Alert Digest No. 9 of 1997

Alert Digest No. 9 of 1997
28 October 1997

Mental Health (Victorian Institute of Forensic Mental Health) Bill
Law and Justice Legislation (Further Amendment) Bill
Wills Bill
Transport Acts (Amendment) Bill
Gaming Acts (Miscellaneous Amendment) Bill
State Taxation (Amendment) Bill
Crimes (Amendment) Bill
Legal Practice (Amendment) Bill
Unclaimed Moneys (Amendment) Bill
Food (Amendment) Bill
Planning and Environment (Amendment) Bill
University of Ballarat (Amendment) Bill and University Acts (Further Amendment) Bill

MENTAL HEALTH (VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH) BILL

1.1

This Bill was introduced into the Legislative Assembly on 17 September 1997 by the Honourable Dr Denis Napthine MP with the Honourable Jan Wade MP.

1.2

The purpose of the Bill is to establish the Victorian Institute of Forensic Mental Health. It makes amendments to the Mental Health Act 1986.

1.3

Clause 5 inserts new Part 6A which establishes the Victorian Institute of Forensic Mental Health. New clause 117E establishes the Victorian Institute of Forensic Mental Health Council which is responsible for the management of the affairs of the Institute. New clause 117I provides that the Council may appoint a chief executive officer. New clause 117O requires the Council to prepare a corporate plan for the Institute for each financial year. New clause 117U sets out the annual reporting requirements.

The Committee makes no further comment.

LAW AND JUSTICE LEGISLATION (FURTHER AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

2.2

The purposes of the Bill are:-

to make miscellaneous amendments to the Bail Act 1977 with respect to factors to be considered in determining whether to grant bail, sureties for bail, remanding a person in custody, further applications for bail and the revocation of bail;
to make minor amendments to the Consumer Credit (Victoria) Act 1995;
to amend the Country Fire Authority Act 1958;
to amend the Credit (Administration) Act 1984 to authorise the payment out of the Consumer Credit Fund of the reasonable costs and expenses incurred by the Consumer Credit Fund Advisory Committee in performing its functions;
to amend the Credit Act 1984 with respect to the effect of certain loan contracts that have an over-estimation in the statement of the estimated credit charge and to make other minor amendments;
to make miscellaneous amendments to the Equal Opportunity Act 1995;
to amend the Firearms Act 1958;
to repeal Part IX of the Instruments Act 1958;
to amend the Interpretation of Legislation Act 1984;
to amend the Magistrates' Court Act 1989 to enable the person against whom a penalty enforcement warrant is issued to consent to have the sums named in the warrant levied against property used by that person primarily as a means of transport that otherwise would be exempt from the process of execution;
to amend section 42 of the Supreme Court Act 1986.

2.3 Bail Act 1977, Consumer Credit (Victoria) Act 1995, Country Fire Authority Act 1958, Credit (Administration) Act 1984

Clause 5 amends section 9 of the Bail Act 1977 to allow a surety in regional Victoria or interstate to appear by audio visual link or audio link before the court at which the person to be bailed is located. Clause 8 provides that where bail is revoked by a bail justice, the person whose bail has been revoked is to be brought before the Magistrates' Court within 8 days. Clause 12 amends section 9B of the Country Fire Authority Act 1958 by removing the restriction on the Deputy Chairman engaging in other employment. The Committee notes the comments in the Second Reading Speech:-

"This will provide the flexibility to allow the appointment of a part time or full time deputy chairman as circumstances dictate."

Clause 14 amends the Credit Act 1984. It provides that certain contracts that have or have not had an over-estimation in the statement of the estimated credit charge are not to be taken to be in breach of the disclosure requirement, provided that the actual credit charge paid was correct.

2.4 Equal Opportunity Act 1995

Clause 21 extends the exemption to enable an employer to discriminate in determining who should be employed to provide domestic or personal services in any person's home not just in relation to the employer's own home. Clause 23 amends section 108 by including an additional ground for declining a complaint, namely; if the subject matter has been adequately dealt with by a tribunal or court. Clause 24 amends section 109 to allow a respondent to apply to the Tribunal to strike out any part of the complaint. Clause 27 amends section 115 in relation to conciliation agreements. The amendment provides that the President may refuse to register an agreement. The Committee notes the comments in the Second Reading Speech:-

"The Act formally recognises conciliation agreements by providing for the lodgment of such agreements with the Registrar of the Anti-Discrimination Tribunal at which time the agreement is deemed to be an order of the Tribunal.

