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 C
"This Bill was introduced into the Legislative Assembly
on 9 November 1994 by The Honourable Jeff Kennett MP with The Honourable
Pat McNamara MP.
This Bill amends the Public Sector Management Act 1992.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
Clause 11 inserts a new section 105(2) 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 for compensation in respect of the Act. It provides that no
compensation is payable. The Committee notes the comments in the Second
Reading Speech:
"Clause 11 of the Bill provides that it is the
intention of that clause to alter or vary section 85 of the Constitution
Act 1975. This provision precludes the Supreme Court from entertaining
actions for compensation where the Public Sector Management Act as
amended by the Bill provides that no compensation is payable.
The reason for limiting the jurisdiction of the Supreme
Court is as follows. The main purpose of the Bill is to improve the
administration of the Public Sector Management Act 1992. The Bill
provides in part for the termination of employment in the public sector
in certain circumstances. It would reduce the effectiveness of the
Act if compensation were payable or action could be entertained in
relation to these matters."
The Committee is of the view that the provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 10 November 1994 by The Honourable Bill McGrath MP with The Honourable
Phil Gude MP.
This Bill consolidates five Acts about animal disease
control into one piece of legislation. It also:
-
provides for the cattle and apicultural industries
to contribute funding to industry initiated regulatory activities;
-
implements mutual recognition agreements by deregistering
the partially regulated occupation of artificial inseminators;
-
implements national uniform recommendations of 1989
on complementary legislation for the control of exotic animal diseases;
-
provides for very significant reform of provisions
for cattle and bee compensation and regulation of the artificial
breeding industry;
-
provides for specified animal identification procedures
and disease reporting requirements.
Variation of Section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) and iii) of the Parliamentary Committees
Act 1968)
Clause 138 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 of the kind referred to in sections
105(2) and 106. The Committee notes the comments in the Second Reading
Speech:
"Clause 105(2) prevents the institution or continuation
of certain proceedings to prevent or restrain the Minister, the Secretary,
an inspector or any other person from undertaking disease control
activities where an outbreak of an exotic disease has been certified
to exist. The reason for preventing the entertaining of these proceedings
is to ensure there is no interruption or delay to activities necessarily
associated with controlling and eradicating exotic animal diseases.
Interruptions to disease control programs will lead
to further spread of disease and more hardship to the livestock industries
in general. It will be noted that a person is not prevented from taking
out Supreme or other court action to redress grievances against negligent
activities undertaken in control programs.
Clause 106 provides that a person is not personally
liable for anything done in good faith when assisting an inspector
in exercising powers under the Bill. Without the protection provided
in this clause, persons may not be willing to assist inspectors in
undertaking control activities which are necessary to prevent the
introduction or spread of livestock diseases in Victoria. The Government
will ensure that it is in a position to meet claims in respect of
losses incurred or damage suffered as a result of Acts done in good
faith by persons assisting inspectors."
The Committee is of the view that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 23 March 1994 by The Honourable Phil Gude on behalf of the Honourable
Marie Tehan with The Honourable Bill McGrath.
This Bill replaces the Medical Practitioners Act
1970 with a new statutory framework for the registration of medical
practitioners in Victoria. More specifically, the Bill:
-
establishes a new registration board for medical practitioners;
establishes the Medical Practitioners Board of Victoria and the
Medical Practitioners Board Fund of Victoria;
-
provides a new registration scheme for medical practitioners;
-
establishes a process for dealing with medical practitioners
whose capacity to practise is in question;
-
regulates the advertising of medical services by registered
medical practitioners;
-
creates disciplinary procedures;
-
repeals the Medical Practitioners Act 1970
and makes consequential amendments to other Acts;
Supreme Court - Limitation of Jurisdiction (section
4D(b)(ii) of the Parliamentary Committees Act 1968)
Clause 97 of the Bill states 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 actions of
the kind referred to in sections 37(3), 38, 57(3) and 76 of the Bill.
Clause 37(3) operates to vary section 85 of the
Constitution Act 1975 by providing that a medical practitioner
is not subject to any civil or criminal liability for making a report
to a registration body, if the report is made in good faith. The Committee
notes the Minister's comments in the Second Reading Notes:
"This provision is considered essential to ensure
that medical practitioners are not deterred by the threat of litigation
from reporting to the relevant registration body registered health
practitioners whose ability to practise is in question if that reporting
is done in good faith. This immunity is considered vital if the public
is to be assured that it will be protected."
