Alert Digest No. 6 of 1998

Alert Digest No. 6 of 1998
6 October 1998

Arts Acts (Amendment) Bill
Conservation, Forests and Lands (Miscellaneous Amenments) Bill
Consumer Credit (Finance Brokers) Bill
Health Services (Further Amendment) Bill
Land (Further Revocation of Reservations) Bill
Legal Practice (Amendment) Bill
Mutual Recognition (Victoria) Bill
Petroleum Bill
Planning and Environment (Amendment) Bill
Victorian College of the Arts (Amendment) Bill
Victorian Institute of Marine Sciences (Repeal) Bill

ARTS ACTS (AMENDMENT) BILL

1.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP. The Second Reading Speech was delivered on 3 September 1998.

1.2

The primary purpose of the Bill is to increase by two the number of members of the Council of the National Gallery. The Bill also makes miscellaneous amendments to the Libraries Act 1988 and the National Gallery of Victoria Act 1966 (the Act).

1.3

Clause 2 saving section 3, the amendments commence on Royal Assent. Clause 2(2) states that section 3 is deemed to have come into operation on 26 May 1998. Clause 3 amends the Public Sector Reform (Miscellaneous Amendments) Act 1998 to retrospectively repeal an amendment to the Libraries Act 1988 that was not intended.

The Committee notes that the retrospective operation of clause 3 of the Bill is curative in nature and is designed to correct an unintended legislative consequence and is therefore appropriate in the circumstances.

Clause 5 amends section 6(1) of the Act and provides that two additional members will be appointed to the Council of the National Gallery increasing the number of councillors from 9 to 11. The effect of Clause 5(1)(b) is that the two additional members will be appointed by the Minister. Clause 5(2) substitutes a new section 6(3) making it clear that the Public Sector Management Employment Act 1998 does not apply to a member of the Council in respect of the office of member.

The Committee makes no further comment.

CONSERVATION, FORESTS AND LANDS (MISCELLANEOUS AMENDMENTS) BILL

2.1

The Bill was introduced into the Legislative Assembly on 2 September 1998
by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

2.2

The Bill amends the Conservation, Forests and Lands Act 1987; certain references to the Secretary to the Department of Natural Resources and Environment; the Coastal Management Act 1995; the Crown Land (Reserves) Act 1978; the Parks Victoria Act 1998 and for other purposes.

2.3

Clause 2 Parts 1 and 5 come into operation on Royal Assent. Parts 3 and 4 come into operation on proclamation but not later than 1 July 1999. The remaining provisions commence on 15 December 1998.

Clause 2(2) provides that clauses 19 and 26(2) are deemed to have come into operation on 1 July 1998. Clause 19 clarifies references in the Broiler Chicken Industry Act 1978 are to the Department Head of the Department of Natural Resources and Environment, similarly, clause 26(2) clarifies references to the Department Head in the Pipelines Act 1967. Both provisions are machinery of government amendments and supersede amendments made to these Acts by the Public Sector Reform (Miscellaneous Amendments) Acts 1998 which commenced operation on 1 July 1998.

The Committee notes the retrospective operation of clauses 19 and 26(2) and recognises the curative nature of the legislation designed to correct unintended legislative consequences. The Committee believes that in the circumstances they are justified.

Clauses 3-32 are machinery of government nomenclature amendments such as substituting ‘ Secretary’ for ‘Director-General’ and repealing definitions of ‘Chief Administrator’ and Director-General’ where occurring in various Acts.

Clause 33 amends the Coastal Management Act 1995 and renames the ‘Victorian Coastal Management Council’ to the ‘Victorian Coastal Council’. Clauses 34-36 make amendments consequent upon the Council’s name change.

Clause 37 substitutes a new sub-section (2) for existing sub-sections (2) and (3) in section 7 of the Act to alter the membership criteria of the Council from a representative one to a skills based criteria. Clause 38(1) amends section 11 by increasing the membership of the Board from ‘10’ to ‘12’ and Clause 38(2) substitutes a new sub-section (2) for existing sub-sections (2) and (3) altering the membership criteria for appointment to the Board from a representative one to a skills based criteria.

Clause 39 inserts a new section 11A of the Act to provide that a member of a Board is not to be taken to hold an office of profit under the Crown which would prevent the member sitting or voting as a member of the Victorian Parliament or which would void election to the Parliament or prevent a member from continuing to be a member of Parliament; or subject the member to liability to pay a penalty under the Constitution Act 1975.

Clause 41(3) inserts a new paragraph after clause three (3) of the schedule of the Coastal Management Act 1995 to provide that no member of Parliament is entitled to receive fees and travelling and other allowances as a member of the Board.

The Committee notes the effect of section 49 of the Constitution Act 1975:-

"Except where express provision is made by any Act or enactment no person who holds any public office … shall sit or vote in the Parliament, and the election of any such person shall be null and void."

