Alert Digest No. 12 of 1997
2 December 1997

LAND (RESERVATIONS AND OTHER MATTERS) BILL

1.1

This Bill was introduced into the Legislative Assembly on 30 October 1997 by the Honourable Marie Tehan MP with the Honourable Dr Denis Napthine MP.

1.2

The purposes of the Bill are:-

• to revoke reservations over various parcels of land;
• to revoke Crown grants and a Certificate of Title in relation to some of that land;
• to repeal the Burrumbeet (Russel Reserve) Land Act 1982;
• to provide for the revocation of part of the reservation of land at Albert Park and the re-reservation of that land;
• to provide for entry on and use of reserved land at Argyle Square for the construction and on-going use of a car park beneath that land.

1.3

Clauses 3 to 17 revoke various reservations and Crown grants of land. Clause 19 provides for a revocation of a reservation in respect of the State Research Farm at Werribee. Clause 22 repeals the Burrumbeet (Russell Reserve) Land Act 1982 which is no longer required. Clause 25 revokes a reservation of land in Albert Park. The Committee notes the comments in the Second Reading Speech:-

"MacRobertson Girls' High School occupies a small 0.6 hectare site at the corner of Kings Way and Albert Drive, Albert Park. The site is Crown land, permanently reserved for education purposes. The school adjoins the North Eastern corner of Albert Park Reserve and in the past, has used the reserve for open space and other recreational activities. Because of the redevelopment of Albert Park reserve this is no longer possible. The need for alternative arrangements to ensure the ongoing viability of the school was recognised in the Albert Park Master Plan (1994) which supported the use of a small portion of the reserve by the school. A small excision of approximately 8,500 square metres is required to be made from the Albert Park reserve to facilitate this proposal. The excised land will be permanently reserved for educational purposes. Clause 27 makes an amendment to the definition of Albert Park in the Australian Grands Prix Act 1994 as a consequence of the excision."

Clause 29 revokes a reservation of land in respect of Argyle Square. Clause 32 gives the Registrar-General and Registrar of Titles the power to make necessary amendments. Schedules 1 to 13 contain explanatory maps of the land in respect of which reservations are revoked.

The Committee makes no further comment.

ACCIDENT COMPENSATION (MISCELLANEOUS AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 30 October 1997 by the Honourable Alan Stockdale MP with the Honourable Marie Tehan MP.

2.2

The purposes of the Bill are:-

• to amend the Accident Compensation Act 1985 for the purpose of changing the scheme for compensation;
• to abolish certain rights of action at common law;
• to make related amendments to certain other Acts.

2.3

Clauses 3 and 4 insert definitions. Clause 5 clarifies the definition of superannuation benefits for the purposes of any calculations. Clause 8 sets out the remuneration payable to persons engaged by an employer to participate as contestants in a sporting or athletic activity. Clause 10 sets out further powers of the Authority. Clause 16 sets out additional provisions in respect of the production of documents to the Conciliation Officer. Clause 18 applies section 99 (compensation for medical and like services) to the procedures used by the Conciliation Officer in section 59. Clause 21 provides that opinions on medical questions by the Medical Panel are to be final and conclusive. Clause 23 provides that workers with pre-existing injuries who have been advised by the employer that failure to disclose such information may affect their entitlement to compensation may be precluded from seeking compensation in respect of such an injury.

Clause 24 provides that section 89 does not apply to further injuries suffered on or after 12 November 1997. This means that workers who suffer further injuries(further loss of hearing) after this date are not entitled to the additional compensation set out in section 89. The Committee will write to the Minister seeking clarification of the operation of the provision.

Clause 25 amends section 91 to set out the new assessment of impairment provisions. The Committee will write to the Minister in relation to the potential for any retrospective effect of the provision. Clause 26 provides that section 92 does not apply in respect of a death occurring on or after 12 November 1997. Section 92 sets out the compensation available to the worker's dependants. Clause 27 inserts new sections 92A, 92B and 92C which set out the compensation available to dependants of a worker.

