• in the Government Gazette
• to registration authorities in other States and Territories and in New Zealand
• to the health services commissioner
• to the employer of the dental care provider, where that dental care provider is an employee
• to a dental registration authority outside Australia or New Zealand if the board has received a request for information about the dental care provider from that authority.

The Committee makes no further comment.

Fair Trading (Inspectors Powers and Other Amendments) Bill

2.1

The Bill was introduced into the Legislative Assembly on 14 April 1999 by the Honourable Bill McGrath MP on behalf of the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 15 April 1999.

The Bill is a conjoint Bill with the Fair Trading Act 1999 and implements the first stage of the rationalisation of inspectors’ powers in the legislation administered by the Minister for Fair Trading. The main purpose of the Bill is to provide for inspectors’ powers in the Credit (Administration) Act 1984, the Motor Car Traders Act 1986 and the Travel Agents Act 1986. These three Acts currently apply the inspectors powers in the Consumer Affairs Act 1972 which is to be repealed on the commencement of the Fair Trading Act 1999.

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

Clause 2 Part 1 commences operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 February 2000.

Clause 7 inserts a new Part 3 into the Act being sections 17 to 42 dealing with inspectors’ powers. Section 18 deals with the production of identity cards. Section 19 requires a registered credit provider to keep all documents relating to the business open and available for inspection at each of its registered offices. It also requires former credit providers to keep such documents open and available for inspection for three years in a form and at a place where they can be readily inspected.

New section 20 requires the registered credit provider or a ‘specified person’ (defined by sub-section 2), to answer orally or in writing any questions put by an inspector or to supply documents at a time and place specified by an inspector.

New section 21 empowers an inspector to require any person who has possession of documents to produce the documents or answer questions orally or in writing.

New section 22 provides that the Director of Fair Trading (the Director) or an inspector with the Directors consent may request a Minister, a public authority, a municipal council or the Chief Commissioner of Police to answer questions or supply information relating to a credit providers business.

New section 23 relates to the same powers as in section 22, that may be required by the Director to be supplied by publishers, a broadcasting service, a telecommunications service or another financial institution.

New section 24 deals with powers of inspection, copying, seizure production and retention of documents.

New section 25 allows an inspector with the approval of the Director to apply to the Magistrates’ Court for an order that a person answer questions orally or in writing at any time and place specified by the inspector in the order. Execution of such an order must be notified to the court.

New section 26 provides for powers of entry and search with the consent of the occupier of premises. An inspector may enter, search, seize, examine, take samples and inspect. An inspector must show his/her identity card and inform the occupier that he/she may refuse to consent to the entry, seizure, sampling and inspection. The inspector must ask the occupier to sign a consent form, a copy of which must be given to the occupier.

New section 27 deals with entry without consent or warrant. An inspector may on production of his/her identity card, enter and search any premises of a credit provider that are open for business between 9am and 5pm and may seize or secure any document or thing and make extracts of documents kept on the premises.

New section 28 deals with search warrants pursuant to the Magistrates’ Court Act 1989.

New section 29 deals with inspectors’ announcement before entry when executing a search warrant. New section 30 requires that certain details be given to the occupier when a warrant is being executed. New section 31 permits seizure of anything not mentioned in a warrant that is of a kind which could have been or will afford evidence of a contravention of any Fair Trading Act related Acts (the OFTBA Acts) listed in Schedule 1 of the Fair Trading Act 1999.

New section 32 deals with embargo notices prohibiting the removal, sale, lease, transfer or other dealing with any thing subject to the embargo. Any dealing, transfer, or sale in contravention of this Act is void.

New section 33 provides that if an inspector seizes documents he/she must within 21 days give the person a copy of the document certified as correct by the inspector and new section 34 requires seized documents no longer required to be returned, but all documents must be returned within 3 months unless a longer period is permitted by an order of the Magistrates’ Court.

New section 36 provides that an inspector may request an occupier of a premises or an agent or employee of the occupier to give information to the inspector orally or in writing and to produce documents to the inspector and to give reasonable assistance to the inspector.

New section 37 creates an offence to refuse or fail to comply, without reasonable excuse a requirement of the Director or an inspector under this Part. (Penalty: $1,000/ 10 p.u. fine).

New section 38 deals with the rule against self-incrimination and provides as follows:–

1. A person is not excused from answering a question or producing a document under this Part on the ground that the answer or document might tend to incriminate the person.
2. If the person claims, before answering a question, that the answer might tend to incriminate them, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

New section 39 provides that it is an offence to give false or misleading information or documents knowing them to be false or misleading to an inspector (Penalty: $1,000/ 10 p.u. fine)

New section 40 applies certain sections of the Fair Trading Act 1999 as though they were provisions of the Act, they are:– sections 120 (inspectors to be permitted to enter premises open to the public and are permitted to purchase products on sale to the public); section 135 (offence to hinder or obstruct inspector); section 136 (offence to impersonate an inspector); section 137 (inspectors to report exercise of powers of entry to Director); section 138 (Director to keep register of such reports); and section 139 (Director to investigate complaints).

New section 42 provides that an inspector may not reveal information obtained in enforcing the provisions of the Act except in circumstances such as a court order requiring such disclosure or the other matters specified in subsection (2).

Clause 8 inserts new sections 89A and 89B into the Act providing that the Business Licensing Authority may require a registered credit provider or finance broker to answer questions or provide information that the Authority reasonably requires and makes it an offence to fail without reasonable excuse to provide such information.

