Review of Redundant and Unclear Legislation
Third Report

Chapter Three - Particular Inquiries

Carriers & Innkeepers Act 1958

3.1 The Minister for Fair Trading, the Hon. Jan Wade MP, wrote to the Committee—

3.2 The Committee prepared a discussion paper on the possible repeal of the Act which was distributed in May 1995. [136] In summary, the issues raised in the discussion paper are—

• the relevance of the Act for modern commercial dealings between carriers and their customers;

• the relevance of the Act for modern dealings between innkeepers and their guests;

• whether insurance coverage is a necessary requirement in the conduct of modern dealings;

• the effect of a recent High Court decision [137] on the Victorian Act; and

• whether any part of the existing Act need be retained.

3.3 The discussion paper also considers international codes of practice and discusses the potential for adoption of these in Victoria. (Copies of the discussion paper are available from the Committee.)

3.4 The Committee has received many submissions in response to the Discussion Paper, from the industries affected by the Act and also from community representatives.

3.5 The Committee conducted public hearings on 19 July 1995 and received evidence from: the Victorian Employers’ Chamber of Commerce and Industry; the Victorian Accommodation Association; Mayne Nickless; the Insurance Council of Australia; and the Australian Hotels Association.

3.6 It is anticipated that the Committee will table its report on the review of the Act in the Autumn 1997 sitting of Parliament.

Evidence Act 1958

3.7 The Committee informed the Attorney-General, the Hon. Jan Wade MP, that the Act had not been subjected to a major review for many years. [138] A review of the Act was ordered under a separate terms of reference.

3.8 The Committee’s inquiry addressed the following issues—

• whether the Evidence Act 1995 (Cth), as a model for uniform legislation, was appropriate for enactment in Victoria;

• whether there were any matters particular to Victoria which should be considered;

• whether the Evidence Act 1958 (Vic) and the Evidence Act 1995 (Cth) adequately address matters of proof and admissibility in relation to reproduced documents (including documents reproduced by microfilming, optical disk based imaging and storage systems, or other electronic or imaging storage techniques); and

• whether any changes should be made in respect of the witnessing of documents, including the witnessing of documents by public notaries and the appointment procedures for public notaries.

3.9 The Committee’s report is entitled Review of the Evidence Act 1958 (Vic) and Review of the Role and Appointment of Public Notaries. Copies of the Report are available from the Committee.

3.10 In its Report, the Committee supported the adoption of the Commonwealth Evidence Act 1995, subject to the recommendations set out in the Report. The Committee also supported the reform of appointment procedures for notaries public in Victoria. The Committee considered that notaries public should be appointed by the Supreme Court of Victoria. Other reforms in relation to the witnessing of documents are also contained in the Report.

Hire-Purchase Act 1959

3.11 The Committee received a submission from the Australian Finance Conference ("AFC") requesting the Committee to review the Act. The AFC wrote—

3.12 The Committee consulted the Minister for Fair Trading, the Hon. Jan Wade MP. The Minister advised—

3.13 The Minister requested the Committee to investigate the possible repeal of the Act. [140] The Committee received nearly one hundred submissions on the review of the Act, and held public hearings. The Committee’s Report was tabled in Parliament in December 1996. [141]

3.14 In its Report, the Committee recommended that—

• The Hire Purchase Act 1959 (Vic) be repealed.

• The Minister for Fair Trading, the Minister for Agriculture and Natural Resources and the Minister for Small Business consider, as a question of policy, the development of new legislation to address the requirements of the rural sector in regard to commercial finance as part of a model for a national code to protect the business/farming sector.

• The relevant Ministers consider referring these recommendations to a ministerial council for the development of national uniform legislation.

3.15 The Government recently tabled its response to the Committee’s Report. [142] The Response concentrated on the Committee’s first recommendation to repeal the Act, as recommendations 2 and 3 were subject to further consultation between different Government and non-Government bodies. The Government accepted in principle the Committee’s recommendation to repeal the Act, because of its archaic nature and lack of significance to the business sector.[143] The Response stated—

3.16 The Response indicated that the Government was still considering submissions by some representatives of the agricultural sector in relation to protection for farmers if the Act was repealed. In particular, the Response noted, some concerns had been expressed regarding the loss of the protections afforded by sections 24 and 25 of the Act. In light of these considerations, the Response continued, the Government proposed to amend the Act so that sections 24 and 25 would continue to apply to future hire-purchase agreements entered into by farmers for "agricultural implements or motor trucks", as described in section 25. These provisions would, however, sunset after two years from their commencement date, by which time the Government could have appropriately considered whether it should enact legislation affording statutory protection to farmers for rural commercial finance generally. The amendments would also provide for transitional provisions which would ensure that any existing hire-purchase agreements would continue under the Act until they expired.[144]

