Scrutiny of Acts and Regulations Committee
Discussion Paper No. 1 on the Operation of Section
85 of the Constitution Act 1975
Chapter Three - Bills Considered by the Committee in 1993 and 1994 which
contained "Appropriate and Desirable" Section 85 Provisions
- Part B
"This Bill was introduced into the Legislative Assembly
on 27 October 1993 by the Honourable Jan Wade (Attorney-General) with
the Honourable Phil Gude.
The Bill amends the Equal Opportunity Act 1984
by:
-
Providing for the expedition of the hearing of certain
urgent cases (usually involving the implementation of policies or
programs).
-
Establishing an Equal Opportunity Commission consisting
of five members appointed by the Governor in Council.
-
Abolishing the position of Commissioner for Equal
Opportunity and creating a new position of Chief Conciliator who
is also a member of the Commission.
-
Other miscellaneous amendments.
Supreme Court - Limitation of jurisdiction (Section
4d(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 24 of the Bill inserts a new section 62A
into the Act which declares its intention to alter or vary s.85 of the
Constitution Act 1975 to prevent the Supreme Court from entertaining
a proceeding to which s.61A applies.
In her Second Reading Notes, the Attorney-General states
that for reasons of public policy, the intention of s.61A is to provide
protection from liability to persons in relation to acts done or omitted
to be done in good faith and in the performance of their statutory duties.
The Bill extends this existing protection to the members of the Commission.
The Scrutiny of Acts and Regulations Committee accepts
this practical explanation and reports to the Parliament that the
alteration or variation is in all the circumstances appropriate and
desirable."
(19) PUBLIC SECTOR SUPERANNUATION (ADMINISTRATION)
BILL
"This Bill was introduced into the Legislative Assembly
on 27 October 1993 by the Honourable Alan Stockdale (Treasurer) with
the Honourable Ian Smith.
This Bill makes a number of major changes to both the
structure and the benefit design of Victoria's public sector superannuation
scheme. In particular it -
-
establishes the Victorian Superannuation Board
-
constitutes the Victorian Superannuation Fund
-
improves the administration of public sector superannuation
schemes
-
amends a number of Acts.
There are regulatory requirements which provide that accrued
benefits cannot be taken away. The minimum benefit payable by an employer
is 5% as required by the Commonwealth Superannuation Guarantee Charge
("SGC").
Clause 63 of the Bill declares its intention to alter
or vary section 85 of the Constitution Act 1975 to the extent
necessary to prevent the Supreme Court from entertaining applications
referred to in section 63 ie: prerogatives orders, declarations, injunctions
or orders under the Administrative Law Act 1978.
In his Second Reading Notes, the Treasurer states that:
"Clause 63 of the Bill provides that no proceedings
shall be brought for any prerogative orders, declarations, injunctions,
or orders under the Administrative Law Act 1978.
In his Second Reading Notes, the Treasurer states that;
"Clause 63 of the Bill provides that no proceedings
shall be brought for any prerogative orders, declarations, injunctions,
or orders under the Administrative Law Act 1978 in respect of the
matters covered by certain provisions of Part 4 of the Bill. These
provisions cover Orders in Council to bring existing schemes under
the administration of the Victorian Superannuation Board, to make
the Board the successor to the existing governing bodies and to settle
the terms and conditions of any transfer of assets, functions and
members between the Board and the administered schemes.
The Government is concerned that legal proceedings
could be used as a delaying tactic to frustrate the establishment
of the Board and the early implementation of the structural reforms.
Clause 64 therefore provides that the jurisdiction of the Supreme
Court should be limited to the extent necessary to prevent such proceedings
being brought."
The Committee accepts this practical explanation as
the exclusion relates solely to structural matters and reports
to Parliament that the alteration or variation is in all the circumstances
appropriate or desirable."
(20) NURSES BILL
"This Bill was introduced into the Legislative Assembly
on 20 October 1993 by the Honourable Marie Tehan (Minister for Health)
with the Honourable Phil Gude.
The Bill repeals and replaces the Nurses Act 1958
and establishes a new Nurses Board responsible for the registration
of nurses and for holding inquiries into the professional conduct of
registered nurses whenever required.