New 89B provides that a reasonable excuse does not include that a persons answer may self-incriminate, although if the person claims the privilege against self-incrimination before answering a question, the answer cannot be used in criminal proceedings other than in respect of the falsity of the answer.

Clause 12 inserts a new section 43(8) into the Act to extend the 3 day cooling-off period to "off-trade-premises sales" of motor cars.

Clause 13 substitutes new sections 82 and 82A and inserts new sections 82AA to 82AY.

[The provisions in respect to Inspectors Powers inserted by these sections are identical to those powers examined and reported in clauses 7 and 8 above.]

Clause 16 declares that sections 26 (undertaking by travel agent) and 27 (register of undertakings) are repealed.

Clause 19 repeals sections 41 (power of entry) and 42 (production of records) of the Act.

Clause 18 inserts new Part 3A into the Act in respect to inspectors’ powers. New Part 3A consists of new sections 39A to 39ZA.

[The provisions in respect to Inspectors Powers inserted by these sections are identical to those powers examined and reported in clauses 7 and 8 above.]

Clauses 20 to 49 make consequential amendments to a number of Fair Trading Act related Acts, such as the insertion of the citation of the new Act in place of the Act to be repealed and provide for transitional matters.

Clause 25 amends the Business Names Act 1962 and inserts a new section 4B in that Act providing a power of delegation by the Director of Fair Trading of any functions or powers under this Act, other than the power of delegation to any person or class of persons under Part 3 of the Public Sector Management and Employment Act 1998.

Clause 26 inserts a new section 33 into the Business Names Act 1962 to allow acts and proceedings prior to the amendments made by the Bill to be completed.

Clause 29 inserts a new section 14 into the Disposal of Uncollected Goods Act 1999 applying the provisions of Part 10 (Inspection powers) of the Fair Trading Act 1999, with any necessary modifications.

Clause 31 inserts a new section 124A4 into the Domestic Building Contracts Act 1995 applying the provisions of Part 10 (Inspection powers) of the Fair Trading Act 1999, with any necessary modifications.

Clause 36 inserts a new section 17A into the Funerals (Pre-Paid Money) Act 1993 applying the provisions of Part 10 (Inspection powers) of the Fair Trading Act 1999, with any necessary modifications.

Clause 42 inserts a new section 507A into the Residential Tenancies Act 1997 applying the provisions of Part 10 (Inspection powers) of the Fair Trading Act 1999, with any necessary modifications.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill facilitates the registration of building societies, credit unions and friendly societies and related bodies as companies under the Corporations Law in accordance with amendments made by the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (Cth). The Bill also amends the Co-operative Housing Societies Act 1958. The Bill also winds up the Victorian Financial Institutions Commission (VicFic).

The Committee notes the preamble to the Explanatory Memorandum of the Bill:–

Clause 2 provides that certain sections commence on Royal Assent and the remaining provisions commence on a day or days to be proclaimed, not being a day or days before the transfer date within the meaning of section 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (Cth).

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

Clause 19 on the transfer date the clause repeals the Building Societies Act 1986 and certain provisions of the Financial Institutions (Victoria) Act 1992 and the Friendly Societies (Victoria) Act 1996. Clause 20 provides that remaining provisions of those Acts are repealed on Royal Assent it also provides that the members of VicFic go out of office.

Clauses 29 and 30 provide that notwithstanding the transfer, civil proceedings and proceedings for offences may be continued respectively against the State of Queensland being the successor defendant in civil proceedings (see Second Reading Speech) and by the successor prosecuting authority.

Clause 34 provides that the Minister may enter into a transfer agreement connected with the transfer of the Victorian Financial Institutions Commissions (VicFic) staff to the Australian Prudential Regulation Authority (APRA). The transfer agreement is said to have effect according to its terms.

Clause 40 in civil proceedings commenced against VicFic before the transfer date, or after it but for section 20 of the Bill, the State is substituted as the defendant to the proceeding. Clause 41 prosecution of offences brought by VicFic before the transfer date and not completed before the date may be continued to be prosecuted by APRA or the Australian Securities and Investments Commission (ASIC).

Clause 47 protects the status of dormant accounts on transfer to the new financial entity. Clause 48 protects the position of a person entitled to a withdrawable share of a building society. Such shares are converted to deposits of equal value and voting rights and other rights (if any), are preserved.

Clause 52 provides that on the transfer date the Australian Financial Institutions Appeals Tribunal cease to exist and all applications made to it that have not been decided are deemed to be withdrawn.

Clause 57 provides that the Governor-in-Council may make regulations for the purposes of the Act.

The Committee makes no further comment.

Guardianship and Administration (Amendment) Bill

4.1

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill amends the Guardianship and Administration Act 1986 (the Act). The Bill:–

• enables a person to appoint an enduring guardian;
• provides for consent for medical and dental treatment in circumstances in which the person affected is unable to provide consent to that treatment; and
• permits the registration in Victoria of interstate guardianship and administration orders.

The Bill also makes a number of technical amendments to improve the operation of the Victorian Civil and Administrative Tribunal (VCAT) (the Tribunal) the successor to the Guardianship and Administration Board and makes consequential amendments to the Mental Health Act 1986.

Clause 2 Part 1 commences operation on Royal Assent the remaining provisions commence on proclamation but not later than by 1 January 2000.