The process is unsatisfactory as it could place the Tribunal in the position of having to enforce an order in the form of a conciliation agreement which it would not have been prepared to make due to practicalities or enforcement or supervision. To make the process more satisfactory, it is proposed to amend the Act to enable the President of the Tribunal to refuse to register a conciliation agreement if the President considers that it may not be practicable to enforce or supervise compliance with the agreement. In all other circumstances, the Tribunal will be obliged to register a conciliation agreement. Once registered, a conciliation agreement is deemed to be on order of the Tribunal and may be enforced accordingly. The Bill makes clear that a refusal by the President of the Tribunal to register a conciliation agreement does not affect the validity of the agreement."

Clause 34 amends section 154 to enable the Tribunal to make an order to dismiss a complaint if the complainant fails to comply with a direction of the Tribunal or President of the Tribunal. Clause 36 substitutes a new section 182 to provide more flexibility in the constitution of the Tribunal when hearing various matters.

2.5 Firearms Act 1996, Instruments Act 1958, Interpretation of Legislation Act 1984, Magistrates' Court Act 1989

Clause 42 amends various definitions in the Firearms Act 1996. Clause 44 amends section 94 to enable a firearms dealer to dispose of a firearm to the holder of an inter-State permit in defined conditions. Clause 47 amends Schedule 3 to exempt a person from being required to hold a Victorian firearms licence where they are licensed inter-State. Clause 48 repeals Part IX of the Instruments Act 1958. Clause 52 substitutes new sections 41 and 41AA which expand and re-enact the current section 41 of the Interpretation of Legislation Act 1984.

Clause 52 amends the Magistrates' Court Act 1989 to provide that a person against whom a penalty enforcement warrant is issued may consent to a sheriff's officer seizing his or her motor vehicle. Clause 53 amends the Supreme Court Act 1986 to provide that section 116(2)(ca) of the Commonwealth Bankruptcy Act 1966 is imported into that section.

The Committee makes no further comment.

WILLS BILL

3.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

3.2

The purpose of the Bill is to re-state, with amendments, the law relating to wills in Victoria by making provision for:-

the making, alteration, revocation and revival of wills including the capacity of minors to make wills and the effects of marriage and divorce of testators on wills made by them;
the capacity of the Court to authorise the making or rectification of wills in certain circumstances;
the construction of wills;
other general matters in relation to wills; and
the repeal of the Wills Act 1958 and the amendment of the Administration and Probate Act 1958.

3.3

Part 2 provides for the making, alteration, revocation and revival of wills. Divisions 1 and 2 set out what property may be disposed of and how a will should be executed. Division 3 sets out when the Court may dispense with the requirements for execution or revocation. Division 4 sets out the requirements in respect of the witnessing of a will. Division 5 provides for the alteration, revocation and revival of wills. Division 6 sets out those wills to which foreign laws will apply. Part 3 governs wills made or rectified under Court authorisation. Part 4 governs the construction of wills. Part 5 contains a general provision which provides for those who may see a will.

Part 6 contains transitional and consequential provisions. Part 7 makes minor amendments to the Administration and Probate Act 1958. Clause 55 inserts new section 91 which sets out the power of the Court to make maintenance orders.

The Committee makes no further comment.

TRANSPORT ACTS (AMENDMENT) BILL

4.1

This Bill was introduced by the Legislative Assembly on 8 October 1997 by the Honourable Robin Cooper MP with the Honourable Rob Maclellan MP.

4.2

The purpose of the Bill is to:-

improve the regulation of the towing industry;
remove the requirement for certain classes of vehicles to be licensed under the Transport Act 1983 but require their operators to be accredited under the Public Transport Competition Act 1995;
revoke reservations over certain lands for tramway purposes;
make miscellaneous amendments to the Public Transport Competition Act 1995;
repeal certain spent Acts.

4.3

Clause 8 inserts new sections 172O to 172Q which provide for towing licence entitlements transferred before 1 October 1995 to be transferred back to the licences in respect of which the entitlements were originally held. The licensing authorities must then reissue those licences. Clause 11 substitutes new section 176A which sets out the obligations of repairers in respect of towed vehicles. Clause 13 amends section 177C to provide that it is a defence to a charge under section 177 relating to failing to release a vehicle if the person charged is owed money for storage charges. Clause 14 inserts new section 177D which provides for matters concerning damaged vehicle storage. Clause 16 amends section 181B to the effect that demerit points are also recorded against a person who is not an authority holder and apply if the person obtains an authority. The Committee notes the comments in the Second Reading Speech:-

"The demerit point regime applying to towing offences is broadened to encompass persons who do not at the time of a particular offence have accident towing driver authorities, so that if they subsequently apply for an authority, their past history will not be avoided."

