Fifth Annual Report of the Scrutiny of Acts and Regulations Committee, 1998

Chapter 3 Section 85 Of The Constitution Act 1975

3.1

The Scrutiny of Acts and Regulations Committee is required by section 4D(b) of the Parliamentary Committees Act 1968 to consider any bill introduced into a House of Parliament and to report to the Parliament. Section 4D(b) is set out:—

      (b) to consider any bill introduced into a House of Parliament and to report to the Parliament
      (i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;
      (ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; or
      (iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue.

3.2 Facts and Figures - 1997

In 1997, the following bills contained section 85 provisions: -

    1. Constitution and Parliamentary Committees (Amendment) Bill;
    2. Fire Authorities (Amendment) Bill;
    3. Local Government (Further Amendment) Bill;
    4. Police and Corrections (Amendment) Bill;
    5. Taxation Administration Bill;
    6. Law and Justice Legislation Amendment Bill;
    7. Melbourne and Metropolitan Board of Works (Amendment) Bill;
    8. Victims of Crime Assistance (Amendment) Bill;
    9. Veterinary Practice Bill;
    10. Podiatrists Registration Bill;
    11. Crimes (Mental Impairment and Unfitness to be Tried) Bill;
    12. Electricity Industry (Further Miscellaneous Amendment) Bill;
    13. Transport Acts (Amendment) Bill;
    14. Crimes (Amendment) Bill;
    15. Legal Practice (Amendment) Bill;
    16. Water Acts (Further Amendment) Bill;
    17. Confiscation Bill.

3.3 Appropriate and desirable in all the circumstances

In 1997, the following bills contained section 85 provisions. The Committee was of the view that the provisions in these bills were appropriate and desirable in all the circumstances:—

    1. Constitution and Parliamentary Committees (Amendment) Bill;
    2. Fire Authorities (Amendment) Bill;
    3. Local Government (Further Amendment) Bill;
    4. Law and Justice Legislation Amendment Bill;
    5. Melbourne and Metropolitan Board of Works (Amendment) Bill;
    6. Victims of Crime Assistance (Amendment) Bill;
    7. Veterinary Practice Bill;
    8. Podiatrists Registration Bill;
    9. Crimes (Mental Impairment and Unfitness to be Tried) Bill;
    10. Electricity Industry (Further Miscellaneous Amendment) Bill;
    11. Transport Acts (Amendment) Bill;
    12. Crimes (Amendment) Bill;
    13. Legal Practice (Amendment) Bill;
    14. Water Acts (Further Amendment) Bill;
    15. Confiscation Bill (two of the four section 85 provisions were considered appropriate and desirable in all the circumstances).

3.4 Adverse Reports - an overall perspective - 1997

In 1997, 3 bills contained provisions in respect of which the Committee made an adverse finding. It is important to understand the context of the term “adverse” when used in relation to reports. It includes reports where the Committee’s concerns were not accepted; the bills were not subsequently amended; the Committee was not in the position to report on the bills or the Committee did not finally form a conclusion. It does not simply include those bills which the Committee did not report as containing provisions which are “appropriate and desirable in all the circumstances”. It also includes those bills where the Committee referred to the Parliament to debate, the question of whether the section 85 provision is appropriate and desirable in all the circumstances. The 3 bills were:—

    1. Police and Corrections (Amendment) Bill;
    2. Taxation Administration Bill;
    3. Confiscation Bill (in respect of two of the four section 85 provisions, the Committee did not form a final conclusion).

3.5 Police and Corrections (Amendment) Bill - an adverse report

The Police and Corrections (Amendment) Bill amended various Acts to make provision for the transportation of prisoners and other matters. Section 9CB removed the ability of a prisoner or person injured during transportation to sue the officer responsible in the Supreme Court. Section 9CB provides that a person who uses reasonable force in accordance with the section is not liable for injury caused by that use of force. The Second Reading Speech stated:—

      The nature of the persons being transported and the need to ensure that transportation is carried out mean the amendment is desirable. Persons undertaking transport need to be confident that in acting in accordance with the section, they will be protected from proceedings against them when acting properly.

The Committee considered the matter. It was not persuaded that the clause was appropriate and desirable. The Committee wrote to the Minister. It took the view that contractors who transport prisoners should be in no better position than police officers who would normally carry out the function. To that end, the Committee expressed the belief that it would be more appropriate to authorise or specify that contractors may use “reasonable force” rather than ensure that such contractors are immune from suit. The insertion of an appropriate phrase within the legislation would give the contractors the authority to use appropriate force if required but ensure that if used unfairly, liability remains. The Committee therefore took the view that in those circumstances, there was no need to limit the jurisdiction of the Supreme Court.
The Committee delayed forming a final view on the matter, preferring to await the Minister’s response. The Minister however did not respond to any of the matters raised. The Committee was therefore unable to form a final view on the matter.

