Alert Digest No. 2 of 1997
1 April 1997

OFFICE OF THE REGULATOR-GENERAL (AMENDMENT) BILL

1.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

1.2

This Bill makes minor amendments to the Office of the Regulator-General Act 1994.

The Committee makes no further comment.

NATIONAL AUSTRALIA BANK AND BANK OF NEW ZEALAND BILL

2.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

2.2

The purpose of the Bill is to provide for the transfer of the Australian Banking business of the Bank of New Zealand to the National Australia Bank. Similar legislation is being enacted in other jurisdictions in which the National Australia Bank and the Bank of New Zealand have a presence.

The Committee makes no further comment.

HERITAGE (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Rob MaClellan MP with the Honourable Phil Gude MP.

3.2

The purposes of the Bill are:-

• to amend the Mineral Resources Development Act 1990 to make further provision with respect to consequential amendments made by the Heritage Act 1995; and
• to make other minor amendments to the Heritage Act 1995.

3.3

Clause 3 makes consequential amendments to the Mineral Resources Development Act 1990. Clauses 4 and 5 correct incorrect references.

The Committee makes no further comment.

GAMING NO. 2 BILL

4.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Tom Reynolds MP with the Honourable Phil Gude MP.

4.2

The purpose of the Bill is to revise the law relating to the regulation, supervision and control of minor gaming with the aims of ensuring that:-

• minor gaming is conducted honestly and is free from criminal influence and exploitation;
• activities authorised by a minor gaming permit issued under this Act benefit the community or charitable organisation to which the permit is issued;
• practices which could undermine public confidence in minor gaming are eliminated;
• bingo centre operators do not act unfairly in providing commercial services to community or charitable organisations;
• It also repeals Parts 1 and 1A of the Lotteries, Gaming and Betting Act 1966. It separates the regulation of minor gaming activities (such as raffles, bingo and the sale of lucky envelopes) from the policing of illegal gaming and betting, which will remain in the Lotteries, Gaming and Betting Act 1966.

4.4

Part 2 sets out those matters which relate to the prohibition of lotteries. Notwithstanding the prohibitions set out in Part 2, Part 3 provides for minor gaming permits. Part 4 provides for trade promotion lottery permits. Part 5 governs bingo centres. Division 1 relates to Bingo centre operators. Those persons who apply to be Bingo centre operators may be required to having their photographs, finger prints and palm prints taken by the Authority and referred to the police. Division 2 governs bingo employees. New clause 66 provides for the destruction of finger or palm prints obtained under the Part once the Authority or Director has no further use for them.

4.5

Part 6 provides for investment related lotteries. Part 7 sets out those provisions which relate to the rights of inspectors. Clauses 78 and 79 set out the functions and powers of inspectors. Clause 81 provides that an inspector with the consent of the Director may apply to a magistrate for the issue of a search warrant. Part 8 contains general provisions. Provision is made for appeals to the Authority in respect of decisions made by the Director in clause 86. Pursuant to clause 87 a person may apply to the Administrative Appeals Tribunal for a review of the decision of the Authority. Clause 92 governs the cancellation of licences and permits. Clause 103 is the delegation power. Clause 104 is the secrecy provision. Clause 105 is the regulation making power. Part 9 makes various amendments to the Lotteries, Gaming and Betting Act 1966. Part 10 makes consequential amendments.

The Committee makes no further comment.

GAMING ACTS (FURTHER AMENDMENT) BILL

5.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Tom Reynolds MP with the Honourable Phil Gude MP.

5.2

The purpose of the Bill is to make miscellaneous amendments to the Gaming and Betting Act 1994, the Gaming Machine Control Act 1991, the Club Keno Act 1993 and the Tattersall Consultations Act 1958.

5.3 Part 2 - Gaming and Betting Act 1994

Clause 5 amends section 53 to vary the Tabcorp shareholding restrictions:-

• The limitation on overseas shareholdings is lifted from 2.5% to 5%.
• The requirement in relation to the limitation on shareholdings for persons convicted of a relevant offence is abolished.
• The requirement for a probity check for Australian shareholders who wish to hold between 2.5% and 5% of Tabcorp shares is abolished.

It also repeals the requirement for the Authority to issue a certificate relating to person entitled to voting shares. Clause 7 exempts Tabcorp from paying tax on underpar subsidies.

