Alert Digest No. 4 of1997
13 May 1997

MELBOURNE CITY LINK (FURTHER AMENDMENT) BILL

1.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

1.2

The purposes of the Bill are to further amend the Melbourne City Link Act 1995:-

• to make provision for the Exhibition Street Extension Project; and
• to improve the operation of the Act.

1.3

Clause 2 is the commencement provision. The Committee will write to the Minister in relation to the open-ended commencement provision. The Committee notes the comments in the Second Reading Speech:-

"At this stage the Government has not made a final decision as to whether it will proceed with an extension of Exhibition Street and what role Transurban might take in this project. Whether the project proceeds will depend, among other things, on the satisfactory outcome of negotiations with Transurban and its financiers. These negotiations are dealing with possible integration of the extension with the City Link project and the commercial, legal and financial implications of such integration. These discussions are continuing. The Bill provides the legislative framework for work to commence immediately if a decision is made to proceed."

Clause 6 inserts a new Part 4A which makes provision for the Exhibition Street Extension Project. Clause 9 creates rights to compensation for private interests in public land acquired for the project. Compensation is to be determined in accordance with the Land Acquisition and Compensation Act 1986. Clause 13 excludes the operation of certain Acts in relation to land which is leased under an agreement relating to the Exhibition Street Extension Project.

The Committee makes no further comment.

APPROPRIATION (PARLIAMENT 1997/8) BILL

2.1

This Bill was introduced into the Parliament on 29 April 1997 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

2.2

The Bill provides appropriation for the Parliament for the 1997/8 financial year.

The Committee makes no further comment.

APPROPRIATION (1997/8) BILL

3.1

This Bill was introduced into the Legislative Assembly on 29 April 1997 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

3.2

The Bill provides appropriation for the ongoing operation of departments for the year 1997/8 financial year.

The Committee makes no further comment.

ELECTRICITY INDUSTRY (MISCELLANEOUS AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

4.2

The purposes of the Bill are:-

• to provide for further miscellaneous amendment of the Electricity Industry Act 1993;
• to provide for the corporatisation and privatisation of Power Net Victoria.

4.3 Part 2

Clause 6 authorises State Ministers to enter into a system security agreement. Clause 13 permits amendments to Orders in force in relation to transmission companies. Amendments of such Orders must be published in the Government Gazette. Clause 14 inserts new section 163AA to allow conditions in licences for the distribution of electricity. Clause 16 inserts new Part 17 which provides for the revocation of certain river reservations.

4.4 Part 3 - Power Net Victoria, Part 4 - Transfer of property, Part 5 - Amendment of other Acts

Part 3 provides for the corporatisation and privatisation of Power Net Victoria. It inserts various definitions and amends references. Clause 25 inserts new Part 11AC into the Act which provides for the transfer of property and staff. Clauses 26 to 31 amend references in various other Acts.

The Committee makes no further comment.

LAW AND JUSTICE LEGISLATION AMENDMENT BILL

5.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

5.2

The purpose of the Bill are:-

• to make amendments to a number of Acts within the Justice portfolio; In particular-
• to reform the law relating to criminal trespass;
• to allow complaints and orders to be made in respect of more than one family member;
• to provide for the variation, revocation or extension of interstate summary protection orders and the recognition of New Zealand protection orders;
• to alter the composition and method of appointment of the board of directors of Victoria Legal Aid;
• to provide for the replacement of legal aid review committees and legal aid appeal committees with independent reviewers;
• to enable limits to be imposed on the total amount of payments that may be made to a private practitioner in respect of a case;
• to provide for the appointment of panels of practitioners;
• to amend the Magistrates' Court Act 1989 to facilitate the outsourcing of certain administrative functions;
• to clarify the operation of the Public Prosecutions Act 1994;
• to replace the licensing of second-hand dealers and pawnbrokers with a system of registration;
• to facilitate the recovery of stolen goods; and
• to remove the maximum rate of interest chargeable by pawnbrokers.

