Alert Digest No. 10 of 1996
Part 2

7.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

7.2

The purposes of the Bill are:-

to establish the Cinemedia Corporation; and
to repeal the Film Victoria Act 1981 and the State Film Centre of Victoria Council Act 1983.

7.3 Part 2 - Cinemedia Corporation
Part 3 - The Board
Part 4 - General
Part 5 - Consequential amendments
Part 6 - Transitional provisions

Clause 4 establishes the Corporation. Clause 10 gives the Corporation borrowing and investment powers. Clause 12 is the delegation provision. Part 3 contains various provisions relating to the management and constitution of the Board. Part 4 contains general provisions. Clause 30 is the regulation making provision. Part 5 makes consequential amendments. Clause 39 makes provision for the transfer of staff

The Committee makes no further comment.

ENVIRONMENT PROTECTION (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

8.2

The purpose of the Bill is to amend the Environment Protection Act 1970:-

to replace the Environment Council with the Environment Protection Board;
to replace the Recycling and Resource Recovery Council and the Waste Management Council with EcoRecycle Victoria;
to make changes concerning the landfill levy, regional waste management groups and the distribution of payments from the Resource Recovery Fund; and
to generally improve the operation of the Act.

8.3

Clause 3 substitutes new sections 8 to 10 which establish the Environment Protection Board. Clause 6 substitutes new Divisions 1 and 2 of Part IX and establishes EcoRecycle Victoria. Clause 7 inserts new section 50GA which provides for the formation of regional waste management groups on the recommendation of the Minister if so desired. Clause 12 makes various changes to the required contents of regional waste management plans. Clause 13 substitutes new section 50S which provides for the payment of landfill levy. The Committee notes that pursuant to new section 50S(5) the Governor in Council may make regulations once each year increasing the amount of the levy by up to 10%. Pursuant to the Subordinate Legislation Act 1994, increases are normally governed by the Treasurers Guidelines. The Committee wrote to the Minister seeking further information on 26 November 1996. The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-

"Thank you for your letter of 26 November 1996.

You will recall that the landfill levy was one of a number of resource recovery measures introduced in 1992. The intent of the existing section 50S(6) was to ensure that any proposal to increase the levy was subject to scrutiny and limited by the CPI to a maximum of 10%. In considering the quantum of any such increase the Treasurer's Guidelines would be applied as a matter of course. To date no regulations have been made to increase the levy.

Although existing section 50S has had to be re-drafted for other reasons, new section 50S(5) is identical to existing section 50S(6) except for the deletion of the words "After 1 January 1994" which have become redundant. The clause still sends a clear message that the levy rates will not be changed outside of explicit parameters without further legislative action. Such clarity could not be achieved solely through reference to the Treasurer's Guidelines.

Brian Robinson, Chairman of EPA would be happy to discuss this further with you."

8.4

Clause 17 substitutes new section 50X which governs the estimates of waste. The Administrative Appeals Tribunal may review any decisions made in respect of revised estimates. Clause 21 substitutes new sections 52B and 52C which set out how the landfill levy is to be distributed. Clauses 24, 25 and 26 abolish the Environment Council, the Recycling and Resource Recovery Council and the Waste Management Council.

MELBOURNE CONVENTION AND EXHIBITION TRUST BILL

9.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Tom Reynolds MP with the Honourable Jeff Kennett MP.

9.2

The main purposes of the Bill are:-

to establish a Melbourne Convention and Exhibition Trust to manage convention and exhibition facilities and services and to carry out certain other functions;
to abolish the Melbourne Exhibition Centre Trust;
to repeal the Melbourne Exhibition Centre Act 1994.

9.3 Part 2 - Melbourne Convention and Exhibition Trust
Part 3 - Particular powers of the Trust
Part 4 - Finances and Reporting
Part 5 - General
Part 6 - Repeal, transitional and amendments

Clause 4 establishes the Trust. Clauses 5 to 16 provide for administrative matters, appointment and remuneration of members of the Trust. Clause 17 gives the Trust the power to impose fees or charges for providing any facilities or services. Clause 19 provides that with the consent of the Governor in Council given on the Minister's recommendation, the Trust may enter into an agreement or arrangement with a public sector agency. Clause 21 sets out the restrictions in relation to the Trust dealing with land. Clauses 22 to 27 in Part 4 set out reporting requirements. Clause 28 is the regulation making power. Part 6 contains transitional provisions and repeals the Melbourne Exhibition Centre Act 1994.