Clause 4 inserts a number of definitions into the act including a definition for the purposes of the Act of the meaning of "medical or dental treatment". Sub-paragraphs (d) to (h) of that definition provides that the definition does not include certain things such as "first-aid treatment" a "non-intrusive examination including a visual examination of the facial area", (h) provides that it does not include:–

"Special Procedure" is defined to include a procedure rendering a person permanently infertile; a termination of pregnancy; a procedure for medical research; removal of tissue for the purpose of transplantation; or a matter prescribed by the regulations to be a special procedure.

Clause 6 make changes to the provisions related to the Public Advocate.

Clause 7 amends section 22 of the Act to provide that the Tribunal must take into account the wishes of any nearest relatives or other family members of a person and the desirability of preserving existing family relationships in considering whether to appoint a guardian in respect to that person. The Tribunal must also consider whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person’s freedom of decision and action.

Clause 8 inserts a new section 24(2)(e) into the Act to clarify that a plenary guardian (defined in section 24(1)) has the power to restrict or prohibit a visit by any person to a represented person if the guardian believes that the visit would have an adverse effect on the represented person.

Clause 12 deals with the appointment of an enduring guardian the clause inserts a new Division 5A in Part 4 of the Act consisting of new sections 35A to 35E.

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

New section 35A allows a person over 18 years to be appointed an enduring guardian. The procedures governing formal validity of such an appointment is similar to the execution of a will and is prescribed in Form 1 of Schedule 4. The proposed enduring guardian must indicate whether he or she consents to such an appointment. One of the witnesses to the instrument of appointment must be a person authorised to witness a statutory declaration and both witnesses must sign in each others presence and in the presence of the appointor.

New section 35B sets the authority of an enduring guardian in circumstances where the appointor becomes unable to make reasonable judgments in respect of his or her personal circumstances. An enduring guardian has all the powers and duties as though the enduring guardian was the parent of the appointor and must act in the best interests of the appointor as defined in section 28 of the Act. The enduring guardian cannot consent to a special procedure

New section 35C sets out the requirements for the revocation of an enduring guardian by either the execution of a new enduring guardianship appointment or by execution of an instrument prescribed in Form 2 in Schedule 4.

New section 35D provides that the Tribunal may revoke an enduring guardianship if the enduring guardian seeks revocation or if the enduring guardian is not willing to act in that capacity or is incapable or incompetent of doing so.

New section 35E allows an enduring guardian to seek an advisory opinion or directions from the Tribunal as the exercise of any power by the guardian under the appointment. The Tribunal may give an opinion or direction, vary the effect of the instrument, suspend for a specified time the authority either generally or in whole or make any other order necessary.

New section 35E(4) provides that:–

(Refer: 4.4 below concerning a section 85 statement altering or varying the Constitution Act 1975).

Clause 14 inserts a new Part 4A comprising sections 36 to 42 and sections 42A to 42O. The new Part 4A deals with the consent of a "responsible person" for the provision of medical and dental treatment to a person who is incapable of consenting to that treatment.

New section 36 defines "patient" for the purposes of the Part as being a person over the age of 18 years who is incapable of giving consent to the carrying out of a special procedure (defined in the Act), medical or dental treatment.

New section 37 defines "person responsible" for the purposes of the Part and lists responsible persons in order of priority. The first in priority is a person appointed by the patient under section 5A of the Medical Treatment Act 1988 and the lowest in priority is the patients nearest relative as defined in the Act.

New section 38 lists the criteria considered in respect to determining the "best interests" of the patient including any other matter prescribed by the regulations.

New section 39 also provides that the Tribunal may consent to a special procedure and a responsible person may consent to a medical and dental treatment.

Consent is deemed by new section 40 to be the consent of the patient.

New section 41 provides that a practitioner must not carry out any medical or dental treatment that is medical treatment within the meaning of the Medical Treatment Act 1988 if a refusal of that treatment is in force in accordance with the Act.

New 42A provides that a registered practitioner may carry out an emergency special procedure or treatment without consent in circumstances such as a life threatening situation.

New section 42B allows a person to apply to the Tribunal for consent to carry out a special procedure on a patient. The Public Advocate is advised of any such application and the patient is a party to such proceedings.

New 42C and 42J provide that the Tribunal in consultation with the Public Advocate and the Secretary of the Department of Justice with the approval of the Governor-in-Council may issue and make available public guidelines specifying situations in which applications may be made to the Tribunal in respect to the consent of the Tribunal for special procedures or medical or dental treatment.

New section 42H permits a responsible person to consent to the carrying out of any medical or dental treatment in the best interests of the patient.

New section 42I provides that a responsible person may seek an advisory opinion from the Tribunal.

New section 42I(5) provides:–

(Refer: 4.4 below concerning a section 85 statement altering or varying the Constitution Act 1975).

New section 42K allows a registered practitioner to carry out medical or dental treatment if after making reasonable inquiry the practitioner is unable to ascertain who the responsible person is and the treatment is in the best interests of the patient in the opinion of the practitioner and the practitioner has given notice to the Public Advocate prior to carrying out the treatment.

New section 42L allows a practitioner to treat a patient notwithstanding the refusal for the treatment by the responsible person if the practitioner believes on reasonable grounds that it is in the best interests of the patient. The responsible person has an opportunity to apply to the Tribunal (other than in cases of emergency treatment) to prevent treatment. In circumstances under 42L the practitioner must advise the Public Advocate in a manner prescribed under section 42M. Under new section 42N the Tribunal shall determine any dispute under Part 4A and the patient is a party to the proceedings.