5.3 Part 2 - Crimes Act 1958, Part 3 - Crimes (Family Violence) Act 1987, Part 4 - Legal Aid Legislation

Clause 9 provides for the variation of interstate summary protection orders. Clause 10 provides for the registration of New Zealand protection orders. Clause 13 removes the requirement for the Attorney-General to consult with the Commonwealth Atttorney-General in relation to the composition of the Victoria Legal Aid Board ("VLA"). Clause 14 substitutes new Part IV establishes a panel of Independent Reviewers to hear and determine applications for legal assistance. Clause 18 amends section 28 by allowing the VLA to set maximum payments for private practitioners for services on behalf of assisted persons.

5.4 Part 5 - Legal Practice Act 1996, Part 6 - Magistrates' Court Act 1989, Part 7 - Public Prosecutions Act 1994, Part 8 - Road Safety Act 1986, Part 9 - Second-Hand Dealers and Pawnbrokers Act 1989, Part 10 - Summary Offences Act 1966

Clause 28 inserts a new Part 6A into the Magistrates' Court Act 1989 which provides that Ministers may enter into administrative services agreements for the support of the PERIN Court, Sheriff's Office, Traffic Camera Office and Fixed Penalties Payment Office. New section 124G provides that any documents in the possession of contractors remain the property of the Department of Justice. New section 124J is the confidentiality provision. Clause 32 clarifies the operation of section 46 of the Public Prosecutions Act 1994 which relates to contempt of court. Section 46 has been amended as a result of the Victorian Supreme Court decision in BHP v Dagi.

Clause 26 amends the Legal Practice Act 1996 to reflect the amended clause 46 of the Public Prosecutions Act 1994. Clause 38 substitutes new Part 2 into the Second-Hand Dealers and Pawnbrokers Act 1989 which provides for the registration of second-hand dealers and pawnbrokers. Clause 53 sets out the provisions relating to criminal trespass.

5.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b) of the Parliamentary Committees Act 1968)

(a) Legal Aid Act 1978

Clause 22 inserts new section 49B into the Legal Aid Act 1978. It declares the intention of sections 30(17A), 35(3) and 36(3) to alter or vary section 85 of the Constitution Act 1975. It is convenient to consider each provision in turn.

Section 30(17A)

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

"The first provision is section 30(17A). This provision largely replicates the current section 30(17A). It provides that VLA directors, employees and independent reviewers will not be personally liable for anything done or omitted to be done in respect of decisions made under section 30. The immunity provided by this subsection depends on the decisions being made in good faith in the exercise of VLA's power. The immunity is given because it would not be fair to expose VLA's directors, officers and independent reviewers to the risk of personal liability arising from litigation by disgruntled legal practitioners who have been removed from the legal aid panel. The risk of such exposure may make it difficult to attract suitably qualified persons to accept appointments as independent reviewers."

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

Sections 35(3) and 36(3)

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

"The remaining two provisions are found in subsections 35(3) and 36(3). These state that decisions made by independent reviewers are final and conclusive. Again, these provisions replicate existing provisions in the Principal Act. The decisions of Legal Aid Review Committees and Legal Aid Appeal Committees have always been final and conclusive and no further review or appeal has ever been contemplated by the Legal Aid Act. This limitation on appeal rights is essential because this field of administrative decision-making for which courts and their procedures are ill-suited. VLA receives more than 45,000 applications annually.

If only a small percentage of dissatisfied applicants decided to try their hand at having VLA's decisions overturned by the Courts, VLA's decision-making processes would slow down, the courts would become clogged and VLA would carry the burden of running and paying for the cases. The limitation on appeal rights allows VLA to get on with the job of providing legal assistance."

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

(b) Public Prosecutions Act 1994

Clause 33 declares the intention of section 32 of to alter or vary section 85 of the Constitution Act 1975. Clause 32 inserts the amended section 46 of the Public Prosecutions Act 1994 which relates to contempt. The amendments ensure that the section applies to all forms of contempt, both civil and criminal. The amendments to sub-section (5) also expand the circumstances in which an individual may apply to a court for punishment of a contempt. The Committee notes the comments in the Second Reading Speech:-

"(a) In BHP v Dagi there was a difference of opinion amongst the Judges of the Court of Appeal concerning the interpretation and operation of section 46. In order to avoid any uncertainty in the future, the amendment to the section provides legislative confirmation of the opinion of the majority in that case.