The Committee notes that the new section 11A is an express provision permitting a member to hold an office of public profit notwithstanding the effect of section 49 of the Constitution Act 1975. The Committee also notes that the combined effect of the provisions (Clause 39 and 41(3)) is that members of Parliament may serve on such Boards but receive no pecuniary benefit from doing so.

Clause 43 inserts a new section 4(2)(da) in the Parks Victoria Act 1998 and permits Parks Victoria to take land on lease and grant sub-leases of leased land.

The Committee makes no further comment.

CONSUMER CREDIT (FINANCE BROKERS) BILL

3.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

3.2

The Bill repeals the Finance Brokers Act 1969 and re-enacts selected consumer protection provisions in the Consumer Credit (Victoria) Act 1995 (the Act). The Committee notes the comments in the Second Reading Speech:-

"The Bill implements the recommendations of a National Competition Policy Review by removing unnecessary restrictions on the finance broking industry while retaining and improving protections for clients of this industry.

The Bill abolishes the requirement for finance brokers to be licensed. The National Competition Policy Review concluded that licensing was not necessary to achieve the objective of the existing provisions. Instead, the bill puts in place a tailored series of prohibitions to exclude those who might present an unacceptable risk of fraudulent or predatory behaviour. Application for permission to practise despite some disqualifying factors will be able to be made to the business licensing authority, as in the case under the Estate Agents Act 1980 and the Motor Car Traders Act 1986."

3.3

Clause 2 The amendments commence operation on 1 July 1999.

Clause 4 inserts a new Part 4A into the Act providing for new sections 37A to 37U in the Consumer Credit (Victoria) Act 1995. The new section 37B allows the Governor in Council by Order published in the Government Gazette to declare that the Part either wholly or to the extent specified does not apply to a specified person or class of persons or a transaction or class of transactions.

*[A similar provision appears in the Act to be repealed i.e. the Finance Brokers Act 1969, section 3(2) of that Act allows regulations to be made exempting persons or classes of persons from the operation of any, or all of the provisions of the Act.]

Clause 4 (Cont.) the new sections 37C and 37D specify certain persons (natural and corporate) who are prohibited from engaging in finance broking. 37E specifies who are disqualified persons for the purposes of sections 37C and 37D. 37E(2) provides an exemption for persons, who before the commencement of the amendments held a licence under the Finance Brokers Act 1969 or an equivalent Act of a State or Territory. Pursuant to 37F disqualified persons may apply to the Authority for permission to engage in or be involved in finance broking and pursuant to 37G the Authority may give permission if it is satisfied that it is not contrary to the public interest for it to do so. In doing so the Authority is not required to hold a hearing, may require the applicant to provide such information as it considers necessary and may seek and use information from any source it thinks proper. 37H in granting permission the Authority may impose conditions. 37I makes provision for a right of appeal to the Victorian Civil and Administrative Tribunal against findings under 37G or 37H.

37J sets out requirements to be fulfilled before finance brokers may demand or accept fees. Notwithstanding 37J, 37K makes provision for brokers to charge reasonable costs and expenses in certain circumstances. 37N-P deal with the jurisdiction of courts and the Tribunal to order recovery of fees and costs from brokers contravening the Act. In comparison to section 24 of the Finance Brokers Act 1969 the new section 37R provides for penalties for misrepresentation for individuals, for a first offence of 30 p.u. (formerly 15 p.u.) and a new subsequent offence category has been created of 60 p.u. or six months imprisonment. Further there are new penalty provisions for corporations, providing for 30 and 60 penalty units for first and subsequent offences respectively.

37T provides that after 1 July 1999 the Director must send a notice to every person holding licences prior to 1 July 1999, to return their licences to the Director within 14 days of receipt of such a notice. Penalty 30 p.u.

Clause 8 repeals the Finance Brokers Act 1969.

The Committee makes no further comment.

HEALTH SERVICES (FURTHER AMENDMENT) BILL

4.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Denis Napthine MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

4.2

The main purpose of the Bill is to amend the Health Services Act 1988 (the Act).

To provide that trusts in relation to a registered funded agency are not affected by any amalgamation or aggregation of that agency or any declaration of a multi purpose service; and

To amend the provisions relating to Medicare principles; and

To enable the removal of directors of metropolitan hospitals during their term of office; and

To make miscellaneous amendments to provisions relating to multi purpose services and amalgamated and aggregated bodies.

4.3

Clause 2 The amendments commence on Royal Assent (excepting section 6). Section 6 comes into operation on proclamation, but not later than on 1 July 1999.