New section 42O provides immunity to practitioners acting in good faith against actions for assault, professional misconduct and liability in any civil proceedings for assault.

The Committee notes the following comments in the Second Reading Speech related to the Medical Treatment Act 1988:–

Clause 20 inserts a new Part 6A into the Act to establish a legislative scheme for the registration of interstate guardianship orders.

New section 63C provides that the Governor-in-Council may, on the recommendation of the Minister, declare that a law of another State is a corresponding law for the purposes of the Part.

Clause 22 amends the regulation making powers in section 82(1) of the Act by inserting:- (ca) allowing for regulations to be made prescribing any medical or dental treatment to be or not to be treatment for the purposes of the Act and prescribing any treatment to be a special procedure for the purposes of the Act, and (cb) prescribing any matters to be taken into account in determining whether a special procedure or medical or dental treatment would be in the best interests of a person to whom Part 4A applies.

Clause 23 inserts a new section 86 and is a transitional provision declaring that nothing will effect an enduring power of attorney executed pursuant to the Instruments Act 1958 before the commencement of clause 12 of the Bill.

Clause 25 inserts a new Schedule 4 containing the forms for appointment as an enduring guardian (Form 1) and its revocation (Form 2).

Clause 26 makes consequential amendments to the Mental Health Act 1986.

Clause 21 declares that it is the intention of sections 35E(4) and 42I(5) of the Bill to alter or vary section 85 of the Constitution Act 1975.

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

The Committee makes no further comment.

Land (Reservations and other Matters) Bill

5.1

The Bill was introduced into the Legislative Assembly on 24 March 1999 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill revokes reservations over certain pieces of land and provides for the re-reservation of certain land in the township of Walhalla and at Carlton.

Clause 2 the amendments made by the Bill commence operation on Royal Assent.

The provisions of the Bill effect land reservations at Spargo Creek, Leneva, Leongatha South, Leonards Hill, Point Henry, Walhalla and University Square in Carlton.

Clause 10 provides that nothing in the Bill effects the continued existence of any lease in respect to the Point Henry land

Clause 21 empowers the Registrar of Titles to make the necessary changes in the Register under the Transfer of Land Act 1958.

The Committee makes no further comment.

Local Government (Melbourne City Council Rates) Bill

6.1

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Rob Maclellan MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 22 April 1999.

The main purpose of the Bill is to amend the Local Government Act 1989 (the Act) to continue to permit the Melbourne City Council to raise general rates by the application of a differential rate base regardless of the system of valuation it is using, and to make a statute law revision amendment to the Environment Effects Act 1978.

Clause 2 provides that the amendments come into operation on Royal Assent.

Clause 3 makes the amendment to the Act referred to above for the financial year to 30 June 2000 and allows the Governor-in-Council on the recommendation of the Minister to make further Orders in Council for later financial years if necessary.

Clause 4 makes the statute law revision amendment to the Environment Effects Act 1978.

The Committee makes no further comment.

The Bill was introduced into the Legislative Council on 20 April 1999 by the Honourable Geoff Craige MLC. The Second Reading Speech was delivered on 21 April 1999.

The Bill amends the Marine Act 1988 (the Act) with respect to the provision of pilotage services in port waters, including setting safety standards for the provision of those services; and extends the Marine Board of Victoria’s (the Board) powers to investigate and prosecute offences against that Act and the regulations.

Clause 2 the amendments come into operation on Royal Assent.

Clause 4 inserts new definitions into section 3 of the Act for "pilotage services" and "pilotage services provider".

Clause 5 inserts a new Part 3B into the Act and deals with the registration of pilotage services providers. New section 26R creates an offence of providing pilotage services without being registered.

Clause 8 inserts a new section 83A(1) and 83A(2) into the Act. 83A(1) and creates an offence to fail to comply with a request or requirement of an inspector conducting an investigation under section 82. Section 82 specifies the matters into which the Board may require an inspector to carry out an investigation. Further it an offence to knowingly give false or misleading information.

83A(2) provides for the privilege against self incrimination as follows:–

Clause 9 amends section 84 of the Act extending the Board’s powers of investigation to include investigations into the conduct of pilotage services providers. The amendment also extends the Board’s powers in relation to investigations to require a vessel to remain in port for up to 24 hours, to suspend a licence, certificate or registration for a period of 72 hours. Clause 12 increases certain penalties.

Clause 13 amends Schedule 4 in the Act and inserts new powers of the Board in respect to pilotage services providers.

Clause 14 amends the Act by inserting a new Schedule 6 on "Safety Standards for Pilotage Services Providers". These standards apply to providers unless alternative standards have been approved by the Board

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Denis Napthine MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill amends the Mental Health Act 1986 (the Act) to:–

• clarify provisions concerning quality assurance functions and powers of the Chief Psychiatrist and authorised officers;
• remove limitations concerning access by the Chief Psychiatrist and authorised officers to records held by defined psychiatric services under section 106 of the Act;
• comply with Victoria’s competition policy commitments following a national competition policy review;
• clarify the functions and powers of the Mental Health Review Board concerning persons subject to community treatment orders and restricted community treatment orders; and
• make a number of housekeeping amendments.

