Alert Digest No. 4 of 1996
10 September 1996

LEGAL PRACTICE BILL

1.1

This Bill was introduced into the Legislative Assembly on 19 June 1996 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

1.2

The purposes of the Bill are to:-

• to improve the regulation of legal practice in Victoria;
• to repeal the Legal Profession Practice Act 1958;
• to amend the Partnership Act 1958.

1.3 Part 2 - Formal requirements for legal practice

Clause 3 sets out various definitions. "RPA" means recognised professional association accredited under section 299. Clause 6 governs admission to legal practice. Clause 9 provides for a register of all legal practitioners and firms including interstate practitioners. Clause 15 requires firms that intend to engage in legal practice to make written applications to the Board for registration. Pursuant to clauses 16 and 17 the Board must either allocate the firm and practitioners to an RPA or to the Board. Under clause 19 legal practitioners must not commence legal practice until they have been allocated to an RPA or the Board.

Division 4 governs practising certificates. Clause 26 sets out the circumstances where the Board must refuse to issue practising certificates. Clause 28 gives the Board the discretion to refuse to issue practising certificates in certain circumstances. Appeal may be made to the Full Tribunal. Further appeal to the Court of Appeal on a question of law from an order of the Full Tribunal is governed by clause 31. Clauses 36 and 37 set out the circumstances where practising certificates must be suspended. Clause 38 sets out other grounds for suspension. Appeal may be made to the Full Tribunal. Further appeal to the Court of Appeal on a question of law from an order of the Full Tribunal is governed by clause 41.

Division 5 governs the re-allocation of firms and legal practitioners. Clause 49 allows an individual legal practitioner to apply for re-allocation from one RPA to another, but no more than twice in any one year. Division 6 governs interstate practitioners.

1.4 Part 3 - The Manner of Legal Practice

Division 1 sets out the principles of legal practice. Clause 65 permits co-advocacy. Clauses 67 and 68 prohibit compulsory clerking and the keeping of compulsory chambers. Clause 70 abolishes compulsory robing. Division 2 sets out the practice rules.

1.5 Part 4 - Information and Legal Costs

Division 1 sets out the information which must be given to the client. Division 2 governs legal costs generally. Division 3 provides for costs agreements. Clause 98 allows conditional costs agreements to provide for a premium (uplift) on legal costs otherwise payable on the successful outcome of the matter, provided that uplift is expressed as a percentage of those costs. In litigious matters the premium must not exceed 25%. Clause 99 prohibits contingency fees where the legal costs payable are calculated by reference to the amount recovered in litigation.

1.6 Part 5 - Disputes with clients and discipline

Division 1 sets out procedures for dealing with disputes in relation to legal costs which do not exceed $15,000. Division 2 sets out procedures for dealing with complaints about practitioners' and firms' conduct. Complaints may be made to the Legal Ombudsman. Division 3 provides for the investigation of practitioners' and firms' conduct. Investigation may be undertaken by the Legal Ombudsman, the RPA or the Board. Division 4 provides for review of the RPA or Board's decision by the Legal Ombudsman. Division 5 provides that the Tribunal must hear disciplinary matters. Penalties are set out in clauses 159 and 160. Division 6 provides for appeals to the Full Tribunal and appeals to the Court of Appeal on questions of law.

1.7 Part 6 - Clients' money

Division 1 sets out how practitioners and firms must handle trust accounts. Division 2 provides for statutory deposits with the Board and Division 3 sets out auditing requirements. Division 4 relates to deficiencies in trust accounts. Division 5 relates to investigations.

1.8 Part 7 - Defalcations - Part 8 - Professional Indemnity Insurance - Part 9 - Receivers and Managers

Division 1 governs the contributions and levies payable for practitioners. Contributions to the Fidelity Fund are not to exceed $1500 per member. In the case of a member of a community legal centre the amount payable is not to exceed $100. Division 2 governs claims made against the Fidelity Fund. Division 1 of Part 8 sets out the requirements in respect of professional indemnity insurance. Division 2 establishes the Legal Practitioners' Liability Fund. Division 3 establishes the Legal Practitioners' Liability Committee. Part 9 provides for receivers and managers.