Clause 4 inserts a number of definitions in the Act which concern amendments relating to trusts. The Committee notes the comments in the Second Reading Speech:-

"The Bill addresses a number of problems that have arisen in relation to the Act’s operation. In particular, the resolution of difficulties relating to trusts will enable bequests and donations to bodies to be used in the provision of health services. The Bill will also ensure that there is no need for a trustee to engage in expensive legal proceedings to determine how the trust may be distributed, in those circumstances where the amalgamation, or aggregation or declaration would have otherwise created doubt as to the appropriate course of action."

Clause 6 substitutes a new section 17AA in Part 2A of the Act (Medicare Principles and Commitments). The new section 17AA(1) provides ‘that the principles contained in any agreement in force from time to time between the Commonwealth and Victoria with respect to the provision of public hospital services are established as guidelines for the delivery of public hospital services in Victoria.’ The current section 17AA publishes the principles in the body of the Act (see 17AA(2)).

As with the existing section 17AA(3), the new section 17AA(2) provides that the principles are not intended to give rise to any legal rights or any civil cause of action.

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

"Section 17AA currently describes the Medicare principles and commitments which are to guide the delivery of public hospital services in Victoria. These principles are based upon the old Medicare agreement. The new agreement outlines the principles that are to guide the delivery of public hospital services for the next five years. It is appropriate for the Act to reflect the current agreement between the Commonwealth and the State, rather than the principles as stated in an agreement which has expired.

Accordingly, the Bill inserts a new section 17AA which states the delivery of public hospital services in Victoria will be guided by the principles as outlined in the relevant agreement between the State and the Commonwealth as in force from time to time. This is preferable to stating the principles directly in the Act, as it will mean that there will automatically be consistency between the Act and the Agreement that is then in force."

The Committee is concerned at the incorporation by reference into the Act of the Medicare Principles by agreements in force from time to time between the Commonwealth and Victoria? The Committee further notes that the former Principles were reproduced as part of the Act (section 17AA(2)) and that the Principles in the new Agreement are not made available for Parliament’s consideration either as a schedule to the Bill or as a separate document at the time Parliament is asked to consider the Bill.

The Committee will write to the Minister expressing concern at the incorporation by reference of material into the Act and seek clarification that the Principles and Commitments described in the Second Reading Speech do not constitute any impingement upon legislative provisions.

The Committee will also seek information from the Minister as to the method by which new agreements will be notified to Parliament and the public.

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

Clause 12 inserts a new section 157F in the Act declaring that it is the intention of the new section 17AA(2) to alter or vary section 85 of the Constitution Act 1975. (Section 157C of the Act is the current ‘limitation of jurisdiction’ provision for the existing section 17AA.)

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

"New section 17AA(2) provides that nothing in part 2A gives rise to, or can be taken into account, in any civil cause of action. In particular, it states that it does not create in any person legal rights not in existence before the commencement of clause 6. This replaces a provision to the same effect that currently applies in relation to the existing section 17AA.

The new section does not take away any legal rights that currently exist; however it does make it clear that it does not create any new legal rights. The reason for limiting the jurisdiction of the Supreme Court in this way is that it is appropriate to continue to prevent liability arising as a result of the new section. The purpose of the amendment is to give statutory recognition to the principles for the delivery of public hospital services, as a reflection of the importance of those principles. This recognition is not intended to create any legal entitlements or to enable the principles to be enforced through the courts."

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

Clause 7(1) amends section 40G(2) of the Act and allows the Governor in Council on the recommendation of the Minister to remove a director or all directors of a board of a metropolitan hospital. The existing legislation omits the words underlined.

Clause 7(2) amends section 40G(3). The existing section provides that ‘the Minister may not recommend the removal of a director of a board unless the Minister is satisfied that’ the director (a) is physically or mentally unable to fulfil the role of director of a board; (b) has been convicted of certain offences; (c) has been absent without leave for more than six months or, (d) becomes insolvent. The new section 40G(3) makes these grounds a mandatory basis for removal and provides that ‘the Minister must recommend the removal of a director of a board from office if the Minister is satisfied that’ the director is (a), (b), (c) or (d) as above.

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

"Section 40G of the Act provides that the directors of a board of a metroplitan hospital (known as health care networks), can only be removed during their term of office on the grounds of physical or mental incapacity, finding of guilt for an offence which affects suitability to be a director, absence from all board meetings without leave over a six month period, or insolvency.

The original rationale for the provision was to guarantee stability of board membership to enable network boards to be able to proceed with planning for the redevelopments within their then newly established network of campuses.

The Government has the utmost confidence that the directors of the boards of governance of networks will carry out their imporatant functions effectively and with great care. Nonetheless, as a rule acts confer a general power to remove directors or members of boards of public bodies. This is appropriate to ensure adequate accountability by directors to government and the community. There is such a general power in relation to members of boards of management of rural public hospitals under the Act, and for directors of State Business Corporations under the State Owned Enterprises Act.