Clause 28 substitutes new section 93C which sets out the operation of sections 93A and 93B as they apply after 12 November 1997. Section 93A relates to payments in respect of the first 26 weeks of incapacity. Section 93B relates to payments after the first 26 weeks of incapacity. Clause 29 inserts new section 93CA which sets out the worker's entitlements to weekly payments whilst incapacitated. Clause 33 amends section 98 (table of compensation for maims) to provide that compensation under it is payable only in respect of an injury that arose before 12 November 1997. Clause 34 amends section 98A(5) (compensation for pain and suffering) to provide that compensation under it is payable only in respect of an injury that arose before 12 November 1997.

2.4

Clause 36 inserts section 99C,D and E which set out the compensation an injured worker is entitled to for non-economic loss. Clause 38 substitutes new section 98D which sets out further details of the payment of compensation for the calculation of non-economic loss. Clause 40 inserts an updated indexation provision. Clause 43 inserts section 104B which sets out the particular process for compensation claims under section 98C.

Clause 45 inserts new section 134A which provides that actions for damages are only to be in accordance with the Act from 12 November 1997. This provision effectively abolishes any rights of action for negligence at common law from that date. The Committee was of the view that clause 45 constituted a reduction in rights. Discussion then ensued as to whether the reduction in rights was due or undue. A view was expressed that the reduction was undue because it clearly precluded a seriously injured worker accessing the courts for the purposes of obtaining what he or she regarded as fair and reasonable compensation. The further view was expressed that the scheme of compensation contemplated by the bill provided fair and just outcomes for seriously injured workers without the necessity for the common law process to be undertaken. The Committee refers the matters to the Parliament to debate.

Clause 47 amends section 135A to insert various provisions relating to offers of compromise and settlement and the conduct of proceedings. Clause 48 inserts new sections 135AB and 135AC which enable the Minister to issue directions to be published in the Government Gazette. New section 135AC deals with limitations of actions. The Committee notes the comments in the Second Reading Speech:-

"Workers who were injured before the date of commencement will have up to three years to commence proceedings to recover damages. If however, the incapacity arising from such an injury only becomes known after commencement the worker will have three years from when the incapacity became known to bring proceedings for damages."

Clause 49 inserts new section 135C which limits the damages which may be obtained by dependants under the Part III of the Wrongs Act 1958 in respect of a worker's death to $500,000. Clause 53 amends section 179 to define "protected claims". Clause 59 amends section 252 to require the Authority to issue general guidelines and publish them in the Government Gazette in relation to the prosecution of offences under the Act.

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

Clause 60 inserts new section 252C which declares the intentions of sections 39,134A,135,135A,135AB,135AC and 249C of newly amended Accident Compensation Act 1985 to alter or vary section 85 of the Constitution Act 1975. Clause 63 provides that section 252C and those amended sections have effect as a direct amendment to the Constitution Act 1975.

The Committee notes that pursuant to section 85(5) of the Constitution Act 1975, an explanation is not required where there is a direct amendment of section 85. For the purpose of providing information, the relevant parts of section 85 are set out:-

"(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless--

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and

(c) the statement is so made during the member's second reading speech;"

The Committee also notes that the Second Reading Speech states that the amendments require a variation to section 85 of the Constitution Act 1975 which is achieved by the direct amendment to that section made by clause 63.

2.6 Amendment of other Acts

Clause 65 inserts the definition of remuneration as it relates to superannuation benefits in section 8(2A) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 68 amends the Accident Compensation (WorkCover Insurance) Act 1993 to enable the Authority to apply to the magistrate who issued the warrant for an order authorising the Authority to retain possession of the books specified in the order until the criminal proceeding has concluded. Clauses 70,73 and 75 increase the penalties for various offences under section 26(2) of the Equipment (Public Safety) Act 1994 and the Magistrates' Court Act 1989.

EPWORTH HOSPITAL (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 12 November 1997 by the Honourable Dr Denis Napthine MP with the Honourable Phil Gude.

