Scrutiny of Acts and Regulations CommitteeDiscussion Paper No. 1 on the Operation of Section
85 of the Constitution Act 1975
|
Year |
Total No. of Bills |
No.
of Bills which contained |
No of Bills in
respect of which |
1993 |
130 |
32 |
7 |
1994 |
126 |
27 |
8 |
It is important to understand that the term "Adverse Reports" is taken to include reports where the Committee's concerns were not accepted; the Bills were not subsequently amended; the Committee was not in the position to report on the Bills or the Committee did not finally form a conclusion. It does not simply include those Bills which the Committee does not report as containing provisions which are "appropriate and desirable in all the circumstances".
In 1993, 24% of Bills contained Section 85 provisions on which the Committee was obliged to report. In 1994, the Committee was also obliged to report on 27 Bills out of 126 or 22%. In 1993, 6% of the total Bills considered were the subject of adverse reports from the Committee. In 1994, 6% of the total Bills considered were the subject of adverse reports from the Committee.
In 1993, there were seven adverse reports. The Bills were: -
Of those Bills, the Committee was not in a position to report on five Bills; the Police Regulation (Discipline) Bill, the City of Melbourne Bill, the Public Sector Management (Amendment) Bill and the Gas, the Electricity Bill and Fuel Corporation (Heatane Gas) Bill. On occasions, the Committee is not in a position to report to the Parliament because it is waiting receipt of information or correspondence from the relevant Minister. The Committee referred the debate in respect of the Education (Amendment) Bill and the Crimes (Amendment) Bill (No.2) to the Parliament.
In 1994, there were eight adverse reports. The Bills were:
Of those Bills, the Committee did not finally form a view in respect of four Bills; the Corrections (Amendment) Bill, the Land (Further Miscellaneous Matters) Bill, the City of Greater Bendigo Bill and the Land (Miscellaneous Matters) and National Tennis Centre Bill. The Committee formed the view in respect of the Victorian Plantations Corporation (Amendment) Bill that the section 85 provision was not appropriate or desirable in all the circumstances. There was also one Bill on which the Committee formed an adverse conclusion and the Government introduced an amendment which deleted the offending clause in its entirety. That Bill was the Crown Lands Acts (Amendment) Bill. The Committee referred the debate in respect of the Australian Grand Prix Bill to the Parliament. The Committee reported adversely in respect of the Local Government (Amendment) Bill and the relevant Minister introduced a House Amendment.
The extracts from the Bills on which the Committee reported adversely in 1993 are set out below.
"This Bill was introduced into the Legislative Assembly on 21 April, 1993 by the Honourable Pat McNamara (Minister for Police and Emergency Services) with the Honourable Jeff Kennett.
Alteration or variation of section 85 of the Constitution Act (sections 4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Proposed new section 129A of the Act provides that section 85 of the Constitution Act 1975 is altered or varied to the extent necessary to prevent the Supreme Court awarding compensation under section 86AA of the Act.
Proposed new section 86AA declares that a dismissed or demoted officer may not obtain compensation other than in accordance with applicable termination arrangements. The Commissioner indicated that he had not requested this provision.
In the Second Reading Notes, the Minister states that "this ... is necessary to enable an effective disciplinary system to operate in the Victoria Police. This is consistent with the provision applying to public servants pursuant to the Public Sector Management Act 1992".
Having discussed the matter, the Committee is not in a position to report that the proposed alteration or variation to section 85 of the Constitution Act 1975 is in all the circumstances appropriate and desirable."
"This Bill was introduced into the Legislative Assembly on 20 October 1993 by the Honourable Don Hayward (Minister for Education) with the Honourable Phil Gude.
The Bill amends the Education Act 1958 within five general areas -
A creation and powers of "designated schools" (Proposed Division 3A, clause 10 of the Bill)
B permitting enrolment of overseas students for fees (clause 13 of the Bill)
C refining the relationship between school councils and the Crown (clauses 6 and 7 of the Bill)
D limiting the right of legal review of the Minister's decision to discontinue a school and limiting liability of the State in respect of persons who occupy discontinued school sites (clause 11 of the Bill)
E the suspension and expulsion of pupils (clause 13 of the Bill)
Supreme Court - Limitation of jurisdiction (Section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 15 of the Bill inserts a new section 81A into the Act which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent Supreme Court actions arising under provisions introduced in the Education Act by this Bill. In the Second Reading Notes, the Minister states:
"In relation to the actions referred to in section 81A(a) of the Bill, the reasons are that with greater self management comes greater accountability, and school councils must be accountable for their actions. That accountability is inconsistent with the State being automatically responsible for the actions and liability of each council, unless such responsibility is agreed in writing between the council and the Minister.