(b) The decision in that case also highlighted uncertainty about the circumstances in which an individual could initiate proceedings for contempt of court. Accordingly section 46 will be amended to clarify those circumstances.

(c) In clarifying the circumstances in which an individual can bring an action for contempt of court, section 46 as amended by this Bill will provide an appropriate balance between the rights of a litigant to pursue contempt and the rights of a litigant to pursue contempt and the rights of an alleged contemnor."

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

FRIENDLY SOCIETIES (VICTORIA) (AMENDMENT) BILL

6.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

6.2

The Bill makes amendments to the Friendly Societies (Victoria) Act 1996 which is intended to come into operation on a national basis on 1 July 1997. In particular, the Bill amends the Friendly Societies Code set out in Schedule 1 to the Act which is template legislation for all participating States and Territories. The amendments are of a technical nature to ensure consistency between the States and the Territories.

The Committee makes no further comment.

DRUGS, POISONS AND CONTROLLED SUBSTANCES (AMENDMENT) BILL

7.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP.

7.2

The purposes of the Bill are:-

• to make provision for the issuing of authorities to grow and process low-THC cannabis for commercial and research purposes relating to non-therapeutic use;
• to exempt certain processed products made from cannabis from the operation of the Drugs, Poisons and Controlled Substances Act 1981.

7.3

Clause 4 exempts certain processed products made from cannabis from the operation of the Act. Clause 5 inserts new Part IVA which regulates the growing and licensing of low THC-cannabis.

The Committee makes no further comment.

FINANCIAL MANAGEMENT (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

8.2

The purpose of the Bill is to change the name of the annual statement of financial operations and the periods for the report on and tabling of the statement.

The Committee makes no further comment.

SUPERANNUATION ACTS (MISCELLANEOUS AMENDMENT) BILL

9.1

This Bill was introduced into the Parliament on 23 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

9.2

The purpose of the Bill is to amend specified superannuation legislation to facilitate further changes in the administration of public sector superannuation schemes.

9.3

Clause 4 expands the charging powers of the Local Authorities Superannuation Board and provides for the Minister to approve any proposed determination by the Board in relation to the unfunded liability of the defined benefits scheme of the Local Authorities Superannuation Board. Clause 9 inserts new provisions to cover the transfer of pensioners from the Port of Melbourne Authority Superannuation Fund to the State Superannuation Fund. Part 4 contains general amendments.

The Committee makes no further comment.

GAS INDUSTRY (AMENDMENT) BILL

10.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

10.2

The Bill makes provision for the further restructure and reform of the gas industry.

10.3

Clause 7 substitutes new sections 17-17H into the Gas Industry Act 1994 which provides for the appointment of administrators. The Committee will write to the Minister in relation to the new delegation provision set out in new section 17G.

Clause 12 inserts new Part 6B which relates to competition policy authorisation. Clause 14 inserts new sections 87B to 87F which provide for the dissolution of the Gas & Fuel Superannuation Fund. Clause 16 inserts new Part 14 which establishes the Office of Gas Safety. The Committee will write to the Minister in relation to the new delegation provision set out in section 121 in Part 14.

Clauses 18 to 21 make consequential amendments to various Acts.

NATIONAL ELECTRICITY (VICTORIA) BILL

11.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

11.2

The purpose of the Bill is to facilitate the introduction of a national electricity market. Victoria is to be a participant. The Bill is template legislation.

11.3

Clause 2 is the commencement provision. The provision is open-ended. The Committee notes the explanatory memorandum which states that "it allows the timing of the implementation of the national market to be managed by the State by proclaiming certain provisions of the legislation when all necessary arrangements are in place." New section 7 applies the regulations of South Australia in Victoria. The regulations are referred to as the National Electricity (Victoria) Regulations. The Committee will write to the Minister in relation to the scrutiny of the regulations.

CONSTRUCTION INDUSTRY LONG SERVICE LEAVE BILL

12.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

12.2

The purpose of the Bill is to repeal the Construction Industry Long Service Leave Act 1983 and to provide for a portable long service leave scheme owned and administered by the construction industry.

