Alert Digest No. 10 of 1996
Part 3

13.1

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

13.2

The purpose of the Bill is:-

• to amend the Fisheries Act 1968 and the Fisheries Act 1995; and
• to close the Port Phillip Bay scallop dredge fishery.

13.3

Clause 3 inserts new sections 153A and 153B into the Fisheries Act 1995 which cancel scallop licences. New clause 153B provides that the compensation paid in respect of the cancellation of a scallop licence is any amount determined by the Treasurer and the Minister.

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

Clause 5 amends section 144 and declares the intention of sections 153A and 153B to alter or vary section 85 of the Constitution Act 1975. This prevents the review of any decision of the Treasurer and the Minister in respect of the payment of compensation in the Supreme Court. The Committee notes the comments in the Second Reading Speech:-

"Proposed section 153A cancels any right or privilege a person may have acquired or accrued against the State of Victoria in respect of a licence to dredge for scallops in Port Phillip Bay. Proposed section 153B bars a person from seeking any compensation from the State of Victoria in relation to a cancelled licence to dredge for scallops or take scallops in Port Phillip Bay addition to that provided by that section.

The reason for preventing the Supreme Court from entertaining such actions is as follows. The Crown intends to legislate to close the scallop dredge fishery in Port Phillip Bay and therefore to cancel all licences authorising the taking of scallops by dredge in Port Phillip Bay. It is the intention of the Crown as provided for in this Bill to pay an appropriate amount to licence holders for those licence entitlements which have been granted by the Crown and which the Crown now intends to cancel.

Actions based on other claims could delay implementation of a measure designed to promote the objectives of the Fisheries Act and the effective management of fisheries for the benefit of all Victorians. Delay in implementation could cause hardship to persons awaiting the payment of the amount to be paid following cancellation of the licences."

The Committee received a submission from Higgins Teale.[4] The relevant extract is set out:-

"We act on behalf of scallop fishermen (whose names are identified with an asterix) in the first and third schedules to the enclosed submission.

We confirm that the Fisheries (Amendment) Bill 1996 was introduced into Parliament last Thursday evening. We assume that you have a copy of the Bill, however we can provide you with a copy of same if required.

You will note the effect of the Bill is to:

(i) Close the Port Phillip Bay Scallop Dredge Fishery;

(ii) Cancel all existing licences;

(iii) Re-issue licences for dredging for scallops in waters other than Port Phillip Bay;

(iv) Make a payment as determined by the Treasurer and the Minister to the registered boat owner of a boat that has its licence cancelled;

(v) Exclude the jurisdiction of the Supreme Court to hear appeals in relation to the amount to be paid to the licence holder.

For the reasons set out in the enclosed Submission, (the contents of which Submission is to be read as a Submission to the Scrutiny of Acts and Regulations Committee we consider that the Bill:

1. Trespasses unduly upon rights of fishermen;

2. Makes rights dependent upon non-reviewable administrative decisions;

3. Alters or varies section 85 of the Constitution Act 1975 in circumstances where it is not appropriate or desirable to do so.

In particular, we make the following comments:

(a) Traditional and usual means for determining compensation when a person's property has been compulsorily acquired by Government have been totally disregarded in this Bill.

(b) In an extraordinary and unprecedented move, the Bill specifically excludes any recourse to the Supreme Court to determine disputes over what is reasonable and fair compensation. Instead the Bill states that the dollar value of payments is "to be determined by the Treasurer and the Minister". Furthermore the Bill does not state how payments are to be determined. There is no mechanism for aggrieved fishermen to appeal the dollar amount that they are deemed to be compensated.

(c) It is a law if Australia (both State and Federal) that a fishing licence constitutes and is to be regarded as a piece of property (see comments in the Submission).

(d) Pursuant to the provisions of the Commonwealth Constitution, the Commonwealth Government cannot compulsorily acquire a persons property other than on just terms. This means payment of compensation which is determined through the Courts.

(e) When the Victorian Government compulsorily acquires property in the form of land it pays compensation to dispossessed land owners. If the Government and dispossessed land owner cannot agree on the level of compensation, same is determined by either the Administrative Appeals Tribunal or the Supreme Court.

(f) Furthermore, when a licence is cancelled pursuant to the provisions of the Fisheries Act 1995 (in circumstances where the fishery is declared to be an adjusting fishery) compensation is paid to a dispossessed licence holder. Such compensation is determined pursuant to the principles of the Land Acquisition and Compensation Act 1986.

