Alert Digest No.
7 of 1996
29 October 1996
SMALL BUSINESS VICTORIA (REPEAL) BILL
1.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Tom Reynolds MP with the Honourable Alan Stockdale MP.
1.2
The purpose of the Bill is to repeal the Small Business Victoria Act 1976. Clause 4 abolishes Small Business Victoria. Clauses 5 and 6 provide for the transfer of staff, assets and liabilities.
The Committee makes no further comment.
2.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.
2.2
The purpose of the Bill is to revoke the permanent reservations over certain land at North Melbourne.
The Committee makes no further comment.
LAND (REVOCATION OF RESERVATIONS) BILL
3.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.
3.2
The purpose of the Bill is to revoke reservations over various areas of land and various Crown grants.
The Committee makes no further comment.
CRIMES (FEMALE GENITAL MUTILATION) BILL
4.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.
4.2
The purpose of the Bill is to amend the Crimes Act 1958 to make provision with respect to the practice of female genital mutilation.
4.3
Clause 3 inserts various definitions into the Crimes Act 1958. Clauses 32 and 33 set out the offences associated with female genital mutilation. Consent of the guardian or parents of the person on whom the act is performed is not a defence. Clause 34A sets out the exceptions to the offences. The Committee notes the comments in the Second Reading Speech:-
"Female genital mutilation is a violation of the human rights of women and children. It is a practice which is contrary to the United Nations' Declaration on Violence against Women and the United Nations' Convention on the Rights of the Child. Australia is a signatory to both agreements."
The Committee makes no further comment.
PORTS SERVICES AND MARINE (AMENDMENT) BILL
5.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Alan Stockdale MP with the Honourable Tom Reynolds MP.
5.2
The purpose of the Bill is to make miscellaneous amendments to the Port Services Act 1995 and the Marine Act 1988 including:-
- making fresh provision with respect to the ability of the Victorian Channels Authority to recover damages for property damage or economic loss;
- facilitating the removal of land from the management of the Melbourne Port Corporation;
- abolishing the mandatory port promotion levy;
- increasing the penalties for certain offences under the Marine Act 1988 and enabling councils to retain infringement penalties recovered by them under that Act;
- expanding the areas that may be declared to be designated ports and clarifying the powers of local authorities within those ports, including Melbourne Parks and Waterways.
5.3
Clause 2 provides that section 13 is deemed to have come into operation on 14 December 1995. Section 13 is a statute law revision provision. The Committee notes the retrospectivity.
Clause 5 makes it clear that MPC may take and hold indemnities and enter into contracts of indemnity. Clause 6 ensures that the Victorian Channels Authority can recover damages for loss caused by acts or omissions on port land or port waters. The right to recover damages includes damages for economic loss. The clause also removes the statutory rights of Melbourne Port Authority to recover losses arising from damage caused by third parties. The Committee notes the comments in the Second Reading Speech:-
"Thirdly, the Bill makes clear that the ability of the Victorian Channels Authority to recover loss caused by acts or omissions on port land or port waters extends to economic loss. This is important, for example, in an instance where a ship may block channel access (and thus cause economic loss to the VCA) without causing physical damage to VCA property. A statutory right of recovery by VCA has been retained because it is not always possible for the VCA to obtain contractual indemnities from the owners or agents of visiting ships prior to the ships entering VCA channels. For similar reasons and consistent with competitive neutrality principles, the right of recovery has also been extended to other channel operators undertaking duties related to channel management and maintenance under an agreement with the VCA...
Fourthly, the Bill removes the statutory right of Melbourne Port Corporation to recover losses arising from damage caused by third parties. Unlike channel operators, there are no special factors relating to MPC's operations sufficient to justify a statutory right of recovery. MPC will thus be in the same position in this regard as the private port operators in Geelong and Portland."
The Committee also notes the explanatory memorandum:-
"Sub-clause (2) removes references to MPC in section 23 in toto. Giving a statutory indemnity to the MPC enables MPC to achieve lower insurance rates than it would face in the absence of the statutory right. This is considered to be in contravention of Competitive Neutrality police principles. MPC is competing with the recently privatised ports of Portland and Geelong which do not receive statutory backing in this regard."
5.4
Clause 7 makes it clear that a port corporation may with the consent of the Minister delegate certain functions and powers to a local authority within the meaning or to any other person. The Committee is of the view that delegation provisions should be specific. The Committee has some concerns about the delegation provision. The Committee has written to the Minister.
5.5 Amendment of Marine Act 1988
Clause 14 increases various penalties. Clause 15 enables councils to retain infringement penalties recovered by a staff member of the council. Clause 17 empowers the Minister to make the conferral of associated port functions and powers on a local authority subject to conditions and limitations.
