ALERT DIGEST 7 of 1994


Part 7

WATER (FURTHER AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Geoff Coleman with The Honourable Phil Gude.

8.2

This Bill amends the Water Act 1989 and certain other Acts. More specifically, its purposes are:-

  • to abolish the Rural Water Corporation's Regional Management Boards and turn the five regional management boards into separate authorities;
  • to transfer certain functions of the Rural Water Corporation to the Minister;
  • to clarify the power of an Authority to recover from an occupier of a property, fees imposed under a tariff;
  • to make further provision about trading in water rights.

8.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

Clause 4 repeals all sections in the Principal Act that refer to the Rural Water Corporation's Regional Management Boards, effectively abolishing the Rural Regional Management Boards. Pursuant to sub-clause (2) all Regional General Managers and member of the Boards go out of office.

Clause 5 amends the functions of the Rural Water Corporation to make the authority the same as any other authority established pursuant to the Act. This effectively means that the Rural Water Corporation's five Regional Management Boards become separate authorities in their own rights. The amendments include the identification of the responsible authority in appropriate provisions so that the authorities can exercise powers in respect of salinity and drainage, bulk water charges and the licensing of the in-stream use of water. The Committee notes the comments in the Second Reading Notes:-

"This will deliver substantial long term benefits through enhanced local management, reduced central office overheads, improved local cost control, further pressure to improve services and more direct signalling of the cost of doing so.

The new rural Authorities are to be given borrowing powers under the Borrowing and Investment Powers Act 1987, the same as the other authorities under the Water Act. In practical terms, this means that they will have access to loans from Treasury Corporation Victoria but Government guarantees will not be available as of right.

Given the heightened commercial focus for the new regional authorities, the residual regulatory, statewide policy and community service functions currently undertaken by the RWC are to be transferred to the Department of Conservation and Natural Resources. These functions are already funded by the Consolidated Fund through the Government Services Contract to the Rural Water Corporation and therefore the transfer of functions to the Department of Conservation and Natural Resources will be effectively cost neutral. As neither the Minister nor the Department are "Authorities" for the purposes of the Act, amendment of the Water Act 1989 is required to effect the proposed changes and to accommodate the transfer of staff."

8.4

Clause 6 provides that the Minister will assume responsibility for floodplain management functions rather than the Corporation as was previously the case. Clause 7 amends section 226(1) to allow for the permanent transfer of water rights to any owner. Clause 8 amends section 257 to clarify the power of an Authority to recover water charges from the occupier of the property. Clauses 9 and 10 make miscellaneous amendments. Clause 11 makes provision for the Minister to determine which officers of the Rural Water Corporation Staff are to become officers under the Public Sector Management Act 1992 as a consequence of the transfer to the Minister of any function of that corporation. Existing benefits in terms of leave entitlements and superannuation are preserved.

SWAN HILL PIONEER SETTLEMENT AUTHORITY (REPEAL) BILL

9.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Pat McNamara with The Honourable Phil Gude.

9.2

This Bill transfers the management of the Swan Hill Pioneer Settlement to the Swan Hill City Council. It also repeals the Swan Hill Pioneer Settlement Act 1974, the Coal Creek Historical Park Act 1975 and the Gippsland Folk Museum Act 1976.

9.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

Clause 4 repeals various Acts. Clause 5 abolishes the Swan Hill Pioneer Settlement Authority. Clause 6 provides for the transfer of all existing liabilities, assets and staff from the Swan Hill Pioneer Settlement Authority to the Swan Hill City Council.

Clause 7 provides that the Swan Hill City Council has the same powers in relation to money accounts from the Swan Hill Pioneer Settlement Authority as it does in respect of account established by the Council. All the Swan Hill Pioneer Settlement Funds become those of the Swan Hill City Council.

Clause 8 provides that certain specified reservations of Crown land are revoked. It also provides that the appointment of any committee of management is revoked to the extent that it applies to that particular piece of land.

Clause 10 extinguishes any lease of over the lands shown hatched and cross-hatched in Schedule 2 between the Swan Hill Pioneer Settlement Authority and the Swan Hill City Council. Clause 11 provides that the Minister may lease any of the land referred to in section 9 to the Swan Hill City Council. The Committee notes the comments in the Second Reading Notes: -

"The Council will be granted a long term lease of between 21 and 51 years at a pepper corn rental of $10 per year. This will enable the Council to concentrate their energy on running the operation as a success without any fear of an increase in rental which would effect the ongoing liability of the settlement."

9.4

Clause 12 provides that the overdraft of the Swan Hill Pioneer Settlement Authority is deemed to be an overdraft complying with the Local Government Act 1989, even though it may not be secured in the manner required by that Act. Clause 13 retrospectively validates the actions taken by the Swan Hill City Council in relation to the Council purporting to treat the assets and liabilities or the accounts as those of the Authority. The retrospectivity dates from 1 October 1992 to the commencement of the Act. It validates the management of any staff, consultants, advisers and directors during this period. It also validates any lease between the Council and the Authority in respect of certain tracts of land. Finally, it validates the collection of any rent or charges made from the land during that period.