1.9 Part 10 - Incorporated Practitioners
Part 11 - Recognised Professional Associations
Part 12 - Unqualified Practice - Part 13 - Conveyancing Businesses

Part 10 enables companies to apply to the Board for registration as incorporated practitioners. Part 11 governs recognised professional associations. Division 1 sets out the process of accreditation. Part 12 prohibits unqualified practice. Part 13 sets out requirements in relation to conveyancing businesses.

1.10 Part 14 - Council of Legal Education and Board of Examiners
Part 15 - Legal Practice Board
Part 16 - Establishment of Funds
Part 17 - Legal Profession Tribunal

Division 1 establishes the Council of Legal Education. Division 2 establishes the Board of Examiners. Division 1 of Part 15 establishes the Legal Practice Board. Division 1 of Part 16 establishes the Public Purpose Fund, the General Account and various other accounts. Division 2 establishes the Legal Practitioners' Fidelity Fund. Division 3 establishes the Legal Practice Fund. Division 1 of Part 17 establishes the Legal Profession Tribunal which consists of a chairperson and 3 deputy chairpersons, a registrar and a deputy registrar, not more than 40 legal `non-advocate members', not more than 20 legal practitioners, not more than 40 `lay members'. Division 2 of Part 17 governs the procedure of the Tribunal. Division 3 of Part 17 establishes a panel of conciliators.

1.11 Part 18 - Legal Ombudsman, Part 19 - General Provisions
Part 20 - Amendment of other Acts

Part 18 provides for the appointment of the Legal Ombudsman. Part 19 contains general provisions. Part 20 contains provisions which amend various Acts.

1.12 VARIATION OF SECTION 85 OF THE CONSTITUTION ACT 1975 (Section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 444 declares the intention of a number of section to alter or vary section 85 of the Constitution Act 1975. Clause 444 has the effect of preventing the Supreme Court from entertaining certain types of proceedings. It is convenient to examine each section which effects the jurisdiction of the Supreme Court in turn.

Clauses 189(3),190(3) and 191(2)

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

"The first class of proceedings is those against a person who is given protection by the Bill from personal liability as a result of fulfilling a statutory duty or exercising a statutory discretion. Clauses 189(3) and 190(3) protect a legal practitioner or an approved clerk who informs the board of a suspected defalcation. Clause 191(2) protects a bank or approved financial institution or an employee or officer thereof who reports a trust account deficiency to the Board.

In each case, exposure to personal liability for fulfilling the statutory duty or exercising the statutory discretion would severely compromise the achievement of the legislative purposes underlying those duties and discretions. For example, people will be unwilling to report a suspected defalcation or trust account deficiency unless they can be certain that a report made in good faith will not embroil them in litigation."

The Committee is of the view that new clauses 189(3), 190(3) and 191(2) are appropriate and desirable in all the circumstances.

Clauses 209(6) and 222(3)

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

"Clauses 209(6) and 222(3) protect the Board from any action arising out of a published notice calling for claims against the fidelity fund relating to a particular practitioner or firm, or a published statement that a fidelity reinsurance contract does not apply to a particular practitioner or firm... The device of setting a cut-off date for claims arising out of a large defalcation has proved to be extremely cost efficient. Without protection against liability for damages arising from such a notice, the Board would be extremely reluctant to exercise its discretion to publish such a notice. Similarly, if the market for fidelity insurance for Victorian practitioners improves to the extent that the Board can obtain reinsurance at reasonable rates and set fidelity fund contributions having regard to the cost of obtaining fidelity insurance in the market, the Board will need to consider the position of particular classes of practitioners and firms. The Board would be unable to distinguish between classes of practitioners and firms without protection from litigation arising from the publication of the names of practitioners and firms who fall within or outside the terms of the reinsurance."

The Committee is of the view that new clauses 209(6) and 222(3) are appropriate and desirable in all the circumstances.