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

"The Bill also removes the requirement that a shareholder who holds fifty thousand shares or more must not have been convicted of a relevant offence. It is considered that the compliance burden imposed by this limitation is too onerous and does not result in any regulatory benefit. Extensive monitoring to date by the Casino and Gaming Authority has not identified any shareholders convicted of a relevant offence......It is now recognised that these restrictions on shareholdings developed as a measure of protection at the time of the former TAB's privatisation were overly cautious and the discretionary power available to the Minister for Gaming to declare a shareholding to be prohibited under certain circumstances still provide protection to smaller shareholders against any misuse of the power of larger shareholders."

5.4 Part 3 - Gaming Machine Control Act 1991, Club Keno Act 1993

Clause 9 introduces a process for renewal of venue operators' licences. Clause 10 provides that where a licensee is charged with an indictable offence, the Director of Gaming and Betting may suspend the licence. The Victorian Casino and Gaming Authority may take disciplinary action at a later date, if a licensee if convicted or found guilty of an indictable offence. Clause 12 makes further provision for the investigation of complaints. Clause 13 excludes the requirement for auditing by the Auditor-General in respect of Tabcorp's gaming operations. The Committee notes the comments in the Second Reading Speech:-

"The Gaming Machines Control Act is also amended to exclude the requirement for auditing by the Auditor-General in respect of Tabcorp's gaming operations. Tabcorp is a publicly listed company; as such it is subject to all of the reporting requirements of the Australian Stock Exchange. These include auditing and accounting requirements. There is no public purpose to be served by retaining the requirement for the Auditor-General to audit Tabcorp's gaming operations."

Clause 18 sets out the taxes payable by Club Keno participants. The Committee notes the comments in the Second Reading Speech:-

"Part 4 of the Bill amends the Club Keno Act to change the basis on which Club Keno taxes are assessed. It is appropriate that the tax regime applying to Club Keno should be restructured on the same basis as that applying to gaming machines. Accordingly, it is proposed to change the Club Keno tax structure from a turnover basis to a gaming revenue basis, with the revenue split three ways between the Government, the operators and the venues.

5.5 Part 5 - Tattersall Consultations Act 1958

Clause 20 sets out the taxes which must be paid pursuant to the Tattersall Consultations Act 1958. Clauses 20 and 21 abolish the Lotteries Development Fund and Gold Lottery Consultations. Clause 24 makes a definitional change; namely, the formal exclusion of agent's commission from the definition of subscriptions. The Committee notes from the Second Reading Speech that the change has no operational effect in terms of the taxes and prizes paid by Tattersalls.

The Committee makes no further comment.

MELBOURNE UNIVERSITY (VCAH) BILL

6.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Phil Gude MP on behalf of the Honourable Phil Honeywood MP with the Honourable Alan Stockdale MP.

6.2

The purpose of the Bill is to provide for the merger of the Victorian College of Agriculture and Horticulture with the University of Melbourne. Clause 4 makes provision for the transfer of assets and liabilities. Clause 5 provides for gifts and trusts. Clauses 6 and 7 make provision for the staff and students.

The Committee makes no further comment.

BOARD OF STUDIES (AMENDMENT) BILL

7.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Phil Gude MP with the Honourable Alan Stockdale MP.

7.2

The purpose of the Bill is to amend the Board of Studies Act 1993 to expand the objective of the Board to provide for guidelines and procedures to be developed for courses for students outside Victoria.

The Committee makes no further comment.

RACING (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Tom Reynolds MP with the Honourable Phil Gude MP.

8.2

The purposes of the Bill are:-

• to restructure the Greyhound Racing Control Board; and
• to create the position of chief executive officer of the Board.

The Committee makes no further comment.

HEALTH SERVICES (COMMUNITY HEALTH CENTRES) BILL

9.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Dr Dennis Napthine MP with the Honourable Phil Gude MP.

9.2

The purpose of the Bill is to change the method of selection and appointment of boards of management of community health centres. In particular, the Bill:-

• allows the Minister for Health to appoint members to the boards of community health centres;
• regulates the terms of appointment of board members;
• allows the Minister to remove board members; and
• subject to the Act, allows each board to determine its own procedure.

The Committee has written to the Minister to seek his advice as to the reason for the exclusion of the Governor in Council in relation to the appointment process. The Committee has also sought the Minister's advice as to the reason for the absence of transitional provisions.

The Committee makes no further comment.

CONSTITUTION AND PARLIAMENTARY COMMITTEES (AMENDMENT) BILL

10.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP.

