Alert Digest No. 3
of 1998
21 April 1998
LAND (REVOCATION OF RESERVATIONS) BILL
1.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable Jan Wade MP.
1.2
The purpose of the Bill is to revoke reservations over various parcels of land.
1.3
Clause 3 provides for the revocation of various reservations of land. Clauses 4 and 5 also provide for the revocation of reservations of land. Clause 7 gives the Registrar-General and Registrar of Titles the power to make necessary amendments.
The Committee makes no further comment.
TRANSPORT ACCIDENT (AMENDMENT) BILL
2.1
This Bill was introduce d into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.
2.2
The purpose of the Bill is to make miscellaneous amendments to the Transport Accident Act 1986. The Committee also notes the comments in the Second Reading Speech: —
"The main purpose of the Bill is to introduce a revised approach to the measurement of impairment of persons injured as a result of transport accidents. The approach to be adopted is consistent with that to be adopted by the Victorian WorkCover Authority as a consequence of amendments to the Accident Compensation Act 1986 made during the last Parliamentary Sitting."
2.3
Clause 4 amends section 23(2) to repeal the requirement that the Commission’s authorisation of services be in accordance with the regulations. The Committee will write to the Minister requesting his advice as to why this is so.
Clause 7 amends section 39(5) to provide that motor cycle riders participating in training under the Road Safety Act 1986 are not precluded from receiving loss of earnings benefits if injured whilst participating in the accredited training. Clause 8 amends section 46A to provide that assessment of the degree of impairment of a person injured in a transport accident will be made using the 4th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. The Committee was of the view that in some instances entitlements may be diminished and in other instances may be enhanced by the adoption of the 4th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.
Clause 12 clarifies section 55(2) to provide that a person can only make an application for review of the level of their loss of earning capacity benefits if they are in actual receipt of those benefits.
2.4
Clause 13 amends section 77(2) to provide that an application for review by the AAT of a decision of the Commission can only be made within 12 months of becoming aware of the decision. The provision has effect from 9 April 1998. The Committee notes the comments in the Second Reading Speech:—
"Section 77 of the Transport Accident Act has provided, since its introduction in 1986, that a person aggrieved by a decision of the Commission has 12 months in which to apply for a review by the AAT. Until 1996, the 12 month time limit was strictly enforced with the support of decisions of the Supreme Court, the latest of these in 1994. In 1996 the Court of Appeal in the case of Bell v TAC found that the 12 month time limit expressed in the Transport Accident Act 1986 could be extended by the AAT under section 31 of the Administrative Appeals Tribunal Act 1984.
The TAC has been monitoring the impact of the Bell decision to determine how the decision will effect the transport accident scheme. The period since the Bell decision has seen a proliferation of applications to the AAT to review decisions of the TAC outside the normal 12 month period. Thirty six such appeals were recorded in 1995/6 and 107 in 1996/7. By March this year, 171 Bell type applications had been made to the AAT. The sharp increase in applications for review of decisions and the prospect of many more mean that many decisions made by the TAC over the last 10 years could be re-opened. This can occur even though the claimant was previously informed of their right to appeal at the time of being advised of the TAC’s decision. The effect of this is to expose the transport accident scheme to significant uncertainty.
In view of the increase in applications for the review of TAC decisions outside the original intention of the Act, the Government has determined to re-impose the 12 month limitation to apply for a review by the AAT of TAC decisions which shall take effect from today. The Government believes that the law demands certainty and cutting off of endless litigation. The TAC needs to be able to finalise transport accident claims with certainty and cannot be reasonably expected to revisit decisions made in excess of 12 months earlier.
The 12 month period adopted by the TAC is more generous than the 28 day period normally allowed for other matters reviewed by the AAT. The TAC needs to be able to close off files at some point in order to determine the extent of its long term liabilities."
VICTORIAN PLANTATIONS CORPORATION (AMENDMENT) BILL
3.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.
3.2
The purposes of the Bill are to amend the Victorian Plantations Corporation Act 1993:—
To provide for the sale of the forestry business of the Victorian Plantations Corporation; and
To permit the granting of perpetual licences for land vested in the Victorian Plantations Corporation; and
To amend various other Acts in relation to their application to land vested in the Victorian Plantations Corporation and licensees of that land.