The Committee makes no further comment.

CASINO (MANAGEMENT AGREEMENT) (AMENDMENT) BILL

10.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

10.2

The purpose of the Bill is to ratify a fourth deed of variation to the management agreement for the Melbourne Casino. The Committee notes the comments in the Second Reading Speech:-

"Section 15 of the Casino Control Act 1991 provides that the management agreement may be varied by the parties, but the variation has no effect unless it is ratified by the Parliament...

The Fourth Deed of Variation provides for a number of minor changes relating to the design of the Queensbridge Square and the Clarendon Street plaza, both of which are part of the Melbourne Casino Complex. All of the relevant authorities recommended endorsement of the proposed changes, and the Government has acted on their advice."

The Committee makes no further comment.

PLANNING AND ENVIRONMENT (PLANNING SCHEMES) BILL

11.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

11.2

The purpose of the Bill is to amend the Planning and Environment Act 1987:-

to reform the structure of planning schemes;
to provide for the preparation of municipal strategic statements;
to provide for the making of Victorian Planning Provisions; and
to provide a co-ordinated procedure for the issue of planning permits with the approval of related amendments to planning schemes.

11.3 Part 2 - Amendment of Planning and Environment Act 1987
Part 3 - Transitional

Clause 5 inserts a new Part 1A which provides for new Victorian Planning Provisions. Clause 7 substitutes a new structure of planning schemes. Clause 11 inserts new section 12A which makes provision for municipal strategic statements. Clause 12 relates to submissions which may be made in relation to the amendment of planning schemes. A person is not entitled to make a submission regarding the change of any of the terms of any State standard provision. However, a person may make a submission which requests that a State standard provision be included or deleted from the scheme. Clause 14 inserts new Division 5 (new clauses 96A-96M) which provides for a combined permit and amendment process. Part 3 contains transitional provisions.

11.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) of the Parliamentary Committees Act 1968)

(1) Clause 16 - new sections 4F and 4J

Clause 16(2) inserts two new sub-sections into section 201D of the Planning and Environment Act 1996.

Clause 16(2) amends section 201D to declare the intention of sections 4F and 4J to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

"Proposed section 4F applies section 39 of the Planning and Environment Act 1987 to an amendment to a planning scheme made by an amendment to the Victoria Planning Provisions.

Similarly proposed section 4J applies section 39 of the Planning and Environment Act 1987 to an amendment to a planning scheme made by an amendment to the Victoria Planning Provisions.

The application of section 39 in each case allows for any defects in procedure, before approval of the amendment, to be the subject of proceedings before the Administrative Appeals Tribunal. The application of section 39 also allows for the specific application of sub-sections (7) and (8) of section 39. Section 39(7) currently provides that an approved planning scheme amendment is not made invalid by any failure to comply with certain specified provisions the Act. Section 39(8) provides that a person cannot bring an action other than by the process described in section 39 itself. Sub-sections (7) and (8) of section 39 already contain a restriction on the jurisdiction of the Supreme Court, for the purposes of section 85 of the Constitution Act 1975.

Given that the amendment procedures for the proposed Victoria Planning Provisions are essentially the same as those for planning schemes, section 201D(2) does no more than extend this restriction on jurisdiction to the Victoria Planning Provisions in the same way it already applies to planning schemes.

The similar extension of the restriction in jurisdiction in section 39(7) is needed to ensure that when an amendment to the Victoria Planning Provisions is approved, there is certainty in the operation of the planning scheme as amended. It is also needed to ensure that when an amendment to a planning scheme included in an amendment to the Victoria Planning Provisions is approved, there is certainty in the operation of the planning scheme as amended.

This certainty is required because a planning scheme forms the basis for the assessment of major development and investment opportunities, for protection of resources and the environment, and for enforcement action to prevent any unlawful use or development of land.

The action that a person may bring under section 39(8) requires referral of the matter to the Administrative Appeals Tribunal for determination.

