Alert Digest No. 6 of 1997
16 September 1997

VETERINARY PRACTICE BILL

1.1

This Bill was introduced into the Legislative Assembly on 21 May 1997 by the Honourable Pat McNamara MP with the Honourable Jeff Kennett MP.

1.2

The main purposes of the Bill are:-

• to protect the public by providing for the registration of veterinary practitioners and investigations into the professional conduct and fitness to practise of registered veterinary practitioners;
• to establish the Veterinary Practitioners Registration Board of Victoria and the Veterinary Practitioners Registration Board Fund;
• to repeal the Veterinary Surgeons Act 1958;
• to make consequential amendments to other Acts; and
• to provide for other related matters.

1.3 Part 2 - Registration, Part 3 - Investigation into registered veterinary practitioners, Part 4 - Review by the Administrative Appeals Tribunal, Part 5 - Offences, Part 6 - Administration, Part 7 - Reporting, Part 8 - Enforcement and supplementary powers, Part 9 - General, Part 10 - Savings and transitional

Division 1 sets out the procedure for obtaining registration. Division 2 makes provision for the Register. Pursuant to clause 21 complaints about professional conduct are to be investigated by the Board. Division 3 governs formal and informal hearings. Part 4 provides for the review of decisions by the Administrative Appeals Tribunal. Part 5 sets out various offences. Clause 60 of Part 6 establishes the Veterinary Practitioners Registration Board of Victoria. Clause 77 establishes the Veterinary Practitioners Registration Board Fund. Clause 81 enables a person appointed by the Board to apply to a magistrate for the issue of a search warrant in relation to particular premises. Clause 87 is the regulation making provision.

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

Clause 86 declares the intention of section 52(3) to alter or vary section 85 of the Constitution Act 1975. Section 52(3) provides that no action for defamation lies against the Board or its members for the giving of a notice in relation to determinations pursuant to section 52 The Committee notes the comments in the Second Reading Speech:-

"Clause 52(3) provides that no action for defamation lies against the Board or its members for giving notice under clause 52. Clause 52(1) empowers the Board to notify any determination to impose conditions, limitations or restrictions on the registration of a veterinary practitioner or suspend or cancel the registration of a veterinary practitioner in the Government Gazette to registration authorities in other States and Territories and in New Zealand, to the employer of a veterinary practitioner and to a veterinary registration authority outside Australia if the Board has received a request for information about the veterinary practitioner from that authority.

The reasons for the limiting of the jurisdiction of the Supreme Court are that the purposes of the Act will not be fulfilled if a veterinary practitioner can continue to practise or purport to be a registered veterinary practitioners because notice of the Board's action has not been communicated to the relevant authorities. This provision is essential to ensure that the Board and its members can communicate vital information to the relevant authorities without the threat of civil action for defamation against them."

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

INTRODUCTION AGENTS BILL

2.1

This Bill was introduced into the Legislative Assembly on 21 May 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

2.2

The purpose of the Bill is to provide for fair trading within the introduction agency industry by setting minimum standards for the industry and establishing a means of disqualifying certain people from the industry.

2.3 Part 2 - Introduction agents, Part 3 - Restrictions concerning the operation of introduction agencies, Part 4 - Introduction agreements, Part 5 - Administrative matters, Part 6 - Enforcement, Part 7 - Regulations, Part 8 - Transitional provisions

Division 1 defines introduction agents. Division 2 defines people who are not introduction agents. Division 3 sets out those people who must not act as introduction agents. Clause 19 protects the confidentiality of client information. Pursuant to clauses 24 and 25 an introduction agreement must be in writing and in English. Part 5 provides for administrative matters. Clause 37 provides for the keeping of a Register of Introduction Agents. Clause 40 provides that an inspector may enter premises (not residential) on or from which a person is acting as an introduction agent at any reasonable hour in the daytime and at any time that the premises is open for business. The occupier's consent must be obtained before an inspector enters residential premises pursuant to clause 42. Clause 43 provides that an inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises. Clause 71 is the regulation making provision.

2.4 Undertakings

Clause 61 provides that the Secretary may determine whether conduct engaged in by the introduction agent is unfair. The Secretary may have regard to:-

(a) whether the introduction agent engaged in unfair conduct within the meaning of section 11A of the Fair Trading Act 1985; and

(b) whether the agent engaged in practices in breach of the Act.

The Secretary and the introduction agent may in relation to the unfair conduct, sign a written undertaking in a form specified or approved by the Secretary and specify certain matters.

The Committee makes no further comment.'

MELBOURNE AND OLYMPIC PARKS (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 21 May 1997 by the Honourable Tom Reynolds MP with the Honourable Jan Wade MP.

