Alert Digest No. 7
of 1998
27 October 1998
ACCIDENT COMPENSATION (AMENDMENT) BILL
1.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
1.2
The Bill amends the Accident Compensation (WorkCover Insurance) Act 1993 and the Accident Compensation Act 1985.
1.3
Clause 2 provides for commencement dates for various provisions of the Bill. Clause 2(2) applies retrospectively and provides that section 35 is deemed to have come into operation on 26 May 1998. Clause 35 repeals incorrect consequential amendments made by Schedule 1 of the Public Sector Reform (Miscellaneous Amendments) Act 1998 under the heading "Occupational Health and Safety Act 1985."
The Committee notes that the retrospective operation of clause 35 of the Bill is curative in nature and is designed to correct an unintended legislative consequence and is therefore appropriate and justified in the circumstances.
Part 2 deals with the amendments to the Accident Compensation (WorkCover Insurance) Act 1993. (referred to as the Act for the purposes of Part 2)
Clause 3 substitutes a new section 1 of the Act and modifies the purposes of the Act to reflect the changes to the provision of WorkCover insurance made by this Part. Under the changes, WorkCover insurance will be provided in the first instance, by the Victorian WorkCover Authority rather than as at present, provided initially by authorised insurers, with the WorkCover insurance liabilities of those authorised insurers then being fully re-insured with the Authority. Clause 5(1) amends section 7(1) of the Act and imposes a legal obligation on employers to obtain and keep in force a WorkCover insurance policy with the Authority rather than with an authorised insurer, in respect to their workers.
Clause 5(4) inserts a new sub-section (8) into section 7 which provides that a WorkCover insurance policy issued or deemed to have been issued before the commencement of Part 2 of the Bill is deemed to have been issued under the Act as amended by Part 2 of the Bill.
Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 18 inserts a new Part 7 into the Act. New section 75(1) has the effect of cancelling any licence to be an authorised insurer under the Act in force immediately before the commencement of clause 18. New section 75(2) provides that any right or privilege acquired or accrued against the State of Victoria or the Victorian WorkCover Authority in respect of a licence cancelled by that section is extinguished, despite anything to the contrary in section 14(2) of the Interpretation of Legislation Act 1984. New section 75(3) provides that, despite any Act or law to the contrary, the State of Victoria and the Victorian WorkCover Authority are not liable in any way for any loss, or damage or injury whatsoever resulting from the cancellation of any licence under this section. New section 75(4) provides that, except as otherwise provided in the section, the cancellation of a licence under the section does not effect any rights, obligations and liabilities accrued or incurred before the commencement of Part 2 of the Bill.
New section 77 provides that it is the intention of section 75 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"The reason for these limitations of the jurisdiction of the Supreme Court is that the Bill introduces a new legal framework for the publicly funded and underwritten WorkCover compensation scheme, a new framework in which all existing authorised insurers will have the opportunity to participate if they so wish. In addition, all liabilities of authorised insurers to indemnify employers under WorkCover insurance policies or to pay compensation under the Accident Compensation Act 1985 will be, by virtue of amendments made by the Bill, transferred to the Victorian WorkCover Authority. In these circumstances, it is appropriate to ensure that neither the State of Victoria nor the Victorian WorkCover Authority is amenable to any suit as the result of the cancellation of the existing authorised insurer licences."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 18 also inserts a new section 76(1) providing that any re-insurance arrangement in force under section 34 of the Act immediately before the commencement of clause 18 is by virtue of section 76 terminated. New section 76(2) provides that, despite any Act or law to the contrary, the State of Victoria and the Victorian WorkCover Authority are not liable in any way for any loss, or damage or injury whatsoever resulting from the termination of a re-insurance arrangement under this section. New section 76(3) provides that the termination of a re-insurance arrangement under the section does not effect any rights, obligations and liabilities accrued or incurred before the commencement of Part 2 of the Bill.
New section 77 provides that it is the intention of section 76 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"The reason for this limitation of the jurisdiction of the Supreme Court is that all liabilities in respect of which authorised insurers are indemnified under the relevant re-insurance arrangements will be, by virtue of amendments made by the Bill, transferred to the Victorian WorkCover Authority. It is therefore appropriate to ensure that neither the State of Victoria nor the Victorian WorkCover Authority is amenable to any suit as the result of the termination of the existing re-insurance arrangements."
The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.
Part 3 amends the Accident Compensation Act 1985 (referred to as the Act for the purposes of Part 3).
Clause 27 amends section 63 of the Act to increase the maximum number of doctors that can constitute a Medical Panel from three to five.
Clause 28 amends section 93C of the Act relating to claims for weekly payments made before 12 November 1997, so as to modify the manner in which and the basis on which a worker coming within the scope of 93C, who does not have a serious injury and has a current work capacity, may remain entitled to weekly payments after 104 weeks of weekly payments. The effect of these amendments is to import into section 93C the procedure and eligibility criteria that apply to post 12 November 1997 claims under section 93CD.
The Committee notes the comments in the Second Reading Speech:—
"As part of the changes to the weekly payments regime under the Accident Compensation Act made during the 1997 sittings of Parliament, provision was made for workers with a current work capacity to be entitled to weekly payments beyond 104 weeks if they had returned to work for at least a minimum number of hours per week, with at least minimum weekly earnings and if they were working at their full capacity.
This new, more generous basis of entitlement applies both to workers coming within the "new" payments regime and those workers coming within the "grandfather" provisions inserted as part of the 1997 amendments. It was intended that the same test of "full capacity" and the same procedure for determining workers’ entitlements would apply to both classes of workers. Legal advice has been received that this has not been achieved. The Bill remedies the situation."
Clause 29 amends section 99AAA of the Act relating to co-ordinated care programs by providing for the extension, and also the possible repeal, of the sunset provisions affecting that section. The new sunset period expires on 1 January 2001.
The Committee makes no further comment.
