alert digest 11 of 2005 - parliament.vic.gov.au · property (co-ownership) bill serious offenders...

No. 11 of 2005

Tuesday, 4 October 2005

On the

Defamation Bill Fair Trading (Telephone Marketing) Bill

Land Tax Bill Primary Industries Acts (Further Amendment) Bill

Property (Co-ownership) Bill Serious Offenders Monitoring Bill

Statute Law Revision Bill Treasury Legislation (Miscellaneous Amendments) Bill

Treasury Legislation (Repeal) Bill Working with Children Bill

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Table o f Contents

Page Nos.

Alert Digest No. 11 of 2005 Defamation Bill 3 Fair Trading (Telephone Marketing) Bill 11 Land Tax Bill 12 Primary Industries Acts (Further Amendment) Bill 15 Property (Co-ownership) Bill 17 Serious Offenders Monitoring Bill 21 Treasury Legislation (Miscellaneous Amendments) Bill 23 Treasury Legislation (Repeal) Bill 24

Ministerial Correspondence Statute Law Revision Bill 27 Working with Children Bill 28

Appendices 1 – Index of Bills in 2005 35 2 – Committee Comments classified by Terms of Reference 37 3 – Ministerial Correspondence 39

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Section 35 (b)(iv) of the Interpretation of Legislation Act 1984 provides –

In the interpretation of a provision of an Act or subordinate instrument consideration may be given to any matter or document that is relevant including, but not limited to, reports of Parliamentary Committees.

ROLE OF THE COMMITTEE

The Scrutiny of Acts and Regulations Committee is an all-party Joint House Committee which examines all Bills and subordinate legislation (regulations) presented to the Parliament. The Committee does not make any comments on the policy aspects of the legislation. The Committee’s terms of reference contain principles of scrutiny that enable it to operate in the best traditions of non-partisan legislative scrutiny. These traditions have been developed since the first Australian scrutiny of bills committee of the Australian Senate commenced operation in 1982. They are precedents and traditions followed by all Australian scrutiny committees. Non-policy scrutiny within its terms of reference allows the Committee to alert the Parliament to the use of certain legislative practices and allows the Parliament to consider whether these practices are necessary, appropriate or desirable in all the circumstances.

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Terms o f Reference

Parliamentary Committees Act 2003

17. Scrutiny of Acts and Regulations Committee

The functions of the Scrutiny of Acts and Regulations Committee are –

(a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly – (i) trespasses unduly upon rights or freedoms; (ii) makes rights, freedoms or obligations dependent upon insufficiently defined

administrative powers; (iii) makes rights, freedoms or obligations dependent upon non-reviewable

administrative decisions; (iv) unduly requires or authorises acts or practices that may have an adverse effect

on personal privacy within the meaning of the Information Privacy Act 2000; (v) unduly requires or authorises acts or practices that may have an adverse effect

on privacy of health information within the meaning of the Health Records Act 2001;

(vi) inappropriately delegates legislative power; (vii) insufficiently subjects the exercise of legislative power to parliamentary

scrutiny;

(b) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament – (i) as to whether the Bill directly or indirectly repeals, alters or varies section 85

of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;

(ii) if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable;

(iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;

(c) to consider any Act that was not considered under paragraph (a) or (b) within 30 days immediately after the first appointment of members of the current Committee and to report to the Parliament with respect to that Act on any matter referred to in those paragraphs;

(d) the functions conferred on the Committee by the Subordinate Legislation Act 1994;

(e) the functions conferred on the Committee by the Environment Protection Act 1970;

(f) the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001;

(g) to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act.

Scrutiny of Acts and Regulations Committee

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The Committee has considered the following Bills– Defamation Bill Fair Trading (Telephone Marketing) Bill Land Tax Bill Primary Industries Acts (Further Amendment) Bill Property (Co-ownership) Bill Serious Offenders Monitoring Bill Treasury Legislation (Miscellaneous Amendments) Bill Treasury Legislation (Repeal) Bill

The Committee notes the following correspondence –

Statute Law Revision Bill Working with Children Bill

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Summary o f Comments

Defamation Bill

The Committee notes that the Bill will modify the laws currently applicable to proceedings in civil defamation in the following principle ways –

1. Clause 7 abolishes the distinction in common law between libel and slander.

2. Clause 9 prohibits certain corporations from commencing proceedings in defamation.

3. Clause 22 removes from the jury the function to assess damages where defamatory matter is published and no defence is established.

4. Clause 35 provides a statutory limit to the award of damages for non-economic loss.

5. Clause 37 bars a remedy for the award of punitive or exemplary damages.

6. Clauses 47 and 48 abridge the time in which a proceedings in defamation may be commenced (limitation of actions).

The Committee recognises the fundamental rights in respect to personal reputation raised by the provisions in the Bill. The Committee is mindful that there are other associated and competing rights such as the right to privacy and freedom of expression that by implication arise from laws governing defamation.

Whether the changes made by this Bill to the common law and statutory provisions in the current law concerning civil defamation achieve the right balance in protecting competing ‘rights’ are matters for the Parliament to consider and determine.

Land Tax Bill

[115]

Privative clauses – decisions of Commissioner not reviewable by courts – applied to Land Tax Act 2005.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, – ‘jurisdiction of the Supreme Court’.

The Committee having reviewed the comments made in the Minister’s Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum, is of the view that the proposed section 85 Constitution Act 1975 provisions are appropriate and desirable in all the circumstances.

Property (Co-ownership) Bill

[234G]



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Serious Offenders Monitoring Bill

[2]

1. The Committee notes that contrary to the objectives clause there is no provision in the Bill that repeals the Serious Sex Offenders Monitoring Act 2005.

2. The Committee notes the Act was to commence on proclamation but that no justification or reasons were provided in the second reading speech concerning the need to employ an unspecified commencement date.

The Committee is of the view that a commencement by proclamation provision may constitute an inappropriate delegation of legislative power within the meaning of section 17(a)(vi) of the Parliamentary Committees Act 2003. The Committee is of the opinion that Parliament should be responsible for deciding when a law should come into force and that the commencement provisions should contain reasonable limitations in respect to the period between the passage of legislation in Parliament and the coming into force of that legislation.

3. From the purposes clauses 1(2)(b) and 5 it is not clear to the Committee as to the respective roles of the Secretary to the Department of Justice and the Director of Public Prosecutions in making an application for an extended supervision order under the proposed Act.

Treasury Legislation (Repeal) Bill

[3]

1. The Committee notes that one of the Acts to be repealed is the Miners' Phthisis Relief Act 1936 (No. 4438). This Act has never been proclaimed. The Committee notes that Compensation for gold miners suffering from miners' phthisis was provided for in the Miners' Phthisis (Treasury Allowances) Act 1938.

The Committee notes that the Miners' Phthisis (Treasury Allowances) Act 1938 (No. 4567) is also to be repealed but that an amendment has been made in the Bill to the Accident Compensation Act 1985 to expressly preserve the rights of the one remaining recipient of the allowance.

2. The Committee notes the repeal of the Mint Act 1958 and the consequent saving provision enacted in the Financial Management Act 1994 to preserve any on-going pension entitlements under that repealed Act.

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Aler t D igest No . 11 o f 2005

Defamation Bill

Introduced 6 September 2005 Second Reading Speech 7 September 2005 House Legislative Assembly Minister introducing Bill Hon. Rob Hulls MLA Portfolio responsibility Attorney-General

Purpose

The Bill enacts model provisions relevant to defamation law. The principle features of the Bill include the –

• retention (with some modifications) of the common law of civil defamation.

• abolition of the distinction at common law between slander and libel.

• creation of a statutory cap on the amount of damages for non-economic loss that may be awarded in civil proceedings for defamation.

• enactment of provisions to facilitate the resolution of civil disputes about the publication of defamatory matter without litigation.

• delineation of the respective roles of juries and judicial officers in the jury trial of civil proceedings for defamation by limiting the role of juries to the determination of whether a person has been defamed and leaving the award of damages to judicial officers.

• abolition of exemplary and punitive damages in civil proceedings for defamation.

• establishment of truth alone as a defence to a civil action for defamation.