Clause 2 sections 1, 2 and 3 commence on Royal Assent the remaining provisions commence on proclamation but not than by 1 June 2000.

Clause 9(4) amends section 106(6) to remove the right of a person, other than a patient to refuse the Chief Psychiatrist or an authorised officer access to his or her medical records.

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

Clause 10 inserts a new section 106AC establishing a Quality Assurance Committee (QAC) to monitor standards of mental health services provided under the Act. The QAC consists of the Chief Psychiatrist and authorised officers appointed by the Chief Psychiatrist under section 106(1).

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Jeff Kennett MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 April 1999.

The object of the Bill is to assist in the prevention of price exploitation under the Commonwealth Government’s new tax system. The purpose of the Commonwealth Bill is to prevent suppliers from profiteering in the transition to the new tax system, either by failing to pass on to consumers the benefits of lower taxes on goods and services, or by unjustified price increases. The Bill applies the New Tax System Exploitation Code of the Commonwealth as a law of Victoria.

The Committee notes the following passage from the Explanatory Memorandum:–

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

Clause 2 Part 1 commences on Royal Assent the remaining provisions come into operation on proclamation, being a day on or after the day on which the A New Tax System (Trade Practices Amendment) Act 1999 of the Commonwealth commences. There are five separate Commonwealth Bills that must receive Royal Assent before the Victorian Act comes into force. They are the:–

• New Tax System (Goods and Services Tax) Act 1999;
• New Tax System (Goods and Services Tax Imposition- Excise) Act 1999;
• New Tax System (Goods and Services Tax Imposition-Customs) Act 1999;
• New Tax System (Goods and Services Tax Imposition- General) Act 1999; and
• New Tax System (Goods and Services Tax Administration) Act 1999.

Clause 4 defines "the Code". Clause 5 applies the Code as a law of Victoria.

Clause 6 deals with future modifications of the Code by Commonwealth legislation as they may apply to Victoria. There is to be a two month gap between the modification of the text by the Commonwealth Act or Regulation, and its application to Victoria pursuant to clause 5. The two month gap may be shortened by Order in Council. Alternatively the Order in Council may provide that a modification will not apply in Victoria.

Clause 7 applies the Commonwealth’s Acts Interpretation Act 1901 to the interpretation of the Code.

Clause 8 sets out the classes of persons to whom the Code applies as a law of Victoria such as persons carrying on business within Victoria; or persons ordinarily resident or connected with Victoria; or bodies corporate incorporated or registered under the laws of Victoria.

Clause 9 gives the Code extra-territorial application. Clause 13 the Act binds the Crown as far as the Crown carries on business directly or by an authority.

Clause 19 confers upon Commonwealth officers and authorities the powers and functions that are conferred upon them under the Victorian Code.

Clauses 21 to 23 jurisdiction for matters arising from the Victorian Code is conferred on the Federal Court of Australia in civil and criminal proceedings and the jurisdiction of Victorian Courts other than that relating to cross-vesting of jurisdiction are accordingly ousted (Refer: 9.4 below for statement to vary or alter section 85 of the Constitution Act 1975).

Clauses 24 to 28 deal with offences under the Code. Offences under the Victorian Code are to be treated as offences against Commonwealth law and Commonwealth laws are applied as laws of Victoria to offences against the Victorian Code. For the purposes of offences under the Code, Commonwealth laws are applied as the law for all participating jurisdictions.

Clauses 29 to 33 these clauses apply the Commonwealth’s administrative law system (Freedom of Information, Ombudsman etc.) as laws of Victoria and the other participating jurisdictions for the purposes of, and matters arising out of the Code.

Clause 34 provides an immunity from double jeopardy. Where a person has been punished for an offence in one participating jurisdiction they may not be prosecuted in another jurisdiction for the same offence.

Clause 37 provides that all fees, taxes, penalties, fines and other moneys payable under the Victorian Code are payable to the Commonwealth. This does not apply to circumstances where one person is ordered to refund an amount to another person.

Clause 39 allows the Governor-in-Council to make regulations not inconsistent with the Act for the purposes of giving effect to the Act.

Clause 38 declares that it is the intention of Division 3 of Part 5 to alter or vary section 85 of the Constitution Act 1975 (Refer: clauses 21 to 23 above).

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

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Bill McGrath MP with the Honourable Rob Maclellan MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill amends the Police Regulation Act 1958 (the Act) and the Firearms Act 1996. The major changes in the Bill are to:–

• enhance the integrity of Victoria Police by empowering the Chief Commissioner to dismiss from the force members who are unsuitable;
• respond to recommendations from the Ombudsman’s report on Operation BART (window shutters investigation);
• enable lateral entry to police ranks;
• enhance ethical standards and the disciplinary process;
• improve administrative matters; and
• implement a national scheme for recognising other Australian jurisdictions’ permits granted to international firearms owners.

Clause 2 part 1 commences on Royal Assent and the remaining provisions come into operation on proclamation but not later than by 1 June 2000.

Clause 6 inserts a new section 4AB into the Act and provides for the appointment of an Acting Chief Commissioner.

Clause 7 amends section 4B of the Act to provide for the additional function and duties of the Police Board, to provide for the additional function of reviewing the Chief Commissioner’s decision in relation to a dismissal of an unsuitable member under the new Division 1 of Part IV of the Act.