Clauses 419 and 429

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

"Clause 419 provides immunity to conciliators appointed by the Tribunal for anything done or omitted to be done in good faith in the exercise of a power or performance of a duty under the Act or in the reasonable belief that the Act or omission was in the exercise of a power or the performance of a duty under the Act. Clause 429 provides the same immunity for the legal ombudsman and his or her employees. These immunities reflect the policy of the current Act. History shows that disgruntled legal practitioners will join the members and staff of regulatory bodies in legal proceedings wherever possible in an attempt either to exact retribution or to prevent the relevant persons from performing their regulatory functions."

The Committee is of the view that new clauses 419 and 429 are appropriate and desirable in all the circumstances.

Clause 218

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

"The second class of proceedings that will be beyond the jurisdiction of the Supreme Court is actions against a partner or a firm, a director, member or employee of an incorporated practitioner or a legal practitioner in circumstances where the immunity granted by clause 218 applies. That clause gives an immunity to innocent principals in a legal practice where a defalcation occurs. This limitation of the Court's jurisdiction is a corollary of that immunity."

The Committee is of the view that new clause 218 is appropriate and desirable in all the circumstances.

Clause 102(3)

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

"The third class described in clause 102(3) is any action to recover legal costs under a contingency fee agreement that is prohibited. Again, the prohibition of certain contingency fee arrangements require that practitioners who enter into contracts to further such arrangements should not be entitled to the benefit of them."

The Committee wrote to the Attorney-General on 16 July 1996 seeking further explanation. The Attorney-General responded by way of letter dated 23 August 1996. The relevant extract is set out:-

"Clause 102(3)

Section 24 of the Supreme Court Act 1986 gives the Supreme Court a broad discretion to determine by whom and to what extent costs are to be paid in all matters in the Court. This discretion would apply to solicitors who enter into contingency fee arrangements, even though the agreements themselves may be illegal.

Sub clause 102(3) removes this discretion in regard to a prohibited contingency fee."

The Attorney-General wrote a further letter to the Committee on 4 September 1996. That letter is set out on page 9. Whilst maintaining concern about the use of section 85 clauses, the Committee notes the detailed response. The Committee is of the view that new clause 102(3) is appropriate and desirable in all the circumstances.

Clauses 106 and 110

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

"The fourth class is a consequence of essentially procedural limitations on the Court's jurisdiction. Clauses 106 and 110 prevent a practitioner from recovering legal costs without first following certain procedural steps. In the case of legal costs generally clause 106 requires that a bill of costs first be served and in most cases that a period of 30 days elapse after service of the bill of costs. Clause 110 which applies to defence costs in criminal proceedings in the Supreme Court and is currently contained in the Crimes Act 1958 requires the practitioner to have the costs assessed and then fixed by the Court before they can be recovered. Allowing a practitioner to commence an action to recover costs without first completing these procedural steps would defeat the protection for clients embodied in these clauses."

The Committee wrote to the Attorney-General on 16 July 1996 seeking further explanation. The Attorney-General responded by way of letter dated 23 August 1996. The relevant extract is set out:-

"Clauses 106 and 110

Clauses 106 and 110 removes the Supreme Court's broad discretion in regard to legal costs found in section 24 of the Supreme Court Act 1986.

Clause 106 is partly based on s.61 of the Supreme Court Act 1986 which imposes certain restrictions on a solicitor's ability to sue for costs. Clause 106 imposes an additional restriction on the jurisdiction of the Supreme Court by requiring a court or tribunal to stay proceedings brought in contravention of clause 106 either on the application of a party or on its own initiative. Under s.61(4), a stay could only be granted on the application of a party.

Clause 110 largely replicates s.451 of the Crimes Act 1958 which is repealed by the Bill. However, like clause 106, clause 110 imposes an additional restriction on the jurisdiction of the Supreme Court by requiring a court or tribunal to stay proceedings brought in contravention of clause 110 either on the application of a party or on its own initiative. There is no equivalent provision in s.451."

The Attorney-General wrote a further letter to the Committee on 4 September 1996. That letter is set out on page 9. Whilst maintaining concern about the use of section 85 clauses, the Committee notes the detailed response. The Committee is of the view that new clauses 106 and 110 are appropriate and desirable in all the circumstances.