Supreme Court - Limitation of jurisdiction (section
4d(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 91 of the Bill declares its intention to
alter or vary section 85 of the Constitution Act 1975 to the
extent necessary to prevent the bringing of actions before the Supreme
Court referred to in proposed sections 35, 54(3) or 75.
Proposed section 35 of the Act gives immunity from
civil liability to any health practitioner who, in good faith, reports
to the Board her or his belief that a registered nurse with whom the
health practitioner works is "incapacitated".
"Incapacitated" is undefined, but guidance is
received from the Minister's Second Reading Notes that the word may
be interpreted as "unfit to practice nursing".
"Health practitioner" is also undefined, and
includes registered nurses, medical practitioners, psychologists and
any other colleague in the health field.
In the Second Reading Notes, the Minister states:
This provision is considered essential to ensure
that health professionals are not deterred by the threat of litigation
from reporting nurses who may be unfit to practise nursing to the
Board. It is considered vital given that the primary purpose of the
Act is to protect the public.
Proposed section 54(3) of the Act prohibits defamation
actions against the Board or its members for giving notice of determinations
made by a panel.
In the Second Reading Notes, the Minister states:
The objects of the Act will not be fulfilled if nurses
whose practice has been restricted or who have been deregistered or
suspended can continue to practise either in Victoria or elsewhere
because notice of the Board's action is not communicated to the relevant
authorities. This provision is essential to ensure that the Board
and its members can communicate vital information to the relevant
authorities without the threat of civil action for defamation against
them.
Proposed section 75 of the Act gives immunity to
members of the Board or the keeper of the register against personal
liability for anything done or omitted to be done in good faith and
without negligence in the exercise of powers or duties under the proposed
Act.
In the Second Reading Notes, the Minister states:
This provision is considered essential to protect
the Board and the person responsible for keeping the register from
personal liability for exercising the carrying out the functions conferred
upon them by statute.
The Committee is satisfied with each of these
explanations and reports to the Parliament that the alteration
or variation of section 85 of the Constitution Act 1975 is in all
the circumstances appropriate and desirable."
(21) TRANSPORT (AMENDMENT) BILL
"This Bill was introduced into the Legislative Assembly
on 27 October 1993 by the Honourable Alan Brown (Minister for Public
Transport) with the Honourable Phil Gude.
This Bill amends the Transport Act 1983. More specifically
it:
-
abolishes the Road Transport Licensing Tribunal;
-
substitutes the Roads Corporation (Vic Roads) into
that position;
-
establishes a new category of restricted, hire vehicle
licences which includes veteran, vintage and classic vehicles;
-
narrows the definition of a commercial passenger vehicle
so that a licence is only required if a vehicle is used to carry
passengers for hire or reward;
-
increases penalties to make the maximum penalty for
an offence involving an illegal commercial passenger vehicle operation
10 penalty units;
-
amends the Act so as to facilitate the introduction
of the automated fare collection system;
-
inserts a provision enabling police and authorised
Public Transport Corporation officers to request a person's name
and address if a reasonable belief is held by an officer that a
person has committed or is about to commit an offence - it is an
offence to refuse to give the information;
-
exempts tourist railways from the requirement to fence
the relevant railway;
-
inserts provisions which govern the operation of the
Board of the Public Transport Corporation.
Supreme Court - Limitation of jurisdiction (Section
4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 78 inserts a new section 37 in the Limitation
of Actions Act 1958 which declares its intention to alter or vary
section 85 of the Constitution Act 1975 to the extent necessary
to prevent the Supreme Court from entertaining an action brought in
respect of any land by any person in possession of that land adverse
to Public Transport Corporation.
The rationale for this is set out in the Second Reading
Notes where it is stated that:
"the reasons for preventing such actions from
being entertained as a result of a new section are:
(a) to ensure that the Public Transport Corporation
enjoys the same protection from adverse possession claims as the Crown
having regard to the similarity of the nature of the land held by
both the Crown and the Corporation. Both hold large areas of unfenced
land which people can easily encroach upon and not be detected to
be doing so or only detected at significant cost; and
(b) to ensure that the value of land held by the
Public Transport Corporation is not diminished by adverse possession
claims and disputes over ownership at time of sale which ultimately
may lead to less revenue being obtained which is contrary to the public
interest."