The amendments are generally consistent with these processes. They provide that:-

Directors may be removed by the Governor in Council on the recommendation of the Minister. In practice such a power could be used in relation to directors who do not perform their duties satisfactorily; and

The Minister must recommend removal where a director is physically or mentally unable to act as a director, has been found guilty of an offence which the Minister considers renders him or her unsuitable to be a director, is absent without leave from all board meetings for 6 months, or is insolvent."

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

Clause 13 inserts a new section 178 into the Act headed ‘Savings provision: validity of things done by trustees’. Clause 12 declares that it is the intention of the new section 178 to alter or vary section 85 of the Constitution Act 1975.

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

"Clause 13 inserts a new section 178 into the Act. Clause 12 provides that it is the intention of the new section 178 to alter or vary section 85 of the Constitution Act 1975.

New section 178 contains two savings provisions relating to the acts or omissions of trustees. The amendments to sections 65, 65D, 65F, 115A, 115U and 115V of the Act contained in this Bill relating to trusts apply in relation to amalgamations, aggregations and to declarations of a multi purpose service which took effect prior to the commencement of clause 13 of this Bill.

The Act, as amended by this Bill, has effect with respect to these orders and declarations, and with respect to trust instruments in relation to each former agency of a successor agency created by the order or declaration, as if all of these amendments were in force when the orders and declarations were made. They apply retrospectively to confer an entitlement or eligibility under a trust which applied in relation to each former agency upon each new successor agency from the date that the relevant order creating the successor agency took effect. This is to validate any distributions that have already been made under a trust on the mistaken basis that a successor was eligible or entitled, as a result of the then existing provisions of the Act, to benefit from a trust because its former agency was so eligible or entitled.

New section 178(1) provides that anything done or omitted to be done before the commencement of clause 13 by a trustee that would not have been a breach of trust if this Bill was enacted at the time of the act or omission, is not to be regarded as constituting a breach of trust and the trustee is not liable for breach of trust.

The reason for this limitation of the jurisdiction of the Supreme Court is that it is appropriate to protect trustees and those who have benefited from trusts, where the trustee has distributed a benefit on the mistaken basis that a successor agency was eligible or entitled to benefit under a trust that applied in relation to one of its former agencies. This protection accords with the intention of the Bill to validate such distributions.

New section 178(2) provides that nothing is effected by this Bill is to be regarded as making a trustee liable for a breach of trust on account of anything done or omitted to be done before the commencement of clause 13, that would not have constituted a breach of trust had this Bill never been enacted.

The reason for this limitation of the jurisdiction of the Supreme Court is that it is appropriate to protect a trustee, and those who have benefited from trusts administered by the trustee, where the trustee has acted lawfully in the past. There is to be no liability in relation to any act or omission, where liability might otherwise now arise solely as a result of the retrospective application of the changes to the law contained in this bill. For example, if a trustee had correctly considered that the eligibility of a former agency to benefit under a particular trust was not conferred upon its successor agency by the act as it was then in force, no one should be able to challenge that decision as a result of the effects of this Bill."

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

The Committee also notes the retrospective operation of the new sections 177 and 178 as they relate to trusts and any acts and/or omissions done before the commencement day by a trustee and believes that they are appropriate in all the circumstances.

Clause 14 repeals section 22 of the Miscellaneous Acts (Health and Justice) Amendment Act 1995. That section is a sunset provision which, if not repealed, would cause Part 4A of the Act, relating to multi purpose services, to expire in December 1999. Its repeal will allow Part 4A to continue to operate indefinitely.

The Committee makes no further comment.

LAND (FURTHER REVOCATION OF RESERVATIONS) BILL

5.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

5.2

The Bill provides for the revocation of reservations over certain areas of land, to repeal the Bendigo (Dai Gum San Village) Land Act 1975 and other purposes.

5.3

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

"The Bill provides for the revocation of permanent reservations of lands described in the schedules to the Bill. The Bill removes these reservations either to facilitate disposal or because the purpose of the reservation is no longer appropriate for the future use of the land.

The Bill also provides for the repeal of the Bendigo (Dai Gum San Village) Act 1975."

Clause 2 Saving Part 3 and Schedule 4, the Act comes into operation on Royal Assent. Part 3 and Schedule 4 commence on proclamation but not later than 1 July 1999.

Clauses 8-10 provide for the revocation of the portion of the former Fairfield Hospital site not included in the Forensic Psychiatry Institute. The Committee notes the comments in the Second Reading Speech:-

"Following the revocation of the current reservation affecting the land, the remainder of the site, which includes parkland areas and the Aids Memorial Garden, will be permanently reserved as a public park and memorial gardens. The Northern Melbourne Institute of TAFE has agreed to manage the site. Officers of the Victorian Aids Council have indicated that this is likely to be acceptable to the Council.

The reservation of the Aids Garden area will ensure that the site remains a permanent memorial for those who have died from the Aids virus. It will continue to be a retreat for family and friends whose loved ones ashes are spread over the site and for people living with HIV and Aids."

