Scrutiny of Acts and Regulations Committee

(8) EDUCATION ACTS (TEACHERS) BILL

"This Bill was introduced into the Legislative Assembly on 28 April 1993 by the Honourable Don Hayward (Minister for Education) with the Honourable Phil Gude.

The Bill creates a Standards Council of the Teaching Profession, and one or more Merit Protection Boards. The Teachers Registration Board and the Teaching Service Disciplinary Boards are abolished.

Section 85 Constitution Act 1975

Part 4 of the Bill abolishes the Teachers Registration Board, the appointments boards established under section 60 of the Teaching Service Act, the Teaching Service Appeals Boards and the Teaching Service Disciplinary Boards. Clause 11 of the Bill provides that no compensation or other amount is payable because of a person going out of office as a result of the abolition of these boards.

Clause 28 in Part 7 strengthens Part 4 by declaring that it is the intention of clause 28 to alter ... section 85 of the Constitution Act 1975 to prevent the Supreme Court from entertaining actions for compensation or other amount arising out of the Bill. In the Second Reading Notes the Minister states that it is necessary to avoid delays and legal proceedings resulting from compensation claims for loss of office in relation to the abolition of the bodies abolished by clauses 7 to 10 of the Bill. He adds that this is necessary to ensure the Government's debt reduction strategy achieves the required targets within the Directorate of School Resources.

The Committee regards this explanation, as a statement of government policy in this area, to justify the variation to section 85 of the Constitution Act 1975 in a manner that is in all the circumstances appropriate and desirable. (Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968.)"

(9) LOCAL GOVERNMENT (GENERAL AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 28 April 1993 by the Honourable Rob Maclellan (Minister for Planning for the Minister for Local Government) with the Honourable Phil Gude.

This Bill amends the Local Government Act 1989 by -

• establishing a Local Government Board to advise the Minister on efficient local government generally, including conducting reviews on local government restructuring, and advising the Minister on financial matters.

• providing that the owners and occupiers of jointly owned or occupied rateable land not otherwise entitled to be on the electoral roll can apply to be so entitled for elections after August 1993

• making amendments relating to exemption from rates, council powers to give public notice when inviting tenders for large contracts, and clarifying that it is an offence to fail to vote in the ward in which the person's principal place of residence is located.

Section 85 Constitution Act 1975

Clause 3 provides in proposed section 220N that legal proceedings are excluded against the Minister, the Local Government Board, and members or staff thereof, relating to a Local Government Review under proposed Part 10B of the Local Government Act.

Proposed Section 220O of the Act states that it is the intention of the section to alter or vary section 85 of the Constitution Act 1975 to prevent the Supreme Court from entertaining applications referred to in proposed section 220N.

In the Second Reading Notes, the Minister states that the Government's reasoned view is that "the courts are not the proper forum for settling differences which arise in relation to proposals for boundary changes. Litigation results in unnecessary community division and costs; costs, I might add, which are ultimately paid for by the ratepayers."

The Committee notes this as a trespass upon rights or freedoms (section 4D(a)(i) Parliamentary Committees Act 1968) in that it removes from Councils and ratepayers a right of legal redress in the Supreme Court. The Committee has written to the Minister asking whether he might consider an alternative avenue of appeal for Councils and ratepayers arising out of a Local Government Review.

The Committee reports that the proposed new sections by express words ... alter ... section 85 of the Constitution Act 1975 (section 4D(b)(i) Parliamentary Committees Act 1968) but that until it receives the requested explanation of the Minister it cannot report that this is in all the circumstances appropriate and desirable (section 4D(b)(ii) Parliamentary Committees Act 1968)."

(10) VICTORIAN PLANTATIONS CORPORATION BILL

"This Bill was introduced into the Legislative Assembly on 5 May 1993 by the Honourable Geoff Coleman (representing the Honourable Mark Birrell, MLC, Minister for Conservation and Environment) with the Honourable Alan Stockdale.

This Bill confers additional powers and functions on the Victorian Plantations Corporation which was established by Order in Council under the State Owned Enterprises Act 1992 on 4 May 1993. The intention of the Government is to corporatise state-owned plantation management.