12.3 Part 2 - Construction Industry Long Service Leave Fund

Clause 4 authorises the trustee to levy long service leave charges on employers and participating working sub-contractors in accordance with the trust deed. Clause 9 sets out the requirement to keep records. Clause 12 provides for any disputes to be referred to arbitration in accordance with the Commercial Arbitration Act 1984. Part 3 contains miscellaneous provisions. Part 4 provides for the transfer of staff and superannuation.

The Committee makes no further comment.

SENTENCING AND OTHER ACTS (AMENDMENT) BILL

13.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

13.2

The main purposes of the Bill are:-

• to amend the Sentencing Act 1991 so as to make fresh provision for the sentencing of serious drug offenders and serious arson offenders;
• introduce a new penalty scale for offences punishable by imprisonment and impose a limit on the maximum term of imprisonment for summary offences;
• provide for a new sentencing order where drunkenness or drug addiction contributed to the criminal behaviour;
• improve the procedures for dealing with breaches of sentencing orders;
• extend the range of sentencing orders available to adult courts when dealing with young offenders;
• to amend the Drugs, Poisons and Controlled Substances Act 1981 so as to specify new commercial quantities and trafficable quantities in relation to certain drugs of dependence;
• increase the penalty for trafficking in a drug of dependence to a child and make it a new offence for an adult to supply a drug of dependence to a child;
• make it an offence to possess certain substances with intent to manufacture a drug of dependence for the purpose of trafficking;
• make fresh provision for the destruction of drugs and other items in certain circumstances;
• amend the provisions relating to search warrants;
• to amend the Bail Act 1977 to require a court to refuse bail to a person charged with trafficking in a commercial quantity of a drug of dependence unless exceptional circumstances exist;
• to amend the Children and Young Persons Act 1989 so as to limit the jurisdiction of the Children's Court to hear and determine offences of attempted murder, culpable driving or arson causing death;
• to amend the Crimes Act 1958 so as to alter the maximum penalties for offences under that Act and impose a limit on the maximum term of imprisonment for certain common law offences;
• create a new offence of arson causing death;
• provide for new circumstances in which an offence of aggravated burglary may be committed;
• enlarge the powers available to the Court of Appeal on an appeal against sentence.

13.3 Parts 2, 3 and 4

Clause 6 inserts new Part 2A which makes provision for serious offenders. Clause 12 inserts a new Subdivision (1B) which provides for the "Combined Custody and Treatment Order", a new sentencing option. Clause 24 inserts a new Division 2A which provides for the preparation of a Drug and Alcohol Assessment Report by an approved drug and alcohol assessment agency.

Clause 39 inserts two new offences in relation to the possession of substance, material, equipment and preparation of a drug of dependence for the purpose of trafficking and the supply of a drug of dependence to a child. Clause 48 amends the Bail Act 1977 to provide that a court shall refuse bail to persons charged with trafficking or cultivation in a commercial quantity of certain drugs unless exceptional circumstances exist.

13.4 Parts 5, 6, 7 and 8

Clause 50 amends the Children and Young Persons Act 1989 to set out the limitation on the jurisdiction of the Children's Court to hear and determine certain indictable charges summarily. Clause 52 clarifies that the Supreme and County Courts have the full range of sentencing options when sentencing children. Clause 54 amends the Crimes Act 1958 to provide additional circumstances in which the offence of burglary may be regarded as aggravated burglary. Clause 55 creates a new offence of arson causing death.

The Committee makes no further comment.

STATE TAXATION ACTS (FURTHER AMENDMENT) BILL

14.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

14.2

The Bill amends the Business Franchise (Petroleum Products) Act 1979, the Pay-roll Tax Act 1971 and the Stamps Act 1958.

14.3

Clause 3 reduces the rates of petroleum franchise fees to a common rate of 10% effective from the licence month of July. Clause 6 amends the definition of "superannuation benefits" so that employer contributions become taxable. Clause 9 amends the Pay-roll Tax Act 1971 to reduce the rate of pay-roll tax from 7% to 6.25% of taxable wages. Clause 11 extends the current exemption from mortgage duty on the refinancing of a business loan to all loan refinancing entered into after 1 May 1997. Clause 12 abolishes the duty imposed on miscellaneous deeds (ie: deeds not otherwise chargeable with stamp duty) executed on or after 1 May 1997. The Committee notes the retrospectivity.