The Committee makes no further comment.

LEGAL PRACTICE (AMENDMENT) BILL

6.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

6.2

The Bill amends the Legal Practice Act 1996 (the Act) with respect to professional indemnity insurance and for other purposes.

6.3

Clause 2 the amendments to the Act commence operation on 15 December 1998.

Clause 4 amends certain definitions in the Act including a definition for ‘approved auditor’. The new sub-definition (e) provides, subject to sub-section (3), has completed or substantially assisted in carrying out the audit of the trust account of at least 2 (or such higher number as is prescribed) firms, legal practitioners or approved clerks in respect of any of the previous 3 audit years’. The existing provision in sub-definition (e) provides, ‘has completed a trust account audit, as an employee or a principal, on at least 2 occasions (or such higher number as is prescribed) in the previous calendar year.’

Clause 8 inserts a new section 41A (‘Variation of practising certificate conditions pending criminal proceedings’) providing that where a lawyer is charged with a ‘relevant offence’ (defined by section 41A(5)) but the charge has not yet been heard and decided, the Legal Ombudsman, Legal Practice Board or the lawyer’s Recognised Professional Association (RPA) may apply to the Full Tribunal of the Legal Profession Tribunal (defined by section 400 of the Act) for orders varying the lawyer’s practising certificate. Any party may apply at any time to vary or revoke the orders. A new section 41B provides that a party may apply to the Court of Appeal on a question of law.

Clause 9 amends section 63ZA providing that foreign lawyers must maintain professional indemnity insurance on terms and conditions approved by the Board.

Clause 10 amends section 74(3) and provides that ‘at least 21 days before a practice rule made by it is to take effect, an RPA must publish a copy of the rule in its official publication’ the existing provision provides that the RPA need only publish a notice including a summary of the rule. The clause further amends section 74(4)(b) requiring an RPA to forward a copy of its practice rules, as in force for the time being, to each regulated practitioner every three years whereas the current provision require this to occur once every year.

Clause 11(4) amends section 92 providing that a client must request a written report before a practitioner is required to make a progress report to the client. The current provision makes it mandatory to provide such a written report at reasonable intervals without request.

Clause 14 inserts a new sub-section (ab) in section 137 of the Act further defining ‘unsatisfactory conduct’ to include ‘conduct by a legal practitioner or firm in the course of engaging in legal practice that would be regarded by a legal practitioner or firm in good standing as being unacceptable including, (i) conduct unbecoming a legal practitioner, (ii) unprofessional conduct.’

Clause 17 inserts a new section 182A requiring practitioners, on request of the Board to provide to it, details of trust account balances, other than individual client trust account balances.

Clause 19(1) substitutes a new section 208(3)(b) of the Act relating to entitlements to claim against the Fidelity Fund providing that a claim does not lie against the Fidelity Fund in situations where clients provide money to a lawyer for the purpose of investment or reinvestment which is not incidental to the legal practice of the practitioner or made in the course of or in connection with the administration of the estate of a deceased person. The Committee notes the comments in the Second Reading Speech:-

"The Fidelity Fund is set up by the Act to cover money which is stolen from trust accounts by solicitors. However, money can be given to a lawyer for a variety of reasons, some of which are related to the legal practice run by the lawyer and others are not. It is not appropriate, for instance, for the Fidelity Fund to act as an insurer or guarantor of bad business or investment risks and decisions taken by a client, nor should it be expected to cover hypothetical interest or income which may have been promised to the client to take action against his or her lawyer in appropriate circumstances to pursue such issues.

...

In addition, amendments are being introduced which will provide that what are effectively appeals to the Supreme Court against decisions by the Legal Practice Board to disallow a claim against the Fidelity Fund are usually to be taken as a last resort. These are based on provisions contained in the previous Act."

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

Clause 19(2) amends section 212(2) of the Act and provides that a person is not entitled to commence a proceeding against the Fidelity Fund without the leave of the Board, unless (a) the Board has wholly or partially disallowed the claim, and, (b) the person has exhausted all other rights of action and other legal remedies in respect of the loss the subject of the claim, and, (c) if more than 3 (three) months have elapsed since the Board has given written notice to the claimant of the claim’s disallowance.

Clause 32 inserts a new section 444(2) of the Act stating that it is the intention of 212(2) as amended by clause 19(2) 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 212(2) currently provides that a person is not entitled without leave of the Court to commence a proceeding to assert a claim against the Fidelity Fund unless the Board has disallowed the claim wholly or partly. Clause 19 provides that proceedings to assert a claim cannot be brought until the Board has considered and disallowed the claim wholly or in part and, in addition the claimant has either exhausted alternative legal remedies or obtained leave from the Board to bring the proceeding. This is to enable the better management of the fund’s resources to ensure that they are not dissipated through unnecessary and costly litigation when the Board has investigated the claim and has formed the view that the claim does not come within the requirements of the Act and the claimant has other viable means available to him or her of recovering the loss."