Variation of section 85 Constitution Act; (section 4D(b)(i) Parliamentary Committees Act 1968 and section 4D(b)(ii) Parliamentary Committees Act 1968) .

Clause 33 of the Bill declares its intention to alter or vary section 85 of the Constitution Act to prevent the Supreme Court from awarding compensation in situations described in clause 27. The Minister representing the Minister for Conservation and Environment made the statement of intention required by section 85(5)(c) of the Constitution Act 1975 on 7 May, 1993.

Clause 27 declares that no compensation is payable by the Crown or the Corporation for the

• vesting or divesting of land under Division 2 of the Bill

• revocation of a reservation or closure of a road under Part 3.

The Second Reading Notes state that it is necessary to ensure that the processes described in clause 27 not be delayed or prevented by actions by the public brought for compensation in the Supreme Court.

The projected disentitlement which clause 27 creates is minimal. There are no known claimants and the clause has been inserted to safeguard against a remote possibility. The Committee thus reports that the alteration or variation of section 85 of the Constitution Act 1975 ... is in all the circumstances appropriate and desirable ."

(11) LAND TITLES VALIDATION BILL

"This Bill was introduced into the Legislative Assembly on 21 July 1993 by the Honourable Jeff Kennett (Premier), pursuant to motion moved on his behalf by the Honourable Rob Maclellan, with the Honourable Geoff Coleman.

This Bill confirms grants of title to land including rights of occupation or use but not including customary title for the period from 31 October 1975 until the "appointed day", being the day upon which the validation provision is proclaimed.

The Bill further provides a mechanism for the payment of monetary compensation to Aboriginals who make a claim that, until the granting of title, the relevant land was theirs by virtue of customary title.

Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) Parliamentary Committees Act 1968).

Clause 28 of the Bill amends section 85 of the Constitution Act 1975 by preventing the Supreme Court from -

• re-opening claims once an Order has been made relating to customary title or where the Commonwealth has paid or awarded compensation in relation to titles to land granted during the relevant period;

• entertaining proceedings relating to customary title other than in accordance with the Bill; and

• awarding compensation other than in accordance with the Bill.

In the Second Reading Notes, the Premier has confirmed that as the aim of the Bill is to ensure that certainty be arrived at by means of efficient processes, "it is necessary to ensure that there is a single claims process relating to customary title in respect of land titles."

The Bill cannot prevent appeals on legal grounds from the Supreme Court to the High Court of Australia. The Committee recognises that this limitation upon the Supreme Court is in all the circumstances appropriate and desirable."

(12) LAND (FURTHER AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 14 September 1993 by the Honourable Ian Smith (Minister of Finance) with the Honourable Pat McNamara.

The Bill amends the Land Act 1958 (the 'Principal Act') and the Subdivision Act 1988 to permit, amongst other matters, the leasing and sale in strata of interests in Crown Land.

Proper allowance appears to have been made for the protection of rights of registered proprietors, lessees or licensees of other land, and those of the public.

Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

Clause 9 of the Bill inserts a new section 412 into the Principal Act. This new section declares its intention to prevent the Supreme Court from awarding compensation arising out of proposed sections 134A and 339A of the Principal Act. These two proposed sections relate, respectively, to the leasing of strata of Crown Land and the alienation (or sale) of Crown Land in strata.

In the Second Reading Notes, the Minister justifies this limitation of jurisdiction of the Supreme Court on the grounds that it would be impossible to achieve the Government's intention of more flexible dealing with Crown Land if compensation claims were available in the circumstances prohibited. These circumstances arise out of dealings adjacent to roads.

The Committee acknowledges the Minister's justification of the alteration of jurisdiction and reports that this is in all the circumstances appropriate and desirable."

(13) RURAL FINANCE (VEDC ABOLITION) BILL

"This Bill was introduced into the Legislative Assembly on 14 September 1993 by the Honourable Alan Stockdale (Treasurer) with the Honourable Jeff Kennett.