• imposition of a limitation period for civil actions for defamation of 1 year, subject to an extension (in limited circumstances) to a period of up to 3 years following publication.

Background Defamation law in Victoria is principally governed by the common law and partially by the provisions of Part I of the Wrongs Act 1958. Some States and Territories have codified their civil law of defamation and others have supplemented the common law with differing statutory provisions.

In November 2004, the Standing Committee of Attorneys General (SCAG) of the States and Territories agreed to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation (‘the model provisions’). The Bill enacts those agreed model provisions in Victoria.

As a consequence of the enactment of the model provisions the Bill will repeal a number of redundant provisions of the Wrongs Act 1958 relating to civil defamation.


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Definition of ‘Defamation’

The tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person (including corporations) defamed in the eyes of the public at large. At common law defamatory imputations may exist in spoken form (slander) or in some permanent form (libel).Only living persons may be defamed. In assessing whether defamation has occurred, the intention of the defendant is irrelevant: it is the effect of the defendant’s actions which matter. [Concise Australian Legal Dictionary, Butterworths, Second Edition, page117.]

Human Rights Principles concerned with defamation, privacy and freedom of expression.

The Committee notes the following International and domestic human rights instruments and Acts relevant to fundamental rights to reputation, privacy and freedom of expression.

United Nations Declaration of Human Rights

Article 12* – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. * Also identical provision is found in Article 17 of the International Covenant on Civil and Political Rights.

Article 19 – Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

International Covenant on Civil and Political Rights

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

European Convention on Human Rights

Article 10 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Alert Digest No. 11 of 2005

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2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Human Rights Act 2004 (ACT)

Section 12 – Everyone has the right – (a) not have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily and, (b) not to have his or her reputation unlawfully attacked.

Section 16 – (1) Everyone has the right to hold opinions without interference. (2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

Second Reading Speech The Committee notes these relevant extracts from the Attorney-General’s Second Reading Speech –

The Defamation Bill will continue to allow the common law to operate except to the extent that the Bill expressly or by necessary implication provides otherwise.

…

For the purposes of considerably simplifying actions in defamation, the Defamation Bill abolishes the traditional distinction between an action in libel and an action in slander.

...

The Defamation Bill amends the common law in Victoria by prohibiting corporate entities from suing for defamation. … However, the government recognises that certain corporate entities should be able to sue for defamation, particularly those that do not necessarily possess the resources that larger companies can call on to protect their business reputations. Accordingly, the Defamation Bill allows 'not for profit' companies and small businesses to sue for defamation. The Bill focuses on protecting genuine small businesses particularly where there is likely to be a strong connection between the identity of the individual(s) and that of the company. As a result, an exempt corporation is determined by whether or not it employs fewer than the full-time equivalent of 10 persons and also by ensuring that the corporation is not related to another corporation.

…

The Defamation Bill allows either a plaintiff or defendant to choose whether proceedings ought to be determined by judge alone or by judge and jury, unless a court orders otherwise...The Defamation Bill does, however, alter the position in Victoria by delineating the role of the judge and the jury in defamation proceedings. The key change in this respect is that while a jury will determine whether the defendant has published a defamatory matter and, if so, whether any defence has been established, the determination of the award of damages and any related question is solely a matter for the judge.


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Defences

The overarching principle that underlies the availability of defences under the Defamation Bill is that these are additional to defences or other exclusions of liability that already exist under legislation or the common law and are not intended to supersede or limit the operation of those defences or exclusions of liability in any way. However, the provisions do signal important policy changes for certain jurisdictions.

The first change is the national adoption of the defence of justification. This reflects the existing common law position in Victoria that 'truth alone' is a complete defence to an action in defamation. At common law it has been recognised that truthful statements define a person's reputation rather than damage it … While 'truth alone' has been the position at common law in Victoria, South Australia, Western Australia and the Northern Territory, jurisdictions such as New South Wales, Queensland, Tasmania and the Australian Capital Territory have an added statutory element that a statement be 'true and in the public interest' or 'true and for the public benefit', before the defence applies.

The public interest element was designed to protect the privacy of individuals in the public sphere. This policy is inconsistent with the purpose of defamation law which protects reputation. The adoption of 'truth alone' as a defence reflects an agreement at the national level that privacy concerns do not belong in the realm of defamation law.

…

Consistent with the policy of capping general damages for personal injury claims as part of the tort law reforms implemented across jurisdictions in 2002 and 2003, the Defamation Bill caps damages awarded for non-economic loss in defamation actions at $250 000.

…

The Bill also amends the common law in Victoria by removing a plaintiff's ability to be awarded exemplary and punitive damages.

..

The continued ability of the courts to award aggravated damages to a plaintiff where the conduct of the defendant has been either unreasonable, or unjustified, or lacking in good faith, negates the need for exemplary or punitive damages.

…

The model Bill amends the common law in Victoria by reducing the limitation period for defamation actions from six years to one year. …However, as there may be circumstances where it was not reasonable for a plaintiff to be able to commence an action within the one-year limit, the Bill provides for a court to extend the limitation period up to a maximum of three years.

Content and Committee comment [Clauses]

[2]. The Act will come into operation on 1 January 2006.

[4]. Definition of published ‘matter’ - Defines certain terms used in the proposed Act. In particular the term ‘matter’ is defined to include published material (printed and electronic media), a picture, gesture or oral utterance; and any other thing by means of which something may be communicated to a person.


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[6]. Common law cause of action essentially preserved - Declares that the Act does not affect the operation of common law and equity (the general law) in relation to the tort of defamation except to the extent that the proposed Act provides otherwise (whether expressly or by necessary implication).

[7]. Distinction between libel and slander - Abolishes the general law distinction between libel and slander.

[9]. Only exempt corporations may bring action in defamation - A corporation does not have a cause of action for defamation of the corporation except in circumstances where the objects for which the corporation was formed did not include obtaining financial gain for its members or corporators; or the corporation employed fewer than 10 (full-time equivalent) persons and was not related to another corporation and the corporation was not a public body.

The Committee notes that the Bill prohibits corporations, other than exempt corporations, from commencing an action in defamation.

[10]. Deceased cannot be defamed - Defamation cannot be asserted, continued or enforced by a person in relation to the publication of defamatory matter about a deceased person.

[12 to 20]. Provides for the resolution of disputes without litigation.

[21]. Election of trial by jury except in certain circumstances - Enables a plaintiff or defendant in defamation proceedings in the Supreme Court or the County Court to elect to have the proceedings determined by a jury unless the court orders otherwise. The grounds on which a court may order otherwise include (but are not limited to), (a) the trial requires a prolonged examination of records; or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

[22]. Damages to be determined by judicial officer - Provides that the jury is to determine whether the defendant has published defamatory matter and, if so, whether any defence raised by the defendant has been established. However, the judicial officer is to determine the amount of damages (if any).

The Committee notes that the proposed section alters the position at general law in Victoria by withdrawing from the jury the determination of damages.

Defences [24]. The Defences in the Bill are in addition to any other defence or exclusion of liability available to the defendant apart from the proposed Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion or liability.

[25]. Truth - It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. Note: ‘Substantially true’ means true in substance or not materially different from the truth.

[27]. Absolute Privilege – Parliaments and the Judiciary - It is a defence to the publication of defamatory matter if the defendant proves that the matter was published on an occasion of absolute privilege. The publication of matter listed include –

• the publication of matter in the course of the proceedings of a parliamentary body of any country; and

• the publication of matter in the course of the proceedings of an Australian court or Australian tribunal; and

• the publication of matter on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to the proposed section; and


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• the publication of matter by persons or bodies in any circumstances specified in Schedule 1 (additional publications to which absolute privilege applies).

[28]. Public document - It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a public document or a fair copy of a public document; or a fair summary of, or a fair extract from, a public document.

The proposed section provides that the defence is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

[29]. It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report, summary or extract of any proceedings of public concern such as parliamentary or court proceedings. The clause defines ‘proceedings of public concern’.

[30]. Special interest recipient of information - Provides for a defence of qualified privilege in respect to the publication of defamatory matter to a person (the recipient) if the defendant proves that the recipient has an interest or apparent interest in having information on some subject; and the matter is published to the recipient in the course of giving to the recipient information on that subject; and the conduct of the defendant in publishing that matter is reasonable in the circumstances.