3.3
Clause 5 inserts a new section 8E allowing for the closure of roads listed in proposed Schedule 5. Clause 8 inserts new Part 3A into the Act which makes provision for plantation licences. The Committee notes that new section 27J provides that no compensation is payable by the Crown or the Corporation in respect of the cancellation of a plantation licence under Part 3A.
Clause 10 inserts a new Part 5 which provides for the transfer of certain property and staff of the corporation. Clause 11 inserts new Schedules 5, 6, 7 and 8 which set out the various roads to be closed, land which ceases to be reserved etc. Clauses 12 to 21 make consequential amendments to other Acts.
LOCAL GOVERNMENT (DAREBIN CITY COUNCIL) BILL
4.1
This Bill was introduced into the Legislative Assembly by the Honourable Rob Maclellan MP with the Honourable Robin Cooper MP.
4.2
The purposes of the Bill are:—
- To dismiss the Darebin City Council; and
- To extend the operation of the Order in Council that applies to that Council; and
- To set a date for a general election of the Darebin City Council.
4.3
Clause 5 provides for the dismissal of the Darebin City Council. Clause 7 provides for a general election on 12 September 1998. Clause 8 makes provision for future elections.
The Committee makes no further comment.
ROAD SAFETY (DRIVING INSTRUCTORS) BILL
5.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Robin Cooper MP with the Honourable Rob Maclellan MP.
5.2
The purpose of the Bill is to amend the Road Safety Act 1986 to provide a scheme for the compulsory registration of driving instructors.
5.3
Clause 3 inserts new sections 33, 33A and 33B which set out the various requirements of driver instructor authorities. An appeal application may be made to the Magistrates’ Court where there is a refusal to grant an instructor authority.
The Committee makes no further comment.
HERITAGE RIVERS (AMENDMENT) BILL
6.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable Jan Wade MP.
6.2
The purpose of the Bill is to make further provision with respect to the clarification of boundaries of heritage river areas. It amends the Heritage Rivers Act 1992.
6.3
Clause 5 clarifies the effect of any instrument made under the Act. Clause 6 amends a number of descriptions thereby clarifying boundaries of heritage river areas set out in Schedule 1 of the Act. Clause 7 inserts a further description of a heritage river area in relation to the Baw Baw National Park. The Committee notes that these amendments operate retrospectively from 10 September 1992. The Committee also notes the comments in the Second Reading Speech:—
"The Bill also provides that the amendments to the Act are deemed to have had effect from the date of Royal Assent to the Principal Act in 1992, with the exception of clause 7, amending the description of the Aberfeldy Heritage River area, which is deemed to have had effect from the date of effect of the plan of the Baw Baw National Park."
The Committee makes no further comment.
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL BILL
7.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.
7.2
The purpose of the Bill is to establish a Victorian Civil and Administrative Tribunal.
7.3
Clause 8 establishes the Victorian Civil and Administrative Tribunal. Clause 33 is the delegation provision. Clause 37 requires the submission of an annual report. Part 3 sets out the jurisdiction of the Tribunal and its functions.
Clause 53 provides that the Premier may certify that the disclosure of information about a specified matter or the disclosure of any matter contained in a document would be contrary to public interest because it would involve the disclosure of deliberations of the Cabinet or a committee of the Cabinet. Part 4 contains provisions which relate to the general procedure of the Tribunal. Clause 62 provides for the representation of parties in various matters.
7.4
Division 5 provides for compulsory conferences, mediation or settlement. Division 8 governs costs. Division 9 makes provision for orders of the Tribunal. Division 10 sets out general powers. Clause 129 sets out the powers of entry and inspection of the presiding member of the Tribunal. Division 11 sets out the various offences. Part 5 provides for appeals from the Tribunal. Part 6 establishes a Rules Committee. Part 7 contains miscellaneous provisions. Clause 161 is the regulation making provision.
7.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 160 declares the intention of section 52 to alter or vary section 85 of the Constitution Act 1975. Clause 52 limits the Supreme Court’s jurisdiction to hear planning matters. The Committee notes the comments in the Second Reading Speech:—
"Clause 160 of this Bill is included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of the changes to the jurisdiction of the Supreme Court effected by clause 52.