The Committee has written to the Minister requesting a
further explanation and advice as to how large a problem exists in relation
to adverse possession. The Committee is unable to report until an explanation
is received.
Clause 73 of the Bill inserts a new section 255
in the Transport Act 1983 which declares its intention to alter
or vary section 85 of the Constitution Act 1975 to the extent
necessary to prevent the Supreme Court entertaining actions relating
to damage caused by reason of a Tourist Railway operated by a person
under an order made under section 247(1) of the Transport Act not being
fenced in or fenced off.
The Committee notes the comments in the Second Reading
Notes which state that:
"the reasons for preventing such actions from
being entertained as a result of the new section are -
(a) to ensure that the protection against actions
due to the absence of fencing which is currently extended to the Public
Transport Corporation under existing section 249 of the Transport
Act is continued on the branch or other lines on which the Corporation
ceased to operate services and which are now occupied by persons from
Tourist Railway purposes; and
(b) to assist persons who operate Tourist Railways
to remain financially viable and thus to continue operating those
railways for the public good."
The Committee considers that the explanation is adequate
and reports that the provision is in all the circumstances appropriate."
(22) HEALTH SERVICES (AMENDMENT) BILL
"This Bill was introduced into the Legislative Assembly
on 27 October 1993 by the Honourable Marie Tehan (Minister for Health)
with the Honourable Phil Gude.
This Bill makes amendments to the Health Services Act
1988 and the Health Services (Conciliation and Review) Act
1987. It also:
-
makes provision for the appointment of case mix auditors
-
facilitates the voluntary amalgamation of registered
funded agencies and changes the status of the Health Services Commissioner
from that of a public servant to a statutory appointee.
-
exempts certain types of information from the confidentiality
provisions
-
amends the Health Services (Conciliation and Review)
Act 1987 to make provision for the position of Health Services
Commissioner and for an Acting Health Services Commissioner.
Supreme Court - Limitation of Jurisdiction Section
4D(b)(i) and (ii) Parliamentary Committees Act 1968.
Clause 11 of the Bill inserts a new section 157B
into the Health Services Act which declares its intention to alter or
vary Section 85 of the Constitution Act 1975 to the extent necessary
to prevent the bringing before the Supreme Court any action contemplated
in Clause 6 or 18F.
The Committee notes the Minister's comments in the Second
Reading Notes that:
"the reason for limiting the jurisdiction of
the Supreme Court in this way in that case mix auditors will have
access to confidential records. As the case mix auditors are acting
in compliance with duties set out in the Act and their duties are
essential for the working of the case mix funding system, it should
be clear that they are immune from legal proceedings against them
if they have acted in good faith and with reasonable care".
The Committee accepts this explanation and reports
that the provisions are appropriate in all the circumstances."
(23) PLANNING AND ENVIRONMENT (AMENDMENT)
BILL
"This Bill was introduced into the Legislative Assembly
on 10 November 1993 by the Honourable Rob Maclellan (Minister for Planning)
with the Honourable Bill McGrath (Minister for Agriculture).
This Bill improves the administration of planning schemes.
In particular it:
-
introduces Certificates of Compliance
-
establishes a new procedure to consider applications
which raise issues of State Policy or for which an applicant is
being disadvantaged by delay.
-
removes the automatic right of a person who did not
object, to appeal against the decision to grant a permit
-
extends the present requirement for an objector to
be affected by the grant of a permit - the objector must state reasons
for the objection
-
provides that a planning scheme may set out certain
types of applications which are exempt from normal notice provisions
and for which other requirements (if any are specified in the scheme)
apply.
Variation of Section 85 Constitution Act 1975
(Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Proposed Clause 35 inserts a new Section 201D which declares
its intention to alter or vary section 85 of the Constitution Act
1975 to the extent necessary to limit the jurisdiction of the Supreme
Court in relation to the hearing and determination of any proceedings
brought before the Administrative Appeals Tribunal under the amendments
made to the Act.