Other Concerns

(g) Section 153(B) talks about the registered owner of a boat that has its licence cancelled is entitled to be paid an amount determined by the Treasurer and the Minister. There are currently situations where a person is the holder of a licence that has no boat (i.e. he has sold his boat and is presently replacing same or his boat has sunk). In these circumstances, such a person is not entitled to any payment.

(h) The amount to be paid does not take into account interests by financial institutions (i.e. Banks) over a licence. Banks are entitled, under the provisions of the Fisheries Act 1968 to register a prescribed financial interest over the licence. The Fisheries Department will not transfer a licence unless the Bank has consented to same. The Bill undermines the security held by the Banks.

(i) The taxation implications of the Bill have not been dealt with. Industry is presently obtaining taxation advice in relation to same.

(j) Section 153(A)(2) has the effect of cancelling a licence issued under section 14 that licences a registered fishing boat for dredging for or taking scallops for sale. A number of fishermen also have other entitlements on that licence. The most common being a crayfish licence. Pursuant to section 153A, the crayfish licence is also cancelled as the one licence, licenses the boat for scallop and crayfish fishing activities.

The writer would be pleased to discuss the enclosed Submission with members of the Scrutiny of Acts and Regulations Committee."

The Committee was concerned about the application of a section 85 provision in the circumstances. The Committee wrote to the Minister expressing a number of concerns 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 concerning this Bill and attaching a copy of a letter to the Committee from Mr David Fitzpatrick of Higgins Teale. I offer the following responses to your specific questions, including comment on the issues raised by Mr Fitzpatrick.

A brief background to the legislation may assist your Committee. Prior to the elections earlier this year, the Government made a commitment that, if re-elected, it would close the scallop dredge fishery in Port Phillip Bay and acquire the licences from that fishery at an estimated cost of $10 million.

In order to assist with the implementation of this commitment, I appointed a working party group of senior officers from the Department of Natural Resources and Environment, the Department of Premier and Cabinet and the Department of Treasury and Finance to consult with persons affected by the commitment and to report to me on the most appropriate means of addressing the issues raised. All affected licence holders were invited individually and through their various industry associations to discuss with the working group any matter which they believed should be taken into account. All those who wished to put a point of view were heard and any written submissions were considered.

At the meetings with licence holders, the working group invited views on how licences could best be valued. Industry indicated that it would wish any valuation to take into account the past ten years of the fishery's operation, as it considered that the past five years of operation, when there have been very poor yields, did not give an adequate perspective of the value of the fishery. Licence holders were invited to provide to the working group any data which they considered would assist in the valuation of the licences, but to date none has been provided. Although various submissions were received, none of them contained financial details or other forms of information to assist the valuation process.

The working group considered two methods of valuing the licences and has provided advice to me on both. One was to consider the value which the market attached to a licence in the year preceeding the announcement that the fishery was to be closed. Two licences changed hands in that period and the amount paid is known to DNRE and within the industry. However other licences in the fishery have been available for transfer in the same period but without any purchasers, as few people have wished to acquire licences in a fishery with a very low rate of return on investment. The second means of valuing the licence was to consider the marginal value of a licence taking account of the rate of return earned on the investment. The working group commissioned Price Waterhouse to carry out this valuation on the basis of data available to DNRE such as catch and effort returns, which enable calculation of the value of the scallops taken.

The advice provided to me is subject to discussion with my colleague the Treasurer. However, I can assure you that there is an intention to pay a fair and just amount for the acquisition of the licences, on the basis of the objective valuation criteria outlined above. It is my intention to further discuss this amount with affected licensees prior to making a decision. If at this late stage they wish to provide information which would assist my deliberations, I would be pleased to receive and consider it.

I am advised that there are several analogous circumstances to this closure from other jurisdictions. In all other cases no compensation was paid to affected licensees.

(1) Earlier this year New South Wales banned the use of floating fish traps to take yellow-tail kingfish, thus effectively closing the fishery. No compensation was paid.

(2) The Tasmanian Government some years ago banned commercial scallop dredging in the D'Entrecastreau Channel, thus closing that fishery, and no compensation was paid. The area was recently re-opened as a recreational scallop dive fishery.

(3) The Queensland Government this year closed the Princeton Passage to all commercial fishing and paid no compensation. The closure is under challenge in the courts at present.

The Victorian Government however considers it appropriate to pay a fair and just amount for the licences which it is cancelling. These licences gave fishers an exclusive right to use of a public resource and in cancelling them Government is simply resuming that entitlement.