Clause 38 operates to vary or alter section 85
by providing that a registered health practitioner in a working or treating
relationship with a medical practitioner is not subject to any civil
liability for reporting a medical practitioner whom he or she believes
to be incapacitated, if the report is made in good faith. The Committee
notes the Minister's comments in the Second Reading Notes:
"This provision is also considered essential
to ensure that health professionals are not deterred by the threat
of litigation from reporting medical practitioners who may be incapacitated
to the Board. It is considered vital that this immunity be included
given that the primary purpose of the Act is to protect the public."
The Committee notes the explanation and reports that the
proposed section is appropriate in all the circumstances.
Clause 57(3) varies or alters section 85 by providing
that no action lies against the Board or its members for giving a notice
under Clause 57(1), ie, a notice regarding a determination by the Board.
Note that pursuant to Clause 57(1)(d), the Board must give notice of
its determination in the Government Gazette and to various medical bodies
including those outside Australia, if requested. The Committee notes
the comments in the Second Reading Notes:
"The purposes of the Act will not be fulfilled
if medical practitioners whose practise has been restricted or who
have been suspended or deregistered can continue to practise either
in Victoria or elsewhere because notice of the Board's action has
not been 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."
The Committee notes the explanation and reports that the
proposed section is appropriate in all the circumstances.
Clause 76 of the Bill operates to alter or vary
section 85 by providing that a member of the Board or the person responsible
for keeping the register is not personally liable for anything done
or omitted to be done in good faith and without negligence in the exercise
of a power or duty under the Act or in the reasonable belief that the
Act or omission was in the exercise of a power or duty under the Act.
The Committee notes the Minister's comments in the Second
Reading Notes:
"This provision is essential to protect the
Board and the person responsible for keeping the register from personal
liability for carrying out the functions conferred upon them by statute."
"This Bill was introduced into the Legislative Assembly
on 30 March 1994 by The Honourable Michael John with The Honourable
Phil Gude.
This Bill amends the Children and Young Persons Act
1989.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i) and(ii) of the Parliamentary Committees Act
1968.)
Clause 35 inserts a new section 279A 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 bringing before the
Supreme Court, a matter over which the Children's Court has exclusive
jurisdiction as a result of amendments.
In particular, this clause covers the Children's Court
to make orders when a child is seventeen which extend beyond the eighteenth
birthday up until the nineteenth birthday. The Committee notes the comments
in the Second Reading Speech:
"The Bill amends probation orders, youth supervision
orders and youth attendance orders to give the Court greater scope
when sentencing an offender who is nearly eighteen at the time of
sentence. At present, if a child appears before the Court just before
his or her eighteenth birthday, there are few sentencing options available
to the Court given that these orders expire on a child's eighteenth
birthday. The Bill amends the Act so as to allow these orders to be
able to operate until a child's nineteenth birthday to remedy this
hiatus in the law.......
This section has been included to make it clear that
the Children's Court can make orders when a child is seventeen which
extend beyond the person's eighteenth birthday and that while the
order is in force, the Court can hear applications for variation and
revocation in relation to those matters.
A number of technical amendments are also contained
in the Bill. This Bill is a reflection of this Government's commitment
to the improvement of child protection services in this State and
ensures that the Children's Court has the sentencing options available
to it to adequately deal with young offenders."
The Committee reports that the proposed provision
is desirable and appropriate in all the circumstances."
This Bill was introduced into the Legislative Assembly
on 30 March 1994 by The Honourable Alan Brown with The Honourable Phil
Gude.
This Bill amends the Transport Act 1983 and introduces
three transport reforms. More specifically, it:
-
ensures that the Department of Transport and the Public
Transport Corporation have separate and distinct roles and responsibilities;
-
establishes a zero blood alcohol requirement for workers;
-
establishes the Victorian Taxi Directorate.
Supreme Court - Limitation of jurisdiction (section
4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 28 inserts a new section 255A 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 bringing before the
Supreme Court of an action of the kind referred to in proposed new sections
96(12), 97(7) or 98(10).