Clause 52 excludes the jurisdiction of the Supreme Court, County Court and Magistrates’ Court to hear or continue to hear any planning matter where the Victorian Civil and Administrative Tribunal has jurisdiction to review the matter. Clause 52 re-enacts section 66A of the Planning Appeals Act 1980 as this Act will be repealed. Clause 52 merely maintains the status quo in planning disputes.
The planning division of the Administrative Appeals Tribunal has always been considered to be a "one stop shop" for disputes within the planning jurisdiction. It is intended that VCAT continue to fulfil this role. The Government considers it appropriate that all planning disputes be dealt with in a forum with accumulated expertise in planning matters. Consequently, the Courts’ jurisdiction to hear planning matters has been excluded.
However, it should be noted that if a court is of the opinion that there are special circumstances which justify hearing a particular proceeding in the planning jurisdiction, the Court may hear and determine the matter."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
BUSINESS LICENSING AUTHORITY BILL
8.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.
8.2
The main purpose of the Bill is to establish and provide for the operation of the Business Licensing Authority.
8.3
Clause 4 establishes the Business Licensing Authority. Clause 6 sets out its functions. Clause 7 sets out its powers. Clause 11 is the power of delegation. Clause 16 is the Registrar’s delegation power. Clause 18 is the secrecy provision. Clause 19 gives a member of the Authority personal immunity when discharging his or her duties under the Act. The Schedule includes those matters which relate to the appointment of members of the Authority.
The Committee makes no further comment.
TRIBUNALS AND LICENSING AUTHORITIES (MISCELLANEOUS AMENDMENTS) BILL
9.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.
9.2
The purpose of the Bill is:—
- To amend various Acts as a consequence of the Victorian Civil and Administrative Tribunal Act 1998 and the Business Licensing Authority Act 1998;
- To repeal the Administrative Appeals Tribunal Act 1984, the Planning Appeals Act 1980 and certain other Acts;
- To make certain other transitional arrangements.
9.3
In general terms the amendments in this Bill are technical and reflect the abolition of various tribunals and the conferral of the jurisdiction on the VCAT. By way of explanation, the Committee also notes the comments in the Second Reading Speech:—
"As members will be aware, VCAT will encompass 12 tribunals, boards and authorities. The Acts establishing those bodies have all required extensive amendment. Many other Acts grant jurisdiction to tribunals such as the Administrative Appeals Tribunal. All of these Acts require amendment to alter current references from the existing tribunals to VCAT or the Business Licensing Authority.
The consequential amendments, in addition to changing references to reflect the establishment of VCAT and BLA:
- Provide for common language;
- Standardise the test for standing before VCAT; and
- Establish time limits for the bringing of applications for review.
The Bill also sets out transitional arrangements to assist the merging of the twelve tribunals, boards and authorities."
9.4
Part 2 amends the Consumer Credit (Victoria) Act 1995 to reflect the establishment of the VCAT. Part 3, clauses 21 to 25 amend the Credit Act 1984. Part 4 makes various amendments to the Credit (Administration) Act 1984. The amendments in Part 5 relate to the Domestic Building Contracts and Tribunal Act 1995. Part 6 makes amendments to the Equal Opportunity Act 1995. Part 7 amends the Estate Agents Act 1980. Part 8 makes similar amendments to the Guardianship and Administration Board Act 1986. Part 9 amends the Introduction Agents Act 1997. Part 10 amends the Motor Car Traders Act 1986. Part 11 relates to the Planning and Environment Act 1987. Part 12 amends the Prostitution Control Act 1994. Part 13 makes various amendments to the Residential Tenancies Act 1997. Part 14 amends the Retail Tenancies Reform Act 1998. Part 15 covers relevant provisions in the Second Hand Dealers and Pawnbrokers Act 1989. Part 16 makes provision for the Small Claims Tribunal Act 1973.
Part 17 amends the Travel Agents Act 1986. Part 18
amends the Valuation of Land Act 1960.
Part 19 contains general provisions and repeals the AAT Act and the Planning
Appeals Acts. Schedule 1 makes consequential amendments to a number of Acts.