The Government formed the view that it had good and sufficient reasons for wishing to close the Port Phillip Bay scallop fishery and that it did not wish implementation of this policy to be delayed as the result of legal action challenging either the closure. For this reason it took the decision to limit the jurisdiction of the Supreme Court in this matter.

In response to your query concerning delay in implementation, my concern is not with those persons who may wish to challenge the decision. The working group has advised me that there are several cases of serious hardship among those whose licences are to be cancelled, including a person whose uninsured boat has sunk. The legislation is structured to close the fishery and cancel all licences on a single day. This provides the trigger for the purchase of licences. Legal action to prevent this closure would prevent the payment of compensation to any person in the fishery. I consider that it would be ill-advised to implement any alternative mechanisms to acquire licences while there was any doubt as the result of legal challenge.

I turn now to the matters raised by Mr Fitzpatrick. I note his comments under (a), (b) and (e); they require no response from me in addition to my comments above.

I would like to comment on his statement under (c) that "It is a law of Australia (both State and Federal) that a fishing licence constitutes and is to be regarded as a piece of property." Within the last ten years there have been several precedents in case law on the status of licences. This is of course distinct from statute law. Mr Fitzpatrick has perhaps overstated this matter in claiming that a licence is " a piece of property". It is perhaps more accurate to state that a transferable licence partakes of a number of the characteristics of property. However the ability to transfer it is not unfettered, as is shown from any examination of the Fisheries Act 1995. which provides discretion for the Secretary to place conditions upon the transfer of a licence or to refuse its transfer. These limitations may vary between fisheries and any consideration of the extent to which a licence may be considered property must be on a case by case basis.

In relation to Mr Fitzpatrick's comment under (f) I do not consider that the circumstances relating to an adjusting fishery are relevant to consideration of this matter, where a decision has been taken to close the fishery.

In response to the matter raised under (g) similar situations have been handled administratively in the past under normal licensing processes and I am advised that there is no reason why normal practices should not apply.

I note Mr Fitzpatrick's views on financial interests in a licence. Existing fisheries legislation provides a service to industry by registering a financial interest in a licence and in notifying the holder of that interest of any change such as proposed transfer. The closure itself does not undermine the existing arrangement or the security of a lender, since it is intended to pay a fair and just amount for the licence.

With respect to Mr Fitzpatrick's comment on taxation implications, I assume that he is referring to liability for Capital Gains Tax, although he has not made this clear. I have taken account of this matter, but as you would be aware, it is outside the jurisdiction of the State.

In response to Mr Fitzpatrick's final concern (j) I am advised that he has misunderstood the nature of the licence. Section 14 of the Fisheries Act 1968 provides for the granting, under separate sub-sections, of several categories of licences. For reasons of administrative convenience, the entitlements of licensees are provided to them on a single document which registers the name of the boat from which the fishing operation takes place and lists the entitlements. However each of these entitlements constitutes a separate licence to undertake a particular type of activity. Mr Fitzpatrick has confused the issue of a single document with the granting of a licence to undertake an activity.

I trust this response addresses your concerns. If your Committee has any further questions, may I suggest you contact Dr Norma Marshall of my Department (Tel 9412 4668) in the first instance. If you have queries relating to operational matters connected with the closure, the fisheries program manager, Mr Steven Dunn is available to assist you and may be contacted on 9412 4944."

Cancellation of scallop licences - new section 153A

The Committee is of the view that the use of a section 85 provision in respect of new section 153A (cancellation of scallop licences) is appropriate and desirable in all the circumstances.

Acquisition of scallop licences - new section 153B (the valuation of the licences)

The Committee is of the view that the use of a section 85 provision in respect of new section 153B (acquisition of scallop licences - the valuation of the licences) is not appropriate and desirable in all the circumstances.

COMMONWEALTH POWERS (INDUSTRIAL RELATIONS) BILL

14.1

This Bill was introduced into the Legislative Assembly on 13 November 1996 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP

14.2

The purpose of the Bill is:-

• to refer to the Parliament of the Commonwealth certain matters relating to industrial relations;
• to amend the Employee Relations Act 1992;
• to repeal the Annual Leave Payments Act 1992; and
• to make certain consequential amendments to certain Acts.

14.3

Clause 4 sets out various matters referred to the Commonwealth. These matters include:-

• conciliation and arbitration for the prevention and settlement of industrial disputes;
• agreements between employees and employers;
• minimum terms and conditions of employment embracing the setting and adjusting of minimum wages for work classifications;
• termination of employment at the initiative of the employer; and
• freedom of association.

