Parliament. One of the amendments made to the Principal Act by that Bill was the insertion into that Act of section 135A relating to the recovery of common law damages.
Having adopted this course, any subsequent amendment of provisions like section 135A which could be said to affect the jurisdiction of the Supreme court must be dealt with in the same manner.
The substantive amendments in this Bill which generate the need for clause 30(2) are made by clause 11. That clause amends section 135A so as to require that an assessment of a person's degree of impairment for the purposes of sub-section (3) of that section must be in accordance with new section 91 of the Accident Compensation Act 1985 which is inserted into the Principal Act by clause 9 of the Bill.
Without this amendment, the originally intended scope of access to recovery of common law damages in the WorkCover scheme would be substantially exceeded.
In conclusion, it must be said that the changes proposed in the Bill are complex. I would therefore be pleased to arrange for a briefing on the intent of the legislation for the Committee or any of its members by officers of the Victorian WorkCover Authority and/or the Transport Accident Commission. Please let me know if you would like such a briefing."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances. However, the Committee notes that the provision is of unique application because of the direct amendment of section 85 of the Constitution Act 1975.
QUEEN VICTORIA MARKET LANDS BILL
3.1
This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.
3.2
The purposes of the Bill are:-
- to revoke the permanent reservations and Crown grants in respect of the Queen Victoria Market Site;
- to provide for the closure of part of two roads on the site;
- to provide for the surrender to the Crown by the City of Melbourne of certain land forming part of the site;
- to enable the granting by the Crown of the lands comprising the site to the City of Melbourne; and
- to make provision for related matters.
3.3
Clause 3 revokes various reservations. Clause 6 provides for the closure of various roads. Clause 8 provides for certain leases not to be affected. Clause 9 provides for the necessary technical amendments by the Registrar of Titles and the Registrar General. Clause 10 repeals various Acts relating to the Queen Victoria Market Site.
The Committee makes no further comment.
PARLIAMENT HOUSE COMPLETION AUTHORITY (AMENDMENT) BILL
4.1
This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.
4.2
The purpose of the Bill is to make provision for the use of stone from the former Heatherlie quarry by the Parliament House Completion Authority. The Committee notes the comments in the Second Reading Speech:-
"The Parliament House Completion Authority has undertaken to complete the building in the spirit of the original design, including, where appropriate, the use of building materials of the same appearance and quality.
The white sandstone used in 1892 to construct the principal Spring Street facade came from the Heatherlie quarry in the Stawell district, and would be a most suitable source of stone for the completion project. The disused quarry now falls within the area of the Grampians National Park, declared in 1984, and is no longer accessible for quarrying activities. In recommending the creation of the Grampians National Park, the Land Conservation Council also recommended that extraction of building stone from the Heatherlie quarry be permitted. This recommendation was accepted by the Government. It is therefore proposed to confer on the Parliament House Completion Authority the power to access the quarry for the purposes of the completion project. Any quarrying activities undertaken by the Authority would be in accordance with Extractive Industries Development Act 1993.
The Authority is currently conducting a study to determine whether high quality white sandstone can be obtained from an alternative source. Should suitable alternative stone not be available, the Authority will need the power conferred by this Bill to start quarrying at Heatherlie in early 1997 to meet the project schedule.
Honourable members should also be aware that the Heatherlie quarry lies within the area of a native title claim registered on 30 August 1996 by the Gournditch-mara people and others. This Bill accommodates the processes required under the Native Title Act 1993.
The Committee makes no further comment.
5.1
This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Pat McNamara MP with the Honourable Jeff Kennett MP.
5.2
The purpose of the Bill is to amend the Pipelines Act 1967 so that it accords with the Commonwealth Native Title Act 1993 by treating the acquisition of private and native title land and interests in the same way for the purpose of acquiring a pipeline easement.
5.3
Clause 5 applies the "right to negotiate provisions" of the Commonwealth Native Title Act 1993. Clause 9 makes provision for the compulsory acquisition of land and interests in accordance with the Land Acquisition and Compensation Act 1986.
The Committee makes no further comment.
LAND (FURTHER REVOCATION OF RESERVATIONS) BILL
6.1
This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.
6.2
The purpose of the Bill is to revoke reservations over various tracts of land.
The Committee makes no further comment.
CONTINUE browsing Alert Digest No. 10 of 1996
| Last update 20/01/97 ©Parliament of Victoria |
 |
 |