Clause 8 substitutes a new section 4D relating to the constitution of the Police Board (the Board) to consist of 4 members including the Chief Commissioner, for functions other than a review function (this is the current membership of the Board) and 4 members, excluding the Chief Commissioner but including a legal practitioner, when conducting the review function referred to in clause 7 above.

Clause 9 amends section 4F providing that the Board may not delegate its review function.

Clause 10 amends section 6 (dealing with the powers of a Deputy Commissioner) providing that only the Chief Commissioner may dismiss or suspend a member under section 68 and 68A.

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

Clause 11 removes the restriction on promotion in to the police force of persons outside the force and facilitates promotion of suitably qualified constables within the same position to senior constables by removing the appeal right.

Clause 12 amends sections 19 and 20 which remove the restriction on the rank of members who may execute process and warrants.

Clause 13 inserts the new Division 1 in Part IV of the Act to deal with the dismissal by the Chief Commissioner of unsuitable members. The clause inserts a new section 68 and new sections 68A to 68I.

New 68 provides that the grounds for such dismissal are that the Chief Commissioner is satisfied that the member is unsuitable to continue as member of the force, having regard to:– (a) the member’s integrity; and (b) the potential loss of community confidence in the force were the member to continue as a member of the force.

The member must be given notice in writing by the Chief Commissioner setting out the reasoning for such an order. The dismissal takes effect when the order is made. New 68A allows the Chief Commissioner to suspend the member (with pay) pending a decision under section 68.

New section 68B provides that a member may apply to the Board for a review of the decision. An application however does not stay the operation of the order to which it relates.

New section 68C provides that in conducting a review, the Police Board must consider the Chief Commissioner’s reasoning for the decision to dismiss the applicant from the force; the case presented by the applicant as to why the decision was not sound, defensible or well-founded; the case presented by the Chief Commissioner in answer to the applicant’s case. New section 68C(3) provides that-

Under new section 68D the Board may:– (a) confirm the order; (b) re-instate the member; (c) refer the matter back to the Chief Commissioner for further consideration; or (d) where re-instatement is not considered practical, order the Chief Commissioner to pay the member up to 12 months salary as compensation.

New section 68F provides that unless the Board grants leave, the Chief Commissioner, a member of the force or an employee in the Office of the Chief Commissioner are not compellable witnesses.

New section 68G allows all parties to appear in person or by legal representation, or by leave of the Board representation by any other person. Unless otherwise ordered by the Board each party bears their own costs of the review. New Sections 68H deals with contempt of the Police Board and 68I deals with protection and immunities of Board members, parties, representatives and witnesses.

Clause 14(1)(a) amends section 70(2) and allows the Chief Commissioner to transfer a member, direct the member take accrued leave or suspend the member from the force with pay at any time during an investigation. The current provision allows such action to be taken only at the beginning of an investigation.

Clause 14(1)(b) repeals section 71(2). Section 71(1) provides that if after conducting a preliminary investigation, the Chief Commissioner or authorised officer reasonably believes that a member of the force has committed a breach of discipline, the officer may be charged with that breach. Section 71(2) currently provides that the Chief Commissioner or authorised officer must not charge the member unless the member has been given an opportunity to give a written explanation of the matter.

Clause 14(1)(d) inserts a new section 76(1)(ca) extending the determination options available at disciplinary proceedings to include the power to adjourn charges with conditions and/or ban an officer from promotion or transfer to other duties for up to 2 years.

Clause 14(3) inserts a penalty in section 86(2) of the Act of 50 penalty units. Section 86(2) provides:–

Clause 15 inserts a new section 86AAA into the Act providing that where a charge is proven against a member under Division 2 of Part IV or a member of the force has been charged with an offence referred to in section 80 and the offence has been found proven or a member resigns from the force before a charge is finalised and the member has been suspended, the member forfeits all salary that accrued to him or her during the member’s suspension and must repay any salary that has been paid to him or her during the suspension. The Chief Commissioner has a discretion not to apply this sanction.

Clause 18 amends section 86L by substituting a new sub-section (2A) providing that:–

The existing provision (section 86L(2)) allowed a member of the force to make a complaint about serious misconduct of another member of the force to the Deputy Ombudsman only, and was discretionary.

Clause 20 inserts a new section 86V making it an offence for a person to victimise or take detrimental action (defined in the section) against a member who makes a complaint about the conduct of another member or acts as a witness in an investigation (Penalty: 12 months imprisonment/ $12,000/ 120 p.u. fine). It is a defence to such a prosecution that the complaint was made frivolously, vexatiously or in bad faith.

Clause 23 inserts a new section 95 to strengthen the offence of bribery and corruption and extends the time in which such proceedings can be taken from 12 months to 3 years.

Clause 25 inserts a new Division 3 of Part 5A dealing with search and seizure. The amendments insert a section 99 and 100 and new sections 100A to 100H into the Act.

Section 99 defines "relevant offence" such as taking a bribe, impersonating a member of the force, a failure to surrender a certificate of identity, uniform or other equipment. It also encompasses the unauthorised disclosure of information or documents obtained in the course of duty.

Section 100 deals with entry and seizure with the consent of the occupier or in accordance with a warrant under 100A or 100D.

Section 100A deals with applications for search warrants pursuant to the Magistrates’ Court Act 1989. 100B provides for announcement before entry. 100D deals with search and seizure of things not mentioned in the warrant. 100E deals with copying and retention of documents and 100F deals with the retention of things seized.

Clause 27 inserts a new clause 4 of Schedule 1A to alter the procedure of the Board to reflect the new review function introduced by the Bill.