Clause 5 sets out various matters excluded from the reference to the Commonwealth. These matters include:-

• long service leave and public holidays;
• superannuation;
• equal opportunity;
• worker's compensation;
• occupational health and safety;
• apprenticeship;
• essential services;
• certain aspects as a result of the restructuring of undertakings;
• appointment, discipline and redundancy in the public sector; and
• senior state positions and appointments.

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

Clause 7 declares the intention of item 4.10(a) of Schedule 2 to alter or vary section 85 of the Constitution Act 1975. Item 4.10(a) of Schedule 2 substitutes the "Industrial Division of the Magistrates' Court" for the "Employee Relations Commission" in the Construction Industry Long Service Leave Act 1983 as the court with the jurisdiction to hear certain matters. The Committee notes the comments in the Second Reading Speech:-

"Clause 7 provides that it is the intention of clause 4.10(a) of Schedule 2 to the Bill to alter or vary section 85 of the Constitution Act 1975. The provision in question - an amendment to section 79 of the Construction Industry Long Service Leave Act 1983 consequent upon the abolition of the employee relations commission and transfer of its functions under that Act to the Industrial Division of the Magistrates' Court - substitutes the Industrial Division of the Magistrates' Court for the ERCV as the body the decisions of which under that Act are final and without appeal. The effect of this provision is to preclude the Supreme Court from hearing appeals from the Industrial Division of the Magistrates' Court regarding entitlements to and amounts of long service leave. The Supreme Court was similarly precluded from hearing appeals from such decisions of the ERCV.

The reason for limiting the jurisdiction of the Supreme Court in these types of cases is that the industrial division of the Magistrates' Court is intended to take over from the ERCV in the industrial matters that remain for resolution within Victorian jurisdictions, as a specialist body that will provide cost-efficient and speedy determinations in these matters."

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

SUPERANNUATION ACTS (FURTHER AMENDMENT) BILL

15.1

This Bill was introduced into the Legislative Assembly on 30 October 1996 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

15.2

The purpose of the Bill is: -

• to amend certain specified Superannuation Acts to further rationalise the administration of public sector superannuation schemes; and
• to make superannuation related amendments to certain other Acts and regulations.

15.3 Part 2 - Amendment of the Coal Mines (Pensions) Act 1958
Part 3 - Amendment of Emergency Services Superannuation Act 1986

Clause 2 is the commencement provision. The Committee notes the retrospective nature of subsections (2) and (3) of clause 2. Clause 4 of Part 2 inserts new section 115A which provides for the commutation of a pension entitlement. Clause 7 clarifies the definition of "salary" in the Emergency Services Superannuation Act 1986. Clause 10 inserts new sections 20A to 20S which makes provision for contributions. Clause 11 inserts a new Part 3A which makes provision for the ESSPLAN scheme.

15.4 Part 4 - Amendment of Hospitals Superannuation Act 1988
Part 5 - Amendment of Local Authorities Superannuation Act 1988

Clause 22 inserts various definitions. Clause 25 inserts new Part 25A, sections 25A to 25X which set out matters relevant to the "Old Scheme". Clause 26 is the delegation provision. Clause 28 substitutes new sections 43A to 43D which relate to health impairments. Clause 31 amends section 58B(1)(a) to set out further matters which may be the subject of Orders in Council. Clauses 32 and 33 make consequential amendments. Clause 34 revokes specified regulations. Clause 37 inserts new section 34A into the Local Authorities Superannuation Act 1988 in relation to temporary benefits.

15.5 Part 6 - Amendment of Parliamentary Salaries and Superannuation Act 1968

Clause 42 amends sections 12 and 13 of the Parliamentary Salaries and Superannuation Act 1968. The Committee notes the comments in the Explanatory Memorandum:-

"Clause 42 amends a provision regarding the delegation of power, function or duty of the Parliamentary Trustee to specifically refer to a Board administering a public sector superannuation scheme. This removes any doubt that the Parliamentary Trustee can delegate to such a Board and that Board can accept the delegation. The amendment sets 30 June 1996 as the date of the next triennial actuarial review of the Fund. Subsequent reviews must occur every 3 years from that date."

The Committee notes the retrospective effect of the provision. The Committee notes that pursuant to clause 2, this provision is deemed to have come into operation on 18 June 1996.