In relation to the action referred to in section 81A(b) of the Bill, the reasons are that it is inappropriate for councils to issue proceedings against the State, or other school councils, or other persons having a common interest with the State, or in circumstances where administrative action can resolve the matter.
In relation to the actions referred to in section 81A(c) and (d) of the Bill, the reasons are that it is inappropriate for decisions to continue or discontinue a school to be challenged by legal avenues.
In relation to the actions referred to in section 81A(e) of the Bill, the reasons are that it is inappropriate for the State to owe a duty of care to persons who continue to occupy a State school site in protest at the Minister's decision to close the school."
Accordingly, other than with respect to proposed section 81A(d) of the Act, the Committee reports that the proposed section is in all the circumstances appropriate and desirable. The Committee is unable to agree in respect of s.81A(d) and believes this is a matter for debate in the Parliament."
"This Bill was introduced into the Legislative Assembly on 21 October 1993 by the Honourable Michael John with the Honourable Phil Gude.
The Bill replaces the Crimes (Amendment) Bill No. 1 which was withdrawn earlier in the Session. Bill No. 2 amends the Crimes Act 1958 inserting a new part into the Crimes Act entitled "Police Powers". This gives police the power to:
take names and addresses of persons reasonably suspected of committing an offence;
fingerprint persons 15 years who are suspected of having committed an indictable offence or a prescribed summary offence;
obtain fingerprints from children between 10-14 years suspected of having committed an indictable offence or certain summary offences, by consent or pursuant to a court order;
conduct forensic procedures on persons suspected of having committed certain indictable offences, either pursuant to court order or where a suspect has given informed consent.
The Bill establishes a comprehensive statutory scheme regulating the conduct of forensic procedures and the use of samples or evidence obtained from such procedures.
Variation of section 85 Constitution Act 1975 (section 4D(b)(i) Parliamentary Committees Act 1968 and section 4D(b)(ii) Parliamentary Committees Act 1968)
Proposed sections 464ZH and 464ZI of the Crimes Act affect the jurisdiction of the Supreme Court. The Scrutiny of Acts and Regulations Committee is required by section 4D(b) of the Parliamentary Committees Act 1968 to report upon any alteration or variation to the Court's jurisdiction.
Proposed section 464ZI(a) varies the jurisdiction of the Supreme Court is varied by removing its jurisdiction to entertain applications by police officers with respect to fingerprinting of children, compulsory forensic procedures on adults and forensic procedures on children aged 10 to 17 years in a manner other than as required by the Act. The proposed sections 464M, T and U provide for these procedures. These applications are to be made to the Children's Court or Magistrates' Court as the case may be. Appeal rights to the Supreme Court continue where there is alleged to have been an error of law. Issues of unfairness of a procedure are subject to judicial discretion to exclude such evidence at committal or upon trial.
The Attorney-General has made a statement in the Second Reading Notes of Crimes (Amendment) Bill No. 2 about proposed sections 464M, T and U. The reason given there for altering or varying section 85 of the Constitution Act 1985 is that such procedures are to be conducted as preliminary procedures and that Supreme Court supervision should be restricted.
"The intention of the Bill is that applications for orders for fingerprints and forensic procedures from the Children's Court and orders for forensic procedures from the Magistrates' Court are preliminary and relatively expeditious proceedings.
The Bill prescribes the role of the suspect in these proceedings in order to ensure that such matters are conducted as preliminary proceedings, and in doing so places consequential limits on the supervisory jurisdiction of the Supreme Court. For example, the Supreme Court will not be able to issue subpoenas on behalf of persons in respect of when an application has been made because those persons have no rights to apply for subpoenas in the inferior court.
However, the Supreme Court will continue to exercise an important and significant supervisory jurisdiction over applications made under this legislation."
The Committee is not persuaded by the argument that these procedures are to be conducted as preliminary proceedings. As outlined in 1.8 - Abolition of some legal rights of Children, the child not being a party to an application cannot call or cross-examine any witness. The further limitation placed on the Supreme Court in terms of supervision is of concern to the Committee and the Committee refers the matter to Parliament for debate.
Secondly, proposed section 464ZI(b) of the Crimes Act prevents actions against legally qualified medical practitioners or dentists or a person authorised by the Chief Commissioner of Police to take non-intimate samples under proposed section 464Z of the Crimes Act or any person assisting that doctor, dentist or authorised person who conducts any forensic procedure which the doctor, dentist or authorised person believed on reasonable grounds was requested in accordance with the subdivision or as ordered by a court under the subdivision.
