Alert Digest No. 1 of 1999
23 March 1999

The Bill was introduced into the Legislative Assembly on 11 November 1998 by the Honourable Pat McNamara MP with the Bill McGrath MP. The Second Reading Speech was delivered on 13 November 1998.

The Bill amends the Barley Marketing Act 1993 (the Act); makes provision for the deregulation of the domestic barley market; barley marketing; dissolves the Australian Barley Board (the ABB) and the Barley Marketing Consultative Committee; and transfers the assets, liabilities and staff of the ABB to the grower-owned successor companies.

Clause 2 provides that Part 1 and section 7 commence on Royal Assent, the remaining provisions commence on proclamation but not later than by 30 June 1999.

Clause 6 repeals Parts 2 and 3 of the Act that deal with the establishment of the ABB.

Clause 7 amends section 33 of the Act to deregulate the sale, delivery, transport and purchase of barley for use in Australia for stockfeed purposes, for the season commencing on or after 1 July 1998.

Clause 10 amends various sections of the Act to substitute "ABB Grain Export Ltd" for references to the ABB.

Clause 12 inserts a new Part 12 into the Act consisting of sections 79 to 87. The sections deal with aspects of the transfer of the business of the former ABB to ABB Grain Ltd and ABB Grain Export Ltd (the two grower-owned companies established to succeed the ABB referred to in the Second Reading Speech). The Part also facilitates the transfer of shares to eligible growers. Following the distribution of shares the ABB is dissolved. Eligibility for shares will be determined by the Victorian and South Australian Ministers and be published in the Government Gazette.

New section 79 transfers the property and liabilities of the ABB to ABB Grain Ltd and ABB Grain Export Ltd. The section also dissolves the ABB.

New section 85 provides for the transfer of staff from the ABB to ABB Grain Limited with the same rights and entitlements they had immediately before the transfer.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 11 November 1998 by the Honourable Marie Tehan MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 13 November 1998.

The Bill amends the Environment Protection Act 1970 to make further provision for industry waste reduction agreements, State environment protection policy and the transport of waste and to impose further landfill levies and other purposes.

Clause 2 provides for the various commencement dates for the provisions of the Bill. Unless an earlier commencement is provided for, all the provisions of the Bill come into operation not later than 1 October 2000.

Clause 6 amends section 50S of the Act to introduce a new hazardous waste landfill levy of $10 per tonne on prescribed industrial waste disposed of to landfill.

Clause 7 inserts a new section 50AA into the Act to provide for a rebate of the hazardous waste landfill if materials upon which the levy is paid are removed to be recycled, reprocessed, recovered or purified within three years of their disposal.

Clause 10 inserts new section 50XD into the Act to provide for a temporary increase in the landfill levy of $1 per tonne expiring on 30 June 2002.

Clause 17 inserts new sections 53B to 53G into the Act. New section 53B provides that it is an offence to transport prescribed waste or prescribed industrial waste without a permit, or an exemption. New section 53F deals with the issue of transport permits.

Clause 18 provides power to make regulations consistent with the provisions of the Bill. Clause 19 allows for the use of infringement notices consequent upon amendments made by the Bill.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 28 October 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 29 October 1998.

The Bill amends the following Acts:–

Magistrates’ Court Act 1989; Supreme Court Act 1986; County Court Act 1958; Crimes Act 1958; Children and Young Persons Act 1989; and Sentencing Act 1991. The Bill reforms committal proceedings in the Magistrates’ Court; changes the system of appeals from the Magistrates’ Court in criminal proceedings; and makes other miscellaneous amendments relevant to the operation of the criminal justice system.

Clause 2 provides that Parts 1 and 4 commence on Royal Assent. The remaining provisions commence on 1 July 1999.

Clause 4 substitutes a new Schedule 5 into the Act dealing with committal proceedings.

The Committee notes the Attorney-General’s comments in the Second Reading Speech:–

1. Definitions and provision about service – Provides for definitions and sub-clause (2) provides that if a practitioner has filed an appearance on behalf of a defendant or has given the registrar notice in writing that he or she acts for a defendant then service of a document on a defendant may be made by serving the practitioner personally and is taken thereby to have been served personally on the defendant.
2. Power of Court to control committal proceedings – The Court is given wide discretion in the conduct and control of the committal proceedings consistent with the interests of justice; the need to ensure that issues are defined and the prompt and efficient disposal of the proceeding.