Schedule 2 contains transitional provisions. Clause 4 in Schedule 2 provides for the transfer of members to the new Tribunal. Clause 5 in Schedule 2 sets out the terms and conditions of those transferred members. Clause 8 in Schedule 2 provides for the transfer of staff from the various abolished tribunals. Schedule 3 provides for interim fees.
9.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968
JURISDICTION OF TRIBUNALS - By way of explanation, the Committee notes the general comments in the Second Reading Speech:—
"A number of the tribunals encompassed by VCAT were established under Acts containing provisions which exclude the jurisdiction of the Supreme, County and Magistrates’ Courts. Successive governments have considered it appropriate to exclude the Courts’ jurisdiction to hear matters where a specialist tribunal has been established to hear matters in a particular jurisdiction. Tribunals can offer litigants a high level of expertise in a forum which is less expensive and more accessible than the court system.
Where a tribunal to be encompassed within VCAT has exercised exclusive jurisdiction, VCAT will continue that arrangement."
(i) Clause 42
Clause 42 declares the intention of section 57 of the Domestic Building Contracts and Tribunal Act 1995 as amended by clause 38 of the Bill to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Section 57 of the Domestic Building Contracts and Tribunal Act 1995 limits the jurisdiction of the Supreme, County and Magistrates’ Courts to hear matters which are wholly or predominantly domestic building disputes. Under this section a court was required to dismiss any action on the application of any party if the action came within the jurisdiction of the domestic building tribunal and the court had not begun to hear the matter. If the matter was dismissed, any party could apply to have the dispute heard in the domestic building tribunal. It is intended that this arrangement continue and that VCAT maintain what is essentially an exclusive jurisdiction to hear domestic building disputes. Section 57 has also been amended by clause 38 of this Bill to make it clear that where an action relating to a domestic building dispute is stayed by a court and a party applies to have the dispute heard by VCAT then VCAT must notify the appropriate court of that application and the court must dismiss the action."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
(ii) Clause 247
Clause 247 declares the intention of the section 35(2) as it amends section 48 of the Retail Tenancies Reform Act 1998 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Clause 245 of this Bill inserts a new section 35(2) into the Retail Tenancies Reform Bill currently before Parliament to give VCAT exclusive jurisdiction to hear retail tenancy disputes. Currently, retail tenancy disputes are dealt with through a process of conciliation and arbitration outside of the court system. It is considered appropriate that VCAT exercise exclusive jurisdiction so that these disputes are dealt with in a low cost forum which can offer expertise in this area."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
(iii) Clause 276
Clause 276 inserts new section 37B into the Small Claims Tribunal Act 1973 which declares the intention of section 16 as amended by the Bill to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Section 16 of the Small Claims Tribunal Act 1973 provided that a decision of a small claims tribunal was final and binding and that there was no right to appeal against that decision. A new section 16 has been substituted by clause 270 of this Bill. This section now provides that once an application is made to VCAT under this Act in respect of a small claim, the issues in dispute are not justiciable at any time by a court or a tribunal other than VCAT. There are some exceptions to this rule. If a proceeding has already commenced in a court or tribunal before the application was made to VCAT or the application to VCAT is withdrawn or struck out for want of jurisdiction then the court or tribunal can hear and determine the matter. It is considered appropriate that disputes involving small claims due to the small sums involved be dealt with by VCAT rather than the courts."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
(iv) Item 2.4 of Schedule 1
Item 2.4 of Schedule 1 inserts new section 15 into the Administrative Law Act 1978. New section 15 declares the intention of amended sections 4(3) and 4(4) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Item 2.1 of Schedule 1 to this Bill re-enacts section 4(3) and (4) of the Administrative Law Act 1978 which limited the power of the Supreme Court on a review of a proceeding before a Small Claims Tribunal, the Credit Tribunal or the Residential Tenancies Tribunal to where there existed grounds of lack of jurisdiction or denial of natural justice. This limitation is continued with respect to VCAT. It is considered appropriate due to the nature of the claims to limit the jurisdiction of the Supreme Court to review decisions in respect of small claims, credit and residential tenancies disputes to ensure the finality of proceedings while ensuring that a party can apply for review where there has been a denial of natural justice or lack of jurisdiction."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
(v) Item 106.2 of Schedule 1
Item 106.2 of Schedule 1 inserts new section 183A into the Water Industry Act 1994 which declares the intention of amended section 74(5) to amend or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Section 74 of the Water Industry Act 1994 relates to the liability of licensees arising out of the intentional or negligent flow of water from works onto any land. Item 106.1 of Schedule 1 to this Bill inserts a new section 74A which sets out the jurisdiction of VCAT in respect of these matters. Section 74A(5) grants exclusive jurisdiction to hear these matters to the VCAT. The one exception to this is a claim from damages arising out of personal injury. This is not a change to current jurisdictional arrangements. Under section 19 of the Water Act 1989, the Administrative Appeals Tribunal has exercised exclusive jurisdiction to hear matters under section 74(1) of the Water Industry Act 1994. All that is being done is to confer the exclusive jurisdiction on VCAT and move the reference relating to jurisdiction from the Water Act 1989 to the Water Industry Act 1994."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) (AMENDMENT) BILL
10.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.