3.2

The purpose of the Bill is to make provision for a charitable body called the Epworth Foundation and to provide for the transfer of the hospital called Epworth Hospital at Erin Street, Richmond to Epworth Hospital Ltd. It amends the Epworth Hospital (Amendment) Act 1980 and the Epworth Foundation Act 1980.

3.3

Clause 6 inserts various definitions. Clause 4 inserts new objects. Clause 11 amends section 9 to provide for a person to be a member of the Board of Management for a period longer than nine years unless the Board makes the appropriate resolution at the Annual General Meeting. Clause 16 inserts a new section 21A to provide for donations, gifts, trusts and trust funds to or for the use of the Corporation to take effect as if made, declared or created in favour of the Foundation. Clause 22 inserts Part 5 which provides for the transfer of property to Epworth Hospital Ltd.

The Committee makes no further comment.

LAND TAX (AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 12 November 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

4.2

The purpose of the Bill is to amend the Land Tax Act 1958 to alter the rates and thresholds for land tax.

4.3

Clause 3 amends section 7A to provide that where the total amount of land tax payable for any year after 1997 would, but for that section, be less than $85, no land tax is payable for that year by the taxpayer. Clause 4 amends the Second Schedule to remove the application of the capping provisions in clause 1B(5) to land tax duty payable for years subsequent to 1997. It also sets out the rates of land tax to be charged for 1998 and subsequent years.

The Committee makes no further comment.

BUSINESS FRANCHISE FEES (SAFETY NET) BILL

5.1

This Bill was introduced into the Legislative Assembly on 12 November 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

5.2

The Bill amends the Business Franchise (Petroleum Products) Act 1979, the Business Franchise (Tobacco) Act 1974, the Liquor Control Act 1987 and the Tobacco Act 1987. In particular its purposes are:-

• to amend the Business Franchise Acts to remove the requirement for petroleum and tobacco wholesalers and retailers to be licensed or pay a licence fee; and
• to amend the Liquor Control Act 1987 to remove the requirement for liquor licensees to pay ad valorem licence fees; and
• to authorise the Treasurer to make certain payments and appropriate to the Consolidated Fund for that purpose; and
• to make consequential amendments to the Tobacco Act 1987;
• to make miscellaneous amendments to the Business Franchise Acts and the Liquor Control Act 1987.

5.3 Part 2 -- Business Franchise (Petroleum Products) Act 1979, Part 3 --Business Franchise (Tobacco) Act 1974

Clause 5 repeals various licensing and spent provisions in the Business Franchise (Petroleum Products) Act 1979. Clause 6 inserts new section 17 which enables the Treasurer to make payments to person who sell diesel fuel. Clause 7 inserts new sections 18 to 26 which provides that for the purposes of making payments the Treasurer may require relevant information and records to be kept.

The Committee notes that pursuant to clause 2(2), Parts 2 with the exception of some provisions are deemed to have come into operation on 7 August 1997. The Committee notes the retrospectivity is a result of the effect of decisions in the High Court this year, namely, Ha and Lim and Hammond. As a result of the decisions the Commonwealth has enacted legislation to increase the rate of certain taxes. The Committee notes the comments in the Second Reading Speech:-

"The Commonwealth Parliament has since enacted legislation to increase from 3.30 pm on 6 August, the rate of sales tax on liquor and, from midnight on 6 August, the rate of customs and excise duty on tobacco and petroleum products. Appropriate legislation has also been enacted by the Commonwealth to return the revenues thereby raised to the States...

The provisions of the Bill which affect ad valorem liquor franchise fees are to have effect retrospectively from 3.30 pm on 6 August 1997, the time at which the Commonwealth began to collect replacement revenues through an increase in the rate of Wholesale Sales Tax on liquor".

Clause 9 repeals various licensing provisions. Clause 10 amends section 15A, the warrant provision to apply solely to petroleum matters.

5.4 Liquor Control Act 1987, Tobacco Act 1987

Clause 13 amends section 99 to ensure that an agent or mortgagee of licensed premises is under the same obligations as if they were the licence holder in relation to the premises. Clause 15 substitutes a new section 113 which provides for fee amounts for licence applications and for future increases in the fees to be prescribed by regulations. Clause 16 repeals various provisions. Clause 17 inserts new section 119A which enables the Treasurer to make payments. Clause 18 provides that the Treasurer may require certain information and records to be kept.