2.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
2.2
The purpose of the Bill is to re-enact, with amendments, the Appeal Costs Act 1964 and for other purposes. The Committee notes the comments in the Second Reading Speech:—
"This Bill repeals the current Appeal Costs Act 1964 and replaces it with a new, simpler and clearer Act.
In so doing, the Bill implements the government’s justice policy objective of reforming the justice system so that it is accessible and efficient.
Since its enactment in 1964, the current Act has undergone a succession of substantial amendments. However, it has never been comprehensively reviewed. As a consequence, the coherence of the Act has been undermined and anomalies have arisen.
The principal objective of this Bill is to address these inconsistencies and anachronisms to ensure that the underlying policies of the appeal costs scheme are properly reflected in the legislation."
2.3
Clause 2 provides that sections 1 and 2 commence on Royal Assent. The remainder of the Bill commences on proclamation but not later than by 1 April 1998. Clause 3 provides for various definitions to be used in the new Act. Of special significance is the new definition for "discontinued" which no longer preserves the distinction between "abortive proceedings" and "discontinued proceedings".
Clauses 4 to 13 (Part 2) deal with entitlements to payment of appeal costs in civil matters. Clauses 14 to 18 (Part 3) concern entitlement to payment of appeal costs in criminal matters.
Clause 19 is a new entitlement provision correcting an anomaly in situations where a case stated on a question of law is reserved for the opinion of a superior court. Under the Act to be repealed a court did not have power to grant an indemnity certificate in a case stated situation. (Ref: Victorian Court of Appeal in Mason v Mason (No. 2) [1997] 1 VR 627.)
Clauses 20 to 31 provides that the Appeal Costs Board under the former Act continues to exist, sets out it’s functions, membership, powers and provides for other administrative matters.
Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 37(1) provides that the grant of an indemnity certificate is in the discretion of the court, and clause 37(2) provides that no appeal lies against a grant or refusal of an indemnity certificate by a court.
Clause 40 states that it is the intention of section 37(2) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:—
"Clause 38 of the Bill is intended to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an appeal against a grant or refusal by a court of an indemnity certificate.
The reason for altering or varying section 85 in this way is to prevent the further escalation of costs. A major objective of the Bill is to reduce the impact on litigants of the costs of appeals. It would be undesirable if, in carrying out this objective, the Bill were to provide an opportunity to bring further appeals.
The prohibition of appeals against the granting or refusal of an indemnity certificate in clause 38 re-enacts the prohibition contained in section 17(1) of the current Act."
The Committee notes that the reference to clause 38 in the Second Reading Speech is in error and that the correct reference should be to clause 37(2). The Committee further notes that the effect of the provisions of section 85(5)(b) and (c) of the Constitution Act 1975 will require an amending statement to be made by the Minister clarifying and amending the incorrect reference in the Second Reading Speech before the third reading of the Bill. The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances. |
Clause 41 provides for regulations to be made by the Governor in Council for the purposes of the Act. Clause 42 allows the Board to pay practitioners and/or Victoria Legal Aid direct and thereby discharging the Board’s liability to the person in respect of the matter. Clause 43 makes it clear that the Act only applies to new proceedings. Clause 45 repeals the Appeal Costs Act 1964.
The Committee makes no further comment.
3.1
The Bill was introduced into the Legislative Council on 6 October
1998 by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on
7 October 1998.
3.2
The Bill amends the Bail Act 1977 (the Act) and clarifies the conditions for granting of bail for certain drug offences. The Committee notes the comments in the Second Reading Speech:—
"The Bill amends the Bail Act 1977 in order to clarify the test which the court should apply before it grants bail to a person charged with importation of narcotic goods under the Commonwealth Customs Act 1901.
The amendment provides that the court must be satisfied that exceptional circumstances exist before bail is granted to persons charged with importation of a narcotic drug under the Customs Act where the offence involves a commercial quantity of drugs as defined under the Victorian legislation."
3.3
Clause 2 the amendments to the Act commence on 1 January 1999. Clause 4 repeals the now redundant definitions of "cocaine" and "heroin" in the Act. (the definitions appear in the schedules and definitions section of the Drugs, Poisons and Controlled Substances Act 1981).
Clause 5 amends section 4(2)(aa)(ii) of the Act and provides that the court must be satisfied that exceptional circumstances exist before bail is granted to persons charged with narcotic drug importation offences under the Commonwealth Customs Act 1901 where the offence concerns an amount of drug that is not less than a commercial quantity as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981.
Clause 6 provides that the amendment in the Bill only applies with respect to a charge filed on or after 1 January 1999.
The Committee makes no further comment.
4.1
The Bill was introduced into the Legislative Council on 6 October 1998
by the Honourable Roger Hallam MLC. The Second Reading Speech was delivered on
7 October 1998.
4.2
The Bill amends the Building Act 1993 (the Act). The main purposes of the amendments are; to replace the Plumbing Industry Board with the Plumbing Industry Commission; to establish a Plumbing Industry Advisory Council; to regulate refrigeration mechanics; to generally improve the operation of Part 12A of the Building Act 1993; and to improve the operation of the provisions relating to the sale of buildings by owner-builders.
4.3
Clause 2 sections 1 and 2 come into operation on Royal Assent. The remaining provisions, other than section 6, come into operation on proclamation but not later than by 31 December 1999 and section 6 not later than by 31 December 2000.
Clause 3 inserts a new Division 9 and 9A into Part 12A of the Act. New 221ZZR establishes a new Plumbing Industry Commission (the Commission) to replace the former Plumbing Industry Board and provides for it’s powers, constitution, functions, staff and like matters. Further section 221ZZXA establishes a Plumbing Industry Advisory Council and provides for it’s functions and constitution and like matters.
Clause 8 amends section 221D(5) of the Act to remove the exemption that applies to refrigeration mechanics from the requirement to be licensed or registered under Part 12A of the Act to carry out plumbing work.