This Bill -

• provides for the Rural Finance Corporation of Victoria to become the successor in law to the Victorian Economic Development Corporation ("VEDC")

• abolishes the VEDC

• repeals the Victorian Economic Development Corporation Act1981.

It completes the transfer commenced on 18 November 1988 of the business and affairs of the VEDC to the Rural Finance Corporation.

Alteration or variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

Clause 18 of the Bill alters or varies section 85 of the Constitution Act to -

• prevent the Supreme Court entertaining proceedings in respect of the validity of transfers made prior to Royal Assent (Clause 8); and

• prevent the admission of evidence in proceedings brought by the VEDC, after 15 September 1993, tending to show that it is not entitled to recover certain debts, guarantees or security.

In the Second Reading Notes, the Minister explains that this limitation is essential to sanction the transfer scheme established by the previous Government.

The Committee acknowledges the Minister's explanation and reports that the alteration or variation is in all the circumstances appropriate and desirable."

(14) TATTERSALL CONSULTATIONS (FURTHER AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 15 September, 1993 by the Honourable Alan Stockdale (Treasurer) with the Honourable Ian Smith.

This Bill amends the Tattersall Consultations Act 1958 by -

• exempting Tattersall profits from certain overseas operations from a requirement to pay duty to the Victorian Government

• confirming that the meaning of "match 3", "match three", "match any 3" or "match any three" in Instant Money Lotteries has always been the same as "find 3 of the same".

Alteration or variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

Clause 5 of the Bill limits the jurisdiction of the Supreme Court to ensure that clause 4(2) of the Bill applies to claims or proceedings relating to the meaning of "match 3" etc.

The arguments for the amendment are outlined in the Second Reading Notes and are that "... section 4 confirms the common understanding of the Rules of Instant Lottery Games by those who had played them."

The Committee acknowledges the Minister's justification and reports that the alteration or variation of section 85 of the Constitution Act 1975 is in all the circumstances appropriate and desirable."

(15) ROAD SAFETY (AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 14 September 1993 by the Honourable Alan Brown (Minister for Public Transport) with the Honourable Phil Gude.

The Bill amends the Road Safety Act 1986 and the Marine Act 1988. It introduces three major changes to the law about drink driving and various consequential and other less significant changes.

The main changes are:

a. Introduction of a new, fully automated, Australian designed and manufactured breath analysing instrument (clause 4 of the Bill).

b. Removing the requirement that convicted drink drivers must go back to probationary licences. Instead, the convicted person may have a qualified full licence. The qualifications are that for the first three years such people will have to comply with zero blood alcohol concentration when driving and also carry their licences when driving. (Clauses 5 and 9 of the Bill.)

c. Drink driving offences, committed over 10 years earlier, will no longer count as a mandatory prior offence for the purposes of the Road Safety Act. (Clause 8 of the Bill.)

Limitation of the Supreme Court (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

Clause 21 of the Bill declares an intention to alter or vary section 85 of the Constitution Act 1975 to prevent legal actions described in clauses 10 and 17 of the Bill. These clauses introduce new sections 55(9E) of the Road Safety Act and 39(9E) of the Marine Act. Clause 21 prohibits legal actions being taken against legally qualified medical practitioners in respect of anything properly and necessarily done in the course of taking blood samples, which the practitioner reasonably believed was allowed to be done under the Act.

The Minister briefly drew attention to this proposed alteration to section 85 of the Constitution in a paragraph within the Second Reading Notes. The paragraph does not signal the "reasons for ... altering ... this section" as required by section 85(5)(b) of the Constitution Act. It is arguable that the statement, because it is not specific, does not comply with the requirements of section 85 of the Act and that it is therefore invalid to amend the jurisdiction of the Supreme Court. On the procedural aspect of section 85 amendments, it is crucial that the statement gives sufficient guidance to the Presiding Officers as to whether an absolute majority is required. Once again, it is arguable that this statement does not highlight sufficiently the need for an absolute majority.

The Committee, in correspondence dated 15 October 1993, has sought additional information from the Minister about these matters. The Minister's reply to the Committee of 18 October 1993 discloses the Minister's intention to delete clause 21 from the Bill and insert two new clauses in its place, each specifically directed at amending separate legislation.