As the defence created by the proposed section is a defence of qualified privilege, it can be defeated on the same grounds as the defence of qualified privilege at general law. For example, the proposed section makes it clear that the defence may be defeated if the plaintiff proves that the publication was actuated by malice.

It requires the court to take into account whether it was in the public interest in the circumstances for the matter published to be published expeditiously. Secondly, it requires a court to take into account the nature of the business environment in which the defendant operates.

[31]. Honest opinion - Provides for a number of defences relating to the publication of matter that expresses an opinion that is honestly held by its maker rather than a statement of fact.

This defence will be defeated only if it is proved that the opinion was not honestly held by the defendant at the time the defamatory matter was published.

[32]. Distributor – agent – no editorial control – lack of knowledge and absence of negligence - It is a defence to the publication of defamatory matter if the defendant proves that the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

[33]. Trivial matter - It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (the defence of triviality).

The Committee notes that the defence does not currently exist under the general law in Victoria.

Damages [35]. Non-economic loss capped - Provides a limit on the amount of damages for non-economic loss imposed of $250,000 and this amount will be indexed annually.

The Committee notes that whilst non-economic damages will now be capped a court may award aggravated damages in certain circumstances.


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[36]. The state of mind of the publisher is not relevant to the award of damages for defamation.

[37]. Exemplary or punitive damages may not be awarded - A court cannot award exemplary or punitive damages for defamation.

The Committee notes that the Bill prohibits a court awarding exemplary or punitive damages.

[38]. Lists some factors (non-exhaustive) that a court may take into account in mitigation of damages.

[43]. Self-incrimination for criminal defamation – use limitation - A person in civil proceedings for defamation is not excused from answering a question, or discovering or producing a document or thing, on the ground that the answer may tend to incriminate the person of an offence of criminal defamation. However, the answer, document or thing is not admissible in evidence in proceedings for criminal defamation.

[45]. Regulations may be made for the purposes of the Act.

[46]. The proposed Act will apply to defamatory matter that is published after the commencement of the proposed Act except in certain circumstances.

[47 and 48]. Limitation of actions - Amends the Limitation of Actions Act 1958 to provide that, generally, a civil action for defamation must be commenced within 1 year following the date of publication of the matter of which the plaintiff complains. However, a court must extend this limitation period to a period of up to 3 years if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the 1 year period.

The Committee notes that under the current law in Victoria the limitation period is generally 6 years.

[49]. Amends certain Acts specified in Schedule 4 including the removal of sections 3A, 5, 5A, 6 to 8 and 12 in the Wrongs Act 1958 relevant to civil defamation now covered by provisions of the Act. Section 5A (crime reports privileged) is re-enacted as section 124A of the Police Regulation Act 1958.

Section 91 (proof of convictions in a defamation proceeding) of the Evidence Act 1958 is repealed. This provision is essentially reflected in section 42 of the proposed Act.

The Committee notes that the Bill will modify the laws currently applicable to proceedings in civil defamation in the following principle ways –

1. Clause 7 abolishes the distinction in common law between libel and slander.

2. Clause 9 prohibits certain corporations from commencing proceedings in defamation.

3. Clause 22 removes from the jury the function to assess damages where defamatory matter is published and no defence is established.

4. Clause 35 provides a statutory limit to the award of damages for non-economic loss.

5. Clause 37 bars a remedy for the award of punitive or exemplary damages.

6. Clauses 47 and 48 abridge the time in which a proceedings in defamation may be commenced (limitation of actions).

The Committee recognises the fundamental rights in respect to personal reputation raised by the provisions in the Bill. The Committee is mindful that there are other associated and competing rights such as the right to privacy and


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freedom of expression that by implication arise from laws governing defamation. Whether the changes made by this Bill to the common law and statutory provisions in the current law concerning civil defamation achieve the right balance in protecting competing ‘rights’ are matters for the Parliament to consider and determine.

The Committee makes no further comment.


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Fair Trading (Telephone Marketing) Bill

Introduced 14 September 2005 Second Reading Speech 14 September 2005 House Legislative Council Private Member’s Bill Hon. Peter Hall MLC Portfolio responsibility Minister for Consumer Affairs

Purpose

The Bill amends the Fair Trading Act 1999 (the ‘Act’) to regulate telephone marketing.

Committee comment

[2]. The amendment will comes into force on the day after Royal Assent.

[3]. Substitutes 5 pm for 8 pm in section 67C(c)(ii) of the Act to prohibit telephone marketing after 5 pm on all days. The amendment will thus restrict telephone marketing to the hours of 9 am and 5 pm. Note: Telephone marketing is currently prohibited on public holidays.



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Land Tax Bill

Introduced 6 September 2005 Second Reading Speech 8 September 2005 House Legislative Assembly Minister introducing Bill Hon. John Brumby MLA Portfolio responsibility Treasurer

Purpose

The Bill makes provision for land tax and repeals the current Land Tax Act 1958. The Bill amends the Taxation Administration Act 1997 so that it will apply to the administration and enforcement of land tax.

Committee comment

[Clauses]

[2]. The Act will come into operation on 1 January 2006.

[5]. Declares that the Act is to be read together with the Taxation Administration Act 1997, which deals with matters of administration and enforcement of taxation laws.

[7]. Provides that land tax is imposed on all taxable land in Victoria and [8] provides that an owner of taxable land is liable to pay land tax on the land.

[24]. Provides for the imposition of land tax on transmission easements.

[52 to 88]. Provides for exemptions and concessions in respect to the liability for Land Tax. These include principal places of residence, land for primary production, mines, agricultural shows, residential care and rooming houses, caravan parks and retirement villages, charities, sporting and recreational organisations, public authorities and municipal and public land.

[89 to 95]. Provides the mechanisms for dealing with circumstances where taxpayers are unable to meet their land tax liability, including relief provided by the Commissioner of State Revenue (where a land tax liability does not exceed $1000) and the Hardship Relief Board (where a land tax liability exceeds $1000).

[96 to 102]. Provides for the mechanism for enforcing a liability for land tax, by providing the mechanisms for security for land tax (by making it a first charge on land and allowing the registration of a charge on title), recovery of land tax (where there is a tax default), prohibiting the passing on of land tax (in certain circumstances) and anti-avoidance provisions.

[107]. Provides for regulations to be made to give effect to any matter necessary under the Act.

[108 to 115]. Amends the Taxation Administration Act 1997 so that the Act will also apply to land tax as provided in the Land Tax Act 2005.


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Section 85 Report to the Parliament pursuant to section 17(b) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[115]. Amends section 135 of the Taxation Administration Act 1997, (jurisdiction of the Supreme Court). The clause declares that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997 (limiting the jurisdiction of the Supreme Court) to apply to the Land Tax Act 2005.

The respective sections of the Taxation Administration Act 1997 provide –

5. Meaning of non-reviewable in relation to certain decisions If a provision of this Act provides that a decision is a non-reviewable decision no court or administrative review body, including the Tribunal, has jurisdiction or power to entertain any question as to the validity or correctness of the decision.

12. Compromise assessment (4) An assessment or reassessment made under this section with the agreement of a taxpayer is a non-reviewable decision.

18. Application of Part (1) Proceedings for the refund or recovery of tax paid or purportedly paid under a taxation law, whether before or after the commencement of this section, must not be brought, whether against the Commissioner or otherwise, except as provided in this Part.

96. Objections (2) No court or administrative review body, including the Tribunal, has jurisdiction or power to consider any question concerning an assessment or decision referred to in sub-section (1), except provided by this Part.

100. Objections lodged out of time (4) A decision by the Commissioner under this section to refuse permission or to impose conditions on permission is a non-reviewable decision.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 115 of the Bill provides that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997, as those sections apply after the commencement of clause 115, to alter or vary section 85 of the Constitution Act 1975. These provisions preclude the Supreme Court and VCAT from entertaining proceedings of a kind to which these sections apply, except as provided by those sections.