Clause 20 inserts a new regulation making power in section 195 which will enable the making of regulations to generally regulate and control the operation of tow trucks for accident towing in a self-management area.

4.4 Accreditation of operators of private, courtesy and hire and drive buses

Clause 23 amends section 156 of the Transport Act 1983 to enable a driver's certificate to be issued under that Act to a person proposing to drive a private bus operating under the Public Transport Competition Act 1995. Clause 28 adds various definitions to the Public Transport Competition Act 1995. Clause 29 inserts section 3A which has the effect of applying most of the provisions of the Act relating to road transport passenger services to operators of a courtesy service, hire and drive service or private bus service. Clauses 32 and 33 contain transitional provisions. Clauses 34 to 37 repeal spent Acts.

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

Clause 35 repeals the King-street Bridge Act 1957. Clause 35 of the Bill inserts an immunity provision into Schedule 5 of the Transport Act 1983. The provision ensures that the Crown is immune from suit in respect of matters in relation to the King Street Bridge. Clause 36 inserts new section 255B into the Transport Act 1983 which declares the intention of clause 26A(3) of Schedule 5 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

"Clause 35 of the Bill is intended to alter or vary section 85 of the Constitution Act 1975. Clause 35 continues an existing immunity provision in relation to obstructions to the Yarra river brought about by the building, presence or maintenance of the King Street Bridge. This provision presently exists in the King-street Bridge Act 1957 and with the repeal of that Act that provision is being transferred to the Transport Act so that this immunity will not be lost. The immunity is necessary to protect the State against any potential legal claims that could arise out of the building, presence or maintenance of the King Street Bridge, such as a common law action for public nuisance. Clause 36 contains the limitation on section 85 of the Constitution Act."

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

GAMING ACTS (MISCELLANEOUS AMENDMENT) BILL

5.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Tom Reynolds MP with the Honourable Pat McNamara MP.

5.2

The Bill amends various Gaming Acts. The purposes of the Bill are:-

to amend the Gaming Machine Control Act 1991 to improve regulation of the electronic gaming machine industry;
to correct a reference in the Gaming and Betting Act 1994 to shareholders' voting rights;
to repeal unproclaimed legislation in respect of investment-related lotteries;
to enable the Treasurer to exempt certain amounts from taxation under section 77(1) of the Gaming and Betting Act 1994;
to make various amendments of a statute law revision nature.

5.3

Clause 7 inserts new Part 2A which establishes a scheme whereby the Authority can approve certain premises as suitable for gaming. Clause 11(2) removes from the matters of which the Authority must consider in determining an application, the financial stability and soundness of the applicant and matters related to the suitability of the premises. The Committee notes the comments in the Second Reading Speech:-

"The current legislation requires the Authority to investigate the financial soundness and stability of the applicant. The Bill will remove this requirement. The Authority considers the suitability or otherwise of the sources of an applicant's income as part of its probity assessment of that person, but will no longer be required to make a judgment on the sufficiency of the applicant's financial resources. Assessment of the financial position of a prospective venue operator requires subjective and financially specialised assessments which are more appropriately left to banks and financiers. In addition, these requirements can discriminate against new businesses and clubs which cannot alway fulfil the assessment criteria for financial stability which require a business or commercial history."

5.4

Clause 13 inserts new section 25AA which requires the Authority to establish and maintain a Register of Venue Operators and Approved Venues. Clause 16 provides for the amendment of a venue operator's licence by the addition or removal of an approved venue or variation of the number of gaming machines. Clause 20 removes the requirement for an application for a special employee's licence to be accompanied by a certificate of suitability from the venue operator or gaming operator who employs or is proposing to employ the applicant. The Committee notes the comments in the Second Reading Speech:-

"Currently each application for a special employee's licence must be accompanied by a certificate of suitability from the applicant's employer or prospective employer. The Bill abolishes this unnecessary requirement as it is of no value in minimising criminal exploitation and places job seekers in a `Catch 22' situation. They cannot apply for a special employee licence unless they have a certificate of suitability from a venue operator who proposes to employ them and yet many find it difficult to find someone to employ them in the gaming industry if they do not possess a licence."