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

Clause 23 inserts a new section 233A into the Act allowing the Legal Practitioners Liability Committee with the approval of the Legal Practitioners Board to impose an additional levy on practitioners where the Committee believes the amount standing to the credit of the Legal Practitioners Liability Fund is likely to be insufficient to meet the liabilities to which it is subject. Unpaid levies may be recovered in the Magistrate’s Court as a debt.

Clause 26 sets out additional delegation powers that RPA’s may make in writing to their officers, employees or committees.

Clause 27 inserts a new section 330A into the Act providing that the Board may by written notice require a conveyancer to give the Board any information or documents reasonably required by the Board to determine whether the conveyancer has complied with section 330. (By section 330, conveyancers must disclose insurance details in public documents and display notice of such insurance in conspicuous place where business is carried on.)

Clause 28 amends section 361 of the Act to allow the Legal Practice Board to delegate in writing certain powers and functions to a member, employee or committee of the Board.

Clause 30 inserts a new section 425A into the Act allowing the Legal Ombudsman to delegate, in writing, certain powers under Part 5 of the Act (Disputes and Discipline) to an employee referred to in section 425(1), provided the employee is eligible to be appointed as Legal Ombudsman. (a person is not eligible to be appointed as Ombudsman if, at any time in the preceding 7 years, the person has engaged in legal practice.)

Clause 31 inserts a new Division 2A into Part 19 of the Act headed ‘Investigation of offences’. New section 441A allows the Board to appoint appropriate persons, including it’s own employees, to investigate offences. The new 441B provides that a person must produce for inspection or copying by the inspector any records reasonably required by the inspector and give the inspector any other information he or she reasonably requires. Penalty: 50 penalty units.

441B(1) provides that for the purpose of an investigation under the Division a person must produce for inspection or copying by the inspector any records reasonably required by the inspector and give the inspector any other information he or she reasonably requires. 441B(2) provides that a person may not refuse to comply with 441B(1) on the ground of legal professional privilege or any other confidence; or that the production of the record or giving the information may tend to incriminate him or her. However, 441B(3) provides that if the privilege against self-incrimination is relied on before the giving of the information or record, the information or record is inadmissible in evidence other than in proceedings for an offence in relation to the giving of false and misleading information.

441B(5) imposes an obligation on a financial institution, despite any duty or confidence to the contrary, to without charge, produce for inspection or copying by the inspector any records or provide any other information held by it, that the inspector reasonably requires for the purpose of the investigation. Penalty: 50 penalty units.

441C provides for entry powers with warrant valid for up to seven days from time of issue, in accordance with the rules and forms to be observed with respect to search warrants as provided for and prescribed by the Magistrates’ Court Act 1989.

The Committee makes no further comment.

MUTUAL RECOGNITION (VICTORIA) BILL

7.1

7.2

The main purpose of the Bill is to continue the adoption of the Mutual Recognition Act 1992 (the Act) of the Commonwealth. The Committee notes the comments in the Second Reading Speech:-

"The Bill continues Victoria’s adoption of the Commonwealth’s Mutual Recognition Act 1992. It is part of a national legislative scheme, the goal of which is to promote the freedom of movement of goods and service providers between all the Australian States and Territories.

The Mutual recognition Principle is that:

Goods that may be sold in one State or Territory may be sold in another State or Territory; and

A person registered to practise an occupation in one Australian State or Territory is entitled to practice an equivalent occupation in another Australian State or Territory.

The Bill re-adopts, pursuant to section 51(37) of the Commonwealth Constitution, with effect from 1 July 1998 (Being the date on which the Mutual Recognition (Victoria) Act 1993 expired.)

The Bill provides that Victoria’s adoption of the Commonwealth Act will terminate on a day fixed by the Governor in Council by proclamation in the Government Gazette. A similar provision is made to the Trans-Tasman Mutual Recognition (Victoria) Act 1998. These provisions give Victoria the greatest flexibility in terminating its involvement in the two mutual recognition schemes, if necessary.

The Bill also validates all actions done after 1 July 1998 and before the enactment of the Bill."

7.3

Clause 2(1) Part 1, section 8 in Part 2 and Part 3 commence on Royal Assent.

Clause 2(2) provides that Part 2 (except section 8) is deemed to have come into operation on 1 July 1998.

Clause 4 adopts the Commonwealth Act for a period commencing on 1 July 1998 and ending on the termination day, as determined under clause 6.

Clause 6 provides that the Governor in Council, by proclamation published in the Government Gazette, may fix a day as the day on which the adoption of the Commonwealth Act under section 4 of this Act terminates.