10.2
The purpose of the Bill is to amend the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995:—
- To create offences in respect of commercial quantities of certain prohibited material; and
- To provide further for forfeiture of seized items; and
- To require all Category 1 restricted publications to be sold in sealed, plain, opaque packages; and
- To increase penalties against bodies corporate.
10.3
Clause 5 makes it an offence to sell a commercial quantity of X films. Clause 6 inserts a new section 23A which set out various indictable offences. Clause 8 substitutes a new section 26(1) which provides that a person must not sell or deliver a publication classified Category l restricted unless it is contained in a sealed, opaque package. Clauses 9 to 11 sets out further offences. Clause 12 provides new time limits within which certain actions may be instituted under section 75 of the Act. Clause 13 inserts a new section 75A which provides for seizure of goods when a person is found guilty of an offence. Clause 14 changes the penalty for a body corporate from a maximum of 240 units to a penalty "not exceeding 5 times the maximum amount which the court could otherwise impose in respect of the offence." Clause 15 contains transitional provisions.
The Committee makes no further comment.
11.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP.
11.2
The purposes of the Bill are:—
- To repeal the Dried Fruits Act 1958; and
- To provide for the transfer of property, assets, rights and liabilities of the Victorian Dried Fruits Board to a trust established for the purpose of promoting the development of the dried fruits industry.
11.3
Clause 4 provides for the trustee to the successor in law of the former Board. Pursuant to clause 5 all former monies are vested in the trustee. Clause 8 gives the Registrar of Titles the power to make any necessary amendments to the Register. Clause 10 requires the trustee to submit an annual report of its operation and finances. Clause 11 repeals the Dried Fruits Act 1958.
The Committee makes no further comment.
ST GEORGE BANK AND ADVANCE BANK AUSTRALIA BILL
12.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.
12.2
The purpose of the Bill is to facilitate the merger of Advance Bank Australia Limited with St George Bank Limited.
Clause 5 authorises the St George Bank to carry on business under a number of names. Clause 6 provides that the St George Bank must pay an amount in lieu of State taxes and charges. Clause 7 empowers the CEO of the St George Bank to certify any matter in relation to the operation of the Act relating to assets or liabilities.
The Committee makes no further comment.
GAS PIPELINES ACCESS (VICTORIA) BILL
13.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.
13.2
The purpose of the Bill is to make provision for the regulation of third party access to natural gas pipeline systems and to amend the Gas Industry Act 1994. The Committee notes by way of explanation in the Second Reading Speech:—
"The Bill effectively implements Victoria’s commitment to the introduction of a uniform national framework for access to natural gas pipelines. In February 1994, the Council of Australian Governments (COAG) agreed to enhance competition in the natural gas sector by committing to the development of "free and fair trade in natural gas". One objective was to encourage the development of a national competitive natural gas market by establishing a uniform national regulatory framework for third party access to natural gas pipelines and for facilitating the interconnection of pipeline systems.
Development of that national regulatory framework commenced under the auspices of COAG in 1996 and was finalised last year when all States and Territories and the Commonwealth signed the Natural Gas Pipelines Access Agreement."