Clause 26 inserts a new section 135D which provides for Tattersalls to pay an annual supervision charge in an amount to be determined by the Treasurer. Clause 32 provides for an appeal against a decision to revoke or refuse to revoke an approval of premises under new Part 2A to the Supreme Court. Clause 34 is a transitional provision. Clause 36 amends the Gaming and Betting Act 1994 to allow the Treasurer to give a notice to the licensee to exempt specified amounts of net investment or amounts of a specified class from taxation requirements. Clause 37 amends section 57 which sets out the voting rights in respect of certain shares. The provision is deemed to have come into operation on 6 May 1997. The Committee will write a letter to the Minister. Clause 39 repeals the Banking (Premium Accounts) Act 1992.

The Committee makes no further comment.

STATE TAXATION (AMENDMENT) BILL

6.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

6.2

The purpose of the Bill is to make miscellaneous amendments to the Debit Tax Act 1990, the Financial Institutions Duty Act 1982, the Land Tax Act 1958, the Pay-roll Tax Act 1971, the Stamps Act 1958 and the Taxation Administration Act 1997.

6.3 Debits Tax Act 1990, Financial Institutions Duty Act 1982, Land Tax Act 1958, Pay-roll Tax Act 1971

Clause 3 ensures that accounts held with financial institutions in the name of public hospitals, State schools, TAFE Colleges and universities are exempt from debits tax. Clause 4 amends the Financial Institutions Duty Act 1982 to clarify the duty payable on transactions made by short-term dealers. Clause 8 inserts new section 3A into the Land Tax Act 1958 which provides for the calculation of the value of unimproved land. Clause 10 repeals spent provisions in the Pay-roll Tax Act 1971. Clause 12 provides an exemption from pay-roll tax on wages paid or payable by a non-profit, non-government school or college which existed as such a college or school before 27 May 1997. The Committee notes the commencement of the exemption is retrospective from 27 May 1997.

6.4 Stamps Act 1958

Clause 16 inserts new Division 2A into the Stamps Act 1958 which provides for the approval of special return arrangements by the Comptroller consistent with the equivalent arrangements which can be made under the Taxation Administration Act 1997. Clause 17 inserts new subdivision (5B) of Division 3 of Part 2 which relates to duty payable in respect of takeovers of Victorian public companies. Clause 19 inserts new subsection (3A) into section 63 which relates to duty payable on the conveyance of real property and the transfer of land. The new subsection sets out those matters which the Comptroller must consider in determining whether or not stamp duty is payable. The amendment takes effect from 10 October 1997. The Committee also notes the comments in the Second Reading Speech:-

"A further amendment to the Stamps Act 1958 deals with arrangements designed to reduce artificially the dutiable value of interests in land upon transfer. Such arrangements, if allowed to continue would, with unrealistically low valuations of property being transferred, lead to long term erosion of the revenue base. A number of other States have enacted legislation to deal with these arrangements. The Victorian amendments reflect the Government's intention to prevent avoidance whilst protecting legitimate commercial arrangements. The amendment to deal with these arrangements will commence with respect to any contract or arrangement entered into after this day."

Clause 20 inserts new section 64B which requires a statement to be lodged by a person entering a transaction on or after 10 October 1997 where there is a change in the beneficial ownership of real property is effected without a dutiable instrument. Clause 21 sets out an exemption on certain transfers of real property used for primary production to relatives.

Clause 23 inserts two new sub-sections into section 137F of the Stamps Act 1968 which stipulate that the exemption for certain loans under $35,000 does not apply to consumer credit provide for the purpose of acquiring a private dwelling or land upon which to erect a private dwelling or of extending a private dwelling. Clause 26 makes an amendment of a statute law revision nature which clarifies which part of section 137MC applies in respect of exemptions for re-financed business loans. This amendment applies retrospectively from 11 June 1997. Clause 27 amends section 7 of the Taxation Administration Act 1997 to clarify the operation of that section in respect of tax defaults. The amendment applies from 1 July 1997. The Committee notes the comments in the Second Reading Speech:-

"This Bill makes one amendment to clarify that a tax default which occurred under a taxation law prior to the commencement of the Taxation Administration Act, may be the subject of an assessment under the Taxation Administration Act for any additional tax or penalty tax which would have been payable under the taxation law (in respect of a default under that law) as if the additional tax or penalty tax were penalty tax under that Act. This amendment will prevent potential confusion arising from two taxation schemes by ensuring, that, as far as possible, a common scheme of recovering penalty tax applies."

