"This Bill was introduced into the Legislative Assembly
on 5 October 1994 by The Honourable Rob Maclellan MP with The Honourable
Phil Gude.
This Bill amends various Acts. Its purposes are: -
-
to alter the dates of the municipal financial year
and the date of Council elections;
-
to alter its provisions concerning the creation and
operation of regional corporations;
-
to transfer provisions concerning regional waste management
groups from the Local Government (Miscellaneous) Act 1958
to the Environment Protection Act 1970;
-
to repeal the Local Government (Miscellaneous)
Act 1958 and the Prahran Market Act 1979.
Variation of section 85 of the Constitution Act
1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act
1968)
Clause 27, new section 50QB 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 any appeal
or challenge from the decision of the Minister, or an arbitrator or
panel of arbitrators appointed by the Minister made under section 50QA.
The Committee notes the comments in the Second Reading Speech: -
"Clause 27 of the Bill inserts a new section
50QB which is intended to vary or alter section 85(5) of the Constitution
Act 1975 to the extent necessary to prevent the Supreme Court from
entertaining any appeal or challenge from the decision of the Minister,
or an arbitrator or panel of arbitrators appointed by the Minister
under section 50QA.
The reason for limiting the jurisdiction of the Supreme
Court is that is not appropriate for a body with a local interest
to be able to bring an action in relation to a decision made by independent
persons in the regional interest. It is not appropriate that a municipal
council or governing body of a regional waste management group with
a local interest in the outcome of a dispute should be able to challenge
a decision of the Minister, or an arbitrator or panel of arbitrators
appointed by the Minister which gives precedence to the interests
of the region as a whole. A regional perspective is critical to conserve
existing and potential landfill space, cover the costs incurred in
managing suitable landfill sites for the disposal of wastes, and manage
waste cost-effectively and with minimal impact on the environment."
Chairman's Note:
"This Bill was introduced into the Legislative Assembly
on 12 October 1994 by The Honourable Geoff Coleman MP with The Honourable
Phil Gude MP.
The purposes of this Act are to: -
-
amend the National Tennis Centre Act 1985 to
make further provision for national tennis centre land;
-
amend the Land (Revocation of Reservations) Act
1994 to continue leases over the Eastern Market Site at Melbourne
despite the revocation of the reservation and Crown grant of that
land;
-
remove several reservations over land including land
set aside for the Janefield Colony for the Treatment of Mental Defectives;
-
amend the Land (Further Miscellaneous Matters)
Act 1994, repeal various other Acts and make other related provisions.
Variation of section 85 of the Constitution Act
1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
Clause 5 amends section 26 of the National Tennis
Centre Act 1985 to provides that no compensation is payable by the Crown
in respect of anything done or arising out of new sections 25A, 25B,
25C and 25D. Clause 6 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 sections 25A, 25B, 25C, 25D and 26. The
Committee notes the comments in the Second Reading Speech: -
"The reason for preventing the Supreme Court
from awarding compensation is as follows:
To enable the Crown to change the use or status of
land, it is necessary to ensure that the land is no longer subject
to any interests or rights arising out of the former use. The existence
of these interests and rights and claims for compensation based on
them or on the former use of the land could delay or prevent a change
in the use or status of the land that is for the benefit of the community
as a whole. To facilitate use of the land to which this Part applies,
it is also necessary to provide a mechanism to divest and excise land
shown on the plans proposed to be inserted in Parts 3 and 4 of the
Schedule to the National Tennis Centre Act 1985."
Clause 21 provides that no compensation is payable
by the Crown in respect of any thing done under or arising out of this
Part. Clause 22 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 this Part. The Committee notes the comments
in the Second Reading Speech: -
"The reason for preventing the Supreme Court
from awarding compensation is as follows: -
To enable the Crown to change the status of reserved
land, it is necessary to ensure that the land is no longer subject
to any interests or rights arising out of the former use. The existence
of these interests and rights and claims for compensation based on
them or on the former use of the land could delay or prevent a change
in the use or status of the land that is for the benefit of the community
as a whole. To facilitate use of some of the land to which this Bill
applies it is also necessary to revoke several Crown grants."
"The Committee reported on the Crown
Lands Acts (Amendment) Bill in Alert Digest No. 13 on 15 November
1994. The Committee made the following comments in respect of clause
17 in the Alert Digest : -
"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 amends section 412 of the
Land Act 1958 to declare its intention to alter or vary section
85 of the Constitution Act 1975 to the extent necessary to prevent
the Supreme Court from awarding compensation in the circumstances where
section 133C(4) or 133F(3) provides that no compensation is payable.