Clause 21 amends section 32 of the Tobacco Act 1987 to provide for the payment of monies to the Victorian Health Promotion Fund out of the Consolidated Fund. The Committee notes that pursuant to clause 2(1) Part 4 with the exception of certain provisions is deemed to have come into operation at 3.30 pm on 6 August 1997. The Committee refers to and repeats its comments at paragraph 5.3 in relation to the effect of the High Court decisions of Ha and Lim and Hammond and retrospectivity.

CONFISCATION BILL

6.1

This Bill was introduced into the Legislative Assembly on 12 November 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

6.2

The purposes of the Bill are:-

• to provide for the forfeiture of the proceeds of certain offences, whatever the form into which they have been converted;
• to provide for the automatic forfeiture of restrained property of persons convicted of certain offences in certain circumstances;
• to provide for the forfeiture, without requiring a conviction, of property of a person if the Supreme Court finds it more probable than not that the person has engaged in certain drug offences;
• to provide for the forfeiture of property used in connection with the commission of certain offences;
• to provide for the freezing of assets;
• to provide for the destruction or disposal of certain illegal goods;
• to provide for the effective enforcement of this Bill and the management of seized and restrained assets;
• to preserve assets for the purpose of restitution or compensation to victims of crime;
• to amend the Sentencing Act 1991 to provide for the sentencing of continuing criminal enterprise offenders;
• to repeal the Crimes (Confiscation of Profits) Act 1986;
• to make consequential amendments to certain other Acts.

6.3

Clause 4 sets out the meaning of 'conviction'. For the purposes of the Act a person is deemed to have been convicted of an offence if pursuant to (d) the person has been charged with the offence but before the charge is finally determined, the person absconds. Clause 5 sets out the meaning of 'absconds'. This states that a person is deemed to abscond if pursuant to (a) the person is charged with an offence but dies without the charge having been determined. It appears that the effect of clauses 4 and 5 is that a person could be deemed to be convicted of an offence simply because he or she has been charged and then dies of natural causes (without having been convicted in court). The Committee expressed concern at the potential injustice which might occur in certain circumstances arising from the application of these provisions. The Committee will write to the Minister.

Part 2 makes provision for restraining orders. Pursuant to clause 14 application must be made to the Court for a restraining order. Sub-clause (5) provides that a court in making a restraining order "must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise" The Committee notes the comments in the Second Reading Speech:-

"Under the changes, defendants will no longer be allowed to access restrained property for legal expenses. However, if a person has insufficient unrestrained assets or income to pay for legal expenses, the Court may order that they receive legal assistance. This ensures that they will be properly represented and will not be deprived of a fair trial."

Pursuant to clause 16 if a person has been or within the next 48 hours will be charged with a civil forfeiture offence, an automatic forfeiture offence or any other forfeiture offence application may be made without notice for a restraining order. Pursuant to clause 27 if at the end of the period of 48 hours after the making of restraining order, the defendant has not been charged with the offence, the order ceases to be in force at the end of the period.

6.4 Automatic forfeiture and civil forfeiture

Part 3 governs the forfeiture of property. Clause 35 provides for automatic forfeiture of property the subject of a restraining order on conviction of certain forfeiture offences.

Part 4 provides for civil forfeiture. Clause 37 governs applications for civil forfeiture orders. It provides that if a defendant has been charged with a civil forfeiture offence application may be made to the court for a civil forfeiture order. It further provides that for the purposes of civil forfeiture, it does not matter that the charge has been withdrawn or finally determined.

Under the existing legislation there is provision for confiscation of property where a conviction has been recorded. Necessarily, the standard of proof required to initiate the confiscation proof is that of beyond reasonable doubt. The civil forfeiture provisions set out in Part 4 contemplate the forfeiture of property through a process which is initiated at the time a serious criminal charge is laid. For the purpose of giving effect to that process the civil standard of proof, namely, on the balance of probabilities is applied, rather than the criminal standard of beyond reasonable doubt. To that extent, this is a diminution in rights. The Committee refers the question of whether the diminution in rights is due or undue to the Parliament to debate.