3.2

The purposes of the Bill are to amend the Melbourne and Olympic Parks Act 1985 to:-

• extend the functions of the Melbourne and Olympic Parks Trust;
• remove the requirement for the Melbourne and Olympic Parks Trust to engage Tennis Australia to manage the National Tennis Centre;
• provide for Melbourne and Olympic Parks to have borrowing and investment powers under the Borrowing and Investment Powers Act 1987;
• provide for the Trust to administer one Fund.

3.3

Clause 6 repeals Part 3 which requires the Melbourne and Olympic Parks Trust to engage Tennis Australia to manage the National Tennis Centre. The Committee notes the comments in the Second Reading Speech:-

"The Melbourne and Olympic Parks Act presently requires Tennis Australia to manage the National Tennis Centre and prescribes a number of related financial arrangements. The removal of these provisions will rectify an anomalous situation in which a sport-specific association is required, by statute, to manage a multi purpose sport and entertainment centre. This current legislative requirement also appears to restrict competition by excluding private sector venue management from operating in this market. The removal of the prescribed management arrangement for the Tennis Centre is consistent with the principles of the National Competition Policy. These changes in no way imply any criticism of Tennis Australia which has managed the National Tennis Centre facility in a highly professional manner since the commencement of the Centre's operations. The changes to the management of the National Tennis Centre will require a revision of financial arrangements between the Trust and Tennis Australia. Tennis Australia supports the proposal, subject to approval of a new management agreement. This new management agreement will continue the requirement for the conduct of the Australian Open at the Centre for the next 19 years."

The Committee makes no further comment.

ASSOCIATIONS INCORPORATION (AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 21 May 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

4.2

The purpose of the Bill is to amend the Associations Incorporation Act 1981 to improve the operation of that Act.

4.3

The amendments are largely administrative. Clause 4 inserts new definitions into the Act. This includes definitions of "prescribed associations" which are those organisations which have gross annual receipts of over $200,000 or gross assets in excess of $500,000. Clause 18 inserts new sections 29A, B and C which set out the duties of committee members. Clause 20 inserts new sections 30 and 30B which require incorporated associations to maintain adequate and accurate accounting records of financial transactions. Clause 22 substitutes new sections 31A, 31AA, 31AB and 31AC which govern the transfer of incorporated associations. Clause 25 inserts new Part VIII which provides for the winding up and cancellation of incorporated associations. Clause 26 inserts new Part VIII which sets out the various powers of inspection.

The Committee makes no further comment.

ALPINE RESORTS BILL

5.1

This Bill was introduced into the Legislative Assembly on 21 May 1997 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

5.2

The purposes of the Bill are to:-

• establish an Alpine Resorts Co-ordinating Council and three Alpine Resorts Management Boards;
• provide for the establishment and management of several alpine resorts;
• repeal the Alpine Resorts Act 1983; and
• make various other related provisions and amendments to other Acts.

5.3 Part 2 - Specific powers in relation to alpine resorts, Part 3 - Alpine Resorts Co-ordinating Council, Part 4 - Alpine Resorts Management Boards, Part 5 - Miscellaneous

Clause 8 gives the Alpine Resort Management Boards the ability to set an amount to be paid by a lessee of Crown land or an occupier of land in an alpine resort towards the cost of certain services. Clause 9 establishes the Alpine Resorts Co-ordinating Council. Clause 27 requires the Council to prepare a corporate plan. Clause 31 establishes the Alpine Resort Management Boards. Clause 50 requires the Boards to prepare corporate plans. Part 5 contains miscellaneous provisions. Clause 56 is the regulation making provision.

The Committee makes no further comment.

TAXATION ADMINISTRATION BILL

6.1

This Bill was reported on in Alert Digest No 3 of 1997 on 22 April 1997.

6.2 Committee's comment

The Committee commented as follows:-

"The Committee is of the view that the application of clause 19(2) is unclear. The Committee has written to the Minister."

6.3 Minister's response

The Committee wrote to the Minister on 22 April 1997. The Minister responded by way of letter dated 27 May 1997 but received by the Committee on 2 June 1997. The Minister's response is set out:-

"In reply to the questions of the Scrutiny of Acts and Regulations Committee concerning this Bill, I advise as follows;

Clause 19(2)

This provision is intended to reproduce the existing law related to refunds of overpayments of tax in the taxing Acts and confine the entitlement to make a refund application to those overpayments of tax where there has been no assessment of that tax liability by the Commissioner. The existing refund provisions were designed to assist administration of the taxing Acts by creating a single method of obtaining a refund of overpaid tax.

Tax is commonly paid under the taxing Acts without an assessment of tax by the Commissioner, typically with taxes which are paid by periodic return such as Pay-roll tax. In these circumstances, the Commissioner would only be required to assess tax in default of the lodgement of a return or if he was not satisfied with the contents of a return and the amount tendered by a person in payment of their tax liability.