Clauses 116(3) and (4)

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

"Clauses 116(3) and (4) limit the circumstances in which the Supreme Court may assess a bill of costs. They are already contained in the Supreme Court Act 1986. Clause 116(3) generally precludes the hearing of an application by a client for assessment of a bill of costs after a judgment in favour of the practitioner or firm in respect of those costs, or more than one year after the bill was given or payment was demanded. Clause 116(4) generally precludes the assessment of a bill (other than an interim bill) that has already been assessed. These clauses afford the practitioner or firm a reasonable degree of certainty in relation to the possibility of bills of costs being challenged and avoid relitigation of the same issues."

The Committee is of the view that new clauses 116(3) and (4) are appropriate and desirable in all the circumstances.

Clauses 121 and 124

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

"Clause 121 precludes the assessment of costs that have been the subject of a costs dispute under Division 1 of Part 5. Clause 124 prevents the initiation of proceedings in relation to the subject matter of a dispute where a client has initiated the dispute resolution process under Part 5 until the dispute has been determined and any appeal rights are exhausted. The dispute resolution process provided for in Part 5 is designed as a cheap alternative to litigation in the Magistrates' Court or assessment of costs in the Supreme Court by the taxing Master. It is fundamental to the efficacy of that alternative that concurrent proceedings in the courts should not be permitted and that the same issue of costs should not be litigated in two different courts."

The Committee wrote to the Attorney-General on 16 July 1996 seeking further explanation. The Attorney-General responded by way of letter dated 23 August 1996. The relevant extract is set out: -

"Clauses 121 and 124

Clauses 121 and 124 limit the Supreme Court's broad discretion in regard to legal costs found in s.24 of the Supreme Court Act 1986 by removing the possibility of concurrent litigation over legal costs where a client has initiated a dispute resolution process in regard to legal costs under Division 1 of Part 5 of the Bill.

Each of these clauses alters or varies s.85 of the Constitution Act 1975 because of the limits they impose on the jurisdiction the Supreme Court would otherwise have. Consequently, without a provision that complies with s.85(5)(a) in relation to each of these clauses, those limitations will be ineffective."

The Attorney-General wrote a further letter to the Committee on 4 September 1996. That letter is set out on page 9. Whilst maintaining concern about the use of section 85 clauses, the Committee notes the detailed response. The Committee is of the view that new clauses 121 and 124 are appropriate and desirable in all the circumstances.

Clause 115(3)(b)

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

"Similarly, clause 115(3)(b) precludes proceedings by a practitioner or firm to recover costs which are the subject of an assessment by the Supreme Court that has not been completed. This preserves the efficacy of the assessment process by avoiding concurrent litigation."

The Committee is of the view that new clause 115(3)(b) is appropriate and desirable in all the circumstances.

Further letter from the Attorney-General

The Attorney-General wrote a further letter to the Committee dated 4 September 1996. The relevant extract is set out:-

"Dear Mr Ryan

I refer to your discussions with the instructing officer for the Bill, Donald Speagle, regarding my letter to you of 23 August 1996. You have asked for further explanation of why the clauses of the Bill referred to in that letter (clauses 102(3), 106, 110, 121,124) are clauses that alter or vary s.85 of the Constitution Act 1975 (the Act).

The meaning of s.85(5) of the Act

Section 85(1) provides that, subject to the Act, the Supreme Court shall have jurisdiction in all cases whatsoever. By subsection (3), it is provided that the Court has and may exercise such jurisdiction, powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986. Section 85(5) provides that a provision of an Act (other than a provision directly amending any part of s.8595) is not to be taken to `repeal, alter or vary" s.85 unless certain conditions are met. Those conditions include an express reference in or in relation to such a provision, stating an intention to repeal, alter or vary s.85. Clause 444 of the Bill contains such an express reference in relation to the clauses mentioned above.