The Committee makes no further comment.

CRIMES (AMENDMENT) BILL

7.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

7.2

The purpose of the Bill is to amend the Crimes Act 1958 and the Evidence Act 1958 so as to:-

create a presumption that multiple counts of sexual offences against the one accused are to be tried together;
broaden the scope of sexual offence created by section 47A of the Crimes Act 1958;
provide for certain procedural changes on trials of sexual offences;
with respect to the admissibility of propensity evidence;
extend the range of offences for which a person can be compelled to undergo a forensic procedure;
permit registered nurses to conduct forensic procedures;
enable a member of the police force to apply to a court for a forensic sample from persons found guilty of certain offences;
extend the grounds on which a member of the police force may apply for a court order directing a person to undergo a compulsory procedure;
make provision for persons to volunteer to give samples to provide information for inclusion in a computerised database.

7.3 Crimes Act 1958

Clause 5 amends section 47A which relates to sexual relationships with children under the age of 16 years. It removes the requirement that the accused have `care, supervision or authority' over the complainant. It also clarifies that the offence contemplated by the provision can be made out where the three acts are different acts that constitute different offences and that there is no requirement that the acts be the same or similar. Clause 7 creates a presumption that sexual offence counts properly joined pursuant to the joinder provisions in the Crimes Act 1958 will not be severed. Clause 10 amends section 37C which enables the court to direct that alternative arrangements be made for the giving of evidence by certain types of witnesses.

7.4

Clause 14 inserts a new section 398A which sets out the admissibility criteria for propensity evidence. Clause 18 amends section 464U(3) to extend the range of offences for which a member of the police force may apply to the Children's Court for an order directing a child to undergo a compulsory procedure. Clause 19 provides that in addition to medical practitioners, nurses may also conduct forensic procedures including the taking of samples. Pursuant to clause 22, forensic procedures conducted in accordance with section 464ZF (the taking of blood samples following commission of serious sexual offence) must be video-taped, if practicable or witnessed by an independent person.

7.5

Clause 25 inserts new sections 464ZF and 464FA into the Act. Their effect is to enable a member of the police force to apply to the court for an order directing a person found guilty of committing a `forensic sample offence' to undergo a forensic procedure. The Committee notes the comments in the Second Reading Speech:-

"The Bill also introduces a new classification known as a `forensic sample offence'. Whilst the current Act provides that persons found guilty of engaging in certain sexual conduct may be liable to furnish a blood sample, this Bill extends the range of offences for which a forensic sample can be taken to cover not only sexual offences but also violent offences and drug offences and a number of other serious crimes...

This is achieved through judicial supervision. The police may apply to a court for an order to obtain or retain a forensic sample from a person who has been found guilty of a forensic sample offence. Information from that sample will be retained on a DNA database. The retention of this information provides an important weapon in the fight against crime. It will act both as a powerful deterrent to re-offending and as an aid in the detection of future offences."

The Committee notes that new section 464ZF(3) has a retrospective effect. The Committee also notes the comments in the Second Reading Speech:-

"The Bill provides for retroactive operation. It permits the taking of a sample from persons who are currently undergoing a term of imprisonment or detention and who have been previously found guilty of a forensic sample offence. This will not only significantly assist the police in the resolution of serious unsolved crime, but will also serve to deter such persons from further re-offending upon release. Similar provisions were introduced into the United Kingdom earlier this year."

7.6

Clause 26 inserts new sections 464ZFB to 464ZFE which provide for the retention and destruction of information following a finding of guilt. Pursuant to new section 464ZFD, identifying information obtained from the analysis of samples taken or procedures conducted and which in accordance with the subdivision may be retained, may be included in a computerised database. That information may be retained and included in a computerised database for statistical purposes. The Chief Commissioner is required to submit a quarterly report to the Attorney-General which contains information that identifies all samples taken in accordance with the subdivision and all samples destroyed within the period to which each report relates.

Clause 28 provides that a person may volunteer to give a forensic sample. The Committee notes the comments in the Second Reading Speech:-

"In recognising however the voluntary nature of the process, the Bill prescribes strict safeguards. These include a taped caution, legal consultation and the right to withdraw consent. In the event that a person provides a sample, he or she may withdraw consent. The police are then required to destroy the sample and all identifying information unless a court order is obtained. The police may not receive a voluntary sample from a person under the age of 17 years."