This Bill provides that for the purposes of the Taxation Administration Act 1997, the Land Tax Act 2005 is a 'taxation law'. A central purpose of this Bill is to bring land tax under the Taxation Administration Act 1997. The intent of clause 115 is to ensure that the current limitations of the Supreme Court referred to in section 135 of the Taxation Administration Act 1997 will apply to land tax. In this sense the same reasons will apply as to why the provisions referred to in section 135 of the Taxation Administration Act 1997 alter or vary section 85 of the Constitution Act 1975 as did apply when the Taxation Administration Act 1997 was first enacted.


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Section 5 of the Taxation Administration Act 1997 defines the meaning of non-reviewable in relation to the Taxation Administration Act 1997 which now also applies to land tax.

The reasons for limiting the jurisdiction in relation to a compromise assessment under section 12 of the Taxation Administration Act 1997 are that agreement has been reached between the commissioner and the taxpayer on the taxpayer's liability, and the purpose of the section would not be achieved if the decision were reviewable, and this provision now applies to land tax.

Section 18 of the Taxation Administration Act 1997 establishes a procedure, the adherence to which is a condition precedent to taking any further action for recovering refunds. The refund provisions replicate those existing in the current taxation Acts. The purpose of the provisions is to give the commissioner the opportunity to consider a refund application before any collateral legal action can be taken. The purpose of these provisions would not be achieved if the commissioner's actions were subject to judicial review. This provision will apply to land tax under this Bill.

Section 96 of the Taxation Administration Act 1997 establishes an exclusive code for dealing with objections and appeals, and this provision will also apply to land tax under this Bill. This code establishes the rights of objectors in a statutory framework and precludes any collateral actions for judicial review. The objections and appeals provisions of the Taxation Administration Act 1997 establish that review of assessments is only to be undertaken in accordance with an exclusive code identified in that particular Division. The purpose of these provisions would not be achieved if the commissioner's consideration of an objection were subject to judicial review.

A power is provided to the commissioner under section 100 of the Taxation Administration Act 1997 which provides the commissioner with discretion to allow an objection to be lodged even though out of time. This decision is non-reviewable to ensure the efficient administration of the Act and to enable outstanding issues relating to assessments to be concluded expeditiously.

This provision will apply to land tax under this Bill.

Privative clauses – decisions of Commissioner not reviewable by courts – applied to Land Tax Act 2005.



[116]. Repeals the Land Tax Act 1958.



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Primary Industries Acts (Further Amendment) Bill Introduced 6 September 2005 Second Reading Speech 8 September 2005 House Legislative Assembly Private Members Bill Hon. Bob Cameron MLA Portfolio responsibility Minister for Agriculture

Purpose

The Bill amends the Domestic (Feral and Nuisance) Animals Act 1994 to –

• provide for the de-sexing and the permanent identification of dogs and cats; and

• prohibit the keeping of restricted breed dogs; and

• prohibit the sale of dogs and cats unless they are permanently identified; and

• require Councils to prepare domestic animal management plans; and

• generally improve the administration and enforcement provisions of that Act.

The Bill amends the Prevention of Cruelty to Animals Act 1986 to –

• amend the provisions relating to the issue of permits for rodeos and rodeo schools; and

• generally improve the administration and enforcement provisions of that Act.

Committee comment

[2]. Provides that clause 7 will come into operation on 1 May 2007. Clauses 6, 8, 9(2), 21(6), 22, 24 and 29 will come into operation on proclamation but not later than by 1 July 2006. All other provisions will come into operation on the day after Royal Assent.

Domestic (Feral and Nuisance) Animals Act 1994

[5]. Inserts new sections 10A and 10B to provide that a Council may resolve that it will not after a specified date register or renew the registration of a dog or cat unless the animal is desexed or exempted from the requirement to be desexed.

[6]. Inserts new section 10C to provide that a Council must not register or renew the registration of a dangerous, menacing or restricted breed dog unless that dog has been implanted with a permanent identification device. This provision is re-enacted at a later commencement time as new section 10C(6) inserted by clause 7.

[7]. Commencing 1 May 2007 a new section 10C and 10D are inserted and deal with permanent identification of dogs and cats permitting Councils the power to make local laws (with certain exemptions) not to register a dog or a cat unless a prescribed permanent identification device is implanted on the animal.

[8]. Inserts section 12A and substitutes section 13 to provide that the proprietor of a domestic animal business must not sell or give away a dog or cat unless the animal has been implanted with a permanent identification device.

In order to allow pet owners time to arrange for microchipping, the Act will only require that animals be microchipped for new registrations from 1 May 2007. Therefore, registration of an animal that is not microchipped may be renewed where that animal has been previously


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registered, unless the Council makes an order requiring all cats and dogs to be microchipped. (2nd Reading).

[12]. Amends section 17 to refer to registration of restricted breed dogs as well as dangerous dogs. The section will also be amended to insert a provision prohibiting the registration of a restricted breed dog unless the Council is satisfied that the dog was in Victoria prior to commencement of clause 12 and the owner of the dog reasonably held the opinion at that commencement that the dog was not a restricted breed dog.

[15]. Inserts new section 41EA to prohibit the keeping of a restricted breed dog unless the person acquired the dog before the commencement of the section.

[21]. A dangerous or restricted dog may be seized by the Council where it has refused to register the dog or the dog cannot not be registered under the Act or where the owner has not paid an infringement penalty in respect to a relevant offence concerning a dog or cat.

Prevention of Cruelty to Animals Act 1986

[27]. Amends a number of the cruelty offences in section 9.

Section 9(1)(b) is substituted to include confinement of an animal (as well as crowding and overloading) and that an offence will only occur if the activity causes or is likely to cause unreasonable pain or suffering to an animal.

Section 9(1)(c) and 9(1)(e) are substituted to remove the requirement to prove the offender's knowledge or negligence in relation to an act or omission to act, for the offences in those sections – after the amendments take effect the offences will be made out where the act or omission results in unreasonable pain or suffering being caused to an animal.

Section 9(1)(d) is amended to clarify that the offence to fail to provide an animal with proper and sufficient food, drink and shelter applies if there is a failure to provide any one of those things.

Section 9(1)(i) is substituted and will now apply if the owner or person in charge of a sick or injured animal unreasonably fails to provide veterinary or appropriate treatment or attention to the animal—the requirement to prove that the owner knowingly or negligently failed to treat or attend to the animal has been removed.

[29]. Deals with amendments for a permit to operate a rodeo or a rodeo school.

[31 to 36]. Makes amendments to inspectorial, warrant and seizure powers.



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Property (Co-ownership) Bill

Introduced 13 September 2005 Second Reading Speech 14 September 2005 House Legislative Assembly Private Members Bill Hon. Rob Hulls MLA Portfolio responsibility Attorney-General

Purpose

The Bill amends the Property Law Act 1958 (PLA) to provide for the transfer of jurisdiction for co-ownership disputes from the Supreme and County Courts to the Victorian Civil and Administrative Tribunal (VCAT) and set out the remedies available to determine these disputes. The Bill also makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 and the Transfer of Land Act 1958.

Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 July 2006.

[3]. Limits the operation of section 187 of the PLA which deals with the power to direct the division of chattels (non-fixtures or land). Section 187 gives a tenant in common with a half or greater share in any chattel the right to make application to the Court for an order for the division of the chattel and the Court may make orders or give directions as it sees fit.

The amendments provide that a person must make application under Part IV (as substituted by the Bill) which has the effect of removing jurisdiction over disputes between co-owners over certain types of chattels from the Supreme Court and County Court and gives that jurisdiction to the VCAT. The new subsection (3) declares that it is the intention of the new subsection (2) to alter or vary the jurisdiction of the Supreme Court. (refer to section 85 provision below).

[4]. Inserts section 187A and provides that section 187 continues to apply in respect of any proceeding commenced in the Supreme or County Courts immediately before the commencement of clause 3.

[5]. Inserts a new Part IV to replace the existing Part IV of the PLA. The purpose of the new Part IV is to provide a statutory mechanism for terminating the co-ownership of land and goods when the co-owners fail to agree on the manner in which the co-ownership should be terminated or a co-owner can not agree to sell because he or she is not an adult or lacks legal capacity.