The Committee notes that the reason for limiting the jurisdiction
is to ensure consistency with other planning proceedings arising under
the Principal Act which are heard and determined by the Tribunal.
The Committee reports to the Parliament that the proposed
provision is in all the circumstances appropriate and desirable."
(24) BUILDING BILL
"This Bill was introduced into the Legislative Assembly
by the Honourable Rob Maclellan (Minister for Planning) with the Honourable
Phil Gude.
This Bill provides for the regulation of building and
building standards. More specifically it:
-
establishes the Building Control Commission as the
overseeing body for the building control system;
-
establishes a Building Practitioners Board which is
responsible for the registration oversight and discipline of a range
of building practitioners, including mechanical, structural and
geo-technical engineers, building surveyors, inspections and people
responsible for the on-site erection of temporary entertainment
structure;
-
establishes a Building Appeals Board which is responsible
for all appeal matters under the new legislation;
-
establishes a Building Appeals Board which is responsible
for all appeal matters under the new legislation;
-
establishes a Building Advisory Council;
-
establishes a Building Administration Fund for which
the Building Control Commission will be responsible.
-
introduces the option for private certification of
building permits;
-
introduces compulsory insurance cover for building
surveyors as a prerequisite to practising;
-
introduces options for Councils in terms of building
control responsibilities
Variation of Section 85 of the Constitution Act
1975 (section 4D(b)(i) and (ii) Parliamentary Committees Act
1968)
Proposed Clause 260 declares its intention to alter
or vary section 85 of the Constitution Act 1975 to the extent
necessary by preventing the Supreme Court from entertaining applications
in relation to municipal or private building surveyors for anything
done or omitted to be done in good faith in reliance on a certificate
given by a registered building practitioner under section 238.
The Committee notes the explanation that without that
immunity it would be impossible for the building surveyor to rely on
a certificate and reports to the Parliament that in all the circumstances
the provision is appropriate and desirable.
Proposed clause 260 declares its intention to alter
or vary section 85 of the Constitution Act 1975 to the extent
necessary to prevent the Supreme Court entertaining applications in
respect of events occurring before the commencement of the clause. The
Committee notes the explanation in the Second Reading Notes that this
ensures existing immunities remain and reports to the Parliament that
in all the circumstances the provision is appropriate and desirable.
Proposed clause 260 also declares its intention
to alter or vary section 85 of the Constitution Act 1975 to the
extent necessary to prevent the Supreme Court from entertaining actions
in respect of the apportioned liability (clauses 129 to 133) and of
the new limitation period for building actions. (Clause 134)
The Committee notes the explanation that it is necessary
to make it clear that the Supreme Court is to act in accordance with
those clauses and reports to the Parliament that in all the circumstances
the provision is appropriate and desirable."
(25) HEALTH AND COMMUNITY SERVICES (FURTHER
AMENDMENT) BILL
"This Bill was introduced into the Legislative Assembly
on 27 October 1993 by the Honourable Marie Tehan (Minister for Health)
with the Honourable Phil Gude.
This Bill amends a number of Acts in the Health and Community
Services portfolio to resolve legal or administrative problems which
have arisen in connection with their administration or to facilitate
the provision of services to the community. More specifically it:
-
amends the Children and Young Persons Act to make
amendments concerning mandatory reporting of physical abuse of children
consequential on changes made by other legislation;
-
repeals the Dietitians Act 1981 and makes provision
for the assets of the Dietitians Board of Victoria;
-
amends the Health (Fluoridation) Act 1982 concerning
the persons authorised to carry out functions under that Act;
-
amends the Intellectually Disabled Persons' Service
Act to enable contracting out of certain services;
-
makes various amendments to the Mental Health Act
1986;
-
amends the Psychologists Registration Act 1987
to provide for staff to assist the Psychologists Registration Board;
-
amends the Health Services Act 1988 concerning
the employment of certain Public Service staff employed in health
and community service related areas.