These sections relate to the taking of blood samples by
legally qualified practitioners in accordance with those section. The
Committee notes the comments in the Second Reading Notes:
"The reason for preventing the bringing of proceedings
against medical practitioners who take blood samples under new sections
96,97 and 98 as proposed to be inserted in the Transport Act 1983
by this Bill is that, without such protection, such medical practitioners
would be reluctant to take a blood sample from a worker as the provisions
allow and this would seriously impede the proper operation of the
new legislation."
"This Bill was introduced into the Legislative Assembly
on 20 April 1994 by the Attorney-General, The Honourable Jan Wade with
The Honourable Michael John.
The purposes of this Bill are:
-
to provide for the appointment of a Director of Public
Prosecutions, a Chief Crown Prosecutor, Crown Prosecutors and a
Solicitor for Public Prosecutions and set out their respective powers
and functions;
-
to require that certain decisions be made by the Director
of Public Prosecutions only after the advice of a Committee on the
decision;
-
to make new provisions with respect to the manner
of dealing with certain contempts of court;
-
to establish an Office of Public Prosecutions;
-
to establish a Committee for Public Prosecutions;
and
-
to repeal the Director of Public Prosecutions Act
1982.
Supreme Court -limitation of jurisdiction (section
4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 49 of the Bill states 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 in respect
of:
(a) any person other than the Attorney-General for punishment
of a person for a contempt of court that involves an interference with
the administration of justice. The Committee notes the comments in the
Second Reading Speech:
"The reason for this is that the power to bring
an action for criminal contempt is to be vested in the Attorney-General
acting only on the advice of the Solicitor-General. There is considerable
support for the proposition that actions for criminal contempt should
not be brought by way of presentment, in the same manner as other
criminal proceedings, but be brought under the rules of the Court
and that it is a matter more properly handled by the Attorney-General.
By vesting the power to bring actions for criminal contempt in the
Attorney-General, acting on advice, the perceived danger of a conflict
of interest is avoided in situations where the Director seeks to make
presentment for contempt against a party who he or she is prosecuting
for criminal charges which may either be before the court at that
time or being considered by the Director, or where the prosecution
for contempt relates to such matters. Vesting this power in the Attorney-General
is consistent with the Attorney-General's role as first law officer
with responsibility for the administration and protection of the justice
system.
The Committee notes the explanation and reports that the
proposed provision is appropriate in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 27 April 1994 by The Honourable Don Hayward with The Honourable Phil
Gude.
This Bill amends the Vocational Education and Training
Act 1990. Its purposes are to:
-
reform organisational and accountability arrangements
in the State training system and;
-
implement the agreement to establish a national vocational
education and training system and;
-
makes miscellaneous amendments to various other Acts.
Supreme Court - Limitation of jurisdiction (section
4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 61 of the Bill proposes to insert a new
section 93A 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, an action of the kind referred
to in section 91A.
Clause 59 of the Bill inserts a new section 91A
into the Vocational Education and Training Act 1990. New section 91A
provides that no action lies against any person for any breach of any
duty of care whilst that student is employed under and agreement or
practical placement arrangement. The Committee notes the comments in
the Second Reading Speech:
"The reason for prevention of the bringing of
such an action is that it is impossible for college staff to exercise
effective supervision of a student while that student is working in
accordance with a placement arrangement. In effect, that student is
working in an employment situation under the supervision of the employer
with whom the student is placed. The rights of the students to compensation
for work-related injuries in relation to placements are adequately
protected because they are deemed to be workers for the purposes of
the Accident Compensation Act 1985 by the definition of "worker"
in section 5(1) of that Act."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 27 April 1994 The Honourable Alan Stockdale, the Treasurer with The
Honourable Ian Smith.
This Bill establishes the legal framework for the float
of the TAB as a public company. It deregulates the racing industry.
More particularly, it makes provision for:
-
the business of wagering;
-
the business of conducting approved betting competitions;
-
the business of conducting gaming;
-
the business of conducting club keno;
-
the business of on-course wagering.
Variation of section 85 of Section 85 of the Constitution
Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary
Committees Act 1968)
Clause 141(a) of the Bill states 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 of
actions in respect of acts or omissions referred to in clause 62.
