Alert Digest No. 3 of 1996
Part 2

7.1

This Bill was introduced into the Legislative Assembly on 29 May 1996 by the Honourable Dr Napthine MP with the Honourable Phil Gude MP.

7.2

The purpose of the Bill is to provide for the licensing and regulation of children's services.

7.3 Part 2 - Offences
Part 3 - Licensing of children's services

Clauses 7 and 8 set out the offences. Clauses 9 to 20 set out the procedures for making application for approval to operate a children's service. Approval is to be granted by the Secretary of the Department of Human Services. Any appeal in respect of the Secretary's decision may be made to the Administrative Appeals Tribunal pursuant to clause 55. New clause 17(2) enables the Secretary to require an applicant and any person nominated by the applicant to manage or control the service in the absence of the applicant to "submit to any tests....or submit to any medical or psychiatric examination that the Secretary considers appropriate." The Committee wrote to the Minister on 12 June 1996 seeking further information as to what other types of tests are envisaged by the words "any tests". The Committee has also sought advice as to how many and what type of tests are proposed to be used pursuant to "any medical or psychiatric examinations." The Minister responded by way of letter dated 17 June 1996. The relevant extract is set out:

"I refer to your letter of 12 June 1996.

The children's services industry is currently subject to the Health Act 1958. Clause 17(2) of the Children's Services Bill 1996 is very similar to the current section 208C(4A) of the Health Act.

The types of tests that are envisaged by the words "any tests" include criminal record and financial history checks. Tests could also be developed to satisfy the Secretary in peculiar circumstances that it is inappropriate to grant a licence to a particular applicant. For example, a liquidator who wanted to take over the running of a service could be required to demonstrate a knowledge of the legislative obligations imposed on a licensee prior to being granted a licence. This recently occurred.

In relation to the Committee's second question, it is proposed that very few tests are proposed to be conducted pursuant to "any medical or psychiatric examinations." Such tests will not be required in the usual course of operating a children's service centre. Clause 17(2)(b) was included in the Bill to counter circumstances where, in considering a licence application, there are concerns about the mental or physical health of an applicant or a person nominated to have the care and control of the service. In such circumstances the applicant or nominated person may be requested to submit to an appropriate medical or psychological test. Some examples of where this has occurred include:

• A psychiatric report was sought where concerns were raised through the registration process (via referee reports) about allegations of "lewdness" against an applicant;
• Medical tests of vision/hearing were sought given an applicant's apparent lack of hearing and sight;
• A psychiatric report was requested when allegations that a proprietor was mentally ill were raised at the time of renewal of registration; and
• Psychiatric reports were sought after concerns were raised about a proprietor's mental state in a police report.

Such tests are thought to allow the Department of Human Services to be satisfied that there are no risks arising from a licensee's mental or physical state, to the welfare of any children who may use the service."

Clauses 21 to 25 provide for the renewal, transfer or variation of a licence.

7.4 Part 4 - Operation of children's services
Part 5 - Enforcement

Clauses 26 to 34 set out various penalties. Clause 35 provides for authorised officers. Authorised officers must carry appropriate identity cards. Clause 36 sets out the powers of entry of authorised officers. They may enter any premises at any reasonable time where a licensed children's service is operating for the purposes of ascertaining compliance with the Act. They may not enter a residence unless a children's service is licensed to operate and the occupier of the residence has consented in writing to the entry. Pursuant to clause 37 a search warrant must be obtained from a magistrate where it is reasonably believed a person is operating a children's service from unlicensed premises. Pursuant to clause 38 an authorised officer may with or without consent enter, search licensed premises and if necessary seize any thing where it is reasonably believed that there is a contravention of the Act. Clause 44 provides for the removal of children in emergencies.

7.5 Part 6 - Funding, Administration and Regulations
Part 7 - Repeal, Amendment and Transitionals

Clause 51 provides for the publication of guidelines. Clause 52 is the delegation provision. Clause 54 provides immunity for persons who provide information where that person believes on reasonable grounds that provisions of the Act have been contravened. Clauses 57 to 61 are savings and transitional provisions.

8.1

This Bill was introduced into the Legislative Assembly on 29 May 1996 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

8.2

The purposes of the Bill are:-

• to transfer various responsibilities in relation to the administration of the Dangerous Goods Act 1985, the Equipment (Public Safety) Act 1994 and the Occupational Health and Safety Act 1985 to the Victorian WorkCover Authority;
• to provide for the transfer of staff involved in administering those Acts to the Victorian WorkCover Authority;
• to amend the Accident Compensation Act 1985, the Dangerous Goods Act 1985, the Equipment (Public Safety) Act 1994 and the Occupational Health and Safety Act 1985.