Supreme Court - Limitation of Jurisdiction (Section
4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 12 of the Bill inserts a new section 12
into the Health (Fluoridation Act) 1982 which declares its intention
to alter or vary section 85 of the Constitution Act 1975 to the
extent necessary to prevent the Supreme Court from entertaining actions
in respect of matters arising from section 4. In the Second Reading
Note the Minister states:
"The reason for limiting the jurisdiction of
the Supreme Court in this way is because the fluoridation of the public
water supply is so important in the interests of the public health
that bodies performing this function in accordance with the Health
(Fluoridation) Act 1982 should not be prevented from doing so by actions
before the court."
It appears reasonable to extend current protections to
a body which fluoridates a water supply under a contract or other arrangement
with a water supply authority. The Committee accepts the explanation
as to the importance of the fluoridation of the public water supply
and reports the proposed section is in all the circumstances appropriate.
Supreme Court - Limitation of Jurisdiction (Section
4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 27 of the Bill inserts a new section 138C
into the Act which declares its intention to alter or vary section 85
of the Constitution Act 1975 to the extent necessary to prevent
the Supreme Court from entertaining an action for compensation in circumstances
where section 138C provides that no compensation is payable.
This effectively means that actions cannot be brought
for compensation when a term or condition ceases to form part of an
individual employment agreement. This covers the scenario envisaged
by clause 27 which changes indefinite salary maintenance to six months
salary maintenance as set out in 1.10.
In the Second Reading Notes, the Minister states:
"The reason for limiting the jurisdiction of
the Supreme Court in this way is because the main purpose of the amendment
is to improve administration within the Department of Health and Community
Services. ... It would reduce the effectiveness of these measures
if compensation were payable in relation to these matters and actions
for compensation should not therefore be able to be brought before
the Supreme Court."
The Committee notes the explanation and reports that
the proposed section is appropriate in all the circumstances."
3.5 Extracts from all the Bills considered by the Committee in 1994
which contained "appropriate and desirable" Section 85
provisions. (No's 1 - 19)
"This Bill was introduced into the Legislative Assembly
on 7 September 1994 by The Honourable Bill McGrath MP with The Honourable
Pat McNamara MP.
The main purposes of this Bill are to promote animal welfare,
the responsible ownership of dogs and cats and the protection of the
environment. In particular it provides for: -
-
a scheme to protect the community and the environment
from feral and nuisance dogs and cats;
-
a registration and identification scheme for dogs
and cats which recognises and promotes responsible ownership;
-
the identification and control of dangerous dogs;
-
a registration scheme for domestic animal businesses
which promotes the maintenance of standards of those businesses;
-
matters related to the boarding of dogs and cats;
-
payments to the Treasurer from fees received Councils
under this Act; and
-
other related matters.
Supreme Court - Limitation of jurisdiction (Section
4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 99 declares its intention to alter or vary
section 85 of the Constitution Act 1975 to the extent necessary
to prevent the Supreme Court from entertaining proceedings to the extent
provided in sections 30(2) and 31(2).
Clause 30(2) provides that an authorised officer,
an owner or a person authorised by the owner does not incur any liability
for the destruction of any cat or dog found at large where in a place
where animals or birds are confined or tethered. Similarly, clause
31(2) provides that an authorised officer does not incur any liability
for the destruction of any cat or dog found at large in areas classified
as control zone under a management plan or as a conservation zone under
a planning scheme.
The Committee notes the comments in the Second Reading
Speech:-
"The reason for preventing the entertaining
of these proceedings is that without the protection provided in these
clauses, authorised persons may be reluctant to destroy dogs or cats
found at large in the vicinity of livestock or in a control zone or
conservation zone. To fail to destroy and to leave dogs and cats at
large in these areas presents an unacceptably high risk of death or
injury to livestock, wildlife or the environment."
The Committee considers that the explanation is adequate
and reports that the provision is appropriate and desirable in
all the circumstances."
(2) EMERALD TOURIST RAILWAY (AMENDMENT) BILL
"This Bill was introduced into the Legislative Council
by the Honourable Haddon Storey MLC on 7 September 1994.
This Bill amends the Emerald Tourist Railway Act 1977.
More specifically it: -
-
redefines the responsibilities and functions of the
Emerald Tourist Railway Board
-
changes the membership of the Board;
-
exempts the Board from any damage caused by the Emerald
Railway being fenced off;
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees
Act 1968)
Clause 13 extends the Board's exemptions from the
Fences Act 1968. It provides that the Board is not liable for any damage
which may be caused by the Board's land not being fenced off.