Part 2 – Mention Hearings

3. Special mention hearing – Deals with special mention hearings. These are mentions that may occur during the course of committal proceedings that assist the case management of the committal proceedings.
4. Committal mention hearing – Provides for temporal limitations in which committal mention proceedings must be commenced and provides for other procedural matters.

Part 3 – Service of Prosecution Briefs

5. Service of plea brief by informant – (applicable where the defendant intends to plead guilty) Clause 5 deals with service and content of a plea brief by the prosecution upon the defendant or his or her practitioner, prior to service of the hand-up brief. A hand-up brief will not be required where the prosecution has served a plea brief and the defendant has pleaded guilty.
6. Service of hand-up brief by informant (applicable in contested proceedings) – Clause 6 provides for service and the content of the hand-up brief by the informant upon the defendant specifying the committal mention date; explaining the nature and purpose of the committal proceedings and explaining the importance of obtaining legal assistance and providing contact details for Victoria Legal Aid. Clauses 6(1)(a) to (l) deal with the categories of evidence and documents to be contained in a hand-up brief. 6(3) provides that nothing in the clause takes away from any duty otherwise imposed on the prosecution to disclose to the defence any relevant material.
7. Time for service of hand-up brief – A hand-up brief must be served not less than 28 days prior to the committal mention date unless the Court fixes another period at a special mention hearing or the defendant consents in writing to a lesser period.
8. Rules with respect to statements – Deals with rules in respect to statements tendered by the informant at the committal. An additional category of person eligible to witness statements is provided in the new schedule, namely, certain Australian Customs Officers.
9. Rules with respect to recordings – Provides for rules with respect to recordings, video and audio.
10. Inspection of exhibits – Provides that the defendant may inspect the exhibits at a time and place agreed between the defendant and the informant.

Part 4 – Procedure where plea brief is served

11. Procedure where plea brief served – Deals with the procedure to be employed where a plea brief is served and filed.

Part 5 – Procedure where hand-up brief served

12. Defence notice – Makes provision for a defence notice not later than 14 days prior to the committal mention date giving notice in writing to the informant, the Director of Public Prosecutions (DPP) and the registrar that the defendant –

12(1)(a) intends to cross-examine at the committal a specified person or persons who made statements in the hand-up brief, the scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue;

12(1)(b) requires specified items to be produced for inspection on or before the committal mention date;

12(1)(c) is prepared to proceed or not with the hearing while a forensic procedure or examination or test remains uncompleted. In exceptional circumstances leave to cross-examine may be given notwithstanding the expiration of the 14 day period.

Clause 12(5) provides that in exceptional circumstances the Court may allow the defendant to make an application for leave to cross-examine a witness after the expiry of the period allowed for the giving of a notice for leave to cross-examine.

13. Application for leave to cross-examine a witness – Sets out rules for an application to cross-examine a witness. The Court must be satisfied that the evidence sought to be adduced by the proposed questioning has substantial relevance to the facts in issue; and in cases where the witness is under the age of 18 years, that the interests of justice cannot be adequately served except by granting leave to cross-examine. The court must have regard to:– (a) the need to ensure the prosecution case is adequately disclosed; (b) the issues are adequately defined; (c) the need to ensure the evidence is of sufficient weight to support a conviction for the offence charged; and (d) the interests of justice.

17. Special rules applicable to sexual offences – Applies special committal rules to sexual offences. Other than the informant and the defendant, only certain persons enumerated in 17(3) may be present during the testimony of the complainant.

18. Admissibility of non-oral evidence – Makes provision for the reception as admissible evidence, on proof of service, certain non-oral evidence as if their contents were a record of evidence given orally.

19. Procedure if defendant makes admission of relevant fact or matter – Re-enacts clause 7 of Schedule 5 (to be repealed) and provides that where a defendant makes an admission under section 149A of the Evidence Act 1958 (i.e. the admission of facts or matters made by an accused in criminal proceedings may be accepted by a person acting judicially as proof of those facts or matters without further proof) the Court must record that admission in the record of the proceeding and that admission may be used at the subsequent trial.

20. Absence of defendant – Re-enacts clause 8 of Schedule 5 (to be repealed) and empowers the Court to authorise the absence of the defendant during the committal where certain conditions are met. It also empowers the Court to continue the committal proceeding where the defendant absconds, misbehaves or is absent for any other reason in circumstances where a postponement would prejudice the prosecution or any other defendant or any witness.