10.2

The Bill amends the Constitution Act 1975 and the Parliamentary Committees Act 1968. In particular, the Bill:-

• clarifies ambiguities and improves the operation of the Constitution Act 1975;
• amends the Parliamentary Committees Act 1968 to provide flexibility to the bases upon which expense and travelling allowances are paid to Committee members.

10.3

Clause 3 provides that the Governor, Lieutenant Governor and the Administrator are not agencies for the purposes of the Freedom of Information Act 1982. The Committee notes the retrospective application of the provision from 20 December 1994. The Committee also notes the comments in the Second Reading Speech:-

"The Bill introduces into the Constitution Act , a provision to ensure that the offices of Governor, Lieutenant Governor and Administrator are not `agencies' within the Freedom of Information Act. These offices first became theoretically subject to that Act on 20 December 1994 when those offices were provided with a statutory basis as a result of the Constitution (Amendment) Act 1994. This measure is introduced as it was never intended by the current, or prior governments, for those offices to be subject to the Freedom of Information Act. For that reason, this amendment is to operate from 20 December 1994."

Clause 4 makes a technical amendment to section 63. The Committee notes the comments in the Second Reading Speech:-

"The Bill amends the Constitution Act to clarify the operation of section 63. The effect of the amendment will be that a message from His Excellency in relation to appropriation measures will only be required before those measures are passed, rather than originated. This altered requirement accords with the long standing practice of this Parliament and of the Federal Parliament. Members will be aware that the practice has been followed since the last century - the earliest located instance being the introduction and passage of the Juries Law Amendment Bill in 1975. Members will also be aware that this practice was specifically adopted in Standing Order 170 of the Legislative Assembly which was added in 1973.

This amendment is necessary, as section 63 on one reading at least, requires that Appropriation Bills cannot be originated without a prior message from the Governor. This is a stricter requirement than the established practice. This measure will avoid any further doubt as to the operation of section 63 and ensure that it accords with this very long standing Parliamentary practice."

Clause 5 inserts a new Part IVA which empowers the Governor in Council to issue Commissions of Inquiry or appoint Boards of Inquiry. Clause 6 amends section 51A of the Parliamentary Committees Act 1968 to allow travelling allowances to be paid to Committee members in respect of undertaking such duties as a member of a Committee as the President or Speaker determines.

11.4 Variation or alteration of Section 85 of the Constitution Act 1975 (Section 4D(b) of the Parliamentary Committees Act 1968)

Clause 7 declares the intention of section 4 to alter or vary section 85 of the Constitution Act 1975. Clause 4 provides that appropriation Acts enacted prior to the commencement of the section shall not be subject to challenge in Courts or Tribunals on the ground that the Bill for the Act was originated before a message was provided by the Governor recommending that appropriation. The Committee notes the comments in the Second Reading Speech:-

"The Bill also includes a provision validating past appropriation bills which were originated without messages from His Excellency. I wish to make a statement under section 85(5) of the Constitution Act 1975 concerning the reasons for altering or varying that section by the Bill.

Clause 7 provides that it is the intention of section 4 to alter or vary section 85 of the Constitution Act 1975. This is because section 4 provides that the enactment or validity of an Act enacted before the commencement of that section, or anything done or omitted to be done under the authority of such an Act , is not to be called question in courts or tribunals on the basis that the bill for that Act was originated in the Legislative Assembly before a message recommending the appropriation made by that Act had been received from the Governor.

The reason for limiting the jurisdiction of the Supreme Court is to ensure that the appropriation measures passed in previous years and actions or omissions under the Authority of such appropriation legislation are not subject to legal challenge. A successful challenge to such an appropriation bill would cause uncertainty as to the financial arrangements of the State and may have serious financial consequences for Victoria. On that basis, it is clearly not in the public interest that such challenges are not made."

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

TEACHING SERVICE (AMENDMENT) BILL

11.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Phil Gude MP with the Honourable Alan Stockdale MP.

11.2

The purpose of the Bill is to make minor amendments to the Teaching Service Act 1981.

11.3

Clause 3 removes the requirement in section 6(3) to notify the Governor in Council of appointments to offices in the teaching service of persons who are not members of the teaching service. The Committee notes the comments in the Second Reading Speech:-

"By way of background, section 6(1) of that Act enables the Secretary to appoint a person who is not a member of the teaching service, if the Secretary is satisfied that there is no available officer in the teaching service who is as capable of filling a vacant office as the person who is not a member of the teaching service. Section 6(2) requires a public notice of the vacancy to be given before any appointment can be made under section 6(1). The requirement in section 6(3) to notify the Governor in Council of appointments now pre-dates the Public Sector Management Act 1992, and is now outdated."