Clause 62 provides that no liability attaches to
the Minister, the Authority or the licensee or any officer or auditor
of the licensee for any act or omission in good faith and in the exercise
or discharge or purported exercise or discharge of a power or duty under
Part 4 governing the regulation of shareholdings. The Committee notes
the comments in the Second Reading Notes:
"The reason for preventing such an action is
to ensure that the maximum level of shareholdings stipulated in the
Bill can be enforced by a relatively simple procedure and without
prejudice to the interests of other shareholders."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances.
Clause 141(b) states 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 of actions in respect
of a right or interest referred to in clause 203.
Clause 203 extinguishes any right or interest of
a club in money or other property of or held by the TAB whether arising
under section 116Q of the Racing Act 1958 or in any other way
whatsoever and subsisting immediately before the commencement of clause
203. The Committee notes the comments in the Second Reading Notes:
"The reason for preventing such actions is to
ensure that the arrangements affecting the TAB and the racing industry
implemented in the Bill are in full-time settlement of any outstanding
rights and interests in property of the TAB."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 4 May 1994 by The Honourable Ian Smith with The Honourable Phil Gude.
This Bill provides for the establishment and the general
powers and functions of the Office of the Regulator-General which will
act as a general regulatory body for industries which are made subject
to regulation in accordance with the Act. The Office of the Regulator-General
will be concerned with the economic regulation of the electricity, gas
and water industries. More specifically, its purposes are to:
-
establish the Office of the Regulator-General;
-
create an economic regulatory framework for regulated
industries which promotes and safeguards competition and fair and
efficient market conduct or, in the absence of a competitive market,
which promotes the simulation of competitive market conduct and
the prevention of the misuse of monopoly power.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees
Act 1968.
Clause 41 states 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
32(8) or 40 of the Bill.
Clause 32(8) excludes civil proceedings for damage
that may be suffered in respect of providing information or documents
in an inquiry, whether or not the statement is made or the document
is given in connection with a written submission or a public hearing.
The Committee notes the comments in the Second Reading Speech:
"The reason for limiting the jurisdiction of
the Supreme Court with respect to clause 32(8) is to give persons
who wish to make statements or provide information, a degree of confidence
that their statements or information can be made without a fear of
litigation. This is likely to enhance the quality of the submissions
and information made available to the Office, and thus contribute
to the quality of its reports."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances.
Clause 40 provides that proceedings cannot be brought
in respect of a determination or a provisional order or a final order
except on the grounds that there was no power to make the determination
or order or that the procedural requirements in relation to the making
of the determination or order have not been complied with. The Committee
notes the comments in the Second Reading Notes:
"The Bill provides for an appeals panel and
process associated with the Office, and the commercial nature of the
industries to be regulated requires that appeals be heard and decided
as quickly as possible. It is considered that the appeals mechanism
would satisfy the requirements for appellants to be given a fair hearing
and for a considered decision on any appeals to be made.
Similarly it is necessary to ensure that where the
Regulator-General makes orders to comply with determinations or with
the terms of any licence they should operate without risk of questions
challenging the substance of the order being referred to court except
on the grounds mentioned, since direct and effective enforcement is
essential to the scheme of economic regulation provided for in the
Bill."
The Committee notes that the proposed provision
would prevent the bringing of appeals, which in other circumstances
would be considered desirable. The Committee also notes that the equivalent
British legislation contains no appeal provisions and refers the matter
to Parliament to debate."
"This Bill was introduced into the Legislative Assembly
on 4 May 1994 by The Honourable Pat McNamara with The Honourable Phil
Gude.
This Bill transfers the management of the Swan Hill Pioneer
Settlement to the Swan Hill City Council. It also repeals the Swan
Hill Pioneer Settlement Act 1974, the Coal Creek Historical Park
Act 1975 and the Gippsland Folk Museum Act 1976.
Variation of section 85 of the Constitution Act 1975
(section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act
1968)
Clause 17 of the Bill states 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 for compensation
in circumstances, where under, section 16, no compensation is payable.