The Committee believes that legislative expiry should generally be treated similarly to commencement. The Committee believes that an open ended expiry clause would not seem to have sufficient regard for the institution of Parliament and would have to be clearly justified. Whilst the Committee notes the comments of the Minister in the Second Reading Speech it will write to the Minister seeking further clarification for the reasons why a termination by proclamation clause is regarded as necessary in this instance, rather than a repealing Act.

Clause 7 is a validation provision, providing that anything done or purporting to have been done after 1 July 1998 (Being the date of the expiry of the Mutual Recognition (Victoria) Act 1993) and before the enactment of the Bill is deemed to have been as valid as if the 1993 enactment had not expired.

The Committee notes the retrospective effect of Clause 2(2) and Clause 7 and notes the comments of the Minister in the Second Reading Speech. In the circumstances the Committee believes the provisions are appropriate and desirable.

Clause 9 amends section 4(2) of the Trans-Tasman Mutual Recognition (Victoria) Act 1998 so as to alter the date fixed for the expiry of that Act. Originally the Act was to end 5 years from the date of the commencement of that Act. It is now to expire on the date determined in accordance with the amended section 6 of the Act. The amendment will make that provision consistent with clause 4 of the Bill. Clause 10 amends section 6 of the Trans- Tasman Mutual Recognition (Victoria) Act 1998 to provide that the Governor in Council may fix a day as the day on which the adoption of the Commonwealth Act (being the Trans-Tasman Mutual Recognition Act 1997) terminates.

The Committee makes no further comment.

PETROLEUM BILL

8.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

8.2

The purpose of the Bill is to regulate petroleum exploration and production in Victoria and to repeal and re-enact, with amendments, the Petroleum Act 1958 and for other purposes.

8.3

Clause 2 The Act commences on proclamation but not later than on 1 December 1999.

Clauses 6, 7 and 8 provide definitions for ‘petroleum’, ‘petroleum exploration’ and ‘petroleum production’ respectively.

Clause 127 deals with occupiers liability for the purposes of Part IIA of the Wrongs Act 1958 and the rules of common law with respect to the holder of an ‘authority’. Clause 128 prohibits petroleum operations on private land without consent or agreement on compensation. Clause 129 enumerates the types of compensation for loss and damage payable by an authority holder to the owners and occupiers of private and native title land. Clause 131 compensation is not payable for petroleum in or under the surface of any land. Clause 132 deals with compensation payable in respect to damage and loss sustained as a result of petroleum operations on Crown land. Clause 133 places a three year time limit on compensation after the loss and damage has occurred or after the petroleum exploration authority is surrendered or expires. Clause 134 provides for the referral of disputes to the Victorian Civil and Administrative Tribunal. Clause 136 makes provision for Native Title rights to prevail over certain provisions of the Act. The Committee notes the comments in the Second Reading Speech:-

"The Bill recognises the rights of Native Title holders as provided for by the Commonwealth Native Title Act 1993 and therefore ensures its validity and the validity of authorities issued."

Clause 146 deals with lands that may have special aboriginal significance and provides that a holder of an authority must take reasonable steps to ensure that the petroleum operation will not contravene the Archaeological and Aboriginal Relics Preservation Act 1972 nor the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Clause 198 allows the Minister to appoint inspectors for the purpose of monitoring compliance with the Act. Clause 199 allows inspectors powers of entry and search on premises, and with the consent of occupiers, a residence, to carry out inspections at any reasonable hour in the daytime and at any time that the premises is open for business, to determine whether there has been compliance.

Clause 200 provides for entry and search powers on any premises (not being a residence) at any time to deal with certain emergencies. An inspector exercising these powers must produce on request his or her identity card for inspection by the occupier. Emergency is characterised as an immediate risk:-

that one or more people might be injured; or
that property may be seriously damaged; or
that significant damage may occur to the environment; or
that significant damage may occur to any petroleum, source of petroleum or reservoir.

Clause 201 provides for search and seizure powers where evidence of an offence is suspected. Clause 203 deals with the issuance of search warrants in the usual way pursuant to the Magistrates’ Court Act 1989. Clause 204 provides for an announcement by an inspector before entry pursuant to a search warrant. Clause 208 allows inspectors to use or operate equipment at the premises to carry out the examination or processing of a thing found at the premises, to determine if it is a thing that should be seized. Clause 209 allows inspectors the power to use and seize electronic equipment on premises to access certain information. Clause 210 provides that the Minister must pay compensation for any damage caused by the exercise of search and seizure powers.

Clause 213 gives an inspector power to require persons to give information or provide documents. The giving of false or misleading information is an offence. Penalty 240 p.u. Clause 214 protects a natural person from the requirement of giving self-incriminating information. Clause 215 provides that it is an offence to obstruct or hinder an inspector.

Clause 223 provides for fines for corporations of up to five times the amount of the maximum fine imposed on an individual for that offence under the Act. (though not the regulations).