Clause 31 inserts a new Schedule 8 into the Act which specifies the offences which are forensic sample offences.

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

Clause 29 amends section 464ZH to give immunity from suit to nurses who carry out forensic procedures in accordance with the Act. Clause 29(2) inserts a provision at the end of section 585 which declares the intention of the amended section 464ZH to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

"The Bill provides that nurses may carry out forensic procedures. Like medical practitioners, this group has the expertise, technical training and knowledge to ensure that proper procedures are adhered to in the conduct of this process. In the performance of their functions under the Act, nurses are to receive the same protection and immunity as is currently offered to medical practitioners, dentists and others. The reason for the variation of the Supreme Court's jurisdiction is that an immunity is necessary to enable nurses who properly carry out forensic procedures to do so without fear of litigation by disgruntled persons."

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

LEGAL PRACTICE (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 15 October 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

8.2

The purpose of the Bill is to amend the Legal Practice Act 1996:-

to make new provision for interstate practitioners to engage in legal practice in Victoria and to make provision for Victorian practitioners practising interstate;
to regulate the practice of foreign law in Victoria by foreign lawyers;
generally improve the operation of the Act.

8.3

Clause 3 inserts various definitions in respect of terms relating to interstate and foreign lawyers. Clause 5 inserts a new section 3A which sets out a definition of when a practitioner establishes a practice. Clause 7 amends section 9 to require specified details of interstate and registered foreign lawyers to be included in the Register of Legal Practitioners maintained by the Legal Practice Board. Clause 10 amends section 34 to provide for mandatory suspension of a practising certificate, in place of cancellation of the certificate, in cases where the lawyer becomes insolvent. Clause 13 amends the Act so that the provisions are extended to apply also to interstate lawyers and registered foreign lawyers, all of whom must be regulated by an RPA or the Board. Clause 14 inserts a new Part 2A to set up a regime in respect of the practice of interstate lawyers in Victoria.

8.4

Clause 15 inserts a new Part 2B which makes provision for the practice of foreign lawyers in Victoria. Clause 17 amends section 107 to allow barristers' clerks to sign bills of costs. Clause 21 inserts a new section 171A into the Act which provides for dispute and complaints procedures in respect of registered foreign lawyers. Clause 22 amends sections 173 and 174 in relation to the handling of trust money. The Committee notes the explanatory memorandum which states:-

"Lawyers who receive `trust money' in the form of a third party cheque, that is a cheque made out to someone other than the lawyer, will no longer be required to bank it into a trust account or to maintain a trust account if that is the only form of money that the lawyer ever receives. It is expected that requirements covering the handling of third party cheques and the delivery of the cheques to the persons entitled to them will continue to be contained in practice rules."

8.5

Clause 24 substitutes a new section 183 in respect of the annual audit of trust accounts. Clause 30 widens the provisions relating to the Liability Committee and the Legal Practitioners' Liability Fund allowing interstate lawyers and registered foreign lawyers to insure with the Liability Committee. Clause 37 inserts new sections 384A and 384B into the Act which set out additional matters which determine how much should be paid to the Public Purpose Fund. Clause 39 amends section 400 so that unless a party objects, the Full Tribunal may be constituted by the chairperson or a deputy chairperson sitting alone for the purpose of making interim orders, giving directions or adjourning proceedings. Pursuant to clause 40, the Legal Profession Tribunal is empowered in any proceedings to make any interim orders it thinks fit. Clause 47 amends section 93(b) to insert the word "costs" which was inadvertently overlooked previously. The Committee notes that this amendment is deemed to have retrospectively come into operation on 6 November 1996, the date upon which the Act received Royal Assent.

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

Clause 45 amends section 444 of the Act to declare the intention of various amended sections (209(6),218 and 222(3)) to alter or vary section 85 of the Constitution Act 1975.

Sections 209(6) and 222(3)

The Committee notes the explanation set out in the Second Reading Speech:-

"Sections 209(6) and 222(3) currently protect the board from action by lawyers or approved clerks arising out of the publication by the board of a notice under section 209(1) calling for claims or a statement that a fidelity reinsurance contract does not apply to a particular practitioner or firm. As the Bill provides that interstate lawyers and registered foreign lawyers are to become part of the fidelity fund scheme and will also, therefore, be the subject of claims against the fidelity fund, the application of the two sections is widened by the Bill to also apply to action against the Board by interstate lawyers and registered foreign lawyers. In each case, allowing exposure of the Board to liability for fulfilling its statutory duty or exercising a statutory duty would severely compromise the achievement of the legislative purposes underlying those duties and discretions."