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

"The Bill establishes a harsher confiscation regime to apply to person charged with trafficking in or cultivating commercial quantities of illicit drugs...The Government believes it is not unreasonable to ask people charged with such serious offences to establish the provenance of their assets. The Commissioner of Taxation has a similar power which he exercises through the issue of a 'default assessment'.

Under the procedure, the Prosecution may apply for a restraining order over all or part of the person's property within a specified time. Application for civil forfeiture must then be made, either by the ACO or the DPP. The prosecution must prove on the balance of probabilities that the person committed the offence charged and that the property sought is property which belongs to them. Prior to any property being forfeited, the person will have the opportunity to prove on the balance of probabilities that the property was lawfully acquired and was not used in or derived from unlawful activity."

The standard to be used in determining an application is on the balance of probabilities pursuant to clause 38. Clause 38 further provides that the State must order that restrained property be forfeited if finds on the balance of probabilities that the defendant committed the civil forfeiture offence, whether or not the defendant has been tried, and if tried, acquitted. Pursuant to sub-clause (5) of clause 38 the quashing of a conviction for a civil forfeiture offence does not affect the validity of a civil forfeiture order that was made before or after the conviction was quashed and was based on that offence.

6.5

Part 5 sets out the effect of forfeiture. Clause 45 provides that the court may order that a person is entitled to be paid a specified amount out of the forfeited property if it thinks it necessary to prevent hardship to the person. Clause 47 provides for the discharge of automatic forfeiture in respect of an interest.

Clause 48 provides for the discharge of a civil forfeiture order if it is discharged by the Court of Appeal or payment is made in accordance with section 56 or 57. Part 6 makes provision for exclusion orders.

Part 7 provides for the return of property. Part 8 makes provision for pecuniary penalty orders. Application may be made after conviction of a forfeiture offence under clause 58. Clause 63 provides that application may be made for a pecuniary penalty order if a defendant has been charged with a civil forfeiture offence. It also provides that for the purposes of civil forfeiture, it does not matter that the charge has been withdrawn or finally determined.

Part 9 sets out the powers of the trustee. Part 10 governs disposal orders and Part 11 provides for search warrants. Part 12 governs examination orders. In particular, clause 99(1) provides that in an examination, a person may not refuse or fail to answer a question that might tend to incriminate the person. It appears that clause 99(1) abolishes the privilege against self-incrimination. The Committee is of the view that the abolition is a diminution in rights. The Committee refers the question of whether the diminution is due or undue to the Parliament to debate.

Part 13 provides for information gathering powers. Part 14 governs money laundering. Part 15 makes provision for interstate orders and warrants. Part 16 contains various miscellaneous provisions. Clause 142 provides for appeals to the Supreme Court. Clause 143 makes provision for orders of legal aid. Part 17 amends the Sentencing Act 1991. Part 18 makes consequential amendments. Schedule 1 sets out forfeiture offences. Schedule 2 sets out automatic forfeiture offences. Schedule 3 sets out civil forfeiture offences.

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

Clause 145 declares the intention of sections 55(10), 56(6), 57(6), 106(3) and 119(7) to alter or vary section 85 of the Constitution Act 1975. It is convenient to examine each provision in turn.

Clause 55(10)

Clause 55 provides for application to the Minister for the return of property or payment of value. Clause 55(10) provides that a determination or purported determination of the Minister under this section is not liable to be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal on any account. The Committee notes the comments in the Second Reading Speech:-

"Under clause 55, a person may apply to the Minister for the return of property which has been forfeited in circumstances where, for example, a forfeiture order has been set aside on appeal. Where the property has already been disposed of or the Minister considers that it should not be returned to a person, the Minister must determine the value of the property and this amount must be paid to the person. The Minister's determination concerning the value of the property and whether it should be returned is final and may not be reviewed by the Court . This provision existed under the Crimes (Confiscation of Profits) Act 1986."