Clause 30 extends the definition of prohibited person in section 3 of the Act to include persons subject to a supervision order under section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Clause 31 inserts a new section 186A to provide for the recognition in Victoria of temporary visitor permits issued under the law of another State or Territory to international visitors, for example, overseas shooters in events such as the Olympics.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 14 April 1999 by the Honourable Alan Stockdale MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 15 April 1999.

The Bill amends the Rural Finance Act 1988 (the Act) and makes a minor amendment of a statute law revision nature to section 14(4)(b) of the Act.

Clause 2 the amendment comes into operation on Royal Assent.

Clause 3 substitutes a new section 21 in the Act and changes the Rural Finance Corporation’s deposit-taking powers.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Marie Tehan MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill amends the Shrine of Remembrance Act 1978 (the Act) and alters the composition of the body corporate known as the Shrine of Remembrance Trustees (the Trustees) and extends the powers of the Trustees relating to certain improvement of the Shrine. The Bill provides for the appointment of Governors of the Shrine and makes a number of amendments related to the administration of the Act.

Clause 2 section 1 commences operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 October 1999.

Clause 8 amends section 3 and inserts new sub-sections (1) and (2) providing for the reconstitution of the body corporate. The new body corporate is to have eight trustees appointed by the Governor-in-Council, whereas the former provisions allowed for 14 trustees. Trustees are now to be appointed for five years and be eligible for re-appointment. Trustees under the existing provisions were not appointed for any fixed term.

Clause 9 provides that the trustees may charge a fee for entry to the undercroft of the Shrine, being the area proposed to be developed under the powers invested in the trustees by the provisions of this Bill.

Clause 10 inserts new sections 4A to 4K into the Act. 4A provides that the Minister may give written directions to the trustees.

New 4B allows the trustees, with the approval of the Minister to delegate, in writing, any of its powers, other than under section 4(1)(d) (the payment of gratuities or retiring allowances out of the fund),and the power of delegation, to any one or more trustee or any person appointed or employed by the trustees.

New section 4C deals with the terms of appointment of the trustees. New section 4H allows the trustees to appoint Governors of the Shrine of Remembrance, who may hold that office for up to five years and be eligible for re-appointment. New section 4I provides that the trustees not re-appointed as trustees by virtue of the reconstitution of the body corporate provided by this Bill are thereafter appointed as Life Governors of the Shrine of Remembrance.

Clause 13 contain transitional provisions providing that current trustees go out of office on the commencement of these provisions unless re-appointed.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 21 April 1999 by the Honourable Alan Stockdale MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 22 April 1999.

The Bill makes miscellaneous amendments to the Stamps Act 1958 (the Act).

Clause 2 saving section 16, the amendments commence operation on Royal Assent. Section 16 is deemed to have commenced on 1 May 1999.

Clause 8 amends section 71 of the Act in relation to family farms, to exempt from stamp duty the transfer of primary production property from a family company, all the shares in which are owned by related natural persons, to a natural person who is a shareholder or a relative of a shareholder.

Clause 16 inserts a new section 137AE(2) into the Act to reduce by a prescribed amount the dutiable value of taxi-cabs which have been converted to provide wheelchair access and can accommodate at least one wheelchair and has not been previously registered in Victoria or elsewhere. The amendment commences on 1 May 1999 to co-incide with the proposed commencement date for section 22 of the State Taxation (Further Amendment) Act 1998.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 14 April 1999 by the Honourable Alan Stockdale MP with the Honourable Bill McGrath MP. The Second Reading Speech was delivered on 15 April 1999.

The Bill amends the State Trustees (State Owned Company) Act 1994 (the Act) and transfers unallocated capital held in Common Funds 1 and 2 to the capital reserves of State Trustees Limited and makes amendments of a statute law revision nature.

Clause 2 the amendments commence operation on Royal Assent.

Clause 3 inserts a new section 25A in the Act enabling unallocated funds in Common Funds 1 and 2 to be transferred to the general funds of State Trustees Limited.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 14 April 1999 by the Honourable Bill McGrath MP on behalf of the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 15 April 1999.

The Bill amends The Constitution Act Amendment Act 1958 (the Act). The Act sets out the functions, powers and duties of the Electoral Commissioner, regulates elector enrolment procedures and the conduct of Parliamentary elections. The Bill includes a number of amendments to the Act that will modernise the management of electoral rolls and improve the administration of Parliamentary elections. Computerised records have meant that it is no longer necessary to maintain rolls classified in sub-divisions. The Bill also increases deposits paid by candidates at an election, provides that a candidate may only stand for one seat in an election in one House of the Parliament. And confirms that the full preferential voting system applies to State elections.

Clause 2 the amendments commence operation on 8 June 1999.

Clause 6 removes all references to subdivisions and repeals Parts III, IIIA and IV of the Act. The clause also inserts a new Part III including a new section 51 changing the period of overseas elector status form 3 to 6 years. Persons living with such an elector and turning 18 years of age whilst overseas may be enrolled. The Act is amended to permit a person who moves overseas for career or employment reasons and the spouse of such a person to enrol to vote as an overseas elector after that person has moved overseas.

An amended section 70 allows any elector, wherever enrolled, to object to any name on a roll. The current provision only allowed a person within the same sub-division to object to the enrolment of another person in that sub-division.