Clause 43 amends section 21C which relates to benefits. The Committee notes the comments in the Explanatory Memorandum:-

"Clause 43 inserts provisions to prevent members or former members receiving more than one benefit for the same period of service where the member or former member has chosen to receive benefits calculated under the Commonwealth Parliamentary Contributory Superannuation Act 1948."

The Committee notes the retrospective effect of the provision. The Committee notes that pursuant to clause 2, this provision is deemed to have come into operation on 2 July 1996. The Committee wrote to the Minister seeking clarification of the extent and effect of clauses 42 and 43 on 26 November 1996. The Minister responded by way of letter dated 2 December 1996. The relevant extract is set out:-

"In reply to your request dated 26 November 1996 relating to clause 43 of the Superannuation Acts (Further Amendment) Bill 1996, the following information is provided.

Retrospectivity

The Miscellaneous Acts (Omnibus Amendments) Act 1996 ("the Act") received Royal Assent on 2 July 1996. With effect from that date the Act introduced new benefits, based on the Commonwealth Parliamentary Contributory Superannuation Fund (CPCSF), for members entering Parliament after 2 July 1996 and for any current members of the old Victorian scheme who elect to transfer to the new benefits.

However, the Act resulted in an unintended consequence for a new benefits member, who had previously completed and received benefits in respect of Parliamentary service. This occurred by the inadvertent deletion of a section of the legislation controlling the CPCSF and therefore has been corrected retrospectively, essentially by re-introducing the relevant section.

Effect of provision

In essence, where a member has received a lump sum benefit, prior service does not count unless that benefit is refunded. Where a member has commuted a pension, the new pension is calculated using the total of all service, but the pension is reduced by the amount of the pension previously commuted.

Extent of its effect

The provision affects all members receiving new benefits who have had a previous period of service. However, there are special transitional arrangements for current members who transfer to the new benefits and have already completed a previous period of service. In their case, previous benefits are treated in a similar manner to that which would have applied in the old Victorian scheme.

The number of current members with a previous period of service for which they were entitled to receive a benefit are:

• 6 - entitled to a lump sum;
• 2 - entitled to a pension which was commuted.

I trust this reply clarifies this matter for your Committee."

Clause 44 inserts new section 23A which provides for the early release of benefits. Clause 45 amends section 24C to set out further matters which may be the subject of Orders in Council.

15.6 Part 7 - Amendment of Port Geelong Authority Act 1958
Part 8 - Amendment of Public Sector Superannuation (Administration) Act 1993
Part 9 - Amendment of State Employees Retirement Benefits Act 1979
Part 10 - Amendment of State Superannuation Act 1988
Part 11 - Amendment of Superannuation (Portability) Act 1989
Part 12 - Amendment of Transport Superannuation Act 1988
Part 13 - Miscellaneous

Clause 46 makes provision for the winding up of the Port of Geelong Authority Superannuation Fund. Clause 53 amends section 54 of the State Employees Retirement Benefits Act 1979 to remove inconsistencies and bring it into line with other Superannuation Acts. Clause 66 inserts new section 99 into the State Superannuation Act 1988 concerning the transfer to the new scheme in the State Superannuation Fund of a person who is eligible to make an election under section 4(1BA) of the Emergency Services Superannuation Act 1986 and makes that election to transfer. Clauses 68 to 70 amend the Superannuation (Portability) Act 1989. Clauses 74 and 75 inserts the new standard provisions in relation to the early release of funds and Orders which may be made by the Governor in Council. Clause 76 amends the Equal Opportunity Act 1995 to clarify the effect of the operation of that Act on voluntary retirement schemes. Clause 78 corrects a typographical error. The Committee notes the retrospective nature of the statute law revision amendment. The Committee notes that pursuant to clause 2 the amendment is deemed to have come into operation on 18 June 1996.

NATIONAL PARKS (AMENDMENT) BILL

16.1

This Bill was introduced into the Legislative Assembly on 20 November 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

16.2

The main purposes of the Bill are:-

• to amend the National Parks Act 1975;
• to create three National Parks and three Coastal Parks;
• alter several existing National, State and Other Parks;
• make provision for delegation powers for the Director of National Parks;
• make various other amendments to the Act;
• to create the Ada Tall Trees Reserve under the Crown Land (Reserves) Act 1978;
• to amend the National Parks (Alpine National Park) Act 1989; and
• to make other related provisions.