The Committee will write to the Minister seeking clarification of the operation of the provision.

Clause 56(6)

Clause 56 enables a person with an interest in forfeited property to buy back the interest. The Committee notes the comments in the Second Reading Speech:-

"Clause 56 of the Bill enables persons to apply to the Minister for the return of forfeited property (for example, a car used in an offence) in exchange for an amount of money. The Minister's determination concerning the value of the property and whether it should be returned is final and may not be reviewed by the Court. This provision existed under the Crimes (Confiscation of Profits) Act 1986."

The Committee will write to the Minister seeking clarification of the operation of the provision.

Clause 57(6)

Clause 57 governs the buying out of interests in forfeited property. The Committee notes the comments in the Second Reading Speech:-

"Clause 57 deals with joint interests in forfeited property and allows for a party with a non-forfeited interest to apply to `buy-out' the interest in the forfeited portion of the property. This is a new provision which provides flexibility for parties with an interest in forfeited assets. The Minister's determination concerning the value of the interest and whether or not to allow it to be purchased is final and may not be reviewed by the Court."

The Committee will write to the Minister seeking clarification of the operation of the provision.

Clause 106(3)

Clause 106 relates to the effect of production orders on proceedings. The Committee notes the comments in the Second Reading Speech:-

"Clause 106 relates to production orders which are court orders requiring a person or financial institution to produce specified documents to enable investigations into property belonging to another person. A lawyer may be required by the court to produce a document relating to his or her client. Complying with the production order may involve a breach of the privilege attaching to that relationship. In order to facilitate the flow of information and to ensure that court orders are heeded, the section requires the person to comply with the order notwithstanding that compliance may breach an obligation. The provision goes on to provide that the person will not be liable for any breach of obligation caused by having complied with the production order. Without such a protection, the person might otherwise be liable to civil action for having obeyed a court order, which is obviously undesirable."

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

Clause 119(7)

Clause 119 relates to reports of suspect transactions. The Committee notes the comments in the Second Reading Speech:-

"Similarly, clause 119 provides that no action, suit or proceeding lies against a cash dealer or an officer, employee or agent of the cash dealer in relation to any action by the cash dealer or person taken under the provision or taken in the mistaken belief that it was required to be taken by the provision. Clause 119 requires cash dealers to provide certain information to the Australian transaction reports and analysis centre concerning transactions in accounts held by a person with the cash dealer that may be relevant to an investigation or prosecution of a state offence."

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

EDUCATION (STATE SCHOOLS) BILL

7.1

This Bill was introduced into the Legislative Assembly on 19 November 1997 by the Honourable Phil Gude MP with the Honourable Jan Wade MP.

7.2

The main purpose of the Bill is to amend the Education Act 1958 to make further provision relating to State schools.

7.3

Clause 3 inserts new section 25C into the Education Act 1958. It authorises the making of regulations concerning the age requirements of persons to enrol at or attend State schools, and for principals and head teachers to refuse to allow a person who does not meet those age requirements to enrol at or attend the school. The Committee expressed concern that a literal interpretation of the section might provide a basis of application broader than that intended by the Minister and as reflected in the Second Reading Speech. The Committee will write to the Minister seeking clarification of the intended application of the Bill.

Clause 4 excludes the Bill from affecting the rights or obligations of the parties in the Supreme Court proceedings number 6991 of 1997. The Committee notes the comments in the Second Reading Speech:-

"In 1992, Berendale Special School (a State School established under section 21 of the Education Act 1958) introduced the 18 plus transition program. The program was designed to assist mildly intellectually impaired adults transfer to adult community by reaching independence in travelling, banking, purchasing food, communication skills and extended work placements.

The 18 month plus program at Berendale ran for five years and six months ending on 30 June 1997. Under the Department of Education's Age-Based Policy announced in November 1996, three students at Berendale Special School were required to leave the school and had the option of enrolling in the Futures for Young Adults Program...