Clause 11 of the Bill inserts new sections 133C
and 133F(3). The Committee notes the comments in the Second Reading
Speech: -
"The Land Act as proposed to be amended by clause
11 of the Bill will include compensation provisions and it is for
this reason that the ability of the Supreme Court to award compensation
is restricted. In the case of termination of a lease, the Land Acquisition
and Compensation Act will apply. In the case of termination of a licence,
there will be a pro rata refund of the licence fee. Where a lease
or licence is terminated because of non-compliance with its terms,
compensation would not be appropriate and will not be payable. However,
a lessee or licensee will be entitled to remove improvements which
he or she owns whether the lease or licence is terminated because
of non-compliance or otherwise."
The Committee wrote to the Minister. The Minister responded
by way of a letter dated 21 November 1994. The relevant extract is set
out:
"Clause 17 of the Bill
In light of the comments made by the Committee, clause
17 was deleted by house amendment in the Legislative Assembly on 17
November. During the debate, Mr Coghill asked that consideration be
given to enabling appeals to be taken to the Administrative Appeals
Tribunal in the first instance rather than the Supreme Court. I am
advised that the AAT does not presently have any jurisdiction in relation
to either commercial or residential tenancies. It seems, therefore,
that the Supreme Court is the appropriate forum.
I hope the above comments are of assistance to the
Committee."
The Committee reported on the Corrections (Amendment)
Bill in Alert Digest
No. 11 on 8 November 1994. The Committee made the following comments
in the Alert Digest in respect of new section 9CB. The relevant extract
is set out: -
"Variation of Section 85 of the Constitution
Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary
Committees Act 1968)
(b) New section 9CB provides that an authorised
person who uses reasonable force whilst minding prisoners in custody
is not liable for injury caused by that use of force. The Committee
notes the comments in the Second Reading Speech:
"Section 9CB will provide where a person employed
by a contractor to manage a police gaol and it is necessary to use
reasonable force in the performance of their duties that the person
does not incur any liability for acting in accordance with that clause.
The reason for preventing the entertaining of these
proceedings is that without the protection provided in clause 22 that
clause would not be effective to enable persons required to manage
police gaols to ensure the security and welfare of all detainees."
The Minister responded by way of a letter dated 14 November
1994. The relevant extract is set out:
"2. New Section 9CB - Variation of Section
85 of the Constitution Act 1975
Prison officers and contractors responsible for the
management of prisoners and police officers currently supervising
persons detained in police gaols are exempt from legal proceedings
in the Supreme Court arising from the use of reasonable force, the
former by virtue of section 23 of the Corrections Act 1986 and the
latter according the common law. Contractors who are engaged to supervise
persons detained in police gaols should be afforded the same protection
for the use of reasonable force that is given to prison officers and
police officers.
A defence of reasonable force to a claim brought
by a prisoner will have the undesirable effect of reversing the onus
of proof on the defendant contractor, requiring the contractor to
prove that reasonable force was used. There is no reason why the burden
of proof should be imposed on the contractor, when no such burden
of proof lies against prison officers or police members in actions
brought by prisoners for the use of unreasonable force.
The defence will also have the effect of limiting
the ability of the Supreme Court to consider the issue of force used
at the expense of proceedings being issued. Any limitation on the
jurisdiction of the Supreme Court to consider the issue of reasonable
force should avoid the necessity for legal proceedings to be issued,
and this requires a statement to be made regarding section 85 of the
Constitution Act 1975.
I trust the above advice is of
assistance."
"The Committee reported on this Bill in Alert
Digest No. 13 of 1994 on 15 November 1994. The relevant extract
is set out:-
Variation of Section 85 of the Constitution Act
1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968.
Clause 13 provides that no compensation is payable
by the Crown in respect of anything done under or arising out of this
Act. Clause 14 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 this Act. The Committee notes the comments in
the Second Reading Speech:
"Clause 14 of the Bill provides that it is intended
to alter or vary 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 this Act. The reason for preventing the
Supreme Court from awarding compensation is as follows:
To enable the Crown to change the status of land
to a status more appropriate to its current use, it is necessary to
ensure that the land is no longer subject to any interests or rights
arising out of the former use, other than those specifically provided
for by the principal act. The existence of these interests and rights
and claims for compensation based on them could delay or prevent a
change in the use or status of the land."
The Minister responded by way of a letter dated 18 November
1994. The relevant extract is set out:
"I refer to your letter of 16 November 1994
concerning clauses 13 and 14 of the above-mentioned Bill and the intention
of those clauses to limit the jurisdiction of the Supreme Court in
relation to anything done under or arising out of the Act.
