Scrutiny of Acts and Regulations Committee

6.4 What then is the Committee's current experience of the use of section 85?

Bearing in mind, the expectations of the Legal and Constitutional Committee, it is appropriate to examine the Committee's current experience of the use of section 85.

6.5 1993 - the Committee's experience of the use of section 85 provisions

In 1993, the Committee considered 130 Bills in total. Of these, the Committee was required by section 4D(b) to report on 32 as affecting the jurisdiction of the Supreme Court. Of those 32 Bills, 7 were the subject of adverse reports. The experience of the Committee in relation to the express declaration provisions of the 32 Bills is that at least;

• 11 abolished proceedings for compensation arising from actions taken under the Bill;

• 6 contained express declarations to prevent actions against individuals given certain powers under the Bills; (This includes officers/individuals who perform statutory duties in accordance with the Bill)

• 1 contained an express declaration preventing action in respect of any land held by the Public Transport Corporation by any person in possession of that land;

• 4 limited judicial review by the Supreme Court of administrative decisions which contained manifest error on the face of the record or an error of law or of applications brought under the Administrative Law Act 1978;

• 1 prohibited administrative or other legal proceedings being brought in the Supreme Court arising out of decisions made by a Local Government Board. or of a Minister's decision made under the Education (Amendment) Bill;

• 1 prohibited legal proceedings being brought in the Supreme Court arising out of a Minister's decision made under the Education (Amendment) Bill;

• 1 overrode an earlier decision of the Supreme Court;

• 1 restricted judicial review under the Planning and Environment Act 1987 relating to casino property;

• 1 restricted judicial review under the Tattersall Consultations (Further Amendment) Bill relating to the playing of particular games, ie: "match 3";

• 1 prohibited legal proceedings being brought in the Supreme Court in relation to customary title other than in accordance with the Land Titles Validation Bill.

• 1 provided that anything done under The Electricity Act would not constitute a civil wrong. This provision indirectly derogated from the jurisdiction of the Supreme Court.

• 1 restricted judicial review and supervision of procedures by the Supreme Court in the Children's Court under the Crimes (Amendment) Bill (No.2)

• 1 prohibited the Supreme Court from entertaining proceedings for a refund under the State Taxation (Further Amendment) Bill when an application for the refund is not lodged within three years of overpayment.

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

6.6 1994 - the Committee's experience of the use of section 85 provisions

In 1994, the Committee considered 126 Bills in total. Of these, the Committee was required by section 4D(b) to report on 27 as affecting the jurisdiction of the Supreme Court. Of those 27 Bills, 8 were the subject of adverse reports. The experience of the Committee in relation to the express declaration provisions of the 27 Bills is that at least: -

• 8 abolished proceedings for compensation in respect of any alterations made to Crown land, extinguishment of leases or variation of interests, rights, privileges or obligations over land;

• 5 contained express declarations to prevent actions against individuals or employees who perform duties in good faith or act in accordance with the relevant clauses; (This includes officers/individuals who perform statutory duties in accordance with the Bill)

• 4 contained express declarations to prevent actions against individuals given certain powers under the Bills;

• 1 prohibited administrative or other legal proceedings arising out of decisions made by local councils;

• 1 restricted judicial review in the Supreme Court of matters over which the Childrens' Court has exclusive jurisdiction;

• 1 contained an express declaration to prevent actions against any other 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;

• 1 excluded civil proceedings for damages which may be suffered in respect of providing information or documents in an inquiry;

• 1 prohibited the Supreme Court from entertaining actions relating to damages caused by reason of the Emerald Tourist Railway not being fenced in or fenced off;

• 1 prohibited the Supreme Court from awarding compensation to those people whose rights were suspended in a particular declared area and generally in relation to the process of consultation;

• 1 prohibited proceedings being brought in the Supreme Court challenging a decision of the Minister;

• 1 restricted judicial review of matters for determination in a proceeding pending in the Supreme Court where they are to be transferred to the Federal Court or another court;

• 1 prohibited the Supreme Court from entertaining proceedings beyond the limitation period;

• 1 prohibited the Supreme Court from entertaining actions for compensation in respect of the Public Sector Management Act;

6.7

The Committee was of the view that the majority of the clauses were appropriate and desirable in the circumstances. The exceptions are set out in Chapter 5. The concerns of the Committee are discussed in Chapters [7] and [8].