New section 221 provides that the new Part will apply to all land in Victoria, whether or not the land is registered under the Transfer of Land Act 1958.

New section 225 provides that a co-owner of land or goods may apply to VCAT for an order for the sale of the land or goods and the division of the proceeds between the co-owners; the physical division of the land or goods between the co-owners; or a combination of the first two options.

Where there are proceedings under the –


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• Family Law Act 1975 (Cth) or

• Part IX of the PLA (division of property on the breakdown of a domestic relationship).

VCAT may adjourn an application to permit a co-owner of property to commence proceedings under these provisions.

New section 228 sets out the remedies available to VCAT under the new Part IV. VCAT may order –

• sale of the land or goods and the division of the proceeds between the co-owners;

• the physical division of the land or goods between the co-owners; or

• a combination of the first two options.

New section 232 sets out the other matters that VCAT may order.

New section 234C excludes the jurisdiction of the Supreme and County Courts (also see section 85 statement below) to hear an application under Part IV unless –

• the matter which is the subject of the application relates to a proceeding under –

o Part IX of the PLA, or

o Part IV of the Administration and Probate Act 1958 (testator family maintenance claims); or

o the Partnership Act 1958; or

• in any proceeding which has commenced in the Supreme or County Courts the issue of co-ownership of land or goods arises in the course of that proceeding; or

• in the opinion of these Courts special circumstances exist which justify the Courts hearing the application. The phrase "special circumstances" is defined for the purposes of this section as –

o the matter which is the subject of the application is complex; or

o the matter which is the subject of the application, or a substantial part of that matter, does not fall within the jurisdiction of VCAT.

VCAT does not have jurisdiction to hear an application where the subject of the application relates to Part IX of the PLA, Part IV of the Administration and Probate Act 1958 or the Partnership Act 1958

New section 234D provides that, without limiting the powers of any court to make orders, where a court has jurisdiction over any proceeding in relation to the co-ownership of land or goods a court may make any order that VCAT could make under this Part.

Section 85 Report to the Parliament pursuant to section 17(b) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

New section 234G declares that it is the intention of section 234C to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –


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Clause 3 of the Bill proposes to insert new section 187(3) into the Property Law Act 1958. Section 187(3) states that it is the intention of new section 187(2) to alter or vary section 85 of the Constitution Act 1975. New section 187(2) provides that if the chattels that are the subject of an application are goods that come within the meaning of Part IV of the Property Law Act 1958 the person must make their application under Part IV. The effect of subsection (2) is to remove jurisdiction over disputes between co-owners over certain types of goods from the Supreme Court and give jurisdiction to VCAT.

The reason for removing this jurisdiction from the Supreme Court is to ensure that applications that relate to both land and goods can be dealt with in VCAT under Part IV of the Property Law Act 1958.

Disputes may arise as to whether certain items are fixtures, and so form part of the land, or are chattels to be dealt with under section 187. As VCAT will have jurisdiction in relation to both land and goods, it will not be necessary to determine whether the chattel is a fixture or goods and whether VCAT has the jurisdiction to deal with it. This will allow co-ownership disputes over land and goods to be dealt with at the same time without the need to determine whether the goods in dispute are a fixture or a chattel. Providing VCAT with the jurisdiction to hear co-ownership disputes over goods ensures that co-owners have access to an accessible and affordable dispute resolution mechanism.

Clause 5 of the Bill proposes to insert new section 234G into the Property Law Act 1958. Section 234G states that it is the intention of section 234C to alter or vary section 85 of the Constitution Act 1958. New section 234C limits the jurisdiction of the Supreme Court to hear an application under part IV unless the matter which is the subject of the application relates to a proceeding under –

o Part IX of the PLA (division of property on the breakdown of a domestic relationship); or

o Part IV of the Administration and Probate Act 1958 (testator family maintenance claims); or

o the Partnership Act 1958; or

in any proceeding which has commenced in the Supreme or County courts the issue of co-ownership of land or goods arises in the course of that proceeding.

The effect of section 234C is to remove jurisdiction of the Supreme Court to hear an application under part IV for the sale or division of land or goods or an application for accounting in accordance with section 28A of the Property Law Act 1958 that does not come within these specified categories or unless the special circumstances referred to in section 234C(4)(b) and (5) exist.

The reason that the Supreme Court's jurisdiction to hear disputes between co-owners is limited is to ensure that these disputes can be dealt with in a more accessible and affordable forum for dispute resolution.


The Committee having reviewed the comments made in the Minister’s Second Reading Speech, the declaratory and enabling clauses and the explanatory


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memorandum, is of the view that the proposed section 85 Constitution Act 1975 provisions are appropriate and desirable in all the circumstances.

New section 234H sets out the power to make regulations under this Part.

New section 234G is a transitional provision. This section provides that old Part IV will continue to apply to any proceedings commenced under this Part before the commencement day of the new part IV as if Part IV of the PLA had not been amended by this Act.

[6]. Is a consequential amendment to Schedule 1 to the Victorian Civil and Administrative Act 1998.

[7]. Is a consequential amendment to sections 103, 104 and 116A of the Transfer of Land Act 1958 to allow VCAT to have the same powers as the Supreme Court to direct the Registrar to make alterations to the Register and require the production of documents in relation to proceedings under Part IV of the PLA.



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Serious Offenders Monitoring Bill

Introduced 7 September 2005 Second Reading Speech 7 September 2005 House Legislative Council Private Member’s Bill Hon. Richard Della-Riva MLC Portfolio responsibility Attorney-General

Purpose

The Bill repeals the Serious Sex Offenders Monitoring Act 2005 and amends the Sentencing Act 1991, the Bail Act 1977 and provides for the continuing supervision of offenders convicted of serious crimes.

Note: The Committee notes that the Bill was introduced as a Private Member’s Bill in the Legislative Council on 7 September 2005 and defeated in the Legislative Council on 14 September 2005.

Committee comment

[Clauses]

[1]. The purpose clause states that, amongst other objectives, the Bill intends to repeal the Serious Sex Offenders Monitoring Act 2005. Clause 1(2)(b) empowers a court to make an extended supervision order (an Order) on the application of the Secretary of the Department of Justice.

[2]. The Act commences on proclamation.

1. The Committee notes that contrary to the objectives clause there is no provision in the Bill that repeals the Serious Sex Offenders Monitoring Act 2005.

2. The Committee notes the Act was to commence on proclamation but that no justification or reasons were provided in the second reading speech concerning the need to employ an unspecified commencement date.

The Committee is of the view that a commencement by proclamation provision may constitute an inappropriate delegation of legislative power within the meaning of section 17(a)(vi) of the Parliamentary Committees Act 2003. The Committee is of the opinion that Parliament should be responsible for deciding when a law should come into force and that the commencement provisions should contain reasonable limitations in respect to the period between the passage of legislation in Parliament and the coming into force of that legislation.

3. From the purposes clauses 1(2)(b) and 5 it is not clear to the Committee as to the respective roles of the Secretary to the Department of Justice and the Director of Public Prosecutions in making an application for an extended supervision order under the proposed Act.

[4]. Defines who is an eligible offender for the purposes of the Act and refers to the offences in the Schedule.

[5]. The Director (DPP) may apply for an extended supervision order (‘an Order’).


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[6 and 7]. An application for an order must be accompanied by at least one assessment report. An assessment report can only be made by a psychologist; or a psychiatrist; or any other health service provider of a kind prescribed for the purposes of this section following a personal examination of the offender.

[11]. A court may only make an Order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order. The Director has the onus of proving the existence of the likelihood of re-offending.

[12 to 20]. Makes provision for the making of an Order, its commencement, duration, content, expiry, revival and suspension.

[21 to 23]. Makes provision for the review of an Order at 3 year intervals.

[24 and 25]. Make provision for the renewal of an Order.

[26 to 35]. Make provisions for regulating proceedings (such as, directions hearings, adjournments, attending examinations, execution of warrants and legal representation) concerned with an Order. If an offender fails to attend a hearing an arrest warrant may be issued.

[36 to 39]. Makes provision for appeals by the offender and the Director (DPP) in respect to the making, renewing or revoking of an Order, and prescribes the procedure for such appeals and the powers of the Court of Appeal on hearing an appeal.