Clause 9 amends sections 221T(3) and 221ZB(3) of the Act to empower the Commission to require that applications for a licence or registration or a renewal of a licence or registration as a plumber must be accompanied by a photograph of the applicant.
The Committee makes no further comment.
5.1
The Bill was introduced into the Legislative Council on 6 October
1998 by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on
7 October 1998.
5.2
The Bill makes amendments to the Crimes Act 1958 (the Act). The purpose of the Bill is to make further provision for offences relating to loitering near places frequented by children; to make further provision for offences relating to the contamination of goods; and to make further provision relating to legal representation of an accused.
5.3
Clause 2 The amendments (other than section 5) commence on Royal Assent. Section 5 commences on 1 January 1999.
Clause 3 substitutes a new sub-section (1) in section 60B of the Act expanding the definition of "sexual offence" to include (i) offences against sections of the Crimes Act 1958 which have been repealed or replaced; and (ii) offences of conspiracy to commit or incitement to commit relevant sex-related offences.
The clause also amends section 60B(2) to include prostitution offences involving children amongst the offences to which the offences of loitering relates; and increases the maximum penalty for loitering from 1 year or a $12,000 fine to 2 years or a $24,000 fine. In the case of a person who has been found to be a serious sexual offender within the meaning of Part 2A of the Sentencing Act 1991 the penalty is increased to a maximum of 5 years imprisonment or a fine of $60,000.
The Committee notes the comments in the Second Reading Speech:—
"Section 60B, which was introduced in 1993, makes it an offence for a person who has been found guilty of certain sex-related offences to loiter without reasonable excuse in or near places which are frequented by children, such as playgrounds or schools.
At present section 60B refers to specific section numbers of the Crimes Act in force at the time that section 60B was enacted. Because of successive amendments to the Crimes Act, the section numbers which relate to particular offences have changed over the years.
For example, section 60B defines "sexual offence" to include an offence against section 46 of the Crimes Act. Since 1991, section 46 has dealt with the offence of sexual penetration of a child between the age of 10 and 16; however, before 1991 that offence was dealt with under section 48.
This means that a person who is found loitering in a kindergarten playground can be prosecuted under section 60B if he or she had previously been convicted of the offence of sexual penetration of a child in 1992, but not if he or she had previously been convicted of sexual penetration of a child in 1989. The amendment ensures that section 60B will apply to persons who have been found guilty of relevant prior sexual offences, regardless of when those offences were committed.
The Bill also increases the maximum penalty under section 60B from one year imprisonment to two years imprisonment. In cases where the offender’s prior conduct was so grave that they came within the definition of a "serious sexual offender" under the Sentencing Act, the maximum penalty is increased to five years imprisonment.
Finally, the Bill extends section 60B to include loitering by persons who have been convicted of certain prostitution offences involving children. These offences include causing or inducing a child to take part in prostitution."
Clause 4 inserts a transitional provision to clarify that the amendments to section 60B apply only to loitering offences which are alleged to have been committed after the commencement of clause 3.
Clause 5 repeals the existing section 248 of the Act and enacts new sections 248 to 252 concerning offences relating to the contamination of food. The sections concern:—
s.248. Definitions;
s.249. Contaminating goods with intent to cause public alarm or economic loss;
s.250. Threatening to contaminate goods with intent to cause public alarm or economic loss;
s.251. Making false statements concerning contamination of goods with intent to cause public alarm or economic loss.
New section 252 gives the new Division extra-territorial operation providing that it is immaterial that the conduct occurred outside Victoria so long as the person intended by that conduct to cause public alarm or anxiety in Victoria or to cause economic loss in Victoria.
Clause 6 inserts three new sub-sections into section 360A of the Crimes Act 1958. New section 360A(4)(a) will enable a court to take into account any vexatious or unreasonable conduct engaged in by the accused that has contributed to his inability to afford legal representation.
The Committee notes the comments in the Second Reading Speech:—
"The Bill amends section 360A of the Crimes Act. Section 360A was introduced in 1993 to address the potential deadlock which could arise as a consequence of the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292.
Over the years since its enactment a number of issues have arisen in the way in which the section operates.
The Bill makes the following changes to section 360A:
It enables the court to have regard to any vexatious or unreasonable conduct engaged in by the accused. For example, cases have arisen where the accused brings a large number of preliminary applications as a tactic to delay the trial and then applies for an order under section 360A on the ground that they no longer have enough money to afford to pay for representation in the trial. This amendment will prevent the section from being abused in this way.
The Bill makes it clear that it is for the accused to prove that he or she cannot afford the cost of obtaining representation, rather than for Victoria Legal Aid to prove that he or she can. The accused knows his or her financial situation better than the court or VLA.
It also makes it clear that the court’s power to order Victoria Legal Aid to provide assistance is limited to the provision of legal representation."
The Committee makes no further comment.
6.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Phil Gude MP with the Honourable Rob Maclellan MP. The Second Reading Speech was delivered on 8 October 1998.
6.2
The Bill amends the Education Act 1958 (the Act). The main purposes of the Bill are:— to make provision relating to religious instruction in connection with pageants, special events or celebrations of festivals; and to repeal outdated provisions relating to assessment and education of students with disabilities or impairments.
6.3
Clause 2 The amendments, other than section 9(1), come into operation on Royal Assent. Section 9(1) has retrospective effect and is deemed to have commenced on 1 July 1998.
Clause 4 amends section 23(2) of the Act to enable the Minister to authorise the conduct of religious instruction during the hours set apart for the instruction of the pupils, on the basis other than the class organisation of the school, if it forms part of the preparation or conduct of a pageant, special event or celebration of a festival. A new section 23(2A) allows the Minister to give appropriate authorisation to all schools, a class or classes or classes of schools or a specific school.
The Committee notes the comments in the Second Reading Speech:—
"Many state schools in our culturally diverse state celebrate significant religious events with pageants or celebrations as part of the religious and cultural life of the school community. Parents and students delight in participating in activities that hold special meaning for them and for other members of the school community.