The Committee makes no further comment.

UNCLAIMED MONEYS (SUPERANNUATION BENEFITS) BILL

15.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

15.2

The purpose of the Bill is to provide for the payment of certain unclaimed superannuation benefits into the Consolidated Fund instead of to the Commissioner under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

The Committee makes no further comment.

PROJECT DEVELOPMENT AND CONSTRUCTION MANAGEMENT (AMENDMENT) BILL

16.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Jeff Kennett MP with the Honourable Alan Stockdale MP.

16.2

The purpose of the Bill is to make certain amendments to the Project Development and Construction Management Act 1994 to provide for additional powers relating to land.

16.3

Clause 6 substitutes new section 7 which provides for a nomination order. The nomination order must specify the responsible Minister and the facilitating agency. Clause 7 substitutes new section 7 which provides for an application order. The application order may specify an area of land for the purposes of the nominated project.

Under clause 8, the Premier must table a copy of the nomination order and a signed statement of reasons for the making of the order in each House of Parliament within 14 sitting days after it is made. Clause 11 provides for the surrender of interests in unreserved Crown land. Compensation for the holder of any legal or equitable interest is to be determined in accordance with the Land Acquisition and Compensation Act 1986 and set out in clause 13 which inserts new Divisions 2A and 2B.

Clause 14 provides that for the purposes of a nominated project, the responsible Minister may dispose, or recommend disposal to the Governor in Council of interests in Crown land.

The Committee makes no further comment.

ENVIRONMENT CONSERVATION COUNCIL BILL

17.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

17.2

The purposes of the Bill are to:-

• establish an Environment Conservation Council to conduct investigations into the use or development of public land within the State or any flora, fauna or minerals on above or under that land or water flowing over that land; and
• repeal the Land Conservation Act 1970;
• make various consequential amendments and other related provisions.

17.3

Clause 4 establishes the Environment Conservation Council. Clause 8 governs the terms of appointment. Clause 16 sets out the reporting requirements. Clause 17 provides that the Minister may require the Council to investigate any matters relating to the use or development of public land or any flora, fauna or minerals on or above the land. Clause 25 repeals the Land Conservation Act 1970.

The Committee makes no further comment.

MELBOURNE AND METROPOLITAN BOARD OF WORKS (AMENDMENT) BILL

18.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP.

18.2

The purpose of the Bill is to:-

• empower Melbourne Water Corporation to levy a special drainage and river improvement rate in the Pattersons Lakes area and;
• validate the metropolitan drainage and river improvement rates levied in that area since its inclusion in the metropolis on 6 November 1991.

18.3

Clause 3 amends the Melbourne Metropolitan Water Board Act 1958 to enable Melbourne Water Corporation to levy special drainage rates in the Patterson Lakes Area to validate rates levied by Melbourne Water in the area since November 1991. The Committee notes the retrospective effect of the provision and the comments in the Second Reading Speech:-

"The Patterson Lakes area consists of several man-made lakes running from the Patterson River. About 1100 property owners have access to this lakes system for recreational purposes. Between 1971 and 1991, the Patterson Lakes system was under control of the Dandenong Valley Authority and its successor, the Dandenong and Western Port Authority. The Dandenong Valley Authority was given the powers to recoup costs from waterfront property owners by levying a special drainage rate. This had been a condition of the development proceeding. The special drainage rates fund activities including maintenance of pumps, jetties and locks, beach cleaning, dredging and community education.

The special drainage rates levied by the two earlier authorities were based on the site value of properties. The MMBW Act 1958 requires rates to be based on net annual value (NAV), however, Melbourne Water Corporation sought to continue the charging practice by using its powers under section 280 of the MMBW Act 1958 to levy differential rates and to give refunds. In effect, Melbourne Water Corporation, through a NAV-based rate and rebates, has charged benefiting property owners an amount equivalent to a rate in the dollar based on the site value of the property. This involves an incorrect use of the rating power to achieve what was an acceptable outcome to all. The Bill validates the past practice by Melbourne Water Corporation.