16.3 Part 2 - Amendments to the National Parks Act 1975

Clause 2 is the commencement provision. The Committee notes the retrospective effect of sub-sections (2) and (3) of clause 2. These are discussed later at 16.4 Clause 4 amends section 25B to provide for an agreement to be made for the harvesting of a pine plantation in Lake Eildon National Park and for the taking of firewood in Box-Ironbark National Park. Clause 7 provides for the continuation of the existing chairlift lease at Arthurs Seat. Clause 8 provides for fossicking in Cape Liptrap Coastal Park. Clause 10 inserts a new power of delegation. Clause 11 amends section 37 to enable the carriage and use of firearms or other weapons for the purposes of hunting deer by stalking in certain parks. Clause 13 makes minor amendments to the regulation making powers.

16.4 Part 3 - New and Altered Parks
Part 4 - Creation of Ada Tall Trees Reserve
Part 5 - Amendment of National Parks (Alpine National Park) Act 1989

Clauses 14 and 15 make provision for new national and coastal parks. Clauses 16 to 18 alter descriptions of various tracts of land in specified schedules. Clause 19 closes various roads within a number of national parks.

Clause 20 provides for the excision from reserved forest of an area which was included in Lerdeerdern State Park on 20 June 1996. The Committee notes the retrospective effect of clause 2 in respect of clause 20. The Committee notes that clause 20 is deemed to have come into operation on 20 June 1996. Clause 23 provides for certain areas to be included in specified national parks. Clause 24 creates the Ada Tall Trees Reserve. Clause 25 corrects the wording in two sub-sections of the National Parks (Alpine National Park) Act 1989 in relation to the description of the Alpine National Park. The Committee notes the retrospective effect of clause 2 in respect of clause 25. The Committee notes that clause 25 is deemed to have come into effect on the day on which the National Parks (Alpine National Park) Act 1989 received Royal assent.

CHIROPRACTORS REGISTRATION BILL

17.1

The Committee reported on the above Bill in Alert Digest No.7 of 1996 on 28 October 1996. The relevant extract is set out:-

"Clause 29 provides for reports of examinations. Pursuant to sub-section (4), an investigator may decide not to give a report to the chiropractor being investigated. The investigator may decide to give the report to another chiropractor nominated by the chiropractor being investigated. The Committee has written to the Minister requesting advice as to the circumstances under which it is envisaged an investigator will give a report to a chiropractor nominated by the chiropractor being investigated."

17.2

The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996 and received by the Committee on 19 November 1996. The Minister's response is set out:-

"Clause 29 of the Chiropractors Registration Bill

This clause is similar to provisions in the Freedom of Information Act (e.g. section 33(4)). It is designed to assist with situations where a practitioner who is the subject of a report may be adversely affected if there is damaging information in the report. It protects the interest of the person who is the subject of the report.

The clause provides a mechanism that ensures the person is treated in a compassionate way by the investigator where the report contains material that could lead to a detrimental reaction in the person. It may be that if material in the report was given to the practitioner without the involvement of a third party, that the practitioner's condition could be aggravated or it may lead to a relapse had there been a full or partial recovery.

Section 29 provides a mechanism to avoid that possibility."

OSTEOPATHS REGISTRATION BILL

18.1

The Committee reported on the above Bill in Alert Digest No.7 of 1996 on 28 October 1996. The relevant extract is set out:-

"Clause 29 provides for reports of examinations. Pursuant to sub-section (4), an investigator may decide not to give a report to the osteopath being investigated. The investigator may decide to give the report to another osteopath nominated by the osteopath being investigated. The Committee has written to the Minister requesting advice as to the circumstances under which it is envisaged an investigator will give a report to an osteopath nominated by the osteopath being investigated."

18.2

The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996 and received by the Committee on 19 November 1996. The Minister's response is set out:-

"Clause 29 of the Osteopaths Registration Bill

This clause is similar to provisions in the Freedom of Information Act (e.g. section 33(4)). It is designed to assist with situations where a practitioner who is the subject of a report may be adversely affected if there is damaging information in the report. It protects the interest of the person who is the subject of the report.

The clause provides a mechanism that ensures the person is treated in a compassionate way by the investigator where the report contains material that could lead to a detrimental reaction in the person. It may be that if material in the report was given to the practitioner without the involvement of a third party, that the practitioner's condition could be aggravated or it may lead to a relapse had there been a full or partial recovery.

Section 29 provides a mechanism to avoid that possibility."

HEALTH ACTS (FURTHER AMENDMENT) BILL

19.1

The Committee reported on the above Bill in Alert Digest No.7 of 1996. The Committee made comments in respect of two provisions; new section 69E and clause 35.