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

Section 218

The Committee notes the explanation set out in the Second Reading Speech:-

"Section 218 currently provides protection to innocent principals in a legal practice where a defalcation occurs. As the Bill now makes both interstate lawyers and registered foreign lawyers subject to provisions of the Act relating to defalcations, it is important that the principals of a practice who are interstate lawyers or registered foreign lawyers, and who are not responsible for the defalcation, are provided with the same level of immunity against liability as Victorian lawyers currently receive. Section 218 is being amended accordingly."

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

UNCLAIMED MONEYS (AMENDMENT) BILL

9.1

This Bill was introduced into the Legislative Assembly on 15 October 1997 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.

9.2

The purposes of the Bill are:-

to provide for the payment of certain unclaimed retirement savings account money into the Consolidated Fund instead of to the Commonwealth Commissioner of Taxation under the Retirement Savings Accounts Act 1997 of the Commonwealth;
to enable the Registrar of Unclaimed Moneys to appoint agents;
to make miscellaneous amendments to the Unclaimed Moneys Act 1962.

9.3

Clause 4 inserts a new Part 5 into the Unclaimed Moneys Act 1962 which makes provision for unclaimed RSA money to be paid into the Consolidated Fund instead of the Commonwealth. Pursuant to new clause 32 the Registrar must keep a register of unclaimed RSA money paid to the Registrar. Clause 9 inserts new section 10A which provides that the Registrar with the approval of the Minister may appoint agents to assist in the carrying out of the duties and functions of the Registrar. Clause 10 makes miscellaneous amendments and corrects references. Clause 11 substitutes new section 18 to set out the application of the Part. Clause 13 inserts a new Schedule which sets out the form of a "Declaration of Secrecy" for inspectors.

The Committee makes no further comment.

FOOD (AMENDMENT) BILL

10.1

This Bill was introduced into the Legislative Assembly on 8 October 1997 by the Honourable Dr Denis Napthine MP with the Honourable Phil Gude MP.

10.2

The purposes of the Bill are to amend the Food Act 1984:-

to establish a food safety program scheme;
to enable the recall of food that poses a risk to public health;
to replace the Foods Standards Committee with the Food Safety Council;
to generally improve the operation of that Act;
to amend the Meat Industry Act 1993 to provide increased penalties for certain offences relating to the use of unlicensed meat transport vehicles or the breach of licence conditions or restrictions;
to amend the Meat Industry Act 1993 to enable the prohibition of the use of meat transport vehicles if public health is endangered;
to amend the Meat Industry Act 1993 to transfer to that Act the responsibility for regulating certain premises presently regulated by the Food Act 1984; and
to make minor consequential amendments to the Dairy Industry Act 1992.

10.3 Amendments to the Food Act 1984

Clause 3 inserts various definitions into the Food Act 1984. Clause 5 inserts new Part IIIB which makes provision for food safety programs. Clause 10 substitutes new provisions regarding the making of applications to register a premises or vehicle, or to renew or transfer registration. Clause 11 inserts new sections 44A to 44D into the Act regarding orders to preserve public health. Clause 13 substitutes new Part X into the Act which provides for the establishment of the Food Safety Council. Clause 14 inserts new sections 54A to 54D in respect of confidential food information. Clauses 16 and 17 update various references.

10.4 Amendments to the Meat Industry Act 1993

Clause 20 inserts new Part 5A which deals with offences in relation to meat transport vehicles. Clause 24 substitutes new section 78(1)(h)(iii) which widens the regulation making powers of the Meat Industry Act 1993. Clause 27 inserts a new section 10A into the Act which requires certain classes of shops to have quality assurance programs. Clause 29 inserts a new section 12A which provides for the auditing of quality assurance programs for the specified premises under the new section 10A. Clause 34 expands the functions of the Victorian Dairy Industry Authority. Clause 36 expands the functions of the Victorian Meat Authority.

The Committee makes no further comment.

PLANNING AND ENVIRONMENT (AMENDMENT) BILL

11.1

This Bill was introduced into the Legislative Assembly on 15 October 1997 by the Honourable Rob Maclellan MP with the Honourable Bill McGrath MP.