8.3
Part 2 - Amendments to the Accident Compensation Act 1985
Part 3 - Amendment to the Dangerous Goods Act 1985
Part 4 - Amendments to the Equipment (Public Safety) Act 1994
Part 5 - Amendments to the Occupational Health and Safety Act 1985

Clauses 9 and 10 govern the transfer of staff. Clause 20 inserts new section 61 which provides for the transfer of responsibilities to the Victorian WorkCover Authority. Clause 21 amends references. Clauses 23 to 29 are transitional provisions. Clauses 34 to 39 substitute the WorkCover Authority where appropriate. Clauses 40 to 47 are transitional provisions. Clauses 50 to 57 substitute the WorkCover Authority where appropriate. Clause 58 inserts new section 60 which provides for the transfer of responsibilities to the Victorian WorkCover Authority. Clauses 59 to 67 are transitional provisions.

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

Clause 11 declares the intention of section 10(3) to alter or vary section 85 of the Constitution Act 1975. Clause 10 provides for the transfer of staff. Subsection (3) of clause 10 provides that a person is not entitled to compensation as a result of the person ceasing to be an officer or employee of the public service by virtue of this section. Note that pursuant to clause 10(1)(b) all transferred staff are to receive remuneration, terms and conditions no less favourable than those to which he or she were previously entitled. The Committee notes the comments in the Second Reading Speech:-

"Finally the amendments provide for the transfer of existing Health and Safety Organisation staff from the Department of State Development to the Authority, to be employed by the Authority on the same basis as the Authority employs its existing employees, but on terms and conditions determined by the Minister to be no less favourable than their existing terms and conditions and on the basis that superannuation and accrued leave entitlements carry across...........

Clause 11 provides that it is the intention of clause 10(3) to alter or vary section 85 of the Constitution Act 1975. This provision precludes the Supreme Court from entertaining actions for compensation where the Accident Compensation (Occupational Health and Safety) Act provides that no compensation is payable. The reasons for limiting the jurisdiction of the Supreme Court are these:

The main purpose of the Bill is to transfer administrative responsibility for the health and safety legislation to the Victorian WorkCover Authority. To facilitate this, the Bill provides in part for the transfer of staff concerned from the relevant departments to the Authority and provides that upon the transfer, those staff cease to be officers or employees of the public service. As ongoing employment is provided it would be inappropriate, and it would reduce the effectiveness of the Accident Compensation (Occupational Health and Safety) Act, if compensation were payable or action could be entertained in relation to these matters."

The Committee wrote to the Minister on 12 June 1996 seeking his advice as to the forms of compensation which the operation of clause 10(3) will preclude given that transferred staff are to receive remuneration, terms and conditions no less favourable than those to which they were previously entitled (clause 10(1)). The Minister responded by way of letter dated 17 June 1996.

"Thank you for your letter of 12 June 1996 in which on behalf of the Committee you sought advice as to the forms of compensation which the operation of clause 10(3) of the above Bill is intended to preclude.

Clause 10(3) is intended to ensure that the staff transferred to the Victorian WorkCover Authority by operation of clause 10 are not entitled to any compensation as a result of the cessation of their employment as officers or employees of the public service.

The forms of compensation which would be precluded include those arising from any variations in employment conditions, e.g. redeployment; performance pay processes; employment contract variations; etc.

As ongoing employment is provided to the affected staff, it is considered that it would be inappropriate for such compensation to be payable. Further, as noted by the Committee, the clause also provides that the transferred staff are to be entitled to remuneration, terms and conditions determined by the Minister to be no less favourable than those which they received or were entitled to receive immediately before the transfer. Accordingly, it is unlikely that a case could be established for compensation.

This measure was seen as desirable so as to put the case beyond doubt and is consistent with that which was intended when section 81A of the Public Sector Management Act 1992 was introduced."

9.1

This Bill was introduced into the Legislative Assembly on 29 May 1996 by the Honourable Rob MacLellan MP with the Honourable Jeff Kennett MP.

9.2

The purposes of the Bill are:-

• to amend the Local Government Act 1989;
• to make changes concerning annual reports, corporate plans, budgets and the declaration of rates;
• to remove the requirement that buyers of land pay all current rates owing on the land as soon as they obtain the land;
• to generally improve the operation of that Act.