The preparation for the pageant or the holding of the pageant may include some element of religious instruction. For example, it may involved an address by a Minister or priest, or the teaching of the meaning and significance of a religious song.
At present, any religious instruction associated with the preparation and holding of a pageant, must comply with section 23 of the Education Act. That section limits the circumstances in which religious instruction may be given in state schools. Section 23(2) provides that when religious instruction is given in any state school during the hours set apart for the instruction of pupils, it must be given by accredited representatives of religious bodies who are approved by the Minister, it must be given on the basis of the normal class organisation of the school (except where the particular circumstances of the school cause the Minister to authorise some other basis), and attendance for religious instruction must not be compulsory.
This section requires that any religious instruction associated with the preparation for religious pageants, special events or celebrations of festivals can be undertaken at school, during normal instruction hours, but only on a class by class basis. If the religious instructors want to bring a number of classes together to practise, they can only do so during lunch time, before or after normal school hours or off the school premises.
If the pageant, special event or celebration of a festival involves a religious address or other religious instruction to pupils, a school can only conduct the pageant or celebration during lunch time or other non instruction time, or off school premises.
This complex situation has the potential for creating unnecessary barriers to communities celebrating significant events, and for creating unfortunate anomalies. For example, a school with a convenient nearby facility could permit its students to spend time during school hours at the facility preparing or conducting a religious event. Meanwhile, another school that permitted its classes to combine for a short time, on school premises, on a single occasion to prepare for or celebrate a religious event could be in breach of the Act.
To remedy these anomalies and to facilitate the holding of pageants, the Bill authorises the Minister to permit religious instruction to be given in state schools during the hours set apart for the instruction of students on basis other than a class by class basis, if the religious instruction forms part of the preparation or conduct of a pageant, special event or celebration of a festival.
We live in a culturally diverse society that includes people with various religious beliefs, people with no interest in religion and in some cases, people with strongly held opposition to any teaching of religion. In recognition of the diversity of our community and the range of beliefs about religion, the Bill provides that any event that involves religious instruction will continue to be voluntary, as mandated by section 23(2)(c) of the Act."
Clause 7 inserts a new section 25AA into the Act providing that a parent of a student with a disability or impairment is not required to contribute to the cost of the provision of additional support for the education in a State school of that student.
Clause 8 amends section 64N(4) of the Act by removing the term "handicapped child" and substituting the term "pupil with a disability or impairment".
Clause 9(1) amends section 5(3) of the Act by removing the words "Chief Executive" and substituting "Secretary’s" and in section 13(9) deleting references to the "Director" and substituting "Secretary". Both amendments are retrospective and are deemed, by virtue of clause 2(2) to have taken effect on 1 July 1998.
The Committee notes that by clause 2(2) clause 9(1) is deemed to have retrospective operation as of 1 July 1998. The Committee notes the amendments are machinery of government nomenclature provisions and in the circumstances are justified.
The Committee makes no further comment.
7.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Tom Reynolds MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
7.2
The Bill reforms the law relating to the supply and consumption of liquor, to repeal the Liquor Control Act 1987, to make consequential amendments to other Acts and for other purposes.
7.3
Clause 2 Part 1 of the Act comes into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 July 1999.
The Committee notes and reproduces relevant extracts of the Minister’s Second Reading Speech:—
"New structural arrangements are to be implemented for the delivery of liquor licensing services.
A position of Director of Liquor Licensing is to be created to determine all uncontested licence and licence related applications, and subject to the recommendation of the Liquor Licensing Panel, contested applications.
A Liquor Licensing Panel is to be established to provide a recommendation to the Director as to whether or not contested applications should be granted.
Parties aggrieved at any decision of the Director may appeal the decision to the Victorian Civil and Administrative Tribunal.
Disciplinary proceedings against licensees initiated by the Victoria Police, the Director or local government will be heard by the Victorian Civil and Administrative Tribunal.
…
Any person is to be able to object to the grant of a licence or variation on the grounds that it would be detrimental to the amenity of the area.
It will not be a valid basis of objection that there is insufficient need or demand to justify the grant of an application.
Current provisions in respect of the objection rights of Victoria police and local government are to remain.
…
Existing offence provisions are to remain. Additionally a new offence of being knowingly involved in a false application for a proof-of-age card is created as recommended by Victoria police.
A person under 18 years of age is to be allowed in licensed restaurants and cafes, during ordinary trading hours, but not purchase or consume liquor, otherwise than is currently provided in the Act. This permission will not apply in respect of bars, hotels, nightclubs etc.
…
Existing licensees are to maintain their current trading rights in the transition to the new licence types. Conditions on existing liquor licenses are to remain.
The "dry area" provisions are to remain. In determining any future legislative change, the government will be bound by the outcomes of a poll conducted by a relevant council or councils to determine whether affected residents (being those who live within the boundaries of the dry area) wish to amend, retain or abolish the current provisions.
…
The existing offence provisions are to remain in place, including the successful initiatives introduced in 1995 to further limit the potential for underage access to, and purchase/drinking of liquor on licensed premises except that youth are to be able to attend licensed restaurants and cafes, but not purchase or consume liquor, otherwise than is currently provided, during ordinary trading hours.
…
In respect of breaches of the Act, Victoria police will continue to have the option of issuing infringement notices or initiating proceedings in the Magistrates Court and/or before the Victorian Civil and Administrative Tribunal seeking suspension/cancellation of a liquor licence.
Councils/Shires and the Director of Liquor Licensing will also be able to initiate proceedings against licensees through the Victorian Civil and Administrative Tribunal."
Clause 4 sets out the objectives of the Act, including the minimisation of harm arising from the abuse of alcohol and to provide adequate controls over the supply and consumption of liquor. Clause 5 establishes a Co-ordinating Council to advise the Minister on problems of alcohol abuse.
Clause 6 provides the Act does apply in certain cases such as at religious services, perfumeries, medical purposes and the other purposes listed therein.