The Committee notes the retrospectivity and makes no further comment.

Clause 14 provides for the preparation of accounts and Clause 15 repeals unproclaimed Acts concerning historical parks.

9.5 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 states its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions for compensation in circumstances, where under, section 16, no compensation is payable.

Section 16 states that no compensation is payable by the Crown in respect of anything arising out of section 8. Section 8 relates to the revocations of reservations of Crown land. Section 16 also states that no compensation is payable by the Crown in respect of the extinguishment of any lease pursuant to section 10. The Committee notes the comments in the Second Reading Notes:-

"It is essential that the transfer of activities of the Pioneer Settlement to the Swan Hill City Council proceed without delay and without being impeded by such claims for compensation. It is in the public interest that the Council's management of the Pioneer Settlement be ratified by the Parliament."

The Committee reports that the proposed provision is appropriate and desirable in all the circumstances.

VICTORIAN FUNDS MANAGEMENT CORPORATION BILL

10.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Phil Gude with The Honourable Pat McNamara on behalf of The Honourable Alan Stockdale, the Treasurer.

10.2

This Bill establishes the Victorian Funds Management Corporation which will provide funds management and advisory services to participating authorities on a voluntary and contractual basis.

10.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

Clause 4 provides for the extra-territorial operation of the Act.

10.4 Victorian Funds Management Corporation

Part 2 establishes the Victorian Funds Management Corporation.

Clauses 6 and 8 set out the functions and the objectives of the Corporation. Clause 9 sets out the powers of the Corporation. It has the power to enter contracts, deal in units in trust, borrow money, acquire property, deal with leases, form partnerships, enter into joint ventures and form associations and corporations.

Clause 10 provides that the Corporation is subject to the general direction and control of the Treasurer but the Treasurer must no give a direction to the Corporation in relation to an investment decision. The Treasurer must publish a copy of the directions in the Government Gazette as soon as possible after giving them.

Clause 11 provides that the Corporation may delegate to specified persons by instrument, any power of the Corporation. Clause 12 provides that the Board of Directors consisting of a minimum of 4 persons and not more than 9 persons. The directors are appointed by the Governor-in-Council and are appointed for no more than 3 years but are eligible for re-appointment.

Clauses 18-20 deal with the proceedings of the Board and the making of resolutions. Clause 21 provides that directors must disclose any pecuniary interests. Clause 22 sets out the duties of the directors. Clause 23 provides that the Corporation must not make loans or give guarantees to the directors, spouses of directors or relatives of the directors. Clause 24 provides that the Corporation must not indemnify directors.

10.5

Clause 25 provides that the Board must prepare a corporate plan each year which must be given to the Treasurer. The Treasurer may make comments on the proposed plan and the Board must consult in good faith with the Treasurer. The Board must make periodic reports to the Treasurer and must pay dividends to the State after the Treasurer has consulted with the Board. Clause 28 provides for the appointment of a chief executive officer for a term of 5 years by the Board with the approval of the Treasurer. Clause 32 provides that an employee must not make improper use of information and sets out the penalty.

10.6 Operations of the Corporation

Part 3 sets out the operations of the Corporation.

Clause 33 provides that the Treasurer may pay to the Corporation an initial capital amount not exceeding $10 million dollars from the Consolidated Fund. Pursuant to clause 35, the Corporation has the borrowing and investment powers of the Borrowings and Investment Powers Act 1987. Clause 36 provides that the Treasurer may exempt an instrument from stamp duty. Clause 37 provides that the Treasurer may execute a guarantee on such terms and conditions as the Treasurer determines.

10.7 General provisions

Part 4 sets out the general provisions.

Clause 39 exempts the Corporation from the Freedom of Information Act 1982. Clause 40 gives the Governor-in-Council the power to make regulations which are subject to the Subordinate Legislation Act 1962. Clause 41 makes consequential amendments.

STATE TRUSTEES (STATE OWNED COMPANY) BILL

11.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Phil Gude with The Honourable Pat McNamara on behalf of The Honourable Alan Stockdale, the Treasurer.

11.2

This Bill provides for the old State Trustees to be established as a new company which will be wholly owned by the State. The company is called State Trustees Limited.("State Trustees")

11.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

11.4 State trustees

Part 2 deals with State Trustees.

Part 2 re-enacts various provisions of the State Trust Corporation of Victoria Act 1987 ("the STCV Act") to substitute the new company for the old State Trust Corporation of Victoria with the same powers and functions.

11.5 General

Part 3 sets out general provisions.

Clause 13 provides that in addition to the commissions, fees and remuneration it is entitled to receive under the Trustees Companies Act 1984, State Trustees can charge fees and commissions for certain services. The State Trustees must lodge a copy of its scale of charges with the Minister.

The Committee has written to the Treasurer to request his advice as to the insertion of a provision to require the publication of the scales.