Clause 14 inserts a new section 48A into the Act
which declares its intention to alter or vary section 85 of the Constitution
Act 1975 to the extent necessary to prevent the Supreme Court from
entertaining actions relating to damage caused by reason of the Emerald
Tourist Railway not being fenced in or fenced off.
The Committee notes the comments in the Second Reading
Speech: -
"It is essential that the Board is able to proceed
with the enhancement of the operations of the railway without being
impeded by such claims for compensation."
The previous section 48 provided that "the Board
shall not be liable under the Fences Act 1968 to make any contribution
towards the construction or repairing of any dividing fence between
the land of any occupier and any land vested in the Board for the
purposes of this Act."
The Committee wrote to the Minister on 13 September 1994
requesting further information as to the exemption. The Minister responded
to the Committee on 22 September 1994. The relevant extract is set out:
-
"Thank you for your correspondence of 13 September
1994, seeking my advice as to whether the proposed section 48A of
the Emerald Tourist Railway Act 1977 mirrors provisions in other railway
legislation and why it is necessary to extend the exemption to the
Fences Act 1968.
This provision does mirror the provisions of section
249(2) of the Transport Act 1983 which relate to the operation of
tourist railways. That section provides inter alia that "....a
person operating a tourist railway.....must not..... be required to
fence or contribute to the fencing of any portion of the railway and
is not liable for any damage which may be caused by reason of the
railway not being fenced in or fenced off...."
However, the Emerald Tourist Railway is not a tourist
railway for the purposes of section 249 of the Transport Act 1983
and it is seen as important and indeed necessary that all tourist
railways, whether established by their own statute (Puffing Billy)
or via a Governor in Council authorisation under section 247 of the
Transport Act 1983 should, as far as practicable, be covered by similar
legislative provisions. Thus, the inclusion of section 48A in the
Emerald Tourist Railway Act 1977 ensures parity with other tourist
railways. Formal advice from the Department of Justice supports this
view that ".....in the interests of the consistency, this Department
has no objection to the inclusion of the immunity you propose in S.48
of the Act...."
Given that this section is an immunity provision,
it has been necessary to limit the jurisdiction of the Supreme Court
as per the section 85 statement in my Second Reading Speech, hence
the consequential amendment contained in clause 14 of the Bill.
I hope this information will assist your Committee
in its deliberations. If you require any further information, I suggest
you make contact with Tourism Victoria's Cabinet and Legislation Liaison
Officer."
The Committee thanks the Minister for his response and
reports that the proposed provision is appropriate and desirable
in all the circumstances."
(3) AGRICULTURAL AND VETERINARY CHEMICALS
(VICTORIA) BILL
"This Bill was introduced into the Legislative Assembly
on 7 September 1994 by The Honourable Bill McGrath MP with The Honourable
Pat McNamara MP.
The main purpose of this Bill is to enable the National
Registration Scheme for Agricultural and Veterinary Chemicals to operate
in Victoria. By way of background, the registration of chemicals is
controlled by each State. The National Registration Scheme will replace
the separate schemes for evaluating and registering chemicals existing
in each individual State. The Bill will apply the "Agvet Code"
as set out in the Commonwealth Agricultural and Veterinary Chemicals
Code Act 1994. The legislative package provides for the National Registration
Authority ("NRA") to control agricultural and veterinary chemicals
up to, and including, the point of sale. Control of use beyond the point
of sale will remain a State responsibility. There is widespread support
for the National Regulatory system from the chemical and rural industries
and from State and national regulatory authorities.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
Clause 31(4) declares its intention to alter or
vary section 85 of the Constitution Act 1975 to the extent necessary
to prevent the bringing before the Supreme Court any action, suit or
proceeding referred to in subsection (1).
Clause 31(1) provides that the State or a person
who is a co-ordinator of the Victorian jurisdiction cannot be sued for
any loss or injury arising as a result of the handling of chemical substances,
the carrying out of a step in the manufacture of a chemical product
or the inability to use a chemical product in a particular manner.