The leading authority on the meaning of s.85(5) is BHP v Dagi (unreported, 15 December 1995, Court of Appeal, Victoria). BHP concerned the question whether s.46 of the Public Prosecutions Act 1994 was inoperative by virtue of an alleged failure to comply with s.85(5)(b) of the Act, which requires a Parliamentary statement by the responsible Minister of the reasons for repealing, altering or varying s.85. Section 46 is a provision that, subject to certain exceptions, gives the Attorney-General exclusive power to apply to a court for punishment of a person for contempt of court that involves an interference with the due administration of justice. The minority (Winneke P and Hayne JA) found it unnecessary to consider the meaning of s.85(5) because they held, respectively, that s.46 of the Public Prosecutions Act only applies to contempt in criminal proceedings or to public prosecutions for contempt and therefore did not extend to the facts of the case before the Court. The majority (Brooking, Phillips and Tadgell JJA) in holding that s.46 extended to all contempts of court, whether in criminal or civil proceedings, found it necessary to make a number of observations about the effect of s.85(5).

Brooking JA commented that s.85(5) operates on provisions which would, but for that subsection, repeal or amend s.85 by implication, the implication arising from inconsistency between the provision under consideration and s.85. He held that because s.46 deprived the Supreme Court of the ability to hear and determine the plaintiff's application to have BHP punished for contempt, it reduces the "jurisdiction....powers and authorities of the Supreme Court" and by implication amends s.85(3) of the Act. Moreoever, in his view s.46 diminishes the powers and authorities of the Supreme Court.

Phillips JA held that s.85(5) must be complied with "whenever an Act purports to modify or restrict what are otherwise the jurisdictions, powers and authorities of the Supreme Court". Because before s.46 the Court had power to deal with all cases of alleged contempt on the application of any person, even a concerned bystander, s.46 impinges upon the powers and authorities of the Court and therefore alters or varies s.85(3).

Tadgell JA gave detailed consideration to the meaning of the words "jurisdiction....powers and authorities" in s.85(3). The powers and authorities referred to include those that were had and exercised by any of the superior courts in England before the commencement of the Judicature Statute 1874 (UK). The Supreme Court has authority, in the sense of jurisdiction, to decide cases; and it has authority in the sense that it acts authoritatively for the purpose of establishing and maintaining the law. Section 85 (3) of the Act is designed to protect authority in both senses. Section 46 depletes the authority of the Court by removing the opportunity of dealing certainly and immediately with a case of contempt of the Supreme Court at the instance of a person whom the Court is bound, be dealing with the proceedings, to protect. A depletion of the Supreme Court's authority, such as that effected by s.46, cannot be achieved without complying with s.85(5).

Do clauses 102(3), 106, 110 and 124 of the Bill alter or vary s.85?

Clause 102(3) is an absolute bar to the recovery of costs where a legal practitioner has entered into a prohibited contingency fee agreement. Clauses 106 and 110 provide that costs cannot be recovered without first following certain procedural steps. Clauses 121 and 124 are an absolute bar to proceedings regarding legal costs where the client has initiated a costs dispute under Division 1 of Part 5 regarding those costs.

In determining whether these clauses alter or vary s.85, it is first necessary to ascertain what were the jurisdiction, powers and authorities of the Supreme Court before the commencement of the Supreme Court Act 1986. My earlier letter referred to s.24 of that Act, which re-enacts a provision originally introduced into Victorian legislation in the Supreme Court Act 1928, s.32. Section 24 has, however, a much longer history.

The history of s.24 is conveniently set out in Burns Philp & Co Ltd Bhagat (1993) 1 VR 203. Prior to the Judicature Acts 1873-75 (UK), the Court of Chancery had always assumed a jurisdiction to award costs, whereas the courts of common law had no inherent power over costs and they derived their jurisdiction to award costs from statute. The rules scheduled to the Judicature Act 1875 (UK) provided that the costs of and incident to all proceedings in the High Court should be in the discretion of the court. A question then arose whether this rule conferred a jurisdiction to award costs in cases where it had previously been lacking or whether it merely provided that in cases where the court previously had a jurisdiction to award costs, that discretion should be exercised according to the practice of the Court of Chancery. As a consequence of decisions which adopted the more restrictive view (see, for example, Re Mills Estate (1886) 34 Ch.D24), the Judicature Act 1890, s.5 was enacted to avoid that restrictive interpretation and to enlarge the jurisdiction over costs.

Section 5 of the Judicature Act 1890 is the progenitor of s.24 of the Supreme Court Act 1986. The jurisdiction s.24 confers, a jurisdiction enjoyed by the Supreme Court since 1890, is not subject to any implied limitation: Burns Philp at 211.