[40 and 41]. Provides that the breach of an Order is an offence.

[42]. The court may make a suppression order concerning the publication of any relevant evidence or information concerning a proceedings if it is satisfied that it is in the public interest to do so.

[44]. Deals with restriction on disclosure of personal information by the Adult Parole Board unless it is only disclosed by it for law enforcement or judicial functions or activities and then only to a government department, public statutory authority or court or as otherwise required by or under this or any other Act or any law.

[46]. The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

[47]. Makes a consequential amendment to the Sentencing Act 1991.

[48]. Amends section 4(2) of the Bail Act 1977 to provide that a person who is charged with a breach of an Order must satisfy the court that exceptional circumstances exist which would justify the grant of bail.

Schedule – The Schedule lists the offences referred to in clause 4.



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Treasury Legislation (Miscellaneous Amendments) Bill

Introduced 13 September 2005 Second Reading Speech 14 September 2005 House Legislative Assembly Private Members Bill Hon. John Brumby MLA Portfolio responsibility Treasurer

Purpose

The Bill amends the Financial Management Act 1994 and the State Owned Enterprises Act 1992.

Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[3]. Amends section 27D of the Financial Management Act 1994 to enable the Government to release a financial report on any day before the due date, irrespective of whether or not Parliament is sitting.

[4 and 5]. Inserts a new section 86A in the State Owned Enterprises Act 1992, which provides for authorisation for the purposes of Part IV of the Trade Practices Act 1974 (Cth).

The Committee notes this extract from the Minister’s Second Reading Speech –

This amendment is necessary to enable VicForests to implement a sawlog pricing and allocation model. The model involves a phased-in transition from the current administered licence system for allocating timber supply to a fully competitive market auction system, in line with Victorian government policy articulated in Our Forests Our Future. Two key elements of the model are –

• a requirement that buyers process timber domestically,

• and the preclusion of companies and directors of companies (for a period of two years) who completely relinquished their sawlog licences under the voluntary licence reduction program (VLRP) from participating in the initial auctions of timber.

…

VicForests has, however, expressed concerns that such exclusion of parties from tenders could be seen to be inconsistent with Part IV of the Trade Practices Act 1974. Consequently, the Bill inserts a new section 86A in the State Owned Enterprises Act 1992, which provides for authorisation for the purposes of Part IV of the Trade Practices Act 1974 of any act or thing done by VicForests and its directors and officers in connection with the allocation and sale of timber resources, if the relevant act or thing is done with the consent of the Treasurer.



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Treasury Legislation (Repeal) Bill

Introduced 6 September 2005 Second Reading Speech 8 September 2005 House Legislative Assembly Private Members Bill Hon. John Brumby MLA Portfolio responsibility Treasurer

Purpose

The Bill repeals a number of redundant Acts and redundant provisions from the Gas Industry (Residual Provisions) Act 1994 and makes consequential amendments to that Act and other Acts.

There are a number of historic Acts to be repealed by this Bill they include the –

• Miner’s Phthisis Acts of 1936 and 1938

• Mint Act 1958 (first enacted in September 1867)

• Statistics Act 1958

• Unemployment Relief Acts from 1932 to 1939

• State Electricity Commission (Newport Power Station) Act 1977

• Victorian Government Stock Acts from 1898 to 1905

Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[3]. The Acts listed in Schedule 1 are repealed. The Explanatory Memorandum provides information in respect to each of the Acts to be repealed.

Note: If there are any residual effects of the provisions in the repealed Acts section 14 of the Interpretation of Legislation Act 1984 will act to ensure their continued operation.

1. The Committee notes that one of the Acts to be repealed is the Miners' Phthisis Relief Act 1936 (No. 4438). This Act has never been proclaimed. The Committee notes that Compensation for gold miners suffering from miners' phthisis was provided for in the Miners' Phthisis (Treasury Allowances) Act 1938.

The Committee notes that the Miners' Phthisis (Treasury Allowances) Act 1938 (No. 4567) is also to be repealed but that an amendment has been made in the Bill to the Accident Compensation Act 1985 to expressly preserve the rights of the one remaining recipient of the allowance.

2. The Committee notes the repeal of the Mint Act 1958 and the consequent saving provision enacted in the Financial Management Act 1994 to preserve any on-going pension entitlements under that repealed Act.


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[4]. The Acts listed in Schedule 2 are to be amended as set out in that Schedule.

Accident Compensation Act 1985 – This Act is amended to include a saving provision in respect of persons in receipt of allowances under the Miners' Phthisis (Treasury Allowances) Act 1938 which is to be repealed.

Financial Management Act 1994 – This Act is amended to include a saving provision in relation to the residual obligations to the United Kingdom under the Mint Act 1958 which is to be repealed by the Bill.



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Min is ter ia l Cor respondence

Statute Law Revision Bill

The Bill was introduced into the Legislative Council on 26 February 2003, by Mr John Lenders MLC. The Committee considered the Bill on 21 February 2005 and made the following comments in the Report on the Statute Law Revision Bill tabled in the Parliament on 22 February 2005.

Committee’s Comment

The Committee notes the unproclaimed Acts listed in Appendix 2.

The Committee will write to the Premier to request further information why the Acts listed in the Appendix remain unproclaimed or unrepealed.

Pending the response the Committee draws attention to the unproclaimed Acts.

Minister’s Response

Thank you for your letter of 22 March 2005 requesting advice on the current status of three unproclaimed Acts for which I am the responsible Minister.

The Department of Sustainability and Environment (DSE) has advised me that there is a continued need to retain all three Acts at this time. The objectives of the Acts are similar in that they facilitate proposed major developments on coastal Crown land.

The Metung Land Act 1991 and the Werribee South Land Act 1991 relate to proposed marina developments on coastal Crown land and enable land status changes to be made to various Crown land reserves as well as authorising the granting of long-term leases. While the developments did not proceed for economic reasons at the time these Acts were introduced into Parliament, planning for these developments has recommenced.

The Metung Land Act 1991 is associated with a residential and commercial development on the Gippsland Lakes. The residential component has proceeded and the developers have advised DSE that they are now planning to carry out the marina component. In the case of the Werribee South Land Act 1991, a marina proposal (Wyndham Cove) is currently proceeding through a planning scheme amendment and Environmental Effects Statement process.

The Footscray Land (Amendment) Act 1990 is associated with an urban renewal project on areas of Crown and freehold land next to the Maribyrnong River between Napier and Hopkins Street, Footscray. The function of this Act also relates to the changing of certain Crown reservations and the granting of long-term leases.

The Department of Sustainability and Environment and the Maribyrnong City Council continue to discuss the use of the Footscray Land (Amendment) Act 1990 to facilitate aspects of the project. In particular, the generic leasing provisions


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contained in the Crown Land (Reserve) Act 1978 would not be sufficient to facilitate the types of leasing developments proposed.

Proclamation of the three Acts referred to is likely once the developments reach a stage where they are certain to involve access to Crown land.

In these circumstances I consider that the continued retention of the Acts is appropriate.

ROB HULLS MP Minister for Planning

29 September 2005

The Committee thanks the Minister for this response.

Working with Children Bill

The Bill was introduced into the Legislative Assembly on 20 July 2005 by the Hon. Rob Hulls MP. The Committee considered the Bill on 8 August 2005 and made the following comments in Alert Digest No. 9 of 2005 tabled in the Parliament on 9 August 2005.

Committee’s Comment

[14]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee notes that category 3 applications may result in either a negative or interim negative assessment and that this may occur on the basis of ‘findings of a prescribed kind’ provided to the Secretary from a ‘prescribed body’.

The Committee notes that there appears to be no legislative guidance or limitation upon what are to be the ‘prescribed bodies’ and what may be findings of a prescribed kind made by such bodies.

The Committee is of the opinion that this may be a very wide power that would enable legislation to be made by regulations. For example, whether a ‘prescribed body’ is one that is a tribunal or disciplinary board established under an Act of Parliament and what kind of relevant disciplinary offences would constitute ‘a finding of a prescribed kind’.