Parliament has already vested jurisdiction in the Administrative Appeals Tribunal as the appropriate forum to deal with planning matters and has, correspondingly, already limited the jurisdiction of the Supreme Court in relation to planning scheme amendments and permit appeals. The primary reason for this is to allow for relevant planning matters to be decided quickly and inexpensively by a specialist tribunal."

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

(2) Clause 16 - new sections 96M(2) and (4)

Clause 16 amends section 201D to declare the intention of sections 96M(2) and (4) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

"The second of the new sub-sections is sub-section (3) of section 201D. It provides that it is the intention of sections 96M(2) and (4) to alter or vary section 85 of the Constitution Act 1975 to the extent that it applies to any appeal to which section 66A of the Planning Appeals Act 1980 applies.

Sections 96M(2) and (4) apply sections 81 and 85(1)(f) and most of Division 3 of Part 4 of the Planning and Environment Act 1987 to permits issued under the new combined amendment and permit process.

Sections 81, 85 and Division 3 of Part 4 of the Planning and Environment Act 1987 to provide rights of appeal to the Administrative Appeals Tribunal. The jurisdiction of the Supreme Court is already restricted in relation to planning appeals by reason of section 66A of the Planning Appeals Act 1980.

Proposed section 201D(3) does no more than extend this restriction to the new combined amendment and permit process. In relation to the listed provisions, this will allow permits issued under the combined process to be treated the same way as permits issued under other existing processes.

The reason why the Supreme Court is not to have jurisdiction in relation to the listed provisions in proposed section 201D(3) is as follows:

Parliament has already vested jurisdiction in the Administrative Appeals Tribunal as the appropriate forum to deal with planning matters and has, correspondingly, already limited the jurisdiction of the Supreme Court in relation to planning scheme amendments and permit appeals. The primary reason for this is to allow for relevant planning matters to be decided quickly and inexpensively by a specialist tribunal. As indicated, proposed section 201D(3) does no more than extend the existing limitation on jurisdiction to the new combined amendment and permit provisions introduced by the Bill."

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

(3) Clause 27

Clause 27 declares the intention of section 22(2) to alter or vary section 85 of the Constitution Act 1975.

Clause 22 relates to the validity of planning schemes. The Committee notes the comments in the Second Reading Speech:-

"Clause 22(2) provides that a new planning scheme prepared and approved in accordance with the Bill must not be called into question in any proceeding in any court or tribunal. The reasons for excluding the court's jurisdiction are as follows:

First, it is essential that there be no gap in planning controls during the transition from the existing planning schemes to the new schemes proposed by the Bill. A successful challenge to a new scheme would leave such a gap and thus have serious ramifications for existing use rights and for general planning controls affecting the use and development of land. Prohibited uses could suddenly become lawful if a gap in planning controls existed, even if the gap was only for a short time. Other protective measures, such as controls on the demolition of heritage assets or removal of native vegetation, could become unenforceable. These potential outcomes must be avoided.

Secondly, any challenge to the new schemes, even if ultimately successful, would create serious uncertainty in the development industry. Challenges to the validity of planning schemes occurred in 1988 after new schemes were introduced by the Planning and Environment Act 1987. Several schemes were challenged largely by those motivated by commercial advantage, and validating legislation was required in the following sittings of the Parliament. The limitation of jurisdiction in clause 27 will avoid a repeat of those events.

Thirdly, the new schemes are to be based on a series of State standard provisions to be introduced through the Victoria Planning Provisions. A challenge to one scheme would therefore most likely have an adverse consequence on all other planning schemes in the State.

Fourthly, in considering the limitation on the ability to challenge a new scheme, it is important to note that many parts of new schemes will simply reflect existing scheme provisions, albeit in a new structure. Many parts of the new schemes will have been in the public domain for some time and have been subject to extensive consultation. Examples of this are a number of the State-wide zones and State-wide land use definitions. The new schemes will be prepared by municipal councils and follow the ordinary amendment process. There will be public exhibition, the opportunity for hearings of submissions by a panel, and proceedings will be able to be instituted to consider any defects in procedure before approval of a scheme.