Where the Commissioner has made an assessment of a tax which a taxpayer disputes, the dissatisfied taxpayer may object to that assessment (and further review or appeal a decision on that objection) of tax liability. If the taxpayer's objection, review or appeal is upheld, the Commissioner is compelled to refund the amount of overpaid tax under clause 115.

Clause 19(2) is to prevent a person who has already had the opportunity of contesting his or her liability to tax by objecting to an assessment, from making a later refund application in which the taxpayer will merely re-argue the same issues that were raised in the objection. Under the existing taxation law (which is merely reproduced in this Bill) any recovery action for a refund where there has been an assessment will fail due to the operation of the conclusive evidence provisions. Accordingly no change to the existing law is effected by this provision.

The application of section 85 to clause 18(1)

It should be emphasised that the application of section 85 of the Constitution Act 1975 to prevent the review of refund decisions is of limited application. The refund provisions set out time limits and procedural requirements which must be observed as a condition precedent to the issue of proceedings to recover an overpaid amount. During this period no proceedings to issue a civil action for recovery of the refund amount or to seek judicial review of the Commissioner's actions in respect of his or her consideration of the refund application may be brought. If these requirements are complied with and a refund application is refused or not granted within three months, there is no restriction whatsoever on the action that might be brought to recover a refund amount. In this respect, the provisions do no more than refund provisions in the existing taxing Acts.

The "collateral action" referred to in the Second Reading Speech is any civil action to recover the amount of refund as a debt from the Commissioner or any action seeking a judicial review of the Commissioner's decision regarding the refund application, including the use of the prerogative writs.

The application of section 85 to clause 100(4)

Clause 100 introduces a power for the Commissioner to allow a person to lodge an objection outside the specified 60 day period. This power does not exist in the present taxing Acts. The purpose of the discretion is to allow a late lodgement of an objection in limited circumstances where the justice of the case justifies it - eg. if the person could not lodge an objection within the 60 day period through circumstances beyond their control.

The practical effect of enabling a review of the discretion may be to undermine the 60 day period for lodging objections. Any person refused permission by the Commissioner to lodge an objection beyond that time would be able to take action to obtain judicial (rather than administrative) review of the Commissioner's decision to refuse permission."

HEALTH SERVICES (COMMUNITY HEALTH CENTRES) BILL

The Committee reported on the above Bill in Alert Digest No.2 of 1997 on 1 April 1997. The relevant extract is set out:-

"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 wrote to the Minister on 27 March 1997. The Minister responded by way of letter dated 4 June 1997 received by the Committee on 6 June 1997. The relevant extract is set out:-

"Thank you for your letter of 27 March 1997 concerning the Health Services (Community Health Centres) Bill 1997.

In your letter you sought my advice on two issues relating to this Bill. I will deal with each in turn.

(1) Apparent departure from ordinary process - exclusion of Governor in Council

In your letter you stated `The Committee seeks your advice as to the reason for the exclusion of the Governor in Council from the process. This appears to be a departure from the normal procedures in relation to the appointment of board members'.

As you will be aware, an amendment to the Bill was introduced, along with the Bill, in the Legislative Council. This amendment had the effect that appointments of board members to community health centres will be made by the Governor in Council upon recommendation of the Minister rather than by the Minister alone.

(2) Absence of transitional provisions

In your letter you stated `the Committee seeks your advice as to the reason for the absence of transitional provisions in the Bill'.

As you will be further aware, the Bill does contain a transitional provision. The provision states that all members of existing boards of management of community health centres will cease to hold that position upon the coming into force of the Bill. All other transitional arrangements will be written in guidelines to be promulgated by the Department of Human Services.

There was no legal requirement to include any extra transitional arrangements in the legislation. Furthermore, due to their nature and required detail, it was considered that their inclusion in the Health Services Act 1988 would be inappropriate."

The Committee reported on the above Bill in Alert Digest No.3 of 1997 on 22 April 1997. The relevant extract is set out:-

"New clause 21 governs conflicts of interests. Note that pursuant to sub-section (6)(b) a member of the board is not to be regarded as having a conflict of interest in a contract or arrangement only because that contract or arrangement may benefit a company or other body in which the member has a beneficial interest that does not exceed $2000 or 1% of the total nominal value of beneficial interests in the company or body, whichever is the lesser. The Committee has written to the Minister seeking further information in relation to clause 21."

The Committee wrote to the Minister on 22 April 1997. The Minister responded by way of letter dated 2 June 1997 received by the Committee on 10 June 1997. The relevant extract is set out:-

"I refer to your letter of 22 April 1997 in which you referred to your Committee's concerns relating to the provisions governing conflicts of interest of Board members, as provided in section 21 of the Metropolitan Fire Brigades Act 1958, as amended.