Clause 11 amends section 148P to provide for the de-registration of a party which has not endorsed a candidate for five years.

Clause 14 substitutes new sections 159(1) and 159(3). New 159(1) increases deposits to be paid by candidates on nomination from $250 to $350 for the Legislative Assembly and from $250 to $700 for the Legislative Council.

New section 159(3) amends the Act to prohibit candidates from nominating for more than one province or more than one district or for a province and a district in elections held on the same day. The existing section 159(3) only prohibits a person from nominating for election to the Council and the Assembly to be held on the same day.

Clause 20 amends sections 179(1) and 187(1)(b) providing that the second question asked of electors when they attend to vote changes from Where do you reside? to Where do you live?

Clause 23 amends various sections of the Act to provide that period in which postal votes may be accepted into the count be diminished from 13 to 9.

Clause 24 adds a new section 191(4) and allows a returning officer a discretion to allow a blind person or a person with sight impairment to vote outside the polling place but in proximity to it.

Clause 25 adds a new section 193(1)(f) prohibiting exit polling to take place within 6 metres of the entrance to a polling place or inside the polling place.

Clause 26 amends section 205 of the Act by repealing sub-sections (3), (4) and (5) which save certain votes from invalidity. Clause 29 also removes references to "saved votes" in section 208A(2). The amendments make it clear that Victoria has a full preferential voting system and not an optional preferential system. For example previously a vote marked 1, 2, 3, 3, 4 was valid but classified as exhausted after the second preference.

Clause 32 amends section 220 and permits electoral material to be attached to a postal vote application form.

Clause 33 inserts new sections 221(1)(g), (h) and (i) to add the following categories of person as eligible to register as general postal voters:–

• Persons caring for others who are seriously ill or infirm;
• "silent electors" whose addresses are not shown on the roll because of risks to the electors’ personal safety; and
• persons whose religious beliefs prevent them from attending a polling place on election day.

An electors postal vote status transfers with the electors enrolment when the elector moves to a new district and province.

Clause 35 adds section 267GA prohibiting publicity related to any exit polling during the hours of polling.

Clause 45 amends the Senate Elections Act 1958 to bring the time periods for fixing the nomination day and the polling day for Commonwealth Senate elections in line with the equivalent periods in the Commonwealth Electoral Act 1918.

The Committee makes no further comment.

The Bill was introduced into the Legislative Assembly on 24 March 1999 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 25 March 1999.

The Committee previously commented on this Bill in Alert Digest No. 2 of 1999 at page 38.

The purpose of the Bill is to encourage the voluntary disclosure and exchange of information about year 2000 computer problems and remediation efforts, compliance and for other purposes. The Bill provides limited liability protection for voluntary Year 2000 disclosure statements made between 27 February 1999 and 30 June 2001.

Clause 2 provides that saving Part 6, the Act is deemed to have commenced on 27 February 1999. Part 6 commences on Royal Assent. Part 6 deals with the regulation making powers and with the section 85 Constitution Act 1975.

Clause 8 provides that no civil action lies against a person making a Year 2000 disclosure statement and such a statement is not evidence against a person in a civil action to which a person is a party.

The Committee makes no further comment

Ministerial Correspondence

Magistrates’ Court (Amendment) Bill

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 Committee reported on the Bill in Alert Digest No. 1 of 1999 at page 3. The Committee expressed concern in seven separate amendments sought to be introduced by the Bill, and wrote to the Attorney-General on 24 March 1999. The Committee received a response from the Attorney-General on 31 March 1999 and reported her comments on 13 April 1999 at page 41 of the Alert Digest No. 2 of 1999. The Committee sought further advice on one aspect of the Attorney’s response concerning the liability to pay legal costs for the newly introduced compulsory examination procedure provided in clause 5 of the Bill which inserted a new section 56A into the Magistrates’ Court Act 1989.

The Bill was introduced into the Legislative Assembly on 24 March 1999 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 25 March 1999.

The Committee reported on the Bill in Alert Digest No. 2 of 1999 at page 23. The Committee expressed concern on four clauses in the Bill and wrote to the Attorney-General in the following terms:–

Clause 22 – Assistance order – Deals with applications under section 21 and provides the criteria for granting such an application where reasonable grounds are made out to a court, including:– the costs or difficulty of compliance with such an order and the gravity of the alleged offence for which the warrant is issued. An assistance order is in force for the duration of the relevant warrant and its conditions of issue must be endorsed on that warrant. Clause 22(3) the court is given discretion to make an order subject to any conditions it thinks fit.

3. Clause 24 – Existence and operation of assistance order not to be disclosed – creates an offence for the unlawful disclosure by a person subject to an assistance order of the existence of such an order to any person except a disclosure:– (a) to a person authorised to use the device; (b) to another person for the purpose of ensuring that the order is complied with; (c) to a legal practitioner acting for the person, for the purpose of obtaining legal advice or representation in relation to the order; or (d) in the course of legal or disciplinary proceedings (Penalty: 2 years imprisonment/ $24,000/ 240 p.u fine, or both).

4. Clause 31 – Unlawful interference with surveillance device – a person must not knowingly interfere with, damage, remove or retrieve a surveillance device that has been lawfully installed by a law enforcement officer (Penalty: 2 years imprisonment/ $24,000 /240 p.u. fine, or both (a body corporate - $100,000-$200,000/ 1000-2000 p.u. fine).

Last update 29/8/99 ©Parliament of Victoria