Part 2
Clauses 7 to 15 deal with the eight categories of licences and permit that may be issued under the Act.
Clauses 38 to 43 deal with objections to licences on the grounds of detriment to amenity and where the prospective licensee is considered not to be a fit and proper person to justify a grant. The section also sets out reasons that are not considered valid objections such as commercial based objections, such as insufficient need or demand to justify grant.
Clauses 44 to 57 deal with the determination of applications including the manner in which contested applications are to be determined. Clause 58 allows the Director to vary a licence or permit at his or her own initiative. Clauses 59 to 62 deal with renewal of licences and permits, and clauses 63 to 66 with the surrender and lapse of licences and permits.
Part 3
This Part deals with special requirements and procedures applicable to certain kinds of licences.
Clauses 71 to 74 deal with casino premises. Section 73 exempts such
premises from certain requirements such as notification and display requirements
(ss.33-36), objections to licensing (ss.38-43) and the determination process for
applications
(ss.44-47).
Clauses 75 to 79 deal with the Australian Grand Prix. Section 77 exempts certain declared areas during the race period from certain requirements of the Act such as notification and display requirements (ss.33-36), objections to licensing (ss.38-43) and the determination process for applications (ss.44-47). Clause 78 allows the Chief Commissioner to make objection to a grant on any grounds he or she thinks fit.
Clause 87 deals with the review of a decision made by the Director to grant, refuse, transfer, the imposition of a condition or variation of a licence or permit by the Victorian Civil and Administrative Tribunal (the Tribunal).
Part 6
Clauses 90 to 97 concern the holding of inquiries relating to alleged contraventions to certain provisions of the Act and other Acts. Clause 96 allows the Tribunal to cancel or suspend a licence or permit.
Part 8
This part deals with offences and enforcement provisions. Division 2 deals with underage drinking offences. Clause 124 creates a number of offences relating to the wrongful dealing, defacing or making of an evidence of age document. Clause 125 creates an offence of falsely procuring a proof of age card.
Clause 126 provides police powers to demand a suspected minor to
give name, age and address; and where so required, to provide further evidence of same;
and where required to do so, to sign a statement to such effect in circumstances where
police have reason to believe a person is under 18 and has requested or received or
consumed liquor or is on a licensed or authorised premises. It is an offence to refuse to
provide these details and such refusal can lead to arrest without warrant.
Clause 127 allows police to seize evidence of age documents (other than a driver
licence) where they suspect the document is false. Clause 128 the police may seize
liquor in the possession of a person under 18.
Clause 129 enables an authorised person to demand entry at any time to any licensed premises (but not part of a premises that is a residence, unless prior notice is given or consent obtained). If admittance is refused or wilfully delayed, the person demanding entry may break into the premises. The Director may give authority to the Commissioner of State Revenue to authorise tax officers powers under this section. An "authorised person" is defined in section 129(7) and includes a member of the police force, an authorised tax officer and a licensing inspector.
Clause 130 deals with general warrants to enter and search. Clause 131 permits the seizure of liquor not authorised to be supplied on licensed premises under the licence or permit. Clause 132 on request of the licensee or pemittee the police are required to assist in expelling certain persons asked to leave the licensed premises whose presence would subject the licensee to a penalty under the Act. Clause 133 authorised persons are permitted to enter licensed premises and seize documents relating to liquor supply. The Director may give authority to the Commissioner of State Revenue to authorise tax officers powers under this section.
Clause 134 provides for the presumption in legal proceedings, that a person is taken to be the holder of a licence or permit. Clause 135 provides that where an informant asserts a certain matter the assertion is evidence of that matter namely that; a liquid is liquor; that the person is a resident; that the premises on which the alleged offence took place were licensed or authorised premises; or that the person had not attained that age. Clause 136 provides that proof of certain matters is evidence of related matters and further provides that where an informant asserts a certain matter the assertion is prima facie evidence of that matter unless evidence to the contrary is shown. Clause 138 a Magistrate may order certain property or liquor seized under the Act, to be forfeited to the Crown. An appeal against such forfeiture lies to the County Court. Clauses 141 to 148 deal with infringement notices.
Part 9
Clauses 149 to 156 deal with the appointment functions and powers of the Director.
Clauses 157 to 161 deal with the establishment composition, powers and functions of the Liquor Licensing Panel. Clauses 162 to 170 relate to hearings before the Panel. Clause 171 empowers Panel members to enter premises for the purpose of considering any contested applications. Clause 172 permits the Chief Commissioner to appoint members of the police force to be licensing inspectors for the purposes of the Act. Clause 180 allows for regulation to be made to give effect to the Act.
Clause 181 provides for the repeal of eight (8) Acts set out in Schedule 2 including the Liquor Control Act 1987. Clause 182 provides for savings and transitional provisions as set out in Schedule 3.
Schedule 3
Existing licences
Clauses 3 and 4 of Schedule 3 provide that a licence or a permit that was granted under the repealed Act is deemed to be a particular licence or permit granted under the Act and preserves the conditions of licences granted under the repealed Act but enables the Director to remove conditions at his or her own initiative or on application of the licensee or permittee. Clause 14 of Schedule 3 provides that a person disqualified under the repealed Act from holding a licence or permit continues to be disqualified under the Act.
Dry areas
Clauses 17 and 18 of Schedule 3 continue the dry areas policy where the electors by a majority vote oppose the granting of a licence and also provides the relevant Council may conduct a poll to determine whether that dry policy be maintained altered or repealed.
Schedule 4 makes consequential amendments to various Acts.
The Committee makes no further comment.
LOCAL GOVERMENT (GOVERNANCE AND MELTON) BILL
8.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
8.2
The Bill amends the Docklands Authority Act 1991 to give the Docklands Authority the powers of a municipal council in respect of the docklands area; to amend the City of Melbourne Act 1993 to excise the docklands area from the municipal district of the Melbourne City Council; to amend the Local Government Act 1989 to enable the residents and ratepayers of the Shire of Melton to choose how their Council is to be administered; and to make consequential amendments to other Acts.