Sections 27 and 33 of the Victorian Plantations Corporation
Act 1993 prevent the Supreme Court from awarding compensation in respect
of anything done under or arising out of the Act. That Act provided
for the vesting and divesting of land, revocation of reservations
and road closures, in order to facilitate the formal transfer of management
of plantations to the Corporation. In order to ensure that those processes
were not impeded or delayed by claims for compensation arising out
of the former use of the land, the Act contained provisions to limit
the jurisdiction of the Supreme Court.
The Victorian Plantations Corporation (Amendment)
Bill merely provides for the further vesting and divesting of land
to and from the Corporation, to facilitate more efficient management
of the plantation estate. Inclusion of a provision in this Bill to
limit the jurisdiction of the Supreme Court was considered necessary
as it was unclear whether the scope of sections 27 and 33 of the Principal
Act would extend to the further vesting and divesting actions provided
for by the Bill. I am not aware of any rights which are likely to
be infringed by the limitation of the Supreme Court's jurisdiction
in the case of the matters provided for by this Bill.
The removal or alteration of land tenure is a decision
which properly rests with the Parliament with any beneficial interests
taken into account during the development of the legislation. The
provisions are required to prevent unnecessary impediments to or delays
in, the change of land status and are not intended to unduly interfere
with the rights of any private person with an interest in the land."
"This Bill was introduced into the Legislative Assembly
on 9 March 1994 by The Honourable Geoff Coleman with The Honourable
Phil Gude.
This Bill amends various Acts which relate to Crown land
and land transactions. More specifically, it provides for:
-
the revocation of reservations of land which are described
in the Schedules to the Bill;
-
the surrender of land to the Crown to enable the sale
of the land;
-
the amendment of the Melbourne Lands Act 1987
to correct errors to the Schedule;
-
the issue of a lease over a small portion of a wildlife
reserve for shellgrit extraction purposes;
-
other enabling provisions with the various land transactions
proposed by the Bill;
Supreme Court - Limitation of Jurisdiction (section
4d(b)(i) and (ii) of the Parliamentary Committees Act 1968)
Clause 20 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 this Act.
This effectively means that actions for compensation cannot
be brought in respect of any alterations made to the title of any piece
of land dealt with by this Act. In the Second Reading Notes, the Minister
States:
"The reason for preventing the Supreme Court
from awarding compensation is as follows:
To enable the Crown to change the use or status of
reserved land, it is necessary to ensure that the land is no longer
subject to any interests or rights arising out of the former use.
The existence of these interests and rights, and claims for compensation
based on them or on the former use of the land, could delay or prevent
a change in the use or status of the land that is for the benefit
of the community as a whole. To facilitate use of some of the land
to which this Bill applies, it is also necessary to revoke a Crown
Grant to enable the surrender of certain land to the Crown...."
The Committee notes the explanation. The Committee wrote
to the Minister to request his advice as to whether he was aware of
any rights which may be removed as a result of Clause 20. The Minister
responded in a letter which is set out:
"I refer to your letter of 17 March 1994, regarding
Clause 20 of the above Bill and the intention of that clause to limit
the jurisdiction of the Supreme Court.
The provision referred to is common to all Bills
of this type and is required to ensure that no action arises over
changes in status of reserved land. I am not aware of any rights which
are likely to be infringed by the limitation of the Supreme Court's
jurisdiction in this case.
The removal or alteration of permanent reservations
of land is a decision which properly rests with Parliament, with any
beneficial interests affected taken into account during the development
of the legislation. The provision is required to prevent the unnecessary
impeding of changes of and status in the courts and is not intended
to unduly interfere with the rights of any individual with an interest
in the land."
"The Committee reported on this Bill in Alert
Digest No. 4 on 19 April 1994. The Committee made the following
comments in respect of certain provisions in the Bill:-
Variation of section 85 of the Constitution Act
1975 (Section 4D(b)(i) and (ii) of the Parliamentary Committees Act
1968)
Clause 23 of the Bill prevents proceedings being
brought in the Supreme Court against any person in respect of any action
taken or purported to have been taken or proposed to be taken to sections
7(1), 7(2), 7(3), 7(4), 13(3), 14(3) or 15 of the Bill.
Clause 24 declares its intention to alter or vary
section 85 of the Constitution Act 1975 to prevent the Supreme
Court entertaining the applications referred to in section 23.
Sections 7(1), 7(2), 7(3) and 7(4) relate to the
appointment of the Commissioners for the new Council. Section 13(3)
provides for orders in council to be made in relation to the first election
of the Councillors. Section 14(3) relates to the first meeting
of the elected Council. Section 15 is the general enabling provision
which enables orders to be made for a range of purposes associated with
the implementation of the Act.