Clause 245 is the delegation making power for the Minister and the Head of the Department. Clause 249 the Minister may approve codes of practice. Clause 252 allows the Governor in Council to make regulations for the purposes of the Act. 252(2)(f) provides:-

"The regulations may provide in a specified case or class of case for the exemption of people or things from any of the provisions of this Act, whether unconditionally or on specified conditions, and either wholly or to such an extent as is specified."

The Committee is concerned at the very broad regulation making power sought to be introduced by clause 252(2)(f) and notes that a similar provision is not contained in the Act to be repealed. The Committee is concerned that notwithstanding the detailed provisions of the Act, specified cases or classes of cases may be exempted from the operation of the Act either in part or in whole either with conditions or unconditionally. The Committee further notes that no explanation is provided in either the Explanatory Memorandum or the Second Reading Speech for the necessity of such a wide regulation making power.

The Committee is of the view that clauses which allow for the amendment of the relevant Act by subordinate legislation, such as a regulation declaring that an Act or a provision of an Act does not apply to, or applies with prescribed changes, are generally objectionable.

The Committee will write to the Minister seeking comment as to why such a broad regulation making power is necessary and why it should note be regarded as a generally objectionable ‘Henry VIII clause’.*

*(A Henry VIII clause’ is a clause in an Act of Parliament which enables the Act to be expressly or impliedly amended by subordinate legislation or Executive action.)

Clause 253 repeals the Petroleum Act 1958.

The Committee makes no further comment.

PLANNING AND ENVIRONMENT (AMENDMENT) BILL

9.1

The Bill was introduced into the Legislative Assembly on 2 September 1998
by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

9.2

The Bill amends the Planning and Environment Act 1987 (the Act) to provide for the Melbourne Airport Environs Strategy Plan and for other purposes. The Committee notes the comments in the Second Reading Speech:-

"The Melbourne Airport Environs Strategy Plan will help ensure the Airport, probably the State’s most important strategic site, retains its key competitive advantages of 24-hour curfew-free operation; an integrated passenger terminal complex; large areas of surrounding rural land, allowing minimal impact of aircraft noise on nearby residential areas; enormous potential for expansion with uncongested airspace, unrestricted airfield capacity and a fine weather reputation."

9.3

Clause 2 Sections 1 and 2 commence on Royal Assent, the remaining provisions commence on proclamation but not later than on 1 July 1999.

Clause 3 inserts a new Part 3C into the Act dealing with the Melbourne Airport Environs Strategy Plan. Clauses 6 and 7 extends the provisions for cost recovery for panels, advisory committees and environment effects inquiries. The Committee notes the comments in the Second Reading Speech:-

"Currently there is broad and accepted responsibility that the potential beneficiaries of planning processes ought to make contributions to the public costs of doing so. The Bill makes sure that these provisions also apply to processes that have to date been exempt from the cost recovery principles. It is only equitable that these changes be made."

The Committee makes no further comment.

VICTORIAN COLLEGE OF THE ARTS (AMENDMENT) BILL

10.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Phil Honeywood MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

10.2

The Bill amends the Victorian College of the Arts Act 1981 (the Act) by reducing the membership of the Council of the College, provides for changes in the Council’s ability to acquire and dispose of land and makes other miscellaneous amendments.

10.3

Clause 2 Sections 1 and 2 commence on Royal Assent and the remaining provisions on 1 January 1999.

Clause 5 substitutes new sections 7 and 8 of the Act and reduces the Council size from 26 to 18 and sets out the new constitution of the Council. Clause 6 amends provisions relating to the removal of Council members appointed by the Minister and the vacation of certain positions on the Council by the change of status of the Council member originally elected or appointed. Clause 9 substitutes new sections 17 and 18 of the Act respectively dealing with the declaration of pecuniary interests of Council members and the holding of Council meetings. Clause 18 inserts a new section 39 and 40 into the Act and deals with transitional arrangements for the initial appointment to the re-structured Council.

The Committee makes no further comment.

VICTORIAN INSTITUTE OF MARINE SCIENCES (REPEAL) BILL

11.1

11.2

The Bill repeals the Victorian Institute of Marine Sciences Act 1974 (the Act) and transfers the Institutes assets and liabilities to the State.

11.3

Clause 2 Sections 1 and 2 commence on Royal Assent the remaining provisions commence on proclamation but not later than on 1 July 1999.

Clause 8 states that all employees of the Institute will be transferred to the employ of the Department of Natural Resources and Environment on existing terms and conditions. Clause 9 transfers the Institute’s existing assets and liabilities to the State. Clause 10 revokes statutes made by the Institute’s Board under section 18 of the Act. Clauses 11 and 12 deal with the validation of an agreement and actions taken under the agreement made pursuant to the Act.

The Committee makes no further comment.

Committee Room
Monday, 5 October 1998

Last update 4/8/99
�Parliament of Victoria