The Attorney-General has made a statement in the Second Reading Notes in relation to the Crimes (Amendment) Bill about proposed section 464ZI(b) of the Crimes Act. The reasons given there for altering or varying section 85 of the Constitution Act 1975 are that without the immunity from legal proceedings provided in proposed section 464ZH of the Crimes Act doctors, dentists and other authorised persons would be unwilling to carry out forensic procedures, which would undermine the effectiveness of the Bill. Also protection currently applies with respect to the taking of blood samples. It is considered inconsistent to not extend immunity to other procedures authorised by the Bill.
The Committee reports to the Parliament that in all the circumstances, the provisions of proposed sections 464ZI(b) of the Crimes Act are appropriate and desirable."
"This Bill was introduced into the Legislative Assembly on 27 October 1993 by the Honourable P. Gude on behalf of the Honourable Jim Plowman (Minister for Energy and Minerals) with the Honourable A. Stockdale.
This Bill relates to the restructuring of the electricity supply industry, amends the State Electricity Commission Act 1958 and the Electric Light and Power Act 1958 and makes other consequential amendments to other Acts and for other purposes.
Issue raised as to the jurisdiction of the Supreme Court (section 4D(b)(iii) Parliamentary Committees Act 1968).
Clause 61 of the Bill provides that the chief electrical inspector is not subject to any civil liability in respect of anything done in good faith in the carrying out of functions/powers under any Act.
and,
Clause 76(1) of the Bill provides that the proposed Act and things done under the proposed Act will not constitute a civil wrong, a breach or a default, terminate agreements or obligations or release any surety. Clause 76(2) also prohibits acts or transactions of the SECV or the Administrator from being called in question for noncompliance with the proposed Act or the State Electricity Commission Act 1958 (Vic.)
These exemptions from liability may, therefore, indirectly derogate from the jurisdiction of the Supreme Court as expressed in s.85(1) Constitution Act 1975 (Vic.) which provides as follows:
Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
If the exemptions do, in fact, derogate from the jurisdiction of the Supreme Court, then both the abovementioned clauses will be rendered void by the dual operation of ss.85(5) and 18(2A) of the Constitution Act 1975 (Vic.) unless the requirements of those sections are complied with by the Parliament.
The Committee has written to the Minister requesting an explanation or an appropriate statement regarding the provisions."
"This Bill was introduced in the Legislative Council on 29 September 1993 by the Honourable Roger Hallam (Minister for Local Government).
Limitation of the Supreme Court (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968).
Clause 27 of the Bill prohibits proceedings for prerogative writs or for an order under the Administrative Law Act 1978 in respect of the City of Melbourne Act or any thing required or permitted under that Act. Clause 28 of the Bill confirms that it is the intention of that clause to alter or vary section 85 of the Constitution Act to the extent necessary to prevent the Supreme Court from entertaining applications referred to in clause 27 of the Bill.
In the Second Reading Notes, the Minister justifies the provisions because of "frequent use of litigation in recent years by Councils as a means of frustrating boundary change". He adds that such litigation involves unnecessary expenditure of ratepayers' money.
Some concern was expressed at the Committee meeting which first considered this Bill that clauses 27 and 28 may be wider than the objective described by the Minister in his Second Reading Notes of nullifying boundary litigation. For example, the clauses may have the additional effect of prohibiting litigation over planning matters, actions of the Commissioners and over the use of revenue, constrained by clause 18.
The Committee wrote to the Minister seeking a fuller justification of the potentially wide alteration to the jurisdiction of the Supreme Court.
In correspondence with the Committee dated 12 October 1993, the Minister replied:
The prevention of possible challenges in relation to the implementation of the restructuring of the Melbourne City Council and neighbouring councils remains the primary objective and I propose to amend clause 27 to more specifically capture that objective. I therefore propose to introduce a house amendment to recast clause 27 along the following lines -
'27 No proceedings .......... may be brought against any person in respect of, or calling into question any action taken or purported to have been taken or proposed to be taken pursuant to sections 7(1), 7(2), 7(3), 7(4), 14(3) or 20(1) of this Act.'
The new provision will be specifically directed at preventing challenges being brought in relation to the appointment of Commissioners [section 7(1)- (4)], an Order in Council in relation to the holding of the first general election for the Melbourne City Council, including the redrawing of ward boundaries [section 14(3)], or an Order in Council in relation to the annual election for a council whose municipal district is altered by the Act, again including the redrawing of ward boundaries [section 20(1)].