19.2 Committee's comments regarding new section 69E

The Committee made the following comments in respect of new section 69E. The relevant extract is set out:-

"New section 69E provides that a contractor or sub-contractor must give the Minister, the Chief General Manager and any authorised officer access to the hospital and to all the documents in the possession of the contractor or sub-contractor relating to the provision of health services to public hospital patients at the hospital for the purpose of ensuring compliance with the Act or regulations. The new provisions are subject to the Freedom of Information Act 1982 and the Ombudsman Act 1973. The Committee has written to the Minister seeking clarification of the mechanisms in place to protect patients' confidentiality and interests."

19.3 Minister's response regarding new section 69E

The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996 and received by the Committee on 19 November 1996. The Minister's response is set out:-

"New section 69E in clause 28 of the Health Acts (Further Amendment) Bill

This section is based on section 8E of the Corrections Act 1986, which was inserted into that Act by the Corrections (Amendment) Act 1994, which established the legislative framework for the involvement of the private sector in the provision of correctional services. It only allows access to the hospital, its patients and documents relating to the provision of health services to public hospital patients at the hospital for the limited purpose of ensuring compliance with the Health Services Act 1988, the regulations made under it and the agreement under section 69B(1). It is not a power to make general enquiries into the private affairs of patients at the hospital. Section 95 of the Constitution Act 1975 and the Code of Conduct for the Victorian public sector prohibit the use or release of information gained as a result of employment in the public sector for other than official purposes. The Code of Conduct also states that personal information gained concerning members of the public must remain confidential.

The fact that privately-operated hospitals are subject to the Freedom of Information Act 1982 and the Ombudsman Act 1973 does not mean that information obtained as a result of the exercise of the power in section 69E will be available to the public. Firstly, those Acts are expressed to apply only to the relevant private health providers, not to the persons who might exercise the power under section 69E. Secondly, section 33 of the Freedom of Information Act and section 14(3) of the Ombudsman Act would both protect the patients of the hospital from any attempt to use those Acts to gain private information concerning them."

19.4 Committee's comments regarding clause 35

The Committee also made the following comments regarding clause 35 in Alert Digest No.7 published on 28 October 1996:-

"Clause 35 inserts new section 157D which declares the intention of section 69D(4) to alter or vary section 85 of the Constitution Act 1975. New section 69D provides that no compensation is payable by the Crown in respect of the transfer of land to the Minister or the Crown in accordance with an agreement under section 69B(1). The Committee notes the comments in the Second Reading Speech:-

"Clause 35 proposes to insert a new section 175E into the Health Services Act that is intended to alter or vary section 85 of the Constitution Act to the extent necessary to prevent the Supreme Court from entertaining actions for compensation in respect of matters over which section 69D provides that no compensation is payable.

Section 69D provides that no compensation is payable where land is transferred to the Minister or the Crown pursuant to an agreement entered into between a contractor and the Minister except to the extent that the agreement provides for compensation.

The reason for preventing the entertaining of these proceedings is to enable a clear and unencumbered transfer of land to the Minister or the Crown free of all pre-existing interests and rights in the land and all claims for compensation based on them, other than claims under the agreement."

The Committee is of the view that the provision is appropriate and desirable. However, the Committee has written to the Minister seeking advice as to ways in which unregistered interests may be protected."

19.5 Minister's response regarding clause 35

The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996 and received by the Committee on 19 November 1996. The Minister's response is set out:-

"Clause 35 of the Health Acts (Further Amendment) Bill

This section is based on section 8E of the Corrections Act 1986, which inserted into that Act by the Corrections (Amendment) Act 1994. In Alert Digest No.4 of 1994 the Scrutiny of Acts and Regulations Committee advised that it was of the view that the proposed new section 8E of the Corrections Act was appropriate and desirable in all the circumstances.

All reasonable attempts will be made to identify any unregistered interests in land which is the subject of a public hospital patient services agreement. However, as was pointed out in the second reading speech in respect of this Bill, it is essential that any land which is transferred to the Minister or the Crown pursuant to an agreement be unencumbered. It is undesirable for a person to be able to assert an interest in the land which may impede the building or operation of the hospital which is or will be located upon it. It should also be noted that if the land in questions is Torrens title land, once the Minister or the Crown becomes registered as the title holder that registered event would ordinarily defeat any prior unregistered interests in any event.