COURTS AND TRIBUNALS (GENERAL AMENDMENT) BILL
6.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.
6.2
The purposes of the Bill are:-
- to make various amendments to the Administrative Appeals Tribunal Act 1984, the Appeal Costs Act 1964, the Coroners Act 1985, the County Court Act 1958, the Court Security Act 1980, the Criminal Injuries Compensation Act 1983, the Magistrates' Court Act 1989 and the Supreme Court Act 1986;
- to repeal the Judicial Studies Board Act 1990.
6.3 Part 2 - Administrative Appeals Tribunal Act 1984
Part 3 - Appeal Costs Act 1964
Part 4 - Coroners Act 1985
Part 5 - County Court Act 1958
Clause 3 substitutes a new section 38AA which provides for mediation in the Administrative Appeals Tribunal. Clause 7 provides for the protection and immunity of mediators. This is discussed later at 6.6. Clause 9 extends the regulation making power. Clause 10 amends section 13(1) of the Appeals Costs Act 1964 in relation to certificates of indemnity which may be issued by the Supreme Court. Clauses 13 to 18 make various amendments to the County Court Act 1958. Clause 17 clarifies that section 70 of the County Court Act 1958 does not abrogate the power of a trial judge in the County Court to grant leave to a party to move for judgment non obstante veredicto ("notwithstanding the verdict").
6.4 Part 6 - Court Security Act 1980
Part 7 - Criminal Injuries Compensation Act 1983
Part 8 - Judicial Studies Board Act 1990
Part 9 - Magistrates' Court Act 1989
Clause 20 inserts new sections 2A to 2F into the Court Security Act 1980. Clause 21 set out powers of authorised officers to search persons on court premises or who are about to enter court premises. It includes the ability to frisk search as defined in clause 19. Clause 24 increases the jurisdictional limit of the Magistrates' Court. Clauses 25 to 33 make various amendments relating to the daily operation of the Magistrates' Court. Clause 34 inserts new section 88A which makes provision for regulations in relation to the costs of an appeal to the County Court. Clause 35 gives the power to the court to refer civil matters to mediation. Clause 38 makes provision for prescription of costs in criminal proceedings. Clause 40 amends Schedule 7 to set out the enforcement procedures for infringement penalties.
6.5 Part 10 - Supreme Court Act 1986 - Part 11 - Miscellaneous provisions
Clause 41 sets out the way in which the Court of Appeal may be constituted. Clause 42 enables the Supreme Court to make orders against vexatious litigants. Clause 43 makes provisions for mediation in the Supreme Court. Part 11 makes miscellaneous and transitional amendments to various Acts.
6.6 Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968
Clauses 8 and 37 declare the intention of particular provisions (as set out in clauses 7 and 35) to alter or vary section 85 of the Constitution Act 1975. Clause 7 gives protection and immunity to mediators and registrars in the Administrative Appeals Tribunal. Clause 35 gives protection and immunity to mediators in the Magistrates' Court. The Committee notes the comments in the Second Reading Speech:-
"Clauses 7 and 35 provide mediators in the performance of their duties in connection with the reference from the Administrative Appeals Tribunal or Magistrates' Court, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as a judge. Clause 7 also provides immunity to a registrar of the Administrative Appeals Tribunal in the performance of his or her duties as registrar under section 50(5) of the Administrative Appeals Tribunal Act 1984. These functions include taxing or settling bills of costs.
The reason for the variation of the Supreme Court's jurisdiction is that immunities are necessary to enable mediators and registrars to carry out the duties mentioned in clauses 7 and 35 without fear of litigation by disgruntled parties."
The Committee is of the view that the proposed provisions are appropriate and desirable in all the circumstances.
UNIVERSITY ACTS (AMENDMENT) BILL 1996
7.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Phil Honeywood MP with the Honourable Phil Gude MP.
7.2
The purposes of the Bill are to:-
- merge part of the Hawthorn Institute of Education into the University of Melbourne;
- make further provision for the Governor to act as Visitor of certain universities;
- make miscellaneous amendments to the Acts establishing the universities.
7.3 Part 2 - Hawthorn Institute of Education
Part 3 - Swinburne University of Technology
Part 4 - Royal Melbourne Institute of Technology
Part 5 - University of Ballarat
Part 6 - Latrobe University
Part 7 - Deakin University, Part 8 - Monash University
Part 9 - Melbourne University
Part 10 - Victoria University of Technology
Clause 3 establishes the "Hawthorn Company". Clauses 4 to 11 make provision for the merge of the Hawthorn Institute of Education into the University of Melbourne. Clause 14 provides for the vacation of the Council of Swinburne University by members of Parliament. Clause 16 provides for the establishment of new advisory boards. Clause 19 makes provision for the Visitor. Clause 20 inserts a new definition of a post-graduate student in the Royal Melbourne Institute of Technology Act 1992. The same provisions with respect to members of Parliament, Visitors and post-graduate students are made to the legislation of all the Institutions listed above.