At the time this house amendment is made I intend making a statement to the House under section 85 of the Constitution Act 1975 which will spell out the reasons for excluding the Court's jurisdiction in the way proposed.
The Committee acknowledges the Minister's reply but advises that until such time as the intended new statement is made, it is not in a position to report to the Parliament upon the provision.
Section 85 amendments
The Committee is becoming increasingly disturbed by the use of provisions excluding the jurisdiction of the Supreme Court, especially where a loss of citizens' rights is involved. Members of the Committee have observed this practice under both the current and former governments.
The Committee advises the Parliament that it intends to report to the Parliament more fully in relation to alterations or variations to the jurisdiction of the Supreme Court in the next session of Parliament, or possibly sooner."
"The Bill was introduced into the Legislative Assembly on 6 October 1993 by the Honourable Jim Plowman (Minister for Energy and Minerals) pursuant to a motion moved on his behalf by the Honourable Phil Gude with the Honourable Marie Tehan.
The main purpose of this "stand alone" Bill is to create new statutory easements required to transfer pipelines to Elgas, the successful bidder for the Gas and Fuel Corporation's LPG Division. The new statutory easements are required because the existing easement documents are not all in precisely the same terms, do not refer to correctly identified land, or in the case of some crown land do not exist at all.
Limitation of jurisdiction of Supreme Court (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 22 of the Bill declares its intention to alter or vary section 85 of the Constitution Act 1975 to prevent actions for compensation arising out of extinguished, created or varied interests, rights, privileges or obligations over land, such actions having been declared unavailable by clause 20 of the Bill.
In the Second Reading Notes, the Minister gives his reasons for the alteration or variation of the jurisdiction of the Supreme Court as the fact that the pipeline has been in place, supported by substantially the same easements, for 25 years. There will be no change in impact on the land, and the effectiveness of the Bill would be reduced if actions for compensation were to be entertained.
The Committee is unaware of whether any rights are affected by this provision, and has written to the Minister requesting information on this point. It also asks the question of, if rights are affected why it was considered necessary to remove opportunity for legal redress by way of compensatory damages.
At this point the Committee is unable to report to the Parliament that in all the circumstances the alteration or variation of section 85 of the Constitution Act 1975 is appropriate and desirable."
"This Bill was introduced into the Legislative Assembly on 14 September 1993 by the Premier, the Honourable Jeff Kennett with the Deputy Premier, the Honourable Pat McNamara.
This Bill amends the Public Sector Management Act 1992 (the 'Principal Act') with the specified aim of improving the administration of the Act. It also amends a few other Acts which relate to the public sector.
The Bill -
establishes 'fixed term', 'temporary' and 'casual', employees in the public sector (clauses 12, 13 and 14) as well as provides for the employment of Ministerial officers' and 'Parliamentary advisers' (clause 35).
deals with certain situations of transfer and termination of officers and Department Heads (clause 28)
creates 'designated bodies' and describes continuing entitlements for officers who elect to work for such bodies (clause 29)
increases penalties under the regulations relating to disciplinary matters (clause 38)
amends section 85 of the Constitution Act 1975 which relates to the jurisdiction of the Supreme Court (clause 37).
Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) Parliamentary Committees Act 1968)
Clause 37 of the Bill amends section 105 of the Principal Act by adding a provision preventing the Supreme Court from entertaining actions for compensation arising out of circumstances where the Bill provides that no compensation is payable.
The clause reduces the jurisdiction of the Supreme Court and thus alters or varies section 85 of the Constitution Act 1975.
This amendment puts fixed term employees on the same footing as applies under current law to officers and temporary employees.
In the Second Reading Notes, the Premier explains that this amendment is necessary to ensure that the main purpose of the Bill (of improving public sector administration) is not weakened. The availability of actions for compensation arising out of termination of certain employment would do just this.
The Committee has sought further clarification from the Premier of the reasons for this amendment to the Constitution Act. The Premier has replied in the following way:
"The Bill and the Principal Act provide for no compensation to be paid in those instances where it is considered that such compensation is inappropriate. In the Bill a no compensation provision is expressly stated in relation to the termination of fixed-term employees. [proposed section 34B see Clause 12]. Fixed term employees are employed for a defined period which is expressly set out in their contracts and there is no expectation of ongoing employment. In such circumstances it is considered inappropriate that fixed term employees should get access to compensation on the termination of their contract."
As the Premier's letter arrived after the Committee meeting the Committee has not yet had the opportunity to deliberate whether the alteration or variation of jurisdiction is in all circumstances appropriate and desirable."