The Committee notes the comments in the Second Reading
Speech: -
"This Bill is a critical element of the Government's
reform program for restructuring local government. It establishes
a Greater Bendigo City Council.......The proposal before the House
follows closely the recommendations of the Local Government Board
in its final report on the structure of local government in the Bendigo
region.....The Minister for local government has considered the recommendations
of the Board's final report, the Act provides for a new local structure
to be put in place by order of the Governor-in-Council.
.....Because of the attempt of the rural city of
Marong to halt that process, the matter has been brought back to the
Parliament to ensure the smooth implementation of the restructure.
The proceeding initiated by the rural city of Marong is being opposed
in the Supreme Court but legislation is being introduced now to ensure
that the benefits of restructure can be implemented without delay.........
The orders which can be made under each of the provisions
listed deal with critical aspects of the municipal restructuring proposed
in the Bill. It is essential for the successful implementation of
the restructuring that the matters addressed in such orders proceed
smoothly without challenge.
Councils have resorted to litigation in the past
as a means of frustrating proposals for boundary change. The provisions
will ensure that the Courts cannot be used to delay and frustrate
the implementation of the restructuring."
The Minister replied to the Committee in a letter dated
29 April 1994, the contents of which are set out:
"Thank you for your letter of 14 April 1994
which raises concerns regarding several provisions of the City of
Greater Bendigo Bill.
It is not my intention to proceed with the Bill and
arrangements will be made to withdraw the Bill at the appropriate
time. However, I offer the following in response to your concerns
you have raised in your letter -
Clause 15 - Orders in Council
Clause 15 is identical to clause 21 of the City of
Melbourne Act 1993 on which the Committee raised similar concerns.
It remains my view that it is not possible to anticipate and deal
with all the implementation issues that may arise in relation to primary
legislation. The ability for the Governor in Council to make Orders
in relation to the implementation of the Bendigo area restructuring
is critical to the success of the proposal.
There has traditionally been an ability to deal with
the implementation issues through Orders in Council. This was the
approach adopted in the Local Government Act 1958 and , more recently,
in the Local Government (General Amendment) Act 1993 and the City
of Greater Geelong Act 1993.
Each restructuring throws up its own unique issues
to be resolved and the Government must be in a position to act promptly.
An ability to act through Orders in Council is essential.
Clause 23 - Legal Proceedings excluded (from jurisdiction
of the Supreme Court)
Your letter requests that I justify each clause and
subclause to which section 23 applies.
Subclauses 7(1), (2), (3) and (4) all deal
with the appointment of Commissioners. As with the City of Melbourne,
the appointment of Commissioners is clearly a critical element of
restructuring. The existing councillors would go out of office upon
the Bill receiving Royal Assent and it is imperative that there be
a smooth change over to the Commissioners. It would be most improper
that challenges could be brought in relation to the initial or to
any subsequent appointments as a means of frustrating the changes
being proposed.
Subclause 13(3) relates to the holding of
the first elections. I note your concern that an Order could be made
creating wards which had differences in voters of greater than 10%.
As in all cases of setting ward boundaries by Order, the general principles
spelt out in s.220 of the Local Government Act 1989 must be applied.
It is clear from s.220 of the Act that ward boundaries must be fair
and equitable and the number of voters should not vary by more than
10% from the average number of voters for the entire municipal district.
It is important that the first election be able to proceed smoothly
and without challenge. It remains my view that the courts are clearly
not an appropriate place for settling differences in relation to such
matters as new ward boundaries.
Subclause 14(3) provides that the Governor
in Council may give directions to provide for any matters in relation
to the first meeting of the elected council. The transition from the
Commissioners to the newly elected councillors is also a critical
period and the process should not be frustrated by challenges.
Clause 15 contains general provisions for
the Governor in Council to make any necessary Orders to enable the
implementation of the Bill. The restructuring of the Bendigo area
should not be frustrated by challenges to matters, which while important
to the smooth implementation of the restructure, are essentially housekeeping
matters.
Councils have resorted to litigation in the past
as a means of frustrating proposals for boundary change as demonstrated
recently by the Rural City of Marong in relation to the proposed Order
to restructure the Bendigo region and the Cities of South Melbourne
and Port Melbourne in relation to the City of Melbourne Act 1993.
Clause 23 ensures, as far as possible, that the courts cannot be used
to delay and frustrate the implementation of the restructuring of
the Bendigo area by bringing proceedings in relation to the matters
specified.
I trust my comments will be of assistance."