8.3
Clause 2 Part 1 and 3 and section 13 come into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 31 December 1999. The Committee notes the comments in the Second Reading Speech:—
"The present Docklands Authority Act 1991 already gives the Authority some of the responsibilities of a municipal council. This Bill will enable the Authority to take on the full range of the functions, powers and duties of a municipal manager in the docklands area."
Clause 3 amends section 3 of the Docklands Authority Act 1991 (the Docklands Act) and inserts a definitions for "municipal functions", "public notice", and "voter" into that Act. Clause 4 inserts a new Part 3A (sections 35B to 35Z) into the Docklands Act in relation to municipal functions. New section 35B makes it clear that the docklands area is not part of a municipal district. New section 35D allow the Authority to make local laws in respect of its municipal functions. New section 35E allows the Authority to levy rates and charges to carry out municipal functions.
New section 35N empowers the Authority to appoint, and if necessary dissolve, an advisory committee to be formed to advise it in its municipal functions. 35P provides for the conduct of a poll of voters on any proposition relating to municipal functions. The Authority must conduct a poll if one-tenth of the voters request a poll. 35Z provides that the Authority must have regard to the result of a poll in making a decision or a recommendation to the Minister. Clause 15 allows for regulations to be made. Clause 17 inserts a new Part 7 – "Transitional", in the Docklands Act (new sections 57 to 64). New section 58 provides that the land in the docklands area is to be severed from the municipal district of the Melbourne City Council on the commencement day. Clauses 18 to 25 make consequential amendments to eight (8) other Acts resulting from the severance of the docklands area referred to in new section 58.
Clause 26 inserts a new Part 12 (new sections 244 to 265) in the Local Government Act 1989 applying to the Melton Shire Council. The Committee notes the comments in the Second Reading Speech:—
"This Bill also introduces amendments to the Local Government Act 1989 to enable the residents and ratepayers of the Shire of Melton to choose whether their municipality should continue to be administered by Commissioners or whether there should be a return to elected Councillors.
As Members are aware, the Shire of Melton was established on 15 December 1994 as part of the state wide restructuring of local government in Victoria. In December 1996 a poll was conducted by the Australian Electoral Commission at the request of the Melton Shire. Over 52% of enrolled voters returned a vote in that poll, with 71% of valid votes in favour of Commissioners continuing to administer the Shire until March 1999. Against this background, and in the context of other issues around restructuring, the Commissioners’ appointment was extended for a further 2 year term, due to expire in March 1999.
A number of representations have recently been received from voters in the Shire of Melton indicating support for the conduct of a further poll of voters in the municipality to determine whether Commissioners should be retained. These representations have highlighted the success of the continued administration of Melton by Commissioners. As the government would like to respond to these representations, the Bill will introduce amendments to the Local Government Act 1989 which will facilitate the holding of a poll in order to determine the views of the voters of Melton. Thus, the people themselves can decide whether the Council should continue to be administered by Commissioners, or whether there should be a return to elected Councillors.
The main principles underlying the amendments contained in the Bill are as follows:
| there will be a poll of voters to allow the voters to determine whether the Minister should appoint Commissioners to constitute the Council, or whether there should be a return to elected Councillors; | ||
| as the poll deals with issues of representation, voting at the poll will be compulsory; | ||
| the Minister will announce the poll by public notice in the Government
Gazette. The notice will include the proposition to be put to voters and the entitlement date for the poll; |
||
| the poll will be regarded as carried if | ||
| the number of valid votes recorded is not less than one half of the number of voters on the voters’ roll; anda majority of the valid votes recorded are in favour of Commissioners continuing to be appointed. | ||
| voting at the poll is to be by postal ballot only; | ||
| if Commissioners are appointed as a result of the poll, they will continue to be reappointed by the Minister for further 3 year terms unless a new poll is requested by 10% of voters and held, in which the outcome is a majority vote in favour of a return to elected Councillors. | ||
The Committee makes no further comment.
MACKILLOP FAMILY SERVICES BILL
9.1
The Bill was introduced into the Legislative Council on 6 October
1998 by the Honourable Rob Knowles MLC. The Second Reading Speech was delivered on
7 October 1998.
9.2
The purpose of this Bill is to make provision for the vesting in MacKillop Family Services Limited A.C.N. 078 299 288, (‘MacKillop’) of certain property given for charitable purposes to the Christian Brothers, Sisters of Mercy and Sisters of St Joseph or certain agencies in connection with those purposes. The Bill will:—
- make provision for the vesting in MacKillop of certain property given for charitable purposes;
- provide that certain gifts and trusts for charitable purposes do not fail but have effect as if made or declared to or in favour of MacKillop; and
- enable MacKillop to establish investment pools for the collective investment of trust funds for charitable purposes.
The Committee notes the comments in the Second Reading Speech:—
"A new Catholic child, youth and family services organisation, MacKillop Family Services, came into effect in July 1997. MacKillop Family Services was incorporated under the Corporations Law of Victoria on 28 April 1997. MacKillop Family Services is a shared Ministry of three Catholic Congregations - The Christian Brothers, The Sisters of Mercy and The Sisters of St Joseph."
9.3
Clause 2 the Act comes into operation on the day on which it receives the Royal Assent.
The Committee makes no further comment.
MELBOURNE CRICKET GROUND (AMENDMENT) BILL
10.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
10.2
The Bill amends the Melbourne Cricket Ground Act 1933 (the Act).
10.3
Clause 2 Sections 1 and 2 commence operation on Royal Assent. The remaining provisions commence operation on proclamation but not later than by 1 February 2000.
Clause 5 replaces existing section 5A in the Act providing for the appointment of trustees to the Trust. The Bill provides for the appointment by the Governor in Council of a chairperson and six trustees having experience in sports, sports administration, business and financial or community affairs.