In a foreshadowed section 85 statement, the Minister explains:

Proposed New Clauses AA and BB do not differ in substance from clause 21 of this Bill. The only difference is that they will insert a section 85 section in each of the two Acts proposed to be amended by this Bill instead of in this Bill itself.

As far as the reason for limiting Supreme Court actions against medical practitioners, the proposed section 85 statement will inform the Parliament:

The reason for preventing the bringing of proceedings against doctors who take blood samples under section 55 of the Road Safety Act 1986 (and under section 31 of the Marine Act 1988) as proposed to be amended by this Bill is that, without such protection, a doctor would be reluctant to take a blood sample from a person who is required under that section to allow it to be taken. (Bracketed information added)

The Committee is aware of such justification having been used in the past.

Although the foreshadowed section 85 statement has not yet been made, the Committee reports to the Parliament, that provided the statement is in the same terms as foreshadowed, the provisions are in all the circumstances appropriate and desirable."

(16) TEACHING SERVICE (AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 6 October 1993 by the Honourable Don Hayward (Minister for Education) with the Honourable Phil Gude.

The Bill amends the Teaching Service Act 1981, primarily to create a distinct class of teacher: the Principal Class. The Bill also abolishes employment registers. It widens the jurisdiction of the recently established Merit Protection Boards ensuring that decisions affecting members of the teaching service have a suitable review process attached. The Bill also extinguishes seniority as a grounds to be taken into account when filling a vacancy in the Principal Class.

Limitation of jurisdiction of Supreme Court (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

Clause 9 of the Bill introduces a proposed section 77B into the Teaching Service Act. This proposed section declares its intention to alter or vary section 85 of the Constitution Act 1975 to prevent the Supreme Court from entertaining actions under proposed section 26 of the Act and proposed section 30 of the Act. Proposed section 26 relates to the non-payment of compensation when a contract of employment of a member of the Principal Class is terminated. Proposed section 30 prohibits applications for prerogative remedies in respect of appointments or non-appointments of people to the Principal Class. It does not prevent Supreme Court review of other decisions relating to the employment of people in the Principal Class.

In the Second Reading Notes, the Minister makes a statement under section 85(5) of the Constitution Act in which he states the reasons for these amendments as being -

• in respect of proposed section 26, that compensation claims would inhibit the proper exercise of management powers over the Principal Class; and

• in respect of proposed section 30, that the specialised review bodies established under the Act (see e.g. section 64A of the Act) are the proper avenues for review, and that Supreme Court appeals will create unnecessary delay.

The Committee is satisfied with the statement of reasons, and reports that, in all the circumstances, the alteration or variation of section 85 of the Constitution Act 1975 is appropriate and desirable."

(17) STATE TAXATION (FURTHER AMENDMENT) BILL

"This Bill was introduced into the Legislative Assembly on 20 October 1993 by the Honourable Alan Stockdale (Treasurer) with the Honourable Phil Gude

The main purpose of the Bill is to amend the refund provisions of the -

• Business Franchise (Tobacco) Act 1974

• Financial Institutions Duty Act 1982

• Land Tax Act 1958

• Pay-roll Tax Act 1971

• Stamps Act 1958

Supreme Court - limitation of jurisdiction (Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)

In respect of each of the amendments about refunds in each of the Principal Acts referred to, there is an express alteration or variation to section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining proceedings for a refund, when an application for the refund was not lodged within 3 years of overpayment. The limitation applies in all cases other than where refunds are claimed on the grounds of invalidity of the provision in the relevant taxing Act.

In his Second Reading Notes, the Minister states -

The purposes of Clauses 7, 15, 22, 32 and 38 of the Bill 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 of the overpayment.

The Committee accepts that there is little point in formally limiting a time period in a statute if the Court can entertain actions (other than where the original provision is invalid) beyond that period. Accordingly, the Committee reports to the Parliament that the alterations or variations to the various taxing statutes are in all the circumstances appropriate and desirable."

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Scrutiny of Acts and Regulations Committee
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