I trust that the above information adequately addresses your concerns regarding the above Bills. If you require any further information regarding the Chiropractors Bill or the Osteopaths Bill please telephone Joe Coleiro on 9616 8330. If you require further information on the Health Acts (Further Amendment) Bill please telephone Timothy Lunn on 9616 8207."

VICTIMS OF CRIME ASSISTANCE BILL

20.1

This Bill was introduced into the Legislative Assembly on 30 October 1996 by the Honourable Jan Wade MP with the Honourable Anne Henderson MP. The Committee reported on the above Bill in Alert Digest No.8 of 1996 on 12 November 1996.

20.2 Clause 16 - The Committee's comments

The Committee commented on clause 16 in Alert Digest No.8 of 1996. The relevant extract is set out:-

"Clause 16 sets out those matters which the Tribunal may take into account in determining an award. Under sub-paragraph (b) this includes "any damages that the applicant would be likely to recover at common law if he or she commenced a legal proceeding to recover them". The Committee notes that the use of the word "unlikely" is vague in this context. The Committee has written to the Minister."

20.3 Clause 16 - The Attorney-General's response

The Committee wrote to the Attorney-General on 12 November 1996. The Attorney-General responded by way of letter received by the Committee on 20 November 1996. The relevant extract is set out:-

"Clause 16(b) is intended to give the Victims of Crimes Assistance Tribunal a broad discretion to take into account the potential of an applicant to recover damages at common law when deciding what assistance to award under the Bill.

The term "likely" is appropriate in this context. Tribunal members will be able to make this judgment. In the sense the judgment is the same as that a lawyer makes when advising a client whether it is likely that the client's court case will be successful."

20.4 A further letter from the Committee regarding clause 16 - Introduction of a House Amendment

The Committee wrote a further letter to the Attorney-General outlining its concerns and requesting a review of the operation of the provision on 20 November 1996. Following discussions between the Attorney-General and the Chairman, a House Amendment was introduced. The Attorney-General sent a further letter to the Committee dated 29 November 1996. The relevant extract is set out:-

"I refer to your recent letters in relation to SARC's consideration of the Victims of Crime Assistance Bill and discussions with officers of my department.

In order to clarify the matters raised by SARC relation to clause 16, the following House Amendment has been made:

2. Clause 16, lines 16 to 26, omit all words and expressions on these lines and insert -

"(i) any compensation, assistance or payments of any kind under any scheme, whether statutory or non-statutory, including that managed by the Transport Accident Commission and the Victorian WorkCover Authority and that established by the Police Assistance Compensation Act 1968 and any predecessor of any such schemes; and

(ii) any payments under any insurance policy (including life and health insurance) or superannuation scheme-"

3. Clause 16, line 27, before "for the" insert "that the applicant has not received but is entitled to receive, or would be entitled to receive if he or she applied for it or them."

These amendments have been made to clarify the provision and to make it consistent with clause 27.

We are satisfied that this amendment addresses the matters raised in your letter in relation to clause 16.

Should you have any further enquiries please contact Angela Cannon on 9603 6791."

20.5 Clause 47 - The Committee's comments

The Committee commented on clause 47 in Alert Digest No.8 of 1996. The relevant extract is set out:-

"3.5 Variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 71 declares the intention of sections 47, 48 and 63 to alter or vary section 85 of the Constitution Act 1975.

(i) Clause 47

Clause 47 limits the right of a creditor to recover money for treatment or other services from a person who is the subject of an order from the Tribunal. The Committee notes the comments in the Second Reading Speech:-

"Section 47(5) limits the right of a creditor (other than legal practitioners who are dealt with at section 48 to recover money from a person to whom the creditor has provided treatment or other services for which the Tribunal orders payment. The creditor will not be able to recover more than the amount the Tribunal determines is reasonable unless the creditor is a legal practitioner who has paid the full amount owing on behalf of a client. This limitation is necessary to protect applicants to the Tribunal and the Tribunal from paying unreasonable expenses."

The Committee is of the view that there may be circumstances where significant costs are incurred which ought be recoverable. The Committee has written to the Minister."

20.6 Clause 47 - The Attorney-General's response

The Committee wrote to the Attorney-General on 12 November 1996 in respect of clause 47. The Attorney-General's response was received by the Committee on 20 November 1996. The relevant extract is set out:-

"Clause 47

Clause 47 replicates section 31 of the Criminal Injuries Compensation Act 1983. I understand the provision works well in practice. In the scenario you outline, I assume the Tribunal would determine a reasonable fee in the context of the late night call for assistance."

Committee Room
2 December 1996

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