11.2

The main purposes of the Bill are:-

to amend the Planning and Environment Act 1987 to confer certain powers on the Secretary of the Development of Infrastructure in relation to development projects of State or regional significance;
to amend the Project Development and Construction Management Act 1994 in relation to the functions and powers of the Secretary; and
to amend the Land Acquisition and Compensation Act 1986 to provide for the exemption of land to be acquired for certain kinds of development projects from the requirement to be reserved for public purposes.

11.3

Clause 3 inserts new Part 9A into the Planning and Environment Act 1987 which confers certain powers on the Secretary of the Department of Infrastructure. Clause 5 sets out the additional powers of the Secretary in the Project Development and Construction Management Act 1994. Clause 6 provides that there is an exemption from the requirement to reserve land in respect of land which is special project land under the new section 201I(3) of the Planning and Environment Act 1987.

The Committee makes no further comment.

UNIVERSITY OF BALLARAT (AMENDMENT) BILL AND UNIVERSITY ACTS (FURTHER AMENDMENT) BILL

12.1 Committee's comments

The Committee reported on the above Bills in Alert Digest No.7 of 1997 on 7 October 1997. The Committee made the following comment in respect of the University Acts (Further Amendment) Bill:-

"The Committee notes the change in practice in relation to the approval of statutes. Previously, university statutes were approved by the Governor in Council. Pursuant to the amendments, the Minister will approve university statutes. The Committee will write to the Minister."

The Committee also undertook to the write to the Minister in relation to the same issue in respect of the University of Ballarat (Amendment) Bill. The Committee wrote to the Minister on 8 October 1997.

12.2 Minister's response

The Minister responded by way of letter dated 17 October 1997 received by the Committee on 22 October 1997. The relevant extract is set out:-

"I refer to your letter of 8 October in which you advised me of your Committee's views on the University of Ballarat (Amendment) Bill and the University Acts (Further Amendment) Bill. I note the view that the change from approval of statutes by the Governor in Council to approval by the Minister may `insufficiently subject the exercise of legislative power to parliamentary scrutiny' and the suggestions that approvals might be notified to the Governor in Council and statutes published in the Government Gazette.

Statues are not currently gazetted and to publish them in this way would be very expensive. Further, statutes are frequently in the form of amendments to existing documents and would have little meaning unless presented in consolidated form. This would greatly increase the cost of publication and serve little purpose since they deal almost exclusively with internal management arrangements and are freely available to any who may wish to see them in university libraries and administrative handbooks.

I do not believe it would be appropriate to introduce a system of formally notifying the Governor in Council of approvals since this would re-establish most of the administrative workload the change is seeking to avoid.

Your Committee may not be aware that both His Excellency the Governor, and the former Governor, the Hon Richard McGarvie have agreed with the suggestion made by the Executive Review Council that their approval is not needed. That suggestion was based on a view that instruments, though capable of being described as legislative in character, vary markedly in content. University statutes are debated and voted on by councils which were seen by the Committee as senior bodies with major responsibility for managing universities. The Committee thought that the Governor in Council process arguably did not add to the process of council consideration which it saw as providing a sufficient check on the contents.

As indicated in my second reading speech, a recent Higher Education Management Review conducted by the Commonwealth Government (Hoare Committee) recommended that State legislation be amended so that `the governing body (of universities) can make ordinances, statutes, by-laws and rules without requiring government approval.' That recommendation was made with the intention of improving efficiency in management. The Committee which I established to review governance arrangements initially suggested retaining the Governor in Council procedure, however the reason for doing so was to ensure that the Minister was in a position to monitor administrative arrangements and, after considering the view of the Executive Council Review Committee, unanimously proposed the arrangement which is now set out in the two Bills.

The approach adopted in the Bills retains Government involvement to a greater extent than the Hoare Committee recommended, since approval by the Minister is still required. Like my Review Committee, I believe it is desirable for the Minister to monitor statutes as part of his responsibility for administration of the university Acts. However, the statutes are voluminous and deal with details of internal organisation within the framework of major structural arrangements and procedures set out in the Acts. These major arrangements are, of course, subject to the scrutiny of Parliament by virtue of their inclusion in the Acts.

Following the advice received and after considering the views of the parties referred to above I do not believe your suggestions would be appropriate in the circumstances. However, I acknowledge the concern of your Committee, and to ensure access by Members to information about statutes I would be willing to arrange for inclusion of a list of the statutes made during each year, and information about where they can be seen, in the Annual Reports submitted to Parliament by each university."

Committee Room
27 October 1997

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