21. Procedure if defendant absent at close of prosecution case – Re-enacts clause 9 of Schedule 5 (to be repealed) and sets out the procedure to apply where the defendant is absent at the close of the prosecution case.

22. Procedure on defendant’s attendance after absence – Determination of committal proceeding – Re-enacts clause 10 of Schedule 5 (to be repealed) and sets out the procedure to be followed where a defendant attends after a period of absence where he or she was not represented by a practitioner during the absence.

23. Determination of committal proceeding – Provides for the determination by the Court of a committal proceeding. At the conclusion of the prosecution case the defence must state if it intends to call any witness or make a submission. Sub-clauses (2) and (3) respectively sets out the determinations a Court may make where the defendant calls or does not call evidence.

Part 6 – Procedure after committal

24. Procedure after committal – Regulates the procedure to be used after committal including the provision to provide the defendant, free of charge, with a copy of the depositions and any exhibit not previously provided to the defendant.

Part 7 – Costs of committal proceedings

25. Costs order – a new clause providing that costs may be awarded against a party where the unreasonable failure or conduct of that party resulted in prolonging the proceeding.

26. Court may adjourn consideration of costs where defendant is discharged – Allows the Court to adjourn the consideration of an award of costs of a committal proceeding for up to 60 days.

Clause 5 inserts a new section 56A in the Act dealing with an application to the Court by the informant for the compulsory attendance and examination of witnesses or the production of documents or things or both without notice to the defendant.

The defendant is not a party to such an application, may not cross-examine a witness attending the Court under an order made pursuant to the application and may not address the Court on an application under this section or a proceeding held under an order made on such an application. Evidence must be on oath and recorded in the same manner as at the committal proceeding. The section does not exclude any other law relating to competency or compellability of a witness to give evidence. Clause 6(1)(d) provides that any statement made pursuant to section 56A intended to be tendered by the prosecution at the committal must form part of the hand-up brief to be served on the defendant.

Clause 6 permits the Chief Magistrate with 2 or more Deputy Chief Magistrates to make rules of court for or with respect to committal proceedings.

Clause 7 inserts a new clause 20 at the end of Schedule 8 of the Act making transitional provisions and clarifies that the new procedure introduced by the new Schedule 5 only applies to the hearing of charges filed after the commencement date (1 July 1999). The former Schedule continues to apply to charges filed prior to that date. New clause 20(3) also declares that nothing in the amendments alters the nature of the committal proceedings from administrative proceedings to judicial proceedings.

Clause 8 makes consequential amendments to the Act.

Clause 9(1) inserts a new section 86(1AA) into the Act having the effect that a County Court judge is no longer obliged to warn the appellant that a more severe sentence may be imposed on the appeal. Such warning will now be given to a defendant prior to lodging an appeal. The proposed new sub-section (1AA) provides:–

The Committee notes the comments in the Explanatory Memorandum:–

The Committee also notes the comments of the Attorney-General in the Second Reading Speech:–

Clauses 9(2) and (3) repeals section 86(3)(a) of the Act and inserts sections 86(3A) to (3C) providing the court power to hear and determine an appeal where the appellant fails to appear on the appeal. The court may also strike out the appeal or adjourn the proceedings. New section 86(3B) allows the court, in circumstances where the appellant failed to appear on the appeal, to rely on any statements, exhibits or documents which the informant served on the appellant prior to the Magistrates’ Court hearing or may rely on oral evidence given on oath by or on behalf of the respondent.

Clause 10 repeals section 87 of the Act dealing with the County Court’s jurisdiction in appeals from the Magistrates’ Court involving sentences imposed by a Magistrate under Division 5 of Part 3 of the Sentencing Act 1991, involving adjourned undertakings (with or without conviction). The existing section 87 confines the County Court to either dismissing the charge against the appellant or making an order under Division 5 of Part 3, but not any other sentencing order.

Clause 11 inserts new section 88AA into the Act allowing the County Court wide discretion to order an appellant to pay all or part of the respondents costs of an appeal where the Court is satisfied that the appeal was brought vexatiously or frivolously or in abuse of process.

Clause 12 inserts section 89A into the Act providing for a re-hearing in circumstances where the appellant was absent at the appeal. The Court must be satisfied that the failure to appear was not due to fault or neglect on the part of the appellant (89A(6)). The application must be lodged within 30 days of the appellant receiving notice of the appeal determination. In exceptional circumstances an application may be made out of time.