Section 21(6)(b) was included with the intention that Board members would not be obliged to excuse themselves from Board deliberations, or feel obliged to divest themselves of nominal shareholdings, which are considered to be so small, that they would be quite irrelevant to the Board members capacity to make an honest and unbiased decision on any matter before the Board. However, should such Board members holding be substantial, it would pose a clear conflict.

The provision was included as seeming to be appropriate, and being in a format similar to that included in Local Government legislation which provides a similar exception provision for Council members and has the approval of Chief Parliamentary Counsel.

One aim of the new legislation was to provide for a new management oriented Board, consisting of members of substance, experience and expertise. To disqualify them from the decision making on the grounds of such a minor conflict could reduce the effectiveness of the Board, by removing some of their members from decision making in situations where their knowledge and skill should be retained.

Of course, in matters where the beneficial interest is substantial, I wholeheartedly agree that a complete withdrawal from proceedings is desirable.

The operation of this section will be closely monitored, and it if presents any problems or unacceptable practices, then an amendment will be made."

The Committee reported on the above Bill in Alert Digest No.4 of 1997 on 13 May 1997. The relevant extract is set out:-

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

The Committee wrote to the Minister on 13 May 1997. The Minister responded by way of letter dated 26 June 1997. The relevant extract is set out:-

"Thank you for your letter of 13 May 1997 in relation to Part 5 of the Miscellaneous Acts (Omnibus No.3) Bill containing amendments to the Cancer Act 1958 and the Infertility Treatment (Amendment) Bill.

In relation to the amendments to the Cancer Act, I note your concern that a drafting error may have occurred in relation to clause 11.

Clause 11 was inserted following a statute law revision check by Parliamentary Counsel during drafting of the Bill. As you are aware, clause 11 amends the penalty for breach of section 61(1) of the Cancer Act by substituting '10 penalty units' for `$250'. Section 61(1) relates to confidentiality of reports. It may appear that a drafting error has occurred in relation to clause 11 because a penalty expressed in dollar terms does not appear in reprint number 5 (reprinted 16 December 1992) of the Cancer Act. However, this is not the case. Parliamentary Counsel has advised that this is a printing error and that a penalty of $250 does in fact appear in section 61(1) of the original Act and this penalty has not been repealed to date."

The Committee reported on the above Bill in Alert Digest No.4 of 1997 on 13 May 1997. The relevant extract is set out:-

"The Committee will write to the Minister regarding the proclamation of section 107 of the Act."

10.2 Minister's response

The Committee wrote to the Minister on 13 May 1997. The Minister responded by way of letter dated 26 June 1997. The relevant extract is set out:-

"Thank you for your letter of 13 May 1997 in relation to Part 5 of the Miscellaneous Acts (Omnibus No.3) Bill containing amendments to the Cancer Act 1958 and the Infertility Treatment (Amendment) Bill.

In relation to the Infertility Treatment (Amendment) Bill, you have sought my advice as to which body will be performing the function of collecting and keeping information about children conceived through reproductive technology given that the provisions relating to the Standing Review and Advisory Committee on Infertility ("SCRACI") in the Infertility Treatment Act 1995 are repealed by clause 5.

It should be noted that clause 5 does not repeal the current SRACI which exists and continues to operate under the Infertility (Medical Procedures) Act 1984. The Infertility Treatment Act will eventually replace the Infertility (Medical Procedures) Act. Currently, however, only a small portion of the Infertility Treatment Act is proclaimed and the Infertility (Medical Procedures) Act, is still in force.

Provisions of the Infertility Treatment Act not already in operation will now commence (as a result of clause 4 of the Bill) on 1 January 1998 unless earlier proclaimed. These provisions that are not already in operation include section 166 which repeals the Infertility (Medical Procedures) Act , section 107 in relation to the provision of information to the Infertility Treatment Authority and the provision which, if not for clause 5 of the Bill, would have established the new SRACI.

Accordingly, the current SRACI which operates under the Infertility (Medical Procedures) Act will continue its current functions, including the collection of information on treatment procedures and outcomes, up until the new automatic commencement date of the Infertility Treatment Act on 1 January 1998, unless earlier proclaimed. Further, the Department of Human Services will continue to perform its functions under the Infertility (Medical Procedures) Act , including the collection of data on children born as a result of donor tissue, until the Infertility Treatment Act is fully operational.

Once the Infertility Treatment Act is fully operational (including section 107) the Infertility Treatment Authority will be responsible, among other things, for administering the compiling and keeping of records under Part 7 ("Records and access to information") of the Infertility Treatment Act. The Infertility Treatment Authority will also be responsible for administering access to those records and for the keeping of records about programs and activities carried out under the Infertility Treatment Act. The Ministerial Advisory Council on infertility issues would only have involvement in the area of data collection if it were given a specific term of reference regarding data collection.

I trust this information will assist you."

Committee Room
5 September 1997

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