The Committee will seek further advice from the Attorney-General whether it is appropriate or possible to define or limit the definition of ‘prescribed body’ and ‘finding of a prescribed kind’ for the purposes of the Act.

Pending the Attorney-General’s response the Committee draws attention to the provision.


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[28]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – ‘right to family relations’

The Committee notes Article 17 of the International Covenant on Civil and Political Rights which provides –

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Committee will seek further information concerning the operation of section 28, whether a ‘person who is closely related to a child’ and who is otherwise issued with a negative assessment notice (for example in respect to work outside the family environment) commits any offence pursuant to section 34.

Example: A person engages in family child-related work within the meaning of section 28 of the Act and subsequently applies for an assessment notice to work in child-related work at a child care centre. The person receives a negative notice. Does the person commit an offence under section 34 for engaging in child-related work when they have received a negative assessment? Can the person continue to rely on the section 28 exemption notwithstanding the negative notice?

Pending further advice from the Attorney-General the Committee draws attention to the provision.

[34]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights and freedoms’ – strict liability offence element of offence.

The Committee notes that the offence in section 34 (unlike sections 33 and 35) appears not to require a mental element of intent or recklessness. Rather, the offence is proven where a person, who has at any time been given a negative notice, and who does not have a current notice, either applies for or engages in ‘child-related work’. The strict liability element appears to cast a duty on every applicant, who is ultimately given a negative assessment, to know the negative outcome of their application.

Currently, the only defence to the charge under section 34 is that the person may prove that they did not know that the work was ‘child-related work’.

There may be rare cases where the person makes an application for an assessment and then abandons the application without formally withdrawing it and is oblivious to the fact that a negative assessment has been made.

It appears to the Committee that without an appropriate defence of due diligence in knowing that a negative assessment had been made it may, in some rare cases in an unintended duty on the part of an applicant to ensure they know the outcome of their application.


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The Committee will seek further advice from the Attorney-General whether an appropriate due diligence defence should be available in the circumstances.

Pending the Attorney-General’s response the Committee draws attention to the provision.

[43]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependant on insufficiently defined administrative powers’.

The Committee notes that under clause 43(b) the Secretary, by instrument, may delegate to another prescribed person or body. The term ‘prescribed person or body’ is not defined or limited in any way by the other provisions of the Act.

The Committee expects that where a provision seeks to include a wide or un-defined delegation provision that background material would be provided in the explanatory memorandum or the second reading speech sufficient to enable the Committee to assess the need for such a provision.

The Committee also draws attention to the incomplete description of the delegation provision as being one only to be exercised by public servants when subparagraph (b) of section 43 may permit ‘another prescribed person or body’ to be delegated powers.

The Committee will write to the Minister to seek further advice concerning the necessity or desirability to include a wide delegation provision. The Committee will also draw attention to the inadequate explanatory memorandum.

Pending receipt of this advice the Committee draws attention to the provision.

Minister’s Response

Thank you for your letter dated 9 August 2005, regarding the Working with Children Bill.

In your letter, you asked for further information about a number of aspects of the Bill. I will respond to each of these issues in turn.

Clause 14 - Finding of a prescribed kind made by, or on behalf of, a prescribed body

The Committee comments that category 3 applications may result in either a negative or an interim negative notice and that this may occur on the basis of ‘findings of a prescribed kind’ provided to the Secretary from a ‘prescribed body’. The Committee observes that this is a wide power to prescribe and seeks further advice as to whether it is appropriate to define or limit this power.

The intention of clause 14(1)(a) is to enable the Secretary to consider formal findings from certain professional registration bodies when determining whether it is appropriate to grant or refuse an assessment notice to an applicant. In my Second Reading Speech, I said that:

The relevant professional bodies are not named in the legislation, but it is our intention to prescribe, by regulation, bodies such as the VIT [the Victorian Institute of Teaching] and the medical registration boards. The Government is currently reviewing the operation of all health practitioner registration boards,


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and the information held by these boards will not be incorporated into the Working with Children Scheme until the review has been completed and the future arrangements for regulation of the health professions have been determined.

Once the relevant boards have been prescribed, if a health professional is the subject of a serious disciplinary finding and, for example, is deregistered, this information will be available to the Working with Children Bill if that health professional applies for a working with children check. The Working with Children Bill will consider the circumstances that led to the deregistration, including its relevance to child related work, in deciding whether this is a case in which the presumption that an assessment notice should be granted is displaced.

As you can see from these paragraphs, the intention is to only prescribe legislatively created disciplinary schemes that preserve a person’s natural justice rights. The first body proposed to be prescribed will be the Victorian Institute of Teaching.

The ‘findings of a prescribed kind’ are intended to only be the most serious findings that a tribunal can make. In the case of the VIT, it is intended to prescribe the determinations set out in section 48 of the Victorian Institute of Teaching Act. These are the most serious findings that a panel can make, and are already required to be notified to a number of bodies. The Working with Children Bill adds the Secretary to the Department of Justice to the list of people who must be notified of these determinations. Findings of a similar level of severity will be prescribed for any other professional registration body that is prescribed.

As an added safeguard, a person who has an adverse finding made against them by a prescribed professional body will be presumed to be eligible for an assessment notice unless that presumption is rebutted having regard to the finding against the criteria set out in clause 14(3).

In addition, before making a final determination, the Secretary is obliged to afford the applicant an opportunity to make a submission as to why she should not issue a negative notice (clause 16). The Secretary is bound to have regard to that submission in making her decision whether or not to issue an assessment notice. In circumstances where the Secretary issues a negative notice to a category 3 applicant, the applicant is entitled to seek a review of that decision by VCAT (clause 52).

Clause 28 – Person working with closely related child

The Committee seeks further information concerning the operation of clause 28, whether a ‘person who is closely related to a child’ and who is otherwise issued with a negative assessment notice commits an offence pursuant to clause 34.

This exemption captures a narrow range of circumstances, for example, where an aunt is paid to teach her niece piano.

If a person who is relying on this exemption does receive a negative notice, they will no longer be able to rely on this, or any other, exemption. Similarly, if a person is subject to reporting obligations under the Sex Offenders Registration Act, they will not be able to rely on this, or any other, exemption.

However, this exemption will only apply to family activities that constitute ‘child related work’ under the legislation. These will be rare. Unpaid work that is for a ‘private or domestic’ purpose is explicitly excluded from the definition of child related work at clause 9(1)(c) and the majority of family activities will therefore fall outside the ambit of the legislation. In the example above, if the aunt taught her niece


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piano in a volunteer capacity, this activity would be of a private or domestic nature and would not be regulated by the Working with Children Bill.

Clause 34 – Offence for holder of negative notice to apply for child-related work

The Committee notes that clause 34 does not require a mental element of intent or recklessness. The Committee is concerned that a person may not be aware that they hold a negative notice and may therefore unknowingly commit a criminal offence if they apply for child-related work.

This clause differs from other offences in the Bill, as it mirrors the offence in section 68 of the Sex Offenders Registration Act. Although it is silent on the required mental element, this does not mean it is an offence of strict liability. As it is a serious offence with a custodial penalty, the courts would assume that the person must have intended to apply for the work.

It is also a defence if the accused can show that he or she did not know that the work he or she was applying for was child related.

The Committee is concerned that it is possible for a person to not know that their application under the Working with Children Bill has resulted in a negative notice. A person cannot receive a negative notice without first having received an interim negative notice asking him or her if they have any comment on the matters that the Secretary considers may justify a negative notice.

A person who does not respond to this request will receive a negative notice. This ensures that a person cannot simply withdraw from the process to avoid a negative notice. The Secretary is required to serve both an interim negative notice and a negative notice on the person through (among other things) posting it to his or her address.

Given that a person will be aware that they have applied for a working with children check and will be waiting for the outcome, and that two notices will be served on a person who ultimately receives a negative notice, it is unlikely that he or she will be unaware that he or she has received a negative notice. To allow people to claim that they were unaware that they held a negative notice would be to create a loophole that may encourage inappropriate people to participate in child-related work, which would undermine the protective object of the Bill.

Clause 43 – Power of delegation

The Committee is concerned that the Secretary’s power to delegate her powers to another person is too wide, and that the background material does not address the need for such a delegation.