Clause 13 inserts new sub-clauses (4A) and (4B) into Schedule 6 of the Act providing that a notice of appeal signed by the appellant must include a statement in a prescribed form to the effect that the appellant is aware that on appeal the County Court may make a sentencing order more severe than that sought to be appealed against. On receipt of the appeal notice the registrar of the Magistrates’ Court must give the appellant a notice to the effect that the County Court may make a sentencing order more severe that the sentence appealed against.

Clause 14 deals with the abandonment of appeals and inserts new sub-clauses (2A), (2B) and (2C) into clause 6 of Schedule 6. The effect of the amendments are that once 30 days have elapsed from the making of the sentencing order by the Magistrates’ Court an appeal may only be abandoned with the leave of the County Court, before that time the appeal may be abandoned by filing a notice of abandonment. The Court may only give leave if it is in the interests of justice to do so because of the existence of exceptional circumstances (2C).

Clause 16 provides that clauses 9, 11, 13 and 14 of the Bill only apply to appeals commenced on or after 1 July 1999.

Clause 17 amends section 197(5) of the Children and Young Persons Act 1989 and makes it plain that the amendments introduced by this Bill will not apply to appeals from the Children’s Court.

Clause 18 amends section 18 of the Sentencing Act 1991 by inserting new sub-sections (1A) and (1B) the effect of which will allow the Court of Appeal discretion, on dismissing an appeal under Part VI of the Crimes Act 1958 to disallow up to 3 months of a period of imprisonment or detention already served under the sentence between the time of giving of the notice of appeal or the application for leave to appeal and the determination of the appeal. Clause 19 provides that the amendments made by clause 18 only apply where notice of appeal or application for leave to appeal is given after 1 July 1999. Clause 20 makes consequential amendments to the Crimes Act 1958 by inserting a new section 591 into that Act providing that the amendments made by clause 18 only apply to appeals where notice of the appeal or application for leave to appeal is made after 1 July 1999.

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

Clause 22 inserts a new paragraph (ea) in section 16(1) of the Act to allow rules to be made concerning service of documents in civil proceedings including service outside Australia.

Clause 24 amends section 126 of the Act allowing the Court to make an order prohibiting the publication of any specified material relevant to a proceeding that is pending in the Court for a period not exceeding 7 days. An order stays in force for that period unless sooner set aside by the Court. An order to set aside may be made by any person whether or not a party to the proceeding. An order may not be extended beyond 7 days. The Supreme Court and County Court may make an order in the same or similar terms including an order that takes effect immediately an order under section 126 ceases to be in force.

Clause 25 amends section 19 of the Supreme Court Act 1986. New paragraph (f) provides that the Supreme Court may close proceedings to the public if necessary to do so in order not to cause undue distress or embarrassment to a witness under examination in a proceedings where the offence involves sexual penetration. Clause 26 provides that the amended section 19 applies to any proceedings whether commenced before or after the commencement of that section.

Clause 27 amends section 36A of the County Court Act 1958 and inserts new sub-sections (3) and (4) giving the Court the same jurisdiction, powers and authority to grant an injunction in criminal proceedings restraining a person from publishing any material or doing any other thing to ensure the fair and proper conduct of the proceeding as the Supreme Court has and may exercise in respect of Supreme Court proceedings. The order may be interlocutory or final, either unconditional or on such terms and conditions as the court thinks just.

Clause 28 substitutes new sections 80 and 80AA in the County Court Act 1958. New section 80 allows the court to make orders; that the proceedings in whole or in part, either criminal or civil, be heard in closed court; that specified persons be present during the whole or any part of a proceeding; and prohibiting the publication of a report in whole or in part or of any information derived from a proceeding. Penalty for contravention - 1000 penalty units or 3 months imprisonment. A notice of such an order must be posted in a conspicuous place on a door at the court house.

New 80AA specifies the circumstances necessitating an order under section 80 including:– the national or international security of Australia; prejudice to the administration of justice; endangering the physical safety of any person; offending public decency or morality; or causing undue distress or embarrassment to the complainant in proceedings involving certain types of offences under the Crimes Act 1958. Clause 29 the amendments made by clauses 27 and 28 above apply to proceedings, whether commenced before or after the commencement of those sections.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 11 November 1998 by the Honourable Bill McGrath MP with the Honourable Marie Tehan MP. The Second Reading Speech was delivered on 13 November 1998.