Section 16 states that no compensation is payable
by the Crown in respect of anything arising out of section 8. Section
8 relates to the revocations of reservations of Crown land. Section
16 also states that no compensation is payable by the Crown in respect
of the extinguishment of any lease pursuant to section 10. The Committee
notes the comments in the Second Reading Notes:
"It is essential that the transfer of activities
of the Pioneer Settlement to the Swan Hill City Council proceed without
delay and without being impeded by such claims for compensation. It
is in the public interest that the Council's management of the Pioneer
Settlement be ratified by the Parliament."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 4 May 1994 by The Honourable Phil Gude with The Honourable Pat McNamara
on behalf of The Honourable Alan Stockdale, the Treasurer.
This Bill provides for the old State Trustees to be established
as a new company which will be wholly owned by the State. The company
is called State Trustees Limited.("State Trustees")
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees
Act 1968)
Clause 40 inserts a new section 30D which states
its intention to alter or vary section 85 of the Constitution Act 1975
to the extent necessary to prevent the Supreme Court entertaining claims
in the circumstances described in section 30A(3) of the Act.
Section 30A gives the State Trustees the power
to make distribution of an estate after a notice of refusal has been
served. The person, the subject of the notice of refusal has 3 months
within which to institute proceedings to enforce the claim, Section
30A(3) prevents the person, the subject of the notice of refusal from
bringing any claims in respect of the estate, once distribution has
occurred. The Committee notes the comments in the Second Reading Notes:
-
"The reason for limiting the jurisdiction of the
Supreme Court is to remove uncertainty and facilitate prompt distribution
of estates by ensuring that subsequent claims are not recognised."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 4 May 1994 by The Honourable Alan Brown with The Honourable Phil
Gude.
By way of background, the Committee notes the comments
in the Second Reading Notes: -
"The operators of Victoria's two oil refineries,
Mobil Oil Australia and Shell Australia, as a joint venture , have
formed a company, Crib Point Terminal Pty. Ltd and have purchased
the former BP refinery site at Crib Point on Westernport Bay which
is adjacent to the Port of Hastings. That location has been chosen
by the joint venture as it is a site where they consider an oil terminal
facility can be constructed to enable the economic off-loading and
storage of imported crude prior to its conveyance to the refineries
for processing.
The Bill before the House will assist the development
and operation of the proposed new terminal. The legislation applying
to the old BP site and an adjacent parcel of land is overhauled by
the Bill to smooth the path for this critical development which the
Government firmly supports."
The Bill facilitates the development and operation of
the proposed new terminal and provides for the initial construction
and subsequent operation of an authorised pipeline from Crib Point to
Dandenong along an approved route, including provision for new easements.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees
Act 1968)
Clause 7 of the Bill inserts section 16 into the
Act which states its intention to alter or vary section 85 of the Constitution
Act 1975 to the extent necessary to prevent the Supreme Court entertaining
actions for compensation in circumstances in which no compensation is
payable by virtue of section 15.
Section 15 provides that no compensation is payable
by the Crown or the Company in respect of the extinguishment, creation
or variation by the Act of an interest, right, privilege or obligation
over land. The Committee notes the comments in the Second Reading Notes:
-
"The reasons for preventing the Supreme Court
from having the actions referred to brought before it and for preventing
the court from awarding compensation are that these might frustrate
or impede the purposes of the Bill which are to give effect to a scheme
which will be beneficial to the community as a whole. It is important
to recognise that the pipeline easements dealt with by the Bill have
existed over relevant land for may years and the Bill basically confirms
their existence."
The Committee reports that the proposed provision
is appropriate and desirable in all the circumstances."
"This Bill was introduced into the Legislative Assembly
on 6 May 1994 by The Honourable Phil Gude with The Honourable Bill McGrath.
This Bill establishes the Melbourne Exhibition Centre
Trust. It also provides for the management and operation of the exhibition
centre and the development of the Melbourne Exhibition Centre Land.
Variation of section 85 of the Constitution Act 1975
(section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees Act 1968)
Clause 35 of the Bill states 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 section 21 or 24.
Section 21 provides for the closure of the roads
on the Melbourne Exhibition Centre Land. Section 24 deals with
the use of existing Crown Land reservations for the carrying out of
works. The Committee notes the comments in the Second Reading Notes:
-
"The reasons for restricting the Supreme Court's
jurisdiction in this way are to ensure that the Crown's ability to
deal with this land as part of the Exhibition project is not restricted
by any claim which members of the public may have and which may arise
from the previous dedication of the roads to the public or the nature
of the reservations."
The Committee reports that the proposed 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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