Clause 7 deals with appointment of members of the Trust’s meetings, staff and like matters. Under the new provisions former Premiers of the State will cease being trustees of the Trust as of right (former section 5A(1)(e)). New section 6I allows the Minister to give written directions to the trust after consultation with the Treasurer. The Trust must comply with such direction. Clause 11 inserts a new section 8A into the Act prohibiting unauthorised commercial exploitation of the name "Melbourne Cricket Ground", or the initials "MCG". Clause 12 permits free lifetime access to the public areas of the ground for all sporting events to former Trustees other than Trustees representing a club.
The Committee makes no further comment.
11.1
The Bill was introduced into the Legislative Council on 6 October 1998
by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on
7 October 1998.
11.2
The purpose of the Bill is to amend the Patriotic Funds Act 1958 (the Act) to extend the application of patriotic funds to members of the Australian naval, military and air forces and their dependants for relief or assistance in connection with service or duty other than in connection with a war; to make provision in relation to property purchased with patriotic funds; to make further provision for the transfer of patriotic funds; and to make other miscellaneous amendments to the Act.
11.3
Clause 2 sections 1 and 2 commence on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 July 1999. Clause 4 makes a number of amendments to the definition of the meaning of "patriotic fund".
The Committee notes the comments in the Second Reading Speech:—
"The Bill proposes to broaden the existing membership and beneficiary bases within the Act by amending the definition of "patriotic fund" so that funds may be applied to relieve financial hardship suffered by service personnel or their dependants in circumstances additional to direct connection with a war. This proposed amendment will ensure that service personnel who are injured, or the dependants of those killed, during exercise training operations, such as the Blackhawk helicopter disaster in North Queensland in 1996, will be eligible for assistance under the Act.
This expansion of the class of beneficiaries is a desirable development given that these funds, which were originally established for returned servicemen, continue to operate even though Australia has not participated in a proclaimed war for some time, and that the number of persons entitled to benefit from the funds is diminishing through natural attrition."
Clause 10 amends section 23 of the Act to increase from 10 to 50 penalty units the fine for unauthorised collection of funds. Clause 12 replaces various references where occuring in the Act from "in connection with the war" to "in connection with any service or duty".
The Committee makes no further comment.
ROAD SAFETY (FURTHER AMENDMENT) BILL
12.1
The Bill was introduced into the Legislative Council on 6 October 1998
by the Honourable Geoff Craige MLC. The Second Reading Speech was delivered on
7 October 1998.
12.2
The Bill amends the Road Safety Act 1986 (the Act) and the Transport Accident Act 1986. The Bill deals with the operation of the demerit points system; the circumstances in which the Roads Corporation may disclose information gained by it; and the period of operation of certain Regulations.
12.3
Clause 2 provide for the commencement of various provisions of the Act some of which are dependant on the commencement of provisions contained in the Road Safety (Amendment) Act 1998 and the Road Safety (Driving Instructors) Act 1998. Sections 1, 2, 3 and 7 commence on Royal Assent other provisions commence on proclamation but not later than by 1 June 1999.
Clause 4 amends and improves the operation of the demerit points system. The new sub-sections (4C) and (4D) of section 25 make it clear that a suspension of licence under the demerit points system is additional to any other period of licence cancellation or suspension and cannot be served concurrently.
Clause 5 amends section 92 of the Act to enable information to be disclosed for the purposes of the national exchange of vehicle and driver information (NEVDIS) system and to facilitate vehicle safety recalls.
Clause 7 inserts a new section 95C and extends the operation of the existing regulations under the Act to 1 March 2000 unless they are sooner revoked. It also provides that section 5 of the Subordinate Legislation Act 1994, relating to the automatic revocation of statutory rules, does not apply to those regulations.
The Committee notes the comments in the Second Reading Speech:—
"This Bill continues the process of fine-tuning the Road Safety Act in preparation for the introduction of further national uniformity measures and the commencement of new regulations to replace those due to sunset on 8 February 1999.
Drafts of the new regulations are being made available for public comment together with regulatory impact statements but there is a concern that the size of the task is such that much of the public comment will not be available until after the Parliament has risen and it will be too late then to postpone the sunset, should that course appear desirable. The Bill therefore contains a protective measure which is in the form of an extension of the existing regulations until 1 March 2000 unless the Regulations are sooner revoked.
I stress that this is a protective measure and that the present intention is to have the new regulations come into force on or as close as possible to the February 1999 sunset date."
Clause 8 amends section 96 of the Act to substitute a reference to certain provisions of the Subordinate Legislation Act 1994 in place of provisions of the repealed Subordinate Legislation Act 1962 in its application to various subordinate instruments under the Road Safety Act 1986.
The Committee makes no further comment.
SUPERANNUATION ACTS (AMENDMENT) BILL
13.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
13.2
The Bill makes miscellaneous amendments to the following specified Superannuation Acts (the Acts):—
-
Emergency Services Superannuation Act 1986;
- Hospitals Superannuation Act 1988;
- Parliamentary Salaries and Superannuation Act 1968;
- Public Sector Superannuation (Administration) Act 1993;
- State Employees Retirement Benefits Act 1979;
- State Superannuation Act 1988;
- Superannuation (Portability) Act 1989; and
- Transport Superannuation Act 1988.
13.3
Clause 2 Section 39 is deemed to have come into operation 18 June 1996. Sections 31 and 40 come into operation on 1 January 1999. The remaining provisions commence on Royal Assent. Clause 39 retrospectively amends the Public Sector Superannuation (Administration) Act 1993 by inserting a new section 68C.
The Committee notes the comments in the Second Reading Speech:—
"Amendments are proposed to be made to the Public Sector Superannuation (Administration) Act 1993 to reinstate repealed provisions relating to former State Casual Employees Superannuation Fund contributors who transferred membership to the Victorian Superannuation Fund in 1995. The 1995 amendment Act initiating this transfer and providing for the continuation of entitlements for the people transferred was repealed in 1996. These proposed amendments reinstate the relevant empowering provisions back to the date of repeal to ensure all transferred members continue to receive the same entitlements that applied before the transfer."