9.3

Clause 3 inserts a new section 77 which relates to the improper use of information. Clause 4 clarifies section 81 relating to the register of pecuniary interests. Clause 6 strengthens the requirements for the preparation of an annual report. Clause 8 requires the auditor to prepare a report on the performance statement. Clause 9 substitutes new sections 144 and 144A in relation to the preparation of budgets and revised budgets. Clause 13 substitutes new section 153A which provides for corporate plans. Clause 14 inserts new section 153B which requires the preparation of performance statements. Clause 16 extends a council's ability to recover unpaid rates to include a mortgagee in possession. Clause 20 sets out the application of limited differential rates. Clause 26 enables one council to contract with another council without the Minister's permission. Clause 27 clarifies the competitive tendering arrangements entered into by regional groups. Clause 28 changes the constitution of a Municipal Electoral Tribunal by enabling the Attorney-General to nominate either a magistrate or an acting magistrate for appointment to a Tribunal. Clauses 29 to 33 repeal spent provisions and make minor amendments.

The Committee makes no further comment.

10.1

This Bill was introduced into the Legislative Assembly on 29 May 1996 by the Honourable Bill McGrath MP with the Honourable Phil Gude MP.

10.2

The purpose of the Bill is to make technical amendments to:-

• the Corrections Act 1986, the Crimes Act 1958;
• the Equal Opportunity Act 1995, the Legal Aid Act 1978,
• the Office of the Regulator-General Act 1994,
• the Planning and Environment Act 1987,
• the Prevention of Cruelty to Animals Act 1986, the Sentencing Act 1991;
• the Teaching Service Act 1981.

10.3 Part 2 - Corrections Act 1986

Clause 4 enables the Director-General to authorise contractors, sub-contractors or persons employed by contractors or subcontractors to exercise all or any of the functions and powers under the Act. The Committee notes the comments in the Second Reading Speech:-

"The amendments will enable private prison operators to exercise powers and functions conferred on prison officers in various Acts, including the power to administer bail under the Bail Act 1977."

The Committee is concerned that the provision may contravene section 4D(a)(ii) in that it may make rights, freedoms or obligations dependent upon insufficiently defined powers. The Committee has written to the Minister.

10.4
Part 3 - Crimes Act 1958
Part 4 - Equal Opportunity Act 1995
Part 5 - Legal Aid Act 1978
Part 6 - Office of the Regulator-General Act 1994

Clause 7 extends the offence of loitering to persons with prior convictions for producing child pornography. Clause 8 inserts new section 70AA which gives a court the power to order that child pornography be forfeited to the Crown. Clause 12 removes the compulsory retirement age for members of the Employee Relations Commission. Security of tenure remains unaffected. Clauses 14 and 15 provide for funding agreements under the Legal Aid Act 1978. Clause 16 inserts new section 7A which provides that the Office represents the Crown.

10.5
Part 7 - Planning and Environment Act 1987
Part 8 - Prevention of Cruelty to Animals Act 1986
Part 9 - Sentencing Act 1991
Part 10 - Teaching Service Act 1981

Clause 17 provides that the relevant planning authority must pay to the Crown costs in respect of members. The Crown may recover the costs of a planning panel which includes a member of members who are employed by or on behalf of the Crown. Clause 18 removes references to proper officers and replaces them with authorised officers. The effect of clause 20 is to make paedophiles subject to the same sentencing provisions as rapists and other serious sexual offenders with prior criminal convictions. Clause 23 amends section 8A(1) so that teachers may be appointed for fixed terms not exceeding 5 years. Clause 24 amends section 61(1) so that school councils will no longer make recommendations to the Director of School Education regarding the appointment of assistant principals to their schools. The Committee notes the comments in the Second Reading Speech:-

"Two of the amendments relate to the implementation of the Government's Professional Recognition Program (PRP) for teachers. The PRP is a career and salary structure recently approved, with some minor amendments, by the Australian Industrial Relations Commission. The PRP is primarily designed to provide for an improved teacher career structure for the introduction of performance arrangements and for the recognition of quality in teaching....Clause 24 amends section 61 of the Teaching Service Act which deals with part of the selection procedure for appointments to the Principal Class. At present, the school council of a school makes recommendations to the Director of School Education regarding the selection of the principal and assistant principal when there is a vacancy in those positions.

Under the Schools of the Future Program, the principal has sole responsibility for the workforce plan and new teaching staff selections for the school. It is appropriate that the principal should have the same responsibility for the appointment of the assistant principal. The clause amends section 61 so that School councils are involved in the selection process for the principal only. The Association of School Councils in Victoria has been consulted and agrees with this change which will come into effect on 1 October 1996."

CONTINUE browsing Alert Digest No. 3 of 1996

Last update 29/7/99 ©Parliament of Victoria