Clause 15 provides for a limited government guarantee to apply to State Trustees. Clause 16 preserves the rights of existing clients of the State Trust Corporation of Victoria. Clause 17 re-enacts section 13 of the STCV Act with respect to secrecy except that it now applies only to the administration of the estate of a represented person or a protected person. Clauses 18 and 19 re- enact provisions of the STCV Act with consequential amendments.

11.6 Community Service Obligations

Part 4 deals with community service obligations.

Clause 21 provides that the Minister is responsible for ensuring that all members of the public have access to services. This applies to members of the public who, in the opinion of the Minister do not have the resources to obtain the services for themselves.

11.7

Part 5 repeals the State Trust Corporation of Victoria Act 1987 and makes various transitional amendments.

Clause 27 provides for a statement of assets and liabilities to be provided to the Treasurer. Clause 30 provides that State Trustees must provide a 1993-4 annual report.

11.8 Amendment of the Guardianship and Administration Board Act 1986

Part 6 deals with the amendment of the Guardianship and Administration Board Act 1986.

Clause 35 inserts a new division 3A into the Act which specifies additional powers and duties of administrators. It specifies that certain powers are to be exercised in a particular way, ie; where there is a beneficial interest, the administrator may exercise the power or give the consent in any manner that the administrator thinks fit. Represented persons are entitled to inspect accounts from all or any part of the estate of an administrator. All personal effects of any represented person in the possession of the administrator may be sold after public notice and after two years if they are not claimed. The administrator has the power to open and read without any order, any paper deposited with him or her alleged to be the will of the represented person, either before or after the death of the represented person.

11.9 Amendment of the Administration and Probate Act 1958

Part 7 amends the Administration and Probate Act 1958.

Clause 39 inserts a new section 24A which relates to uncared for property. Clause 40 inserts a provision which gives the State Trustees the power to make distribution of property after the service of a notice of refusal. If the person, the subject of the notice of refusal does not institute proceedings within 3 months of receipt of the notice, the State Trustees may distribute the property. It also provides that State Trustees may pay the balance of money from an estate after the creditors have been paid, to the proper officer, ie: someone administering another part of the estate outside Victoria. Similarly, the State Trustees can receive money from another part of the estate outside Victoria from proper officers. It also provides that for the administration of small estates.

Part 8 makes consequential amendments to other Acts

11.10 Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees Act 1968)

Clause 40 inserts a new section 30D which states its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining claims in the circumstances described in section 30A(3) of the Act.

Section 30A gives the State Trustees the power to make distribution of an estate after a notice of refusal has been served. The person, the subject of the notice of refusal has 3 months within which to institute proceedings to enforce the claim, Section 30A(3) prevents the person, the subject of the notice of refusal from bringing any claims in respect of the estate, once distribution has occurred. The Committee notes the comments in the Second Reading Notes: -

"The reason for limiting the jurisdiction of the Supreme Court is to remove uncertainty and facilitate prompt distribution of estates by ensuring that subsequent claims are not recognised."

The Committee reports that the proposed provision is appropriate and desirable in all the circumstances.

MELBOURNE WATER CORPORATION (AMENDMENT) BILL

12.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Phil Gude with The Honourable Pat McNamara on behalf of The Honourable Alan Stockdale, the Treasurer.

12.2

This Bill amends the Melbourne Water Corporation Act 1992. More specifically, it broadens the Melbourne Water Corporation's power of delegation and gives the Treasurer the power to give directions to the Melbourne Water Corporation in relation to the exercise of its power of delegation. The Committee notes the comments in the Second Reading Notes by way of background:-

"Whilst simple in themselves, these amendments are part of the Government's strategy of reviewing the form and functions of large state authorities. The Government has already announced its intention of separating Melbourne Parks and Waterways from Melbourne Water. This Bill will facilitate that.....

Melbourne Water has already been restructured internally into operating divisions including a headworks division and three regional distribution bodies. The Bill is designed to facilitate corporatisation of separate bodies reflecting this structure."

12.3

Clause 2 is the commencement clause.

Clause 3 amends section 15 of the Act to provide that the Corporation may delegate by instrument, any powers of the Corporation to "a statutory corporation within the meaning of the State Owned Enterprises Act 1992." The Committee notes that whilst this broadens the power of the Corporation to delegate, the recipient of the powers delegated is specified. The clause also provides that the Treasurer, may, after consulting with the Minister, give the Board written directions in relation to the exercise of the Corporation's delegation of power. The Board must comply with the Treasurer's direction which must be tabled in both Houses of Parliament within 15 sitting days of the giving of the direction.

Clause 4 amends section 45(1) of the Act which provides that the Minister may give written directions to the Board in relation to the performance of the Corporation's functions and powers. The amendment provides that the power of the Minister to direct the Corporation is subject to a direction given to the Corporation by the Treasurer as set out in clause 3. Pursuant to sub-clause (3) of section 45, the Minister must still cause a copy of a direction given under the provision to be laid before both Houses of Parliament within 15 sitting days.


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