A move to a NAV method of rating would adversely affect about half the property owners. The site value method continues the method of charging which has been used since the Patterson Lakes development was constructed in the 1970's and 1980's and which is well understood by the benefiting property owners."

18.4 Alteration or variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 4 inserts new section 293A which declares the intention of section 281A(8) to alter or vary section 85 of the Constitution Act 1975. New section 281A validates the past practice of levying rates from 6 November 1991 by Melbourne Water Corporation. The Committee notes the comments in the Second Reading Speech:-

"The proposed provision retrospectively validates the metropolitan drainage and river improvement rates levied by Melbourne Water Corporation on property owners at Patterson Lakes since 1991.

The reason for validating the rates and therefore limiting the jurisdiction of the Supreme Court is that the Patterson Lakes property owners upon which these rates have been levied have received the benefit of the monies raised. The special rates were used for the maintenance and improvement of the Lakes system to enable these property owners to continue to pursue their recreational activities and enjoy the amenity of the system."

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

PROSTITUTION CONTROL (AMENDMENT) BILL

19.1

This Bill was introduced into the Legislative Assembly on 30 April 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

19.2

The purposes of the Bill are:-

• to improve the efficiency and effectiveness of the Prostitution Control Board;
• to improve the efficiency and effectiveness of the licensing system established under the Act;
• to improve the operation of the Act.

19.3

Clause 5 makes it an offence for a person to carry on business as a prostitution service provider while his or her licence is suspended. Clause 7 provides for the power to appoint a deputy chairperson in relation to the Prostitution Control Board.

Clause 10 inserts new sections 27A to 27C relating to appearance before the Prostitution Control Board. Clause 16 inserts a new 40A to allow a licensee to surrender his or her licence by notice in writing to the Board. Clause 20 inserts new section 46A which requires licensees to submit annual statements to the Board within ten days of the anniversary date of the granting of the licence. Clause 23 sets out the proposed sections containing the new disciplinary options in respect of licensees.

19.4

Clause 25 amends section 50 so to enable a person to apply for his or her own manager approval or approvals. Clause 30 sets out the proposed new sections containing the new disciplinary options in respect of approved managers. Clause 32 amends section 56 to enable the licensee or approved manager to appeal to the Supreme Court on a question of law in respect of the Board's decision in relation to the new disciplinary powers set out. Clause 38 inserts a new section 80(3A) to allow a Magistrate in the proscribed brothel hearings to take into consideration any evidence he or she considers credible or trustworthy in the circumstances. The Committee notes the comments in the Second Reading Speech:-

"The proposed amendments are designed to...enable a court under the section that regulates proscribed brothel hearings to receive and take into account any evidence it considers credible or trustworthy in the circumstances, which includes hearsay evidence. This will enable the admission of statements made to the police at a `raid' rather than having to search for and locate the prostitute or client who made the statement to give viva voce evidence to the Court. The Court will of course, determine the weight to be given to such evidence."

The Committee makes no further comment.

MISCELLANEOUS ACTS (OMNIBUS NO.3) BILL

20.1

This Bill was introduced into the Legislative Assembly on 23 April 1997 by the Honourable Dr Dennis Napthine MP with the Honourable Phil Gude MP.

20.2

The purpose of the Bill is to make miscellaneous amendments to various Acts:-

• the Accident Compensation Act 1985;
• the Accident Compensation Act (Further Amendment) Act 1996;
• the Borrowing and Investment Powers Act 1987;
• the Cancer Act 1958;
• the Dried Fruits Acts 1958;
• the Melbourne and Metropolitan Board of Works Act 1958;
• the Parliamentary Officers Act 1975;
• the Pharmacists Act 1974;
• the Plant Health and Plant Products Act 1995;
• the State Owned Enterprises Act 1992;
• the Water Industry Act 1994 and
• the Zoological Parks and Gardens Act 1995.