Either House of Parliament also retains the power to revoke a new scheme, under section 38 of the Planning and Environment Act 1987. Most importantly, the limitation of jurisdiction only relates to the initial approval of a new scheme, so as to give each new scheme a sound foundation in law. This is essential to the extent that the new planning schemes will form the basis for the assessment of major development and investment opportunities, for protection of resources and the environment, and for enforcement action to prevent any unlawful use or development of land. Once a new scheme is in place, any subsequent amendment of the scheme will be subject to the usual provisions of the Planning and Environment Act 1987."

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

MAGISTRATES' COURT (AMENDMENT) BILL

12.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

12.2

The purpose of the Bill is to amend the Magistrates' Court Act 1989 to make further provision for:-

the issue and execution of warrants; and
the enforcement of penalties.

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

"In summary, the Bill will:

authorise the re-issue of warrants in the future and validate past re-issues;

limit the life of non-executed and future warrants to five years regardless of whether they are re-issued;

place beyond doubt the validity of the electronic issue of warrants;

validate any execution of any warrant to which subsection 58(2) of the Act applied and which had purported to be re-issued;

authorise arrangements made by the Sheriff in the past to allow fine defaulters to enter into time to pay arrangements;

introduce a fee structure to reflect separately the cost of different stages of the fine enforcement process; and

ensure that no proceedings may be brought in relation to actions regularised by the Bill."

12.3

Clause 3 is the commencement provision. The Committee notes the retrospective nature of clause 3 in relation to sections 4, 5(1) and 8. See further comments and the Minister's response below. Clause 4 retrospectively validates the re-issue of certain warrants. Clause 5 retrospectively validates certain warrants which may have been improperly issued despite having expired. Clause 8 retrospectively validates certain offences for the purposes of being prescribed offences within the meaning of the Schedule. The Committee notes the comments in the Second Reading Speech:-

"Recently, out of an abundance of caution, the procedures for the imposition and collection of fines and associated costs have been subjected to an extensive legislative compliance audit as a preparatory step before a complete re-engineering of the fines collection and enforcement process...

The audit disclosed has revealed a number of significant and serious defects with the PERIN system dating back to 1989. Urgent action is required to address these defects to remove any doubt as to the legality and efficacy of the issue of infringement notices and the exercise of the Sheriff's powers to enforce the collection of fines and associated costs...

There are approximately 2.5 million infringement notices issued each year. Approximately 300,000 of these become warrants. The great majority of people (over 90%) pay their fines prior to a warrant being issued. A further few per cent (approximately) pay prior to a warrant being executed. A small number do not pay and warrant are executed against them.

The audit has disclosed that as a result of legislative or administrative deficiencies orders and warrant may have been invalid. There would be enormous administrative difficulties and considerable expense involved in re-assessing all orders and warrants in individual cases. There would also be an element of unfairness as validity would be based on matters extraneous to the people concerned. It would be similarly administratively difficult and enormously expensive to reverse the situation regarding the payment of fees so far as the past is concerned."

The Committee wrote to the Attorney-General in respect of a number of matters relating to the retrospective nature of the Bill on 26 November 1996. The Attorney-General responded by way of letter dated 29 November 1996. The relevant extract is set out:-

"I refer to your letter dated 26 November 1996 concerning the Magistrates' Court (Amendment) Bill. You advise that the Scrutiny of Acts and Regulations Committee has considered this Bill and has a number of concerns.

As you are aware, the Bill remedies a number of defects in warrants relating mainly to the PERIN system. The practices which gave rise to these defects are, in summary:

the execution of warrants to imprison for the non-payment of a fine and warrants to detain in a youth training centre for the non-payment of a fine which may have expired after they were given a life of 5 years by the Magistrates' Court Act 1989;

the reissue of penalty enforcement warrants and warrants to seize property by the PERIN Court Registrar;

the electronic issue of warrants by the PERIN Court Registrar to the Sheriff's Office;

the arrangements to pay entered into by the Sheriff when making demands on warrants issued by the PERIN Court Registrar;

the inclusion of costs of execution on warrants issued by the Sheriff's Office on the authority of warrants issued by the PERIN Court Registrar; and

offences being prescribed under the clause 2 of Schedule 7 to the Magistrates' Court Act 1989 rather than under section 99 of that Act which provides for the PERIN system to be used as an alternative to commencing proceedings against a person for prescribed offences.