Clause 31(2) provides that if a suit is brought
against a person responsible for the manufacture, handling or supply
of a particular chemical product, it is not open to that person to defend
the action by claiming that the NRA has approved, registered or given
an exemption to the product in its' manufacture.
The Committee notes the comments in the Second Reading
Speech: -
"Clause 31(4) of the Bill is intended to alter
or vary section 85 of the Constitution Act 1975 to the extent necessary
to prevent the bringing before the Supreme Court of any action, suit
or proceeding referred to in clause 31(1). Clause 31(1) in effect
provides that no action, suit or other proceeding for damages lies
against Victoria or its responsible officer as a result of certain
matters_arising from the administration and operation of the National
Registration Scheme. The reason for preventing the bringing of these
proceedings is to protect the State from potential liabilities arising
out of the operation of the scheme at a national level and its administration
by the National Registration Authority."
The Committee accepts the Minister's explanation and reports
that the provision is appropriate and desirable in all the circumstances."
(4) COURTS (GENERAL AMENDMENT) BILL
"This Bill was introduced into the Legislative Assembly
on 9 November 1994 by The Honourable Jan Wade MP with The Honourable
Pat McNamara MP.
This Bill amends the Jurisdiction of Courts (Cross-vesting)
Act 1987, the Supreme Court Act 1986, the County Court
Act 1958 and the Magistrates' Court Act 1989. Its purposes
are: -
-
to make further provision in relation to the transfer
of special federal matters from the Supreme Court to federal courts;
-
to extend the operation of the Jurisdiction of
Courts (Cross-vesting) Act 1987 to the Australian Capital Territory;
-
to make further provision for reserve judges;
-
to make various other amendments to other Acts;
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968
Clause 6 inserts a new clause 17 into the Jurisdiction
of Courts (Cross -vesting) Act 1987 which declares its intention
to vary section 85 of the Constitution Act 1975 to the extent
necessary to require matters for determination in a proceeding pending
in the Supreme Court to be transferred to the Federal court or another
court in accordance with section 6. The Committee notes the comments
in the Second Reading Speech: -
"These amendments (in this Bill) are the result
of an agreement of the standing committee of Attorneys-General and
all other state jurisdictions have made similar arrangements.
Clause 6 of the Bill inserts a new provision in the
Jurisdiction of Courts (Cross-Vesting) Act with the intention of altering
or varying section 85 of the Constitution Act 1975. It is necessary
to amend the Supreme Court's jurisdiction to give effect to the new
provisions in respect of special federal matters agreed to by the
Standing Committee of Attorneys-General."
The Committee is of the view that the proposed provision
is appropriate and desirable in all the circumstances."
(5) MELBOURNE SPORTS AND AQUATIC CENTRE BILL
"This Bill was introduced into the Legislative Assembly
on 9 November 1994 by The Honourable Tom Reynolds MP with The Honourable
Alan Stockdale MP.
The purposes of the Bill are to: -
-
establish a Melbourne Sports and Aquatic Centre Trust;
-
provide for the construction, management and operation
of a Melbourne Sports and Aquatic Centre;
-
provide for the use and promotion of a Melbourne Sports
and Aquatic Centre;
-
provide for the use of the Melbourne Sports and Aquatic
Centre land.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
Clause 26 provides that no compensation is payable
in respect of anything done under section 24. Clause 31 declares
its intention to alter or vary section 85 of the Constitution
Act 1975 to the extent necessary to prevent the Supreme Court
awarding compensation in respect of anything done under or arising out
of section 24(1) or because of the granting of a lease to the Trust
or the transfer or assignment of any of the Trust's interests under
a lease by or under Division 2 of Part 3. The Committee notes the comments
in the Second Reading Speech: -
"The reason for limiting the jurisdiction of
the Supreme Court is that the Bill allows the committee of management
at Albert Park to grant a lease of the Melbourne Sports and Aquatic
Centre land for purposes other than the purposes for which the land
is reserved. The Bill also allows the Trust to assign its interests
under the lease for those purposes. Any claims for compensation based
on the former use of the land could delay or prevent a change in the
use or status of Crown land that is for the benefit of the community
was a whole. It is in the public interest for the rights on the site
to be clarified to allow this major development to be built. This
facility will significantly enhance the amenity of the area to park
users, local residents and Melburnians generally."