The Committee notes that the retrospective operation of clause 39 of the Bill is curative in nature and is designed to remedy a legislative consequence that may have operated detrimentally to certain State Superannuation Fund contributors if left uncorrected. In the circumstances the Committee believes the amendment is justified.
Clauses 5, 16, 32, 33, 41, 46 and 52 insert new standard provisions in a number of the Acts to make it a duty of the Board of each of the respective funds to comply with the newly introduced Commonwealth superannuation contributions tax legislation.
Clauses 15, 29, 38, 48 and 56 are consequential amendments to a number of the Acts relating to the Board’s duty to comply with the Commonwealth superannuation contributions tax legislation providing the Board with the power to request a member’s tax file number.
Clauses 13, 19, 43, 47 and 55 insert new standard provisions in a number of the Acts to give their respective Boards, with the approval of the member, the discretion to offer 100% commutation of any low value pensions administered by those Boards if the pension is under $520 per year.
Clauses 8, 20, 49 and 53 insert new standard provisions in a number of the Acts requiring employer contributions to cease when a member has ceased making contributions at age 65.
The Committee makes no further comment.
TRADE MEASUREMENT (ADMINISTRATION) (AMENDMENT) BILL
14.1
The Bill was introduced into the Legislative Council on 6 October 1998
by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on
7 October 1998. The Bill received the Royal Assent on 13 October 1998.
14.2
The purpose of the Bill is to amend the Trade Measurement (Administration) Act 1995 (the Act), by correcting an anomaly identified in the operation of the Act. The Committee notes the comments in the Second Reading Speech:—
"An anomaly in the Trade Measurement (Administration) Act 1995 has recently been discovered. Section 18(1) of the Act potentially restricts the power to serve infringement notices to only those offences specified under the Trade Measurement Act 1995. This could potentially mean that the power to issue infringement notices for contravening the Trade Measurement Regulations is not provided for. The government is acting now to ensure that the anomaly does not undermine the enforcement capability of Trade Measurement Victoria, thereby protecting the integrity of Victoria’s trade measurement system.
The Bill will ensure that the government’s policy intentions when originally agreeing to the legislation are beyond legal doubt and that fines enforced under the regulations can be collected. To remove any uncertainty, the Bill proposes to validate the handful of infringement notices for breaching the regulations that have already been issued. This course of action can be justified on the basis that those persons who have paid on notices have done so on the basis of their guilt and to avoid the matter otherwise proceeding to a court where a conviction could be imposed."
14.3
The Committee notes that no commencement clause is provided for in the Bill. The effect of section 11(1)(b) of the Interpretation of Legislation Act 1984 is that where no day is fixed for the amendment to come into operation, the provision takes effect 28 days after receiving the Royal Assent.
Clause 2 amends section 18 of the Act and corrects an anomaly by inserting after Trade Measurement Act 1995 "or against any regulation made under the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995".
Clause 3 as a consequence of the anomaly identified in clause 2 above the clause substitutes a new section 28 in the Act validating regulations and actions made or taken under the Trade Measurement Act 1995 and the Trade Measurement (Administration)(Amendment) Act 1995.
The Committee notes the retrospective operation of clause 3 in deeming as valid regulations made and actions taken pursuant to the two Acts cited above. The Committee also takes note of the Minister’s explanation in the Second Reading Speech. In the circumstances the Committee believes the provisions in the Bill are appropriate and justified. The Committee further notes that an important and integral part of the process of parliamentary scrutiny is the statutory functions exercised by the Scrutiny of Acts and Regulations Committee. In circumstances of urgency these functions are sometimes bypassed by the rapid passage of a Bill through Parliament without the Committee having the opportunity to comment on a Bill. The Committee recommends that in such circumstances where urgent Executive action is required, the advice and explanation for that course of action be made known to the Parliament in the Second Reading Speech and the Explanatory Memorandum. |
The Committee makes no further comment.
15.1
The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Robin Cooper MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.
15.2
The Bill amends the Transport Act 1983 (the Act). The main purposes of the amendments are to:—
- Facilitate and improve the administration of the taxi and hire car industry;
- Permit the Roads Corporation to lease or licence areas of land over which there is a declared road; and
- Make adjustments to reservations over certain lands for the future re-location of a tramway.
15.3
Clause 2 provides that sections 1, 2, 12, 13 and 14 commence operation on receiving the Royal Assent. The remaining provisions commence on proclamation but not later than by 1 March 1999.
Clause 4 amends section 143A(1) of the Act by providing for the issue of taxi-cab licences to be made by Order of the Minister in place of the Governor in Council. Clause 8 amends section 150(6) of the Act by adding to the grounds upon which a licence assignment may be terminated by inserting in the section "or is satisfied that the assignee is not a fit and proper person to operate a vehicle under a licence".
Clause 9 inserts a new sub-section (5) into section 156(4) of the Act to allow a condition of a driver’s certificate to be varied or added to for reasons stated in writing, sent to the certificate holder by the licensing authority, during the currency of the certificate rather than on it’s renewal as at present. Clause 10 inserts a new section 158A prohibiting touting for customers for commercial vehicles other than in a manner allowed by the licence or the regulations. The new section replaces existing regulations and provides for a substantial increase in penalty of up to 50 penalty units. Clause 160(2) adds a new section 160(2) to the Act providing for substantially increased fines for unlicensed operation of commercial vehicles.
Clause 12 inserts new sections 253B, 253C and 235D into the Act to provide for minor adjustments to reservations with Yarra Park to enable a minor boundary adjustment to be made in relation to the future relocation of the Swan Street tramway.
Clause 13 adds new provisions to Schedule 5 of the Act to permit the Roads Corporation to lease or licence areas of land which are part of a road declared under the Transport Act 1983.
The Committee makes no further comment.
Committee Room
Monday, 19 October 1998
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