13.3
Clause 3 of the definition provides that the words "South Australian Act" in the Bill mean the Gas Pipelines Access (South Australian) Act 1997. Clause 3 also defines "Gas Pipelines Access Law" as Schedule 1 to the South Australian Act. Clause 7 applies the Gas Pipelines Access Law as a law of Victoria. Clause 8 applies the regulations in force in South Australia as in force in Victoria for the purposes of the Gas Pipelines Access (Victoria) Law.
The Chair will write to the Treasurer on behalf of the Committee in the following terms:—
"The Scrutiny of Acts and Regulations Committee considered the above bill at a meeting on 20 April 1998.
The Committee has a series of concerns in relation to the Bill.
(1) Scrutiny of the legislation
The purpose of the Bill is to adopt the South Australian legislation. Whilst the Committee understands that the Bill forms part of a national scheme of legislation, it is difficult for it to fulfil its obligations under section 413(a) of the Parliamentary Committees Act 1968 without sighting the South Australian Act. Whilst this is easily rectified from the Committee’s point of view, it highlights the more general problem of scrutiny of the Parliament. The Committee is of the view that all Victorian legislation should be accessible. To this end, the Committee is of the view that the South Australian Act should form part of an appendix to the Victorian Bill so that at least there is some chance for members and the public to avail themselves of the state of the law.
(2) Regulations
The Committee is also troubled at the prospect of the Victorian Parliament adopting binding regulations which are made interstate. Again, there is no chance of appropriate scrutiny or input. It seems to the Committee that this is not sound Parliamentary practice.
(3) Delegation provisions
By way of example of insufficient scrutiny, the Committee notes that there are delegation provisions contained in the South Australian Act which may, if introduced directly in a Victorian Bill be of concern. The concerns relate to the width of the delegation provisions. As the South Australian legislation is already in force, there is little a Victorian Scrutiny Committee can do to articulate its concerns.
(4) Section 85 of the Constitution Act 1975
Clause 23 of the Bill declares the intention of section 22 to alter or vary section 85 of the Constitution Act 1975. Clause 22 refers to Parts 5 and 6 of the South Australian Act which set out the administrative proceedings which may be commenced for any breaches of the law. The Committee notes that Parts 5 and 6 are not reproduced anywhere in the Bill.
Where a particular course is contemplated in Victorian legislation in terms of altering or varying the jurisdiction of the Supreme Court, a section 85 clause highlights that matter to the Parliament. The Committee is concerned about the concept of precluding the institution of proceedings in a Victorian court in circumstances where the legislative provisions to which such proceedings might apply do not appear within the Bill and are therefore beyond scrutiny.
(5) Continuing problem
By way of conclusion the Committee notes that as national schemes of legislation continue to increase in popularity and number, so too will the need to address these scrutiny issues. It would seem likely that such issues will continue to emerge in further areas of significance.
The Committee would grateful for your response in respect of these matters and indeed advice as to whether appropriate amendments may be made. The Committee would appreciate your response by no later than 9.00 am on Monday 28 April 1998 so that it can be incorporated into the next Alert Digest.
Please do not hesitate to contact me should you wish to discuss any of these matters."
Clause 12 confers on the local Minister, the local Regulator and the local appeals body within the meaning of the gas pipelines access legislation of another scheme participant, the power to do acts in or in relation to Victoria in performing or exercising functions or powers conferred on them under the gas pipelines access legislation of that other scheme participant. Clause 19 sets out the exemption from stamp duty. Part 5 contains consequential amendments.
13.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 23 declares the intention of section 22 to alter or vary section 85 of the Constitution Act 1975. Clause 22 refers to Parts 5 and 6 of the South Australian Act which set out the administrative proceedings which may be commenced for any breaches of the law. However, it is noted that Parts 5 and 6 are not themselves reproduced. The Committee notes the comments in the Second Reading Speech:—
"The Bill includes a provision to the effect that clause 22 is intended to vary or alter section 85 of the Constitution Act 1975. This clause relates to a limitation included in the Bill on persons who may bring proceedings in respect of matters arising under the Gas Pipelines Access Law. The lead legislation of South Australia, which is applied by the Bill, contains detailed provisions concerning the enforcement of the Law. Certain enforcement rights are given exclusively to the relevant regulatory authorities while other specific enforcement rights are given to any person who is affected by a breach of the law. In order to ensure that these limitations relating to enforcement are effective in Victoria, and accordingly apply uniformly across all jurisdictions, it is necessary to expressly recognise the intention to vary the jurisdiction of the Supreme Court as set out in section 85 of the Constitution Act."