Clause 4 corrects an anomaly in section 64A so that the section will in future only refer to reviews of principal appointments. The Committee notes that section 64AG provides a review procedure for appointments to positions in the teaching service other than those to which section 64A applies, will apply in respect of assistant principal appointments.

The Committee makes no further comment.

FISHERIES (FURTHER AMENDMENT) BILL

12.1

The Committee reported on the above Bill in Alert Digest No.1 of 1997 on 18 March 1997.

12.2 Group Recreational Fishery Licences - The Committee's comments

The relevant extract is set out:-

"New Division 2 provides for the issue, variation and conditions etc, of licences and permits. The Committee wrote to the Minister on 7 March 1997 seeking clarification of the operation of clauses 9 and 33."

12.3 The Minister's Response

The Minister responded by way of letter dated 18 March 1997, received by the Committee on 21 March 1997. The relevant extract is set out:-

"It is intended that these licences will be issued to institutions such as jails and hospitals and for certain education and training purposes. This ensures that groups such as these can undertake fishing activities without every member of the group having to hold a recreational fishing licence. This is important since many such people may only have the opportunity to fish via such group arrangements.

This category of licence may be issued on a one off basis or any basis the Secretary thinks appropriate. Specific conditions may be imposed on the licence, particularly if the licence is to be issued for an extended period and for multiple fishing trips. The ability for the Secretary to cancel such a licence is essential in case certain licence conditions are not being complied with or the licence used for purposes other than that for which it was issued.

These licences are intended to be used to benefit the community and it is not anticipated that there will be a frequent need to cancel such a licence. Given these circumstances it is not considered that the decision of the Secretary needs to be reviewable."

12.4 Beneficial ownership of abalone licences - Committee's comments

The Committee made the following comments:-

"New clause 45 substitutes new section 155 which provides for the saving of existing licences and permits and conversion of existing licences despite the repeal of the Fisheries Act 1968. The Committee notes these are transitional provisions. The Committee wrote to the Minister on 7 March 1997 seeking clarification of the operation of new section 155D."

12.5 The Minister's response

The Minister responded by way of letter received on 21 March 1997:-

"Section 155B sets out the administrative process that must be followed by the Secretary in issuing an abalone licence when a beneficial owner applies to have the licence issued in his or her name. It is unlikely that many disputes over ownership will arise but if they do it is likely that the parties involved would not utilise an appeals process through the Licensing Appeals Tribunal. It is more likely that the issue would be taken directly into Court as it involves a decision over ownership rights. To this end Section 155B provides the process which the Secretary must follow and once completed, the parties have access to Court processes if they are unable to resolve their differences. Therefore, there is no review of the Secretary's decision within the Bill.

Cancellation of licences

Section 155D has been drafted to ensure that a licence holder who decides not to renew a licence is unable, to , at a later date, request that the licence be reissued to him or her. It was not intended that it would apply in the circumstances outlined in your letter. This issue will be referred to Parliamentary Counsel who will be requested to ensure that this section will only apply when the licence holder fails to renew the licence."

12.6 Chief Parliamentary Counsel - Committee's comment

The Committee made the following comment:-

"New clause 44 provides for regulation making powers to be moved from the body of the Act to a Schedule. The Committee wrote to Chief Parliamentary Counsel seeking her advice as to why the regulation making powers are located in the Schedule of the Act."

12.7 Chief Parliamentary Counsel's response

Chief Parliamentary Counsel responded by way of letter to the Committee dated 19 March 1997:-

"I refer to your letter dated 7 March 1997 and query about the placing of the regulation-making powers in a Schedule to the Act.

The regulation-making powers under the Fisheries Act 1995 are extensive. There are arguments in favour of placing the regulation-making powers together in a Schedule for ease of reference and use.

There are other examples on the Statute Book where it has proved to be more satisfactory to put the regulation-making powers together in a Schedule rather than have them within the body of the Act. Some examples are the Road Safety Act 1986, the Occupational Health and Safety Act 1985, the Dangerous Goods Act 1985, the Marine Act 1988, the Local Government Act 1989 and the Building Act 1993."

The Committee thanks Chief Parliamentary Counsel for her response.

Committee Room
26 March 1997

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