20.3

Clause 4 amends section 2(4) of the Accident Compensation (Further Amendment) Act 1996 to provide that sections 14 and 19 are to commence whenever they are proclaimed to commence. The Committee notes the comments in the Second Reading Speech:-

"The Bill also contains an amendment to the Accident Compensation (Further Amendment) Act 1996 which will have the effect of ensuring that sections 14 and 19 are to commence whenever they are proclaimed to commence. These sections provide for the payment, by instalments of certain lump sum compensation under the Accident Compensation Act. The commencement provisions in the 1996 Act provide for these sections to commence on 1 July 1997 (if they are not proclaimed to commence before that date).

At the time of passage of the Bill through Parliament, the Honourable Minister for Finance gave an undertaking not to have the relevant sections proclaimed until he was satisfied that payments by lump sums and payments by instalments would be treated consistently by the Commonwealth Department of Social Security. However, there is still uncertainty about how the Commonwealth Department will treat these instalments when assessing entitlement to social security benefits. The Department is still reviewing this matter it is unlikely that these issues will be resolved before 1 July 1997, the date on which the sections automatically come into operation. The amendment is therefore required to honour the undertaking given on behalf of the Government."

Clause 11 refers to section 61 and supposedly changes the penalty. The Committee will write to the Minister in relation to a drafting error in clause 11. Clause 11 amends the Cancer Act 1958.

Clause 19 amends the Parliamentary Officers Act 1975 to change references from the `department of the House Committee' to the `department of Parliamentary Services'. Clause 20 inserts a new Part 3 which relates to electorate officers. Clause 33 inserts new Division 1A which provides for the outsourcing of inspection services.

The Committee makes no further comment.

INFERTILITY TREATMENT (AMENDMENT) BILL

21.1

This Bill was introduced into the Legislative Council on 22 April 1997 by the Honourable Rob Knowles MLC.

21.2

The purposes of the Bill are to amend the Infertility Treatment Act 1995:-

• to extend the period for commencement of the unproclaimed provisions of the Act to 1 January 1998;
• to repeal the provisions in relation to the Standing Review and Advisory Committee on Infertility;
• to extend access to treatment procedures under the Act to de facto couples living together as husband and wife on a genuine domestic basis;
• to make various miscellaneous amendments to the Act.

21.3

Clause 5 effectively repeals provisions in relation to the Standing Review and Advisory Committee on Infertility (SRACI). The Committee notes the comments in the Second Reading Speech:-

"The 1995 Act established the Infertility Treatment Authority (ITA) as a regulatory and monitoring body with the responsibility for granting licences and approvals to hospitals, doctors, scientists, counsellors and research institutions involved in the practice of assisted reproductive technology together with the responsibility for the keeping of a central register of the details of children born of donor procedures and of the donors. The ITA also has a responsibility, shared with SRACI for the approval to conduct research on embryos. The role of SRACI under the 1995 legislation differs from 1984 in that SRACI no longer has sole responsibility for research approval. However the role of provision of advice to the Minister of the day on the issues of infertility is basically unchanged.

The past 18 months, with both the ITA and SRACI operational has provided the opportunity to test whether the intent of the legislation is workable in practice. This trial run has identified a number of problems. The Chairperson of the ITA, Professor Waller and the Chairperson of SRACI, the Honourable Justice Marks have come to the view that the Act as it now stands is not workable and both have written to the Minister for Health independently requesting the repeal of section 10.

Some of the fundamental problems cited by Professor Waller and Justice Marks included:

• extended delays and difficulties in the administration of research approvals involving the consideration of two bodies, particularly as these applications will also have been previously approved by the Ethics Committees at the relevant hospital, institution;
• duplication of the cost in the establishment, maintenance, research and administrative support of the two bodies;
• the overlap of roles and responsibilities in the areas of advice, public statements and policy directions.

Professor Waller and Justice Marks and their respective committees have concluded through their experience that despite the best will and cooperation the implementation of 1995 legislation in its current form is problematical...

The Minister for Health will be establishing within the next few months a broad based ministerial advisory council on infertility issues. This council will provide direct advice on the wide range of policy issues related ot assisted reproductive technology including medical, ethical, scientific and consumer concerns. The role and function of this council will not be restricted by legislation and it will have the capacity to address and advise on emerging and developmental issues as they occur. The establishment of this council will enable the ITA to concentrate its focus on its primary roles of regulation, administration and monitoring of the industry."