The Committee is concerned at the application of a section 85 provision as expressed in its letter to the Treasurer set out above. |
PRINTERS AND NEWSPAPERS (REPEAL) BILL
14.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.
14.2
The purposes of the Bill are:—
- To repeal the Printers and Newspapers Act 1958;
- To amend the Wrongs Act 1958 to provide for the identification of publishers.
14.3
Clause 4 inserts a new Part 1A into the Wrongs Act 1958 in respect of the identification of publishers. Clause 5 makes a consequential amendment.
The Committee makes no further comment.
EDUCATION (SELF GOVERNING SCHOOLS) BILL
15.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Phil Gude MP with the Honourable Pat McNamara MP.
15.2
The main purpose of the Bill is to amend the Education Act 1958 and the Teaching Service Act 1981 to make further provision for the management and operation of State schools.
15.3
Clause 3 amends section 13 of the Education Act 1958 to provide that councils of State schools may be established by Ministerial order. Clause 5 inserts new Division 3B which sets out the special function of school councils and the various powers which they may exercise.
Clause 8 amends section 77 of the Teaching Service Act 1981 to enable the Secretary to delegate powers to a school council.
The Committee makes no further comment.
AGRICULTURE ACTS (AMENDMENT) BILL
16.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP.
16.2
The purpose of the Bill is to amend the Agricultural Industry Development Act 1990, the Barley Marketing Act 1993, the Plant Health and Plant Products Act 1995 and the Prevention of Cruelty to Animals Act 1986.
16.3
Clause 3 extends the term of the Murray Valley Wine Grape Industry Development Order to five years from 16 June 1994. Clause 5 extends the Barley Marketing Board’s powers for a further season. Clause 6 amends the Plant Health and Plant Products Act 1995 to impose additional health declaration requirements on persons importing, introducing or bringing into Victoria prescribed material. Clause 7 repeals section 5(6) of the Prevention of Cruelty to Animals (Amendment) Act 1995 because it contains a superseded reference.
This dates from 31 March 1998. Clause 8 amends section 6 of the Prevention of Cruelty to Animals Act 1986 to ensure that any fishing activity authorised by the Fisheries Act 1995 will be excluded from the provisions of the Prevention of Cruelty to Animals Act 1986. This dates from 1 April 1998. The Committee notes the comments in the Second Reading Speech:—
"In 1995, the Fisheries Act 1995 was enacted which required consequential amendments to be made to the Prevention of Cruelty to Animals Act 1986 to ensure authorised fishing activities could be continued to be excluded from the provisions of the Act. However, following an extensive consultation process the Fisheries Act was substantially revised in early 1997 to incorporate, amongst other things, a simplified licensing system. Unfortunately, a consequential minor technical amendment was not made to the Prevention of Cruelty to Animals Act 1986 to ensure that authorised fishing activities continued to be exempted from the provisions of that Act."
The Committee makes no further comment.
17.1
This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.
17.2
The Bill amends the Tattersall Consultations Act 1958, the Gaming Machine Control Act 1991 and the Club Keno Act 1993. The purposes of the Bill are:—
To enable one or more corporate bodies wholly owned and controlled by the trustees of the will and estate of the late George Adams to conduct gaming activities currently conducted by those trustees; and
To make amendments of a statute law revision nature.
17.3
Clause 4 inserts various definitions into the Tattersall Consultations Act 1958. Clause 7 inserts new sections 5A to 5E into the Act which allow the Minister to declare a company that is wholly owned and controlled by the Trustees and which has been approved by the Authority to be the operator. Part 3 makes similar amendments to the Gaming Machine Control Act 1991. Clause 15 requires a declared company to comply with the relevant banking requirements. Part 4 makes similar amendments to the Club Keno Act 1993.
The Committee makes no further comment.
Committee Room
20 April 1998
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