The Committee makes no further comment.
8.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Phil Honeywood MP with the Honourable Phil Gude MP.
8.2
The purposes of the Bill are:-
- to amend the Education Act 1958 to make provision for work placements for secondary school pupils; and
- to make further provision for overseas students; and
- to amend the Accident Compensation Act 1985 and the Accident Compensation (WorkCover) Insurance Act 1993 to make further provision for pupils in the work place.
8.3 Part 2 - Overseas students - Part 3 - Work placement arrangements
Clause 2 is the commencement provision. The Committee notes the retrospective effect of subsection (2) which relates to a statute law revision amendment. Clause 3 expands the definition of "overseas student" in the Education Act 1958. Clause 4 requires overseas students to pay application fees. Clause 7 inserts new sections 64LB, 64LC and 64LD which provide for work experience and work placement arrangements. Clause 9 governs work placements for pupils from interstate. Pursuant to clause 12 the Minister may determine that an employer is not required to make any payment to a pupil placed in a training or skill centre conducted by an employer on a non-profit basis. The Committee notes that the minimum rate of payment under section 64Q of the Act is fixed by Order of the Governor in Council. The Committee also notes that the determination referred to in clause 12 is fixed by way of Ministerial Order. The Committee has written to the Minister seeking further information.
8.4 Part 4 - Accident Compensation - Part 5 - Statute Law Revision
Clause 16 amends section 108 of the Accident Compensation Act 1985. The effect of the amendment is to extend the responsibilities to self-insurers and their wholly owned subsidiaries in relation to the employment of student workers. Clauses 18 to 22 make various amendments to the Accident Compensation Act 1985. The effect of the amendments is set out in the Second Reading Speech:-
"Pupils employed under work placement arrangements will be covered by WorkCover, under the Accident Compensation Act 1985. Pupils on work experience presently have such cover...
The Bill also proposes to extend WorkCover to pupils undertaking work placement with self-insurers and to employer-conducted non profit training or skill centres...
After consulting and agreeing with the Victorian WorkCover Authority a number of consequential changes will be made to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 to:
- provide WorkCover for those pupils entering arrangements with an employer who is a self insurer within the meaning of the Accident Compensation Act 1985; and
- to extend the WorkCover provisions applying to work experience arrangements to work placement arrangements."
CHILDREN AND YOUNG PERSONS (MISCELLANEOUS AMENDMENTS) BILL
9.1
This Bill was introduced into the Legislative Assembly on 9 October 1996 by the Honourable Dr Dennis Napthine MP with the Honourable Phil Gude MP.
9.2
The purposes of the Bill are:-
- to permit in certain circumstances, the transfer of a young person-
(i) from a prison to a youth residential centre; or
(ii) from a youth residential centre to a youth training centre; or
(iii) from a youth training centre to a prison;
- to clarify the issue of custody when a child is brought back to the Children's Court after the adjournment of a proceeding;
- to make other miscellaneous amendments to the Children and Young Persons Act 1989;
- to repeal the Youth Affairs Act 1986.
9.3 Part 2 - Transfers
Clauses 5 to 9 make various amendments to the Children and Young Persons Act 1989 regarding the transfer of persons from youth residential centres. Clause 10 inserts new sections 244A and 244B. These new sections enable the transfer of a child under the age of 17 years to a youth residential centre from prison if certain criteria are met. They also enable the Youth Parole Board to order the transfer back to prison of a young person who was sentenced to imprisonment and is currently detained in a youth training centre.
9.4 Part 3 - Children's Court - Part 4 - Miscellaneous
Clauses 13 to 16 enable the Chief Magistrate to make various administrative arrangements in respect of the Children's Court. Clauses 16 and 17 alter the jurisdiction of the Supreme Court. This is discussed at 9.5. Clauses 19 to 23 make transitional and consequential amendments.
9.5 Variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968
Clause 16 amends section 14 to grant protection and immunity to acting magistrates. Clause 17 amends section 279A so as to declare the intention of section 14 of the Act to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-
"Clause 17 of the Bill provides that it is the intention of section 14 of the Act, as amended by clause 16 of this Bill, to alter or vary section 85. Section 14, as amended, has the effect of preventing the Supreme Court from granting relief in certain types of proceedings.
Section 14 of the Act, as amended by clause 16 of this Bill, provides acting magistrates assigned to the Children's Court with the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as a judge.
The reason for the variation of the Supreme Court's jurisdiction is that this immunity is necessary to enable acting magistrates to carry out the same duties as magistrates without fear of litigation by disgruntled parties."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
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