3.17 The Government Response noted that, in hire-purchase agreements, the hirer does not have a legal proprietary interest in the goods until completion of the agreement. Currently, section 15 of the Act gives the hirer the right to any surplus amount following repossession of the goods and payment of the amounts owing to the owner. The Government recognised that any repeal of the Act could result in an injustice in this respect, and proposed to draft a new provision to be inserted in the Fair Trading Act 1985, and in the proposed consolidated Fair Trading Act, to give the hirer the same right as currently provided by section 15 of the Act.[145]

3.18 The Hire Purchase (Further Amendment) Bill was introduced into the Legislative Assembly on 17 September 1997, by the Hon. Jan Wade, Minister for Fair Trading, and the Hon. Phil Gude, Minister for Education. The Bill was second read on 18 September 1997. An extract from the Second Reading Speech follows—

Private Acts

3.19 The Bill was passed by the Legislative Assembly without amendment on 16 October 1997, and will be debated in the Legislative Council in the near future. It is expected that the Bill will be passed in the current, Spring 1997, sitting of Parliament.

3.20 The Committee identified certain Acts which were private, or local and particular Acts. Examples are the Boy Scouts Association Act 1932 and the Girl Guides Act 1952, which provide for the incorporation of the associations. Consideration was given to whether it was more appropriate for those Associations to use the provisions of the Associations Incorporation Act 1981 rather than preserve what are essentially private Acts.

3.21 An example of an Act having local application only is the City of Kew (Thornton Street) Act. The residents of Thornton Street wish to retain the Act in order to protect the reserve established by the Act.

3.22 The Committee requested advice from the Attorney-General, the Hon. Jan Wade MP, on how private Acts should be considered under the reference. The question of funding for the re-writing of such Acts is of concern to the Committee.

3.23 The Attorney-General advised the Committee —

3.24 The matter of private Acts is still being considered by the Committee.

Trade Unions Act 1958

3.25 During a review of his portfolio, the then Minister for Industry and Employment, the Hon. Phil Gude MP, informed the Committee—

3.26 The Committee agreed to review the Act. The Committee consulted: trade unions registered under the Act; various interest groups including the State Revenue Office; the University of Melbourne Law School Centre for Employment and Labour Relations; the Victorian Employers’ Chamber of Commerce and Industry; and the Victorian Trades Hall Council.

3.27 The issues raised by the possible repeal of the Act were—

• the loss of tax exempt status for registered trade unions;

• the right of registration for small groups of employers and employees;

• protection against common law actions for restraint of trade and criminal conspiracy;

• the application of International Labour Organisation standards; and

• freedom of association.

3.28 The Committee recommended the repeal of the Act and the transfer of its operative provisions to the Employee Relations Act 1992 ("ERA"). The Report, entitled Review Of The Trade Unions Act 1958, was tabled in Parliament in the Spring 1995 session. However, the ERA was amended by the Commonwealth Powers (Industrial Relations) Act 1996, which effectively granted the Commonwealth government power over industrial relations in the State of Victoria. The ERA is now entitled the Long Service Leave Act, which indicates its new and very narrow focus.

Unlawful Assemblies and Processions Act 1958

3.29 The Act is currently being reviewed by the Committee. The Committee prepared an Issues Paper, which was tabled in December 1996. [148]The review highlights the fundamental issues at stake in relation to any amendment or repeal of the Act. Conflicting interests are apparent, and the Committee is working to reconcile the protection of the Parliament and parliamentary business, with rights considered fundamental to a democracy, being the rights of public assembly, free expression, freedom of communication, association and movement.

3.30 Many significant topics were raised in the Issues Paper, including—

• whether a right to peaceful assembly consistent with the International Covenant on Civil and Political Rights. ("ICCPR") should be enshrined in legislation;

• whether any public policy restrictions should be placed on the right to assemble;

• whether the Act is still relevant as a model to regulate assemblies and processions in Victoria;

• whether, if the Act were to be repealed, the common law should be left to cover the field; and

• if the common law is not suitable, whether there should be specific legislation regulating assemblies and processions, or whether the matters could be dealt with by inserting new provisions in existing legislation.

A full list of the issued raised appear in the Issues Paper, copies of which are available from the Committee.

3.31 The civil libertarian movement describes the right to assemble as a hallmark of constitutional democracies. In other words, the right to gather and communicate an opinion against the policies or actions of government or any other body, group or individual should be regarded as inalienable.

3.32 The opposing view is that the law must be implemented as it is stated, and as there is no common law right to assemble, the legal right to assemble simply does not exist. [149]

3.33 Particularly relevant in light of the August 1996 protests outside Parliament House in Canberra, are those sections of the Act which prohibit certain assemblies and processions within the Parliamentary precinct whilst Parliament is in session. The central issue is whether legislation should prescribe the manner in which the right to assemble and take part in processions is exercised.

3.34 The Committee expects to table its report in the Autumn 1998 sitting of Parliament.

Last update 29/8/99 ©Parliament of Victoria