Nine students from Berendale Special School commenced proceedings in the Anti Discrimination Tribunal claiming direct and indirect discrimination on the grounds of age. The matter was referred to the Supreme Court as a special complaint under section 126 of the Equal Opportunity Act 1995. The Supreme Court handed down its decision on Friday 7 November 1997. It held that the Department of Education's Age-Based Policy announced in November 1996 constituted both direct and indirect discrimination against the complainants.

The Court made orders requiring the Department to permit the complainants to return to Berendale Special School; to re-instate the Berendale Transition 18 Plus Program; and to include the complainants in Berendale's school global funding. Other orders were also made for legal costs. The Department has appealed to the Full Court of the Supreme Court, however given the uncertainties and time involved in legal proceedings, the outcome is uncertain...

It is not proposed in the legislation to overturn the Supreme Court's decision in respect of the complainants at Berendale. The Supreme Court's decision operates in respect of those complainants and subject to the outcome of the appeal to the Full Court, the Department will need to comply with the Supreme Court's decision in respect of those complainants...

The Bill will not affect the rights of the parties in the recent decision of the Supreme Court."

The Committee makes no further comment.

GUARDIANSHIP AND ADMINISTRATION BOARD (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 19 December 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

8.2

The purposes of the Bill are:-

• to make miscellaneous amendments to the Guardianship and Administration Board Act 1986 and to make consequential amendments to the Medical Treatment Act 1988 and the Mental Health Act 1986.

8.3

Clause 4 inserts various definitions into the Guardianship and Administration Board Act 1986. Clause 6 amends the objects of the Act. Clause 7 makes a number of amendments to the Act to clarify its operation in respect of the Public Advocate. Clause 9 amends section 24(2) to clarify that a plenary guardian has the power to restrict or prohibit visits to a represented person where it is in that person's best interests. Clause 12 amends sections 32 and 33 to make the temporary order procedure more flexible.

8.4

Clause 13 inserts new Division 4A in Part 4 of the Act. It enables a person to execute an enduring power of guardianship. Clause 15 inserts new Part 4A into the Act in relation to medical and dental treatment.

Clause 18 amends section 58 to remove the requirement that accounts of represented persons must be examined by the State Trustees and to enable the Board to appoint any person to audit and examine accounts. Clause 21 inserts a new Part 6A to establish a legislative scheme for the registration of interstate guardianship and administration orders. Clause 22 amends section 82(1) to enable regulations to be made by the Governor in Council in relation to treatment which is to be considered medical or dental treatment for the purposes of the Act, treatment which is special or major treatment and the matters which are to be taken into account when determining whether treatment would be in the interests of a person. Clause 26 makes consequential amendments to the Medical Treatment Act 1988 to recognise an enduring guardian who has authority to make decisions about medical treatment. Clause 27 makes consequential amendments to the Mental Health Act 1986 to recognise the authority of an enduring guardian to consent to medical treatment.

The Committee makes no further comment.

WATER ACTS (FURTHER AMENDMENT) BILL

9.1

This Bill was introduced into the Legislative Assembly on 29 October 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

9.2

The Committee reported on the above Bill in Alert Digest No.10 of 1997 on 11 November 1997. The relevant extract is set out:-

"Clause 17 enables various application fees to be set by the Minister rather than by regulation. Clause 18 enables an Authority to fix a fee for an information statement. In the past it was set by regulation. The Committee notes the comments in the Second Reading Speech:-

"Clauses 17 and 18 give Authorities the ability to set fees at a level to recoup their administrative costs in providing various services. Currently, statewide fees are set by regulation with no regard to an Authority's business cost structure.  Fees for processing licence applications will be set by Authorities under delegation from the Minister. Fees for other services will be scrutinised by Government as part of the business planning process, and the changes to the latter will make the fee setting and oversight process more transparent."

The Committee will write to the Minister seeking further information in respect of clause 17."

