Scrutiny of Acts and Regulations Committee

Sixth Annual Report,
May 1999

Ordered to be printed
By Authority.  Government Printer for the State of Victoria.
No. 47 Session 1999

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. The section provides:–

4D The functions of the Scrutiny of Acts and Regulations Committee are –

(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 – 1998

In 1998, the following bills contained section 85 provisions:–

• Accident Compensation (Amendment) Bill Digest No. 7
• Appeals Costs Bill Digest No. 7
• Education (Teachers) Bill Digest No. 1
• Gas Industry (Amendment) Bill Digest No. 4
• Gas Industry Acts (Amendment) Bill Digest No. 8
• Gas Pipelines Access (Victoria) Bill Digest No. 3
• Health Services (Further Amendment) Bill Digest No. 6
• Legal Aid (Amendment) Bill Digest No. 8
• Legal Practice (Amendment) Bill Digest No. 6
• Melbourne and Olympic Parks (Amendment) Bill Digest No. 4
• Melbourne City Link (Exhibition Street Extension) Bill Digest No. 4
• Physiotherapists Registration Bill Digest No. 4
• Rail Corporation (Further Amendment) Bill Digest No. 8
• Rail Corporations (Amendment) Bill Digest No. 4
• Retail Tenancies Reform Bill Digest No. 1
• Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill Digest No. 3
• Victorian Civil and Administrative Tribunal Bill Digest No. 3

3.3 Whether appropriate and desirable in all the circumstances

In 1998, the following bills contained section 85 provisions reported by the Committee as appropriate and desirable in all the circumstances:–

• Accident Compensation (Amendment) Bill Digest No. 7
• Appeals Costs Bill Digest No. 7
• Education (Teachers) Bill Digest No. 1
• Gas Industry (Amendment) Bill Digest No. 4
• Health Services (Further Amendment) Bill Digest No. 6
• Legal Aid (Amendment) Bill Digest No. 8
• Legal Practice (Amendment) Bill Digest No. 6
• Melbourne and Olympic Parks (Amendment) Bill Digest No. 4
• Physiotherapists Registration Bill Digest No. 4
• Rail Corporation (Further Amendment) Bill Digest No. 8
• Rail Corporations (Amendment) Bill Digest No. 4
• Retail Tenancies Reform Bill Digest No. 1
• Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill Digest No. 3
• Victorian Civil and Administrative Tribunal Bill Digest No. 3

3.4 Adverse Reports – an overall perspective – 1998

In 1998, there were 3 bills that contained section 85 provisions in respect of which the Committee made an adverse finding. In the context of the Committee's work the term `adverse' includes reports where the Committee's concerns were not accepted; were shown ultimately to be unfounded; the bill was not subsequently amended; the Committee was not in a position to report on the bill; or the Committee did not finally form a conclusion. It also includes those bills where the Committee referred the question whether the section 85 provision was desirable in the circumstances to the Parliament.

The bills were:–

• Gas Pipelines Access (Victoria) Bill Digests Nos. 3 and 4
• Melbourne and Olympic Parks (Amendment) Bill Digests Nos. 4 and 5
• Gas Industry Acts (Amendment) Bill Digest No. 8

Gas Pipelines Access (Victoria) Bill

This bill was reported in respect to section 85 and other concerns raised by the Committee in Chapter 2 - The Scrutiny of Bills.

Melbourne and Olympic Parks (Amendment) Bill

The Committee's concerns in relation to a `no compensation' section 85 limitation is best summarized by reproducing the request to the Minister to provide further information and the Minister's response:–

Committee's Request

Clause 5 inserts new sections 25E and 25F and make provision for the power to excise additional land from Yarra Park and from Public Park Reserve.

Clause 6 states that it is the intention of section 26, as amended by the Bill, that no compensation be payable by the Crown in respect of any act or matter or thing done under or arising out of sections 25E or 25F of the Act.

Clause 6 further provides that it is the intention of section 26 as amended by the Bill, to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the passage from the Second Reading Speech:

`The existence of any interests and rights, and claims for compensation based on them or on the former uses of the land, could delay or prevent a change in the use of the land that is for the benefit of the community as a whole.'

The Committee seeks your advice as to the nature and extent of identified current or former users of the land that may be disadvantaged or affected by the section 85 provision.

Minister's response

Thank you for your letter of 12 May 1998 seeking advice regarding the provision to vary section 85 of the Constitution Act 1975 contained in the Melbourne and Olympic Parks (Amendment) Bill.

In response to your query, it is my understanding that there are no current or former users of the land subject to the Bill that may be disadvantaged or affected by the section 85 provision.

The proposed development at the National Tennis Centre is to straddle the land subject to the Bill and the existing "national tennis centre land" as defined by the Melbourne and Olympic Parks Act 1985. The Act already contains a section 85 provision that affects the "national tennis centre land" and it was therefore considered appropriate that the provision should extend to the land subject to the Bill.

Gas Industry Acts (Amendment) Bill

The Committee did not comment adversely on the bill as such, but noted that the section 85 provision applied retrospectively to the 22 October 1998, being the date the Minister delivered the Second Reading Speech in the Legislative Assembly. In Digest No. 8 the Committee noted the comments of the Minister in the Second Reading Speech and that the retrospective operation of the provision only applied to legal proceedings commenced after 22 October 1998. The Committee made no further comment in relation to these provisions however the Bill was amended in the Committee stage in the Parliament and these additional amendments included further section 85 provisions which were not reported in Digest No. 8 of 1998, these will be reported on in Digest
No. 1 of 1999.

3.5 A Brief History of Section 85 provisions

A Section 85 clause is one which alters, varies or limits the jurisdictions of the Victorian Supreme Court. The Committee has a particular obligation imposed on it under Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968 to examine each piece of legislation which contains a Section 85 provision in it and form a view as to whether the provision `is in all the circumstances desirable and appropriate'.

Any proposed change to the jurisdiction of the Supreme Court must be the subject of a detailed explanation given by the responsible Minister during the Second Reading Speech. Any legislation which contains a Section 85 provision must be passed by an absolute majority of both Houses. Any bill which does not comply with this procedure is rendered void. Further as mentioned in 3.1 above, any section 85 provision requires the consideration of the Scrutiny of Acts and Regulations Committee and report by the Committee to the Parliament pursuant to section 4D(b) of the Parliamentary Committees Act 1968.

The entrenchment procedure outlined above was the result of challenges to various pieces of Victorian legislation during the 1980's. The changes made to the Constitution in 1991 following a report by the Legal and Constitutional Committee, strengthened the protection given by the Constitution to the unlimited jurisdiction of the Supreme Court and introduced the particular requirements outlined above.

The requirements of the Victorian Constitution are unique in relation to the protection of the Supreme Court. In any other State, it is possible for provisions restricting applications to the Supreme Court or providing that compensation is not payable, to have full force and effect without compliance with any special procedure similar to the Victorian requirements.

Last Updated 18/8/99 ©Parliament of Victoria