Clause 6 extends the application of the Act to couples of different sexes living in de facto relationships. Clauses 7 to 19 give effect to the extension of the operation of the Act to de facto couples. Clause 20 makes statute law amendments. The Committee will write to the Minister regarding the proclamation of section 107 of the Act.

The Committee makes no further comment.

EDUCATION (FURTHER AMENDMENT) BILL

22.1 Committee's comment

The Committee reported on the above Bill in Alert Digest No.3 of 1997 on 22 April 1997. The Committee commented as follows:-

"The purpose of the Bill updates the Education Act 1958 to provide that regulations may be made under the Act which confer a discretion or duty on, or leave a matter to be determined or approved by the Minister or a Departmental officer. The Committee has written to the Minister requesting further detail in relation to the application of the extended power in the Bill."

22.2 Minister's response

The Minister responded by way of letter dated 24 April 1997. The relevant extract is set out:-

"I refer to your letter dated 23 April 1997 seeking further details as to the anticipated application of the power in the above Bill to make regulations which confer a discretionary authority on a person or class of persons.

In essence, it is anticipated that the power in the Bill will be used for three purposes, namely -

(i) to quickly remake any existing regulations under the Education Act 1958 (which confer a discretionary authority on the Minister, Secretary or principals) in the event they are being challenged on the grounds of an absence of the relevant power which is now being inserted in the Bill.

(ii) to make any new regulations which are required prior to 1 July 1999 and which need to confer a discretionary authority on a person or class of persons; and

(iii) to remake the Education Regulations 1988 (being SR 258 of 1988) all of which will be automatically revoked on 1 July 1999 pursuant to section 5(2)(b) of the Subordinate Legislation Act 1994 and which presently confer a discretionary authority on the Minister, Secretary or principals.

The Education Regulations 1988 vest a number of discretions or powers in the Minister or Secretary, and it is anticipated that any new regulations, such as the replacement for the Education (Maintenance Allowance) Regulations 1997 which expire on 1 July 1997, or the remaking of the Education Regulations 1988 which expire on 1 July 1999, should continue to vest discretions and powers in the Minister, Secretary and other departmental officers so as to facilitate the efficient and effective administration of this department, and provide the flexibility to cater for circumstances which vary according to local conditions and the needs of schools."

LOCAL GOVERNMENT (FURTHER AMENDMENT) BILL

23.1 Committee's comment

The Committee reported on the above Bill in Alert Digest No. 3 of 1997 on 22 April 1997. The Committee commented as follows:-

"Clause 8 inserts new section 97C which relates to the outside employment of senior officers. A register must be established which shows details of every approval given in relation to outside employment by senior officers. Sub-section (5) of new section 97C provides that the Minister may give a direction that public notice is not to be given of approval of such employment or that the approval is not to be shown on the register. The Committee has written to the Minister seeking further information in relation to sub-section (5) of new section 97C."

23.2 Minister's response

The Minister responded by way of letter dated 9 May 1997. The relevant extract is set out:-

"Thank you for your letter of 22 April regarding clause 8 of the Local Government (Further Amendment) Bill 1997.

As the Committee noted, the purpose of the requirement for public notice and the provision of a register showing details of approvals given in relation to outside employment by senior officers is to ensure that the public will be informed of any approval given to a senior officer to engage in outside employment. This is consistent with the Government's belief that this is a matter of public accountability.

The purpose of sub-section (5) of the proposed section 97C regarding the Minister's power to give a direction that the public notice need not be given or the fact of the approval of paid outside employment shown in the register, is to provide a mechanism for an exemption for those very rare occasions when giving notice or publicly registering the information may not be desirable. For instance, it may not be in the public interest when the paid outside employment involves a matter of national security.

As I stated, I consider that this power to exempt the chief executive officer from complying with this provision will be used only in the most extraordinary circumstances.

I trust this answers the concerns of the Committee. I would be happy to discuss this matter further with the Committee should it desire to do so."

Committee Room
12 May 1997

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