The Committee wrote to the Minister to ensure that there
were no private legal interests affected before forming a conclusion
on the Section 85 provision. The Minister responded by way of a letter
dated 25 November 1994. The relevant extract is set out: -
"I refer to your letter of 23 November, concerning
the Melbourne Sports and Aquatic Centre Bill.
This Bill deals with certain Albert Park Land. One
of the purposes of this Bill is to deal with the use of the Melbourne
Sports and Aquatic Centre land which was permanently reserved by Order
in Council dated 21 March, 1876 as a site for a public park. The reservation
for this purpose involves public access or public use of that land.
There may have been suggestions in some Victorian
cases that members of the public may have a right to compensation
if the status of these type of public access or use of reservations
is changed. For this reason legislation revoking or otherwise changing
the status of reserves includes a no compensation clause and an accompanying
clause limiting the jurisdiction of the Supreme Court.
The Bill overrides the reservation of Albert Park
land to the extent that it applies to the Melbourne Sports and Aquatic
Centre land to allow the land to be used for purposes other than reserved
purposes and to allow the land to be leased for those other purposes.
Because the Bill alters the status of the reservation
of the land and allows it to be leased for purposes consistent with
the new status it was considered necessary that the no compensation
and section 85 clauses should be included for similar reasons to those
applying in other cases where the reservation of the land is affected.
It should be noted that the Albert Park Land Act
1972 provided a similar scheme for overriding the reservation of Albert
Park land and allowing the land to be leased for purposes other than
those for which it was reserved. That Act provided a no compensation
clause.
You also raised the issue of any private interests
currently occupying part of the site intended for development. The
clubs concerned, the South Melbourne Districts Sports Club and the
Ajax Football and Cricket Clubs have acknowledged that they are required
to vacate their respective buildings on the site no later than 6 March
1995.
I trust that this information satisfies any concerns
that the Committee may have."
The Committee notes the Minister's response and
is of the view that the provision is appropriate and desirable in all
the circumstances. However, the Committee notes that these type of provisions
are common in Victorian legislation. The Committee will be reviewing
this aspect of the section 85 procedure and will report to the Parliament."
(6) STATE TAXATION (AMENDMENT) BILL
"This Bill was introduced into the Legislative Assembly
on 9 November 1994 by The Honourable Alan Stockdale MP with The Honourable
Ian Smith MP.
The purpose of this Bill is to make amendments to certain
taxation Acts.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
New section 60 inserted by clause 5 declares its
intention to vary or alter section 85 of the Constitution Act 1975 to
the extent necessary to prevent the Supreme Court entertaining proceedings
of a kind to which section 29(1) applies, except as provided in that
section. New section 29 governs the refund or recovery of tax
paid or purportedly paid under the Act and provides that actions cannot
be brought against the Commissioner except as specified in that section.
The Committee notes the comments in the Second Reading Speech: -
"The proposed new section 60 of the Debits Tax
Act, to be inserted by clause 5 of the Bill, will provide that it
is the intention of that provision to alter or vary section 85 of
the Constitution Act. This provision precludes the Supreme Court from
entertaining proceedings of a kind to which the proposed new section
29(1) of the Debits Tax Act applies.
The reason for limiting the jurisdiction of the Supreme
Court is that refunds of overpaid debits tax (other than refunds claimed
on the grounds of invalidity of provisions in the Act) are only to
be made where the person seeking the refund has lodged an application
for the refund within three years of the date of overpayment. The
purpose of the proposed new section 29 of the Act would not be achieved
if the Supreme Court could entertain an action seeking such a refund
notwithstanding that no application for a refund had been lodged with
the Commissioner within three years from overpayment.
This limitation of the Supreme Court's jurisdiction
is consistent with the limitation which already applies under the
refunds regime proposed by the previous government and enacted in
the State Taxation (Amendment) Act 1993."
The Committee is of the view that the provision
is appropriate and desirable in all the circumstances."
Scrutiny
of Acts and Regulations Committee
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Parliament of Victoria
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