9.4 Minister's response

The Minister responded by way of letter dated 17 November 1997. The relevant extract is set out:-

"I refer to your letter of 11 November 1997 raising the issue of transparency in the process of setting fees referred to in clause 17 of the Bill. I understand your concerns have been clarified in a discussion between Ms Helen Mason, who is with your Committee and Suzanne Evans of the Department of Natural Resources and Environment and that your Committee's concern is to ensure adequate transparency in the process of setting these charges.

The amendment proposed in clause 17 of the Bill results in groundwater and river diversion charges being set by the Minister. The proposal is for the Minister to delegate to the Rural Water Authorities the power to set these prices and for the Minister to review these tariffs as part of the Corporate Planning process.

Clause 18 of the Bill means that each Water Authority would be responsible for setting a tariff for information statements and this would be reviewed by the Minister as part of the Corporate Plan. This is the process for setting all other tariffs and charges levied by Authorities under the Water Act 1989.

Corporate plans are required to be submitted to the Minister, usually two months before they are to be implemented and the Minister has the power to direct changes. Tariffs and charges in the pricing proposal are justified in relation to the underlying cost structure of the service to which the charge relates. All Authorities have Customer Consultative committees which are consulted in the development of the pricing proposal. The requirement for pricing proposals to be part of the Corporate Planning provisions under clause 21 of the Bill makes tariffs under clauses 17 and 18 more explicit.

Transparency in the Corporate Planning process is achieved by the Corporate Plans being made available to the public pursuant to Section 248 of the Water Act. Sections 259 and 260 of the Water Act also require that before any tariffs or charges or changes to tariffs and charges, can be levied they must be `published in a newspaper circulating generally in the area concerned.'

It would be inappropriate to publish in the Government Gazette only those charges specified in clauses 17 and 18. Having fees set within the context of the Corporate Plan I believe will add transparency and efficacy to the process. Given the explanation above, I am sure you will now agree."

GAS SAFETY BILL

10.1

This Bill was introduced into the Legislative Assembly on 29 October 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

10.2 Committee's comments

The Committee reported on the above Bill in Alert Digest No.10 on 11 November 1997. The relevant extract is set out:-

"Clause 9 establishes the Office of Gas Safety. Clause 14 is the delegation provision. The Committee will write to the Minister in respect of the delegation provision."

10.3 Minister's response

The Minister responded by way of letter dated 26 November 1997 received by the Committee on 1 December 1997. The relevant extract is set out:-

"Thank you for your letter dated 11 November 1997. I note the Committee's concern over the delegation provision (clause 14).

The Gas Safety Bill establishes a safety regime to operate with the restructured Victorian gas industry. The Office of Gas Safety ("OGS") has been established as the regulator with primary responsibility for the preservation of safety standards within the industry.

However, there a number of other government agencies that will continue to play a significant role in regulating safety in the gas industry. For example, the Plumbing Industry Board will continue to administer the licensing of gasfitters; the Victorian Workcover Authority will regulate major hazard facilities, some of which will incorporate the utilisation of gas, and the transportation of dangerous goods (including liquified petroleum gas); and the Pipelines Unit of the Department of Natural Resources and the Environment will continue to regulate the design and construction of high pressure pipelines.

Particularly, in the early stages of the reform process, it is important to take advantage of the industry specific expertise of such agencies to ensure the lowest cost impact of safety regulators.

It is necessary to provide some flexibility in the legislation through the delegation power to allow for the performance of functions, and the exercise of powers, by the government agency in the best position to do so effectively.

The delegation power will be used conservatively and only in instances where there is a demonstrated benefit from a function or power primarily with the OGS, being performed by another government agency. If it becomes apparent over time that the delegated function should be a principal responsibility of another agency, the legislative gas safety framework will be reviewed.

The agencies referred to above are possible examples of those to which the delegation power may be granted. However, there may be as yet unforseen benefits from utilising the expertise of other government agencies. For this reason, the granting of the delegation power should not be restricted to the Plumbing Industry Board, Victorian Workcover Authority and the Pipelines Unit, and should allow for this scenario.

If you have any further queries regarding this matter, the contact officer is Geoff Hargreaves, Energy Projects Division on 9651 3791."

Committee Room
1 December 1997

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