In barring the Supreme Court from awarding costs in proceedings in the circumstances described in clauses 102(3), 121 and 124, the Bill unquestionably diminishes the jurisdiction of the Supreme Court and by implication amends s.85(3) of the Act. Those clauses therefore alter or vary s.85 of the Act and are inoperative unless the requirements of s.85(5) are satisfied.

Clauses 106 and 110 are of a somewhat different type. They do not remove the jurisdiction of the Court altogether in certain circumstances, but prevent that jurisdiction being exercised until certain procedural steps have been taken. In my view there is little doubt that they "reduce" (in the words of Phillips JA) or "modify or restrict" (in the words of Brooking JA) the jurisdiction, powers and authorities that the Court otherwise possesses. They too, therefore are provisions that alter or vary s.85 of the Act and are inoperative unless the requirements of s.85(5) are satisfied.

Conclusion

The clauses in the Bill to which I have referred are all consumer protection measures. If the requirements of s.8595) are not met in respect of them, they will at some stage be challenged by a legal practitioner on the grounds that they are inoperative and, in my view, the Supreme Court will be required by the terms of s.85(5) to declare that they are inoperative insofar as they purport to modify the jurisdiction, powers and authorities of the Court. That result would be highly undesirable for the client(s) concerned. It would also require legislative change that would be unnecessary if clause 444 stands in its present form."

FARM PRODUCE WHOLESALE (AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Council on 18 June 1996 by the Honourable G.R Craige MLC.

2.2

The purposes of the Bill are:-

• to repeal the Farm Produce Wholesale Act 1990 (31 December 1997);
• to make interim arrangements for the administration of that Act by the Melbourne Market Authority until its repeal;
• to strengthen the provisions of the Farm Produce Wholesale Act 1990 in regard to the issue and renewal of wholesalers licences;
• to make consequential amendments to the Melbourne Market Authority Act 1977.

2.3 Part 2 - Farm Produce Wholesale Licences

Clause 8 amends section 12 so that a person may only object to the grant or transfer of a licence. The Committee notes that a person may no longer object to the renewal of a licence. The Committee wrote to the Minister on 15 July 1996 seeking further information. The Minister responded by way of letter dated 30 July 1996. The relevant extract is set out:-

"The licensing provisions in Part 3 of the Farm Produce Wholesale Act 1990 currently require wholesalers to advertise their intention to renew a licence. Clause 8 of the Amendment Bill will remove the requirement and expense to wholesalers of advertising in this way. Because it is proposed that the public advertising requirement for renewing a licence be removed, it would be inconsistent to retain those objection provisions which are linked to this current requirement.

The requirement for wholesalers to advertise their intention to apply for the grant, renewal or transfer of a licence has been in effect since February 1991, when the Act commenced operation. Objections, as a result of advertisement of intention to renew, have been received on ten occasions. None of those objections contained information about which the Registrar was not already aware. On investigation, all objections were found not to be matters which would warrant the Minister refusing to renew a licence. In addition, all of these objections were matters which would have been investigated, as a complaint against a wholesaler, as a normal function of the legislation.

There has been concern that the matters raised by these objections are more appropriately investigated as a complaint rather than an objection to the renewal of a licence. The consequence of investigating on objection is that licence renewal may be delayed resulting in a wholesaler trading without a licence for a period of time. That is an offence against the Act and may also mean that a producer supplying the wholesaler does not have indemnity protection if the wholesaler fails financially and is unable to pay for produce.

Please note that any person may still object by way of complaint to the Registrar, to a wholesaler being issued with a licence or continuing to hold a licence. Should a Registrar consider that a licence should be cancelled it is relevant to note that the grounds for cancellation are similar to the grounds for refusing to renew a licence.

If you require further information please contact the Registrar, Mr John Fanning. His telephone numbers are 9687 2510 am or 9651 7480 pm."

Clause 9 amends section 13 in relation to the grant, renewal and transfer of licences. Clause 10 inserts new section 13A which describes the circumstances in which a person may be considered not to be a fit and proper person to hold a licence. Clause 14 extends the review of decisions in the Administrative Appeals Tribunal to include those decisions to impose a condition on the granting or renewal of a licence. Clause 15 substitutes a new section 22 in relation to the determination of pecuniary loss.