6.8

The Scrutiny of Acts and Regulations Committee made the following comment in its First Annual Report: -

"The observation may be made that some of these clauses appear to be matters which confer an exclusive jurisdiction upon a body other than a Supreme Court, whilst others may be described as privative clauses. However the majority of the clauses either abolish causes of action or remedies. These are precisely the sort of clauses about which the Legal and Constitutional Committee was equivocal in respect of making the use of the express declaration provisions necessary as it believed that it could rely upon the generosity of the Supreme Court in such matters.

Certainly, the view of the Legal and Constitutional Committee (see paragraph 4.3) was that such matters were properly matters for the Court. The "Express declaration" clause mechanism was considered desirable with respect to essentially two limitations on the jurisdiction of the Supreme Court, namely, those related to exclusive jurisdiction clauses and privative clauses. It certainly may not have been envisaged that its use would have been as widespread as discussed."

6.9

To abolish causes of actions and remedies normally available to individuals and thus restrict access to the Supreme Court is a serious matter. The Committee has some concerns about the general overuse of the express declaration provisions in this respect. The Committee is concerned that officers, out of caution, are giving drafting instructions to always incorporate Section 85 clauses. There is therefore, a very real possibility that the Supreme Court's jurisdiction may be eroded unnecessarily. It is incumbent on a Committee whose fundamental task is to protect "rights", to draw attention to this matter. The Committee is of the view that very careful consideration should be given to whether the insertion of such a clause is appropriate, necessary or indeed desirable in the first instance.

6.10 Chief Parliamentary Counsel - current drafting practices in respect of Section 85

The Committee wrote to Ms Rowena Armstrong QC, Chief Parliamentary Counsel on 20 March 1995 requesting a written statement in respect of the current drafting practices of Section 85 provisions. Chief Parliamentary Counsel responded by way of letter dated 6 April 1995. The relevant extract is set out: -

"Revocation of reservations of Crown Land

The question whether to compensate persons whose interests may be affected by a revocation of reservations is a policy question, not a matter of drafting.

The inclusion of a "no compensation" clause in Bills changing the status of Crown Land is a long standing practice. The inclusion of the Section 85 clause following the challenge to the validity of Victorian legislation in 1989 and the amendment of the Constitution in 1991 is for the purpose only of ensuring that the law remains as it has been for decades. That is to say, that a no compensation clause continues to have exactly the same effect as it had before the challenge to Victorian legislation.

Section 85 generally

The challenge to Victorian legislation in 1989 raised serious doubts about the validity of a number of Acts enacted since 1975 on the grounds that they contained provisions which, by reason of section 18(2) of the Constitution Act 1975, required the Bill for the Act to be passed with absolute majorities and that no such majorities were obtained or, if obtained, were not recorded.

Section 18(2) applies to Bills that make any alteration to certain provisions of the Constitution including the provisions of Section 85 which confer on the Supreme Court jurisdiction in or in relation to Victoria, its dependencies and the areas adjacent thereto in all cases whatsoever and provide that it is the superior court of Victoria with unlimited jurisdiction.

The changes to the Constitution made in 1991 following a report by the Legal and Constitutional Committee strengthened the protection given by the Constitution to the unlimited jurisdiction of the Supreme Court and introduced the particular requirements for the Section 85 statement.

As a matter of drafting practice, it is necessary to ensure that a Bill gives full effect to the instructions that are given. If the instructions require some qualification on the jurisdiction of the Supreme Court ,whether by providing that no compensation is payable or no proceedings are to lie or provisions of a similar kind, then it is necessary for the Bill to include the Section 85 clause to ensure that the provision means what it says on its face.

Comparison of Victorian requirements and those of other States

The requirements of our Constitution in relation to the protection of the Supreme Court's jurisdiction are unique. In any other State, it is possible for provisions restricting applications to the Supreme Court, or providing that compensation is not payable, to have full force and effect without compliance with any special procedure similar to our requirements.

Cases where the Section 85 procedure is not used

It is open to the Government to decide in any particular case that a Bill make provision for a matter without a Section 85 statement even though such a statement may be necessary to prevent proceedings being brought in the Supreme Court."

Scrutiny of Acts and Regulations Committee
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