3.6 Taxation Administration Bill - an adverse report

The Taxation Administration Bill made a number of amendments to Taxation Acts. Clause 18 of the Bill sets out the provisions in relation to tax refunds. It establishes a procedure for recovering refunds. The Committee raised questions with the Minister in respect of the operation of the provisions and the meaning of the phrase ‘collateral action’ in the Second Reading Speech. The Committee was not persuaded that the preclusion of the use of prerogative remedies in the Supreme Court was appropriate in respect of the procedure outlined. It sought further information from the Minister. The Minister responded with a detailed letter which clarified the operation of the Act and the section 85 provisions. The relevant extract is set out:12—

      It should be emphasised that the application of section 85 of the Constitution Act 1975 to prevent the review of refund decisions is of limited application. The refund provisions set out time limits and procedural requirements which must be observed as a condition precedent to the issues of proceedings to recover an overpaid amount. During this period no proceedings to issue a civil action for recovery of the refund amount or to seek judicial review of the Commissioner’s actions in respect of his or her consideration of the refund application may be brought. If these requirements are complied with and a refund application is refused or not granted within three months, there is no restriction whatsoever on the action that might be brought to recover a refund amount. In this respect, the provisions do no more that the refund provisions in the existing taxing Acts. The ‘collateral action’ referred to in the Second Reading Speech is any civil action to recover the amount of refund as a debt from the Commissioner or any action seeking a judicial review of the Commissioner’s decision regarding the refund application, including the use of prerogative writs.

Clause 100 of the Bill provides that the Commissioner may permit a person to lodge an objection after the 60 day period. Clause 100(4) provides that the Commissioner’s decision is non-reviewable. Again, the Committee wrote to the Minister.
The Committee sought his advice as to the purpose of giving the Commissioner a discretion if in fact it is non-reviewable. The Committee advised the Minister that theoretically, this could mean that the Commissioner would never have to allow an objection out of time. The Committee sought the Minister’s comments before forming a final view. The Minister responded as follows:13—

      Clause 100 introduces a power for the Commissioner to allow a person to lodge an objection outside the specified 60 day period. This power does not exist in the present Taxing Acts. The purpose of the discretion is to allow a late lodgement of an objection in limited circumstances where the justice of the case justifies it - eg, if the person could not lodge an objection within the 60 day period through circumstances beyond their control. The practical effect of enabling a review of the discretion may be to undermine the 60 day period for lodging objections. Any person refused permission by the Commissioner to lodge an objection beyond that time would be able to take action to obtain judicial (rather than administrative) review of the Commissioner’s decision to refuse permission.

The Committee did not form a final view in respect of the two provisions about which it had concerns. However, the Minister’s letters clarified the operation of the provisions and the reason for the limiting of the jurisdiction of the Supreme Court.


12 Alert Digest No.6 of 1997.
13 Ibid.

3.7 Confiscation Bill - no final view

The Committee approved two of the four section 85 provisions in the Confiscation Bill. Of the two clauses not approved, one related to the Minister’s determination of an application for the return of property or payment of value. The other related to the Minister’s determination of the payment of value in respect of the buying out of interests in forfeited property. The Committee wrote to the Minister in each instance seeking clarification of the operations of the provision. A reading of the provisions clearly precluded the Minister’s decisions being the subject of an appeal in the Supreme Court. The Committee enquired whether any of the provisions prevented parties with an interest in forfeited property initiating civil proceedings between themselves after a Ministerial determination had been made. The Bill was considered at the end of the session and the Committee did not receive an answer. It was therefore unable to form a final view as to the appropriateness or otherwise of the section 85 provisions.

3.8 Direct amendment of section 85

On occasions, Bills contain provisions which make direct amendments to section 85 of the Constitution Act 1975. Pursuant to section 85(5), an explanation is not required where there is a direct amendment of section 85. For the purposes of providing information to members, the Committee choses to simply note that where direct amendments it is not required to form a view as to the appropriateness of the provision. The relevant parts of section 85 are set out:—

      “(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless—
      (a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section ; and
      (b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and
      (c) the statement is so made during the member’s second reading speech;”

This year, there were two bills which directly amended section 85 of the Constitution Act 1975. They were:—

    1. Constitution (Amendment) Bill;
    2. Accident Compensation (Miscellaneous Amendment) Bill.

 

     

SCRUTINY OF ACTS AND REGULATIONS COMMITTEE Home PageTable of ContentsTop of PageNext Page

Last update 13/5/99
©Parliament of Victoria