MELBOURNE EXHIBITION CENTRE (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 19 June 1996 by the Honourable Phil Gude MP with the Honourable Alan Stockdale MP.

3.2

The purposes of the Bill are to:-

• to amend the Melbourne Exhibition Centre Act 1994;
• to repeal sections of the Act which preclude the trust from leasing or licensing land that is not vested in the trust;
• to revoke a small portion of permanent reservation required for the operation of the Melbourne Exhibition Centre.

The Committee makes no further comment.

FORESTRY RIGHTS BILL

4.1

This Bill was introduced into the Legislative Assembly on 19 June 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

4.2

The purpose of the Bill is to provide for the creation of forestry rights.

4.3

Pursuant to clause 3, a "forest property right" means a right granted by a forest property agreement. Clause 5 sets out the scope of a forest property right granted by an owner of land to a forest property owner to plant and harvest forest property on that land. Clause 8 provides for application to the Registrar for registration of the agreement. Clause 9 sets out the effect of registration. Clause 11 ensure that a forest property agreement is not a subdivision or constitute an interest in land and that a right of entry is not deemed to be a right of way.

The Committee makes no further comment.

TRANSPORT (RAIL SAFETY) BILL

5.1

This Bill was introduced into the Legislative Assembly on 19 June 1996 by the Honourable Alan Brown MP with the Honourable Jan Wade MP.

5.2

The purposes of the Bill are:-

• to amend the Transport Act 1983;
• to improve the operation of rail-based transport by providing for the accreditation of the managers of rail infrastructure and the providers and operators of that transport;
• to make various minor miscellaneous amendments to that Act;
• to make minor amendments to the Public Transport Competition Act 1995.

5.3 Part 2 - Amendments to the Transport Act 1983

Clause 3 inserts a new Division 3 into the Act which provides for the accreditation of railway and tramway services (new sections 103-129Y). By way of background the Committee notes the comments in the Second Reading Speech:-

"The Transport Act 1983 places an obligation on the Secretary to the Department of Infrastructure to ensure that a public transport system is provided in Victoria that is efficient, effective, safe and reliable. To meet the requirement to ensure that a safe system is provided the Department has implemented a system of safety accreditation. However the existing accreditation system in Victoria has no legislative support and is administratively based......The Bill gives legal underpinning to the accreditation arrangements that have commenced to operate on an administrative footing. The Bill also gives effect to the Intergovernmental Agreement on rail safety which operates from 1 July 1996."

Pursuant to new sections 112, 113 and 114, the following three categories of persons must obtain accreditation; managers of rail infrastructure, operators of rolling stock and providers of rolling stock. A right of review of accreditation decisions made by the Secretary to the Administrative Appeals Tribunal is provided for in new sections 129B and C. New sections 129D to 129S are the monitoring and enforcement provisions.

New section 129O requires the Secretary to pay compensation for any damage unreasonably caused during inspections. New sections 129T to 129W provide for inquiries, safety audits and fees in relation to safety audits. New sections 129X and Y are the regulation making provisions.

5.4

Clause 7 gives the power to appoint authorised officers in relation to the enforcement of blood-alcohol controls on workers engaged in rail safety work to the Secretary instead of to the Chief Executive of the Public Transport Corporation. Clause 8 provides that where a prior conviction is relevant under the Act, a prior conviction is to include offences where the person was found guilty but had no conviction recorded because of good behaviour bond or otherwise. The Committee notes the comments in the Second Reading Speech:-

"The Bill also amends the Transport Act to provide that where a prior conviction is relevant under the Act, a prior conviction is to include offences where the person was found guilty but had no conviction recorded because of a good behaviour bond or otherwise. This will only be relevant where an offence under the Act carries a higher maximum penalty for a second offence. The amendment brings the Transport Act into line with the infringement provisions in section 90 of the Road Safety Act 1986."

Clause 10 substitutes new section 219 which relates to powers to arrest suspected offenders. Clauses 11 to 15 make minor amendments.

The Committee makes no further comment.

Committee Room
5 September 1996

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