The procedures for the imposition and collection of fines were recently scrutinised as part of a legislative compliance audit conducted by the Victorian Government Solicitor. The audit was conducted as a preparatory step to the outsourcing of the administrative functions of the Enforcement Management Unit and the Traffic Camera Office. This audit raised a number of queries regarding the legality of certain practices of the PERIN Court and the Sheriff's Office. The advice of the Solicitor-General was sought. He confirmed that the practices resulted in warrants issued being of doubtful validity and recommended that the situation be remedied by enacting legislation.

I would also like to advise the Committee that since the Bill has received its second reading, some of the above problems have been identified as applying to some warrants which are issued as a result of the non-payment of fines imposed by open court. I am seeking Cabinet approval to remedy these similar defects by House Amendment to the Magistrates' Court (Amendment) Bill.

The Committee seeks an explanation as to how the mistakes were made. It should be noted that the Registrar of the PERIN Court and the Sheriff's Office were acting in good faith and were of the belief that their practices were lawful. The legislation establishing the PERIN Court is, however, very complex. As a result of the legal advice obtained on that legislation, it is now understood that those practices were of doubtful validity. In retrospect, it is clear that legislative compliance audits should have been conducted more frequently. There is also the need, when legislation is amended, to ensure that the agencies operating under that legislation are fully advised of the impact of the changes.

The Committee expresses concern in relation to the possibility that people may have been imprisoned on invalidly issued warrants. This possibility is real. There is, however, no fine defaulter currently imprisoned on a warrant which was issued invalidly. The Secretary of the Department of Justice, in his role as the Director-General of Corrections, instructed the Commissioner of Correctional Services to release any prisoner held pursuant to an invalid warrant. I have been advised that the Commissioner for Correctional Services released 7 people who were imprisoned and terminated 9 custodial community permits.

The Bill validates the defects identified in the warrants and the validating clauses are retrospective. The Bill also ensures that those matters which are deemed to be valid or lawful or to be validly or lawfully done by reason of the operation of the Act, are not subject to challenge through the courts. As a result, a person who has been imprisoned on an invalid warrant which has been validated by the Bill, will not be able to seek legal redress against the Government.

The criticism of the Committee regarding the retrospective nature of the Bill is understood. It is felt, however, that these exceptional circumstances. The defects identified affect a vast number of warrants. It would be enormously difficult and time-consuming to assess every individual case over the past 6 years which may have involved an invalid warrant. Such a process would probably bring the PERIN Court system to a standstill. It should be noted that there is no dispute that in each case the fine or fines were due and owing and the enforcement orders made in relation to those outstanding fines were valid.

It is also felt that it would be unfair to place those people who have paid fines at the earliest opportunity at a disadvantage to those who have refused to pay or paid once enforcement procedures had commenced.

The Department of Justice is working towards ensuring that this situation will not occur again. The Victorian Government Solicitor is continuing to advise the Enforcement Management Unit on the re-engineering of their procedures. A senior legal officer is also to be employed in the Unit to provide the ongoing legal advice on its operational activities and to work on legislative initiatives.

I hope that this response clarifies the need for legislative amendments and addresses the concerns expressed by the Committee."

12.4

Clauses 6 and 7 authorise the validity of the electronic issue of warrants. Clause 9 makes provision for the introduction of a fee structure reflect separately the cost of different stages of the fine enforcement process. Clause 10 authorises arrangements made by the Sheriff in the past to allow fine defaulters to enter into time to pay arrangements. Clause 11 is a transitional provision.

12.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 13 declares the intention of section 12 to alter or vary section 85 of the Constitution Act 1975. Clause 12 provides that any of the proceedings nominated cannot brought in the Supreme Court. The Committee notes the comments in the Second Reading Speech:-

"Clause 12 is included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of the changes to the jurisdiction of the Supreme Court effected by clause 11. The reason why it is necessary to vary or alter the jurisdiction is that it is necessary to ensure that those things or matters which are deemed to be valid or lawful or to have been validly or lawfully done by reason of the operation of this Act (once it commences) are not subject to challenge through the Courts."

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

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Alert Digest No. 10 of 1996 Part 2

Alert Digest No. 10 of 1996
Part 2