The Bill amends the Public Sector Reform (Miscellaneous Amendments) Act 1998 (the Act) and makes minor corrections and miscellaneous amendments to other Acts. The Committee notes the comments in the Second Reading Speech:–

Clause 2 provides that, other than section 3 the remaining provisions commence on Royal Assent. Section 3 is deemed to have commenced operation on 26 May 1998.

Clause 3 makes amendments to Schedule 1 of the Act as set out in Schedule 1 of the Bill.

Clause 4 amends the Acts specified in Schedule two of the Bill. The amendments ensure that certain references in those Acts contained in the Schedule are consistent with those references as amended by the Public Sector Management and Employment Act 1998.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 11 November 1998 by the Honourable Bill McGrath MP on behalf of the Honourable Jeff Kennett MP with the Honourable Marie Tehan MP. The Second Reading Speech was delivered on
13 November 1998.

The Bill repeals Acts which no longer have any purpose or effect and amends the Tourism Victoria Act 1992 and the Emergency Management Act 1986.

Clause 2 the provisions of the Bill commence on Royal Assent.

Clause 3 the Acts listed in the Schedule to the Bill are repealed. The Committee notes the comments in the Second Reading Speech:–

Clause 4 amends the Tourism Victoria Act 1992 so that a reference in any Act, subordinate instrument or any other document whatever to the Victorian Tourism Act 1982 is to be taken to be a reference to the Tourism Victoria Act 1992.

Clause 5 amends the Emergency Management Act 1986 so that despite the changes of name or titles made by the Emergency Management (Amendment) Act 1994, no act, matter or thing is affected or abated by the name and title changes.

The Committee makes no further comment.

Supplementary Report

The Committee previously reported on this Bill (as it was then) in Alert Digest No. 8 of 1998. The Second Reading Speech was delivered on 22 October 1998. On 10 November 1998 the Minister made an amended statement pursuant to section 85 of the Constitution Act 1975. The Minister’s made a further section 85 statement in addition to the statement made in the Second Reading Speech. This involved an additional amended clause 21 and additional clauses 28CC and 28DD inserted after clause 28. The Bill was assented to on 24 November 1998 (Act No. 91/1998).

The Committee notes the Minister’s comments in the further section 85 statement:–

Amended clause 21 inserts a new sub-section (2) at the end of section 101B of the Act providing that ‘It is the intention of sections 16I, 16J, 16L, 149B and 149C* to alter or vary section 85 of the Constitution Act 1975.’ *(the additional amendments made during the Committee stages of the Bill are underlined).

The additional new sections 149B and 149C, not previously reported on by the Committee are:–

Additional Clause 28CC substitutes a new section 109 and inserts a new section 109A not previously reported on by the Committee. These sections confer immunities arising from powers exercised under sections 106 and 107 (set out below) of the Gas Safety Act 1997.

Additional Clause 28DD inserts a new section 117A providing ‘It is the intention of sections 109 and 109A to alter or vary section 85 of the Constitution Act 1975.’

*Sections 106 and 107 in Part 6 of the Gas Safety Act 1997 provide:–

Other Bills Before Parliament

The Bill was introduced into the Legislative Assembly on 29 April 1998 by the Honourable Bill McGrath MP with the Honourable Tom Reynolds MP. The Second Reading Speech was delivered on 30 April 1998.

The Committee reported on this Bill in Alert Digest No. 4 of 1998.

Ministerial Correspondence

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Honeywood MP. The Second Reading Speech was delivered on 22 October 1998.

The Committee reported on the Bill in Alert Digest No. 8 on 10 November 1998 at page 7. The Committee had two separate concerns in relation to the commencement provisions contained in clause 2 of the Bill. The comments made by the Committee were:–

Clause 2(5) relating to the commencement of clause 13(2).

Clause 2(2) in respect to the commencement of clauses 9, 10 and 17(3).

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.

The Committee reported on the Bill in Alert Digest No. 6 of 1998 on 6 October 1998. (at page 4). The Committee wrote to the Minister in the following terms:–

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.

The Committee reported on the Bill in Alert Digest No. 6 of 1998 on 6 October 1998 (at page 14). The relevant extract of the Committee’s comment to the Bill is set out:–

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 27 October 1998.

The Committee reported on the Bill in Alert Digest No. 8 on 10 November 1998 at page 36. The relevant extract of the Committee’s letter to the Minister is set out:–

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