The Department of Justice is establishing a new unit to conduct the Working with Children Checks and to educate the public about the checks and about the need for child-safe workplaces. The Unit will be led by an executive officer and overseen by both an Executive Director of the Department and the Secretary. Delegations will be made appropriately within the structure of the Working with Children Unit and the Department.

The broader delegation power in clause 43(b), which allows a delegation to another prescribed body, allows for the possibility that other areas of Government or selected professional registration bodies may administer some part of the Working with


33

Children Scheme in relation to the class of people that they regulate. (This is the case in New South Wales).

Any such delegation, were one to be made, would be made subject to appropriate conditions or guidelines.

I note that the Committee appended submissions on the Bill from the Privacy Commissioner and Victoria Legal Aid without further comment. I intend to write to both in response to their submissions and will forward the Committee copies of these responses.

I trust that my response helps to clarify the issues raised by the Committee. Thank you for drawing these issues to my attention.

ROB HULLS MP Attorney-General

The Committee thanks the Attorney-General for this response.

Committee Room 3 October 2005


34

35

Appendix 1 Index o f B i l l s in 2005

Alert Digest No.

Accident Compensation (Amendment) Bill....................................................................... 7, 9 Accident Compensation (Further Amendment) Bill.............................................................. 9 Accident Compensation and Transport Accident Acts (Ombudsman) Bill ........................... 7 Appropriation (Parliament 2005/2006) Bill........................................................................... 6 Casino Control (Amendment) Bill......................................................................................... 9 Channel Deepening (Facilitation) Bill ................................................................................... 1 Charities (Amendment) Bill................................................................................................... 3 Children and Young Persons (Miscellaneous Amendments) Bill ......................................... 5 City of Melbourne (Amendment) Bill ................................................................................... 5 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Bill .................................................................................................................. 3 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill ...................... 5, 9 Corrections (Transition Centres and Custodial Community Permits) Bill ............................ 1 Courts Legislation (Judicial Conduct) Bill ............................................................................ 3 Courts Legislation (Judicial Pensions) Bill ........................................................................... 5 Courts Legislation (Miscellaneous Amendments) Bill.......................................................... 7 Crimes (Contamination of Goods Offences) Bill ................................................................ 10 Dangerous Goods and Equipment (Public Safety) Acts (Amendment) Bill.......................... 7 Defamation Bill ................................................................................................................... 11 Electoral Legislation (Further Amendment) Bill ................................................................... 5 Emergency Services Superannuation (Amendment) Bill ...................................................... 6 Energy Legislation (Miscellaneous Amendments) Bill ......................................................... 6 Energy Safe Victoria Bill....................................................................................................... 7 Environment and Water Legislation (Miscellaneous Amendments) Bill .............................. 7 Fair Trading (Telephone Marketing) Bill ............................................................................ 11 Fisheries (Abalone) Bill......................................................................................................... 6 Gabling Regulation (Public Lottery Licences) Bill ............................................................... 6 Geothermal Energy Resources Bill........................................................................................ 1 Groundwater (Border Agreement) (Amendment) Bill ........................................................ 10 Health (Compulsory Testing Bill........................................................................................... 3 Health Legislation (Miscellaneous Amendments) Bill.......................................................... 7 Higher Education Acts (Amendment) Bill ............................................................................ 5 House Contracts Guarantee (Amendment) Bill ................................................................. 6, 9 Housing (Housing Agencies) Bill.......................................................................................... 1 Justice Legislation (Amendment) Bill ................................................................................... 4 Land (Miscellaneous Matters) Bill ........................................................................................ 7 Land (Revocation of Reservations) Bill ................................................................................ 4 Land Tax Bill ....................................................................................................................... 11 Legal Profession (Consequential Amendments) Bill............................................................. 3 Local Government (Amendment) Bill ................................................................................... 5 Local Government (Further Amendment) Bill .................................................................... 10 Long Service Leave (Amendment) Bill................................................................................. 5 Magistrates’ Court (Judicial Registrars and Court Rules) Bill ........................................ 5, 10


36

Major Crime (Investigative Powers) Bill............................................................................... 1 Melbourne College of Divinity (Amendment) Bill ............................................................... 7 Melbourne Lands (Yarra River North Bank) (Amendment) Bill ........................................ 10 Mitcham-Frankston Project (Amendment) Bill ..................................................................... 3 National Electricity (Victoria) Bill ........................................................................................ 3 National Parks (Alpine National Park Grazing) Bill ............................................................. 7 National Parks (Otways and Other Amendments) Bill.......................................................... 8 National Parks (Point Nepean) Bill ....................................................................................... 5 Occupational Health and Safety Bill ..................................................................................... 1 Outworkers (Improved Protection)(Amendment) Bill........................................................... 3 Owner Drivers and Forestry Contractors Bill .................................................................... 5, 7 Parliamentary Administration Bill..................................................................................... 4, 7 Pipelines Bill........................................................................................................................ 10 Planning and Environment (Williamstown Shipyard) Bill .................................................... 7 Primary Industries Acts (Amendment) Bill ........................................................................... 6 Primary Industries Acts (Further Amendment) Bill ............................................................ 11 Property (Co-ownership) Bill .............................................................................................. 11 Public Administration Bill ..................................................................................................... 1 Racing and Gambling Acts (Amendment) Bill...................................................................... 7 Racing and Gaming Acts (Police Powers) Bill.................................................................. 7, 9 Radiation Bill....................................................................................................................... 10 Residential Tenancies (Further Amendment) Bill ................................................................. 9 Retirement Villages (Amendment) Bill ................................................................................. 1 Road Safety (Further Amendment) Bill................................................................................. 6 Royal Victorian Institute for the Blind and other Agencies (Merger) Bill .......................... 10 Safety on Public Land Bill..................................................................................................... 1 Sentencing (Further Amendment) Bill .................................................................................. 4 Sentencing and Mental Health Acts (Amendment) Bill ...................................................... 10 Serious Offenders Monitoring Bill ...................................................................................... 11 Serious Sex Offenders Monitoring Bill ................................................................................. 2 Sex Offenders Registration (Amendment) Bill...................................................................... 6 Sports Anti-doping Bill........................................................................................................ 10 State Taxation Acts (General Amendment) Bill .................................................................... 7 Statute Law Revision Bill ............................................................................................ 1, 9, 11 Sustainability Victoria Bill .................................................................................................. 10 Tobacco (Amendment) Bill ................................................................................................... 6 Transport Legislation (Further Amendment)......................................................................... 6 Treasury Legislation (Miscellaneous Amendments) Bill .................................................... 11 Treasury Legislation (Repeal) Bill ...................................................................................... 11 Vagrancy (Repeal) and Summary Offences (Amendment) Bill ............................................ 9 Victorian Civil and Administrative Tribunal (Amendment) Bill........................................... 1 Victorian State Emergency Service Bill ............................................................................ 7, 9 Working with Children Bill ............................................................................................. 9, 11

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Appendix 2 C o m m i t t e e C o m m e n t s c l a s s i f i e d

by Te rms o f Re fe rence

Alert Digest Nos. Section 17(a)

(i) trespasses unduly upon rights and freedoms

Accident Compensation (Amendment) Bill 7 National Parks (Otways and Other Amendments) Bill 8 Vagrancy (Repeal) and Summary Offences (Amendment) Bill 9 Working with Children Bill 9 (ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers

Victoria State Emergency Service Bill 7 Working with Children Bill 9 (iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions

Racing and Gaming Acts (Police Powers) Bill 7 (vi) inappropriately delegates legislative power

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 House Contracts Guarantee (Amendment) Bill 6 National Parks (Otways and Other Amendments) Bill 8 Owner Drivers and Forestry Contractors Bill 5 Serious Offenders Monitoring Bill 11 Working with Children Bill 9 (vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

Accident Compensation (Amendment) Bill 7 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 Magistrates’ Court (Judicial Registrars and Court Rules) Bill 5 Vagrancy (Repeal) and Summary Offences (Amendment) Bill 9


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Section 17(b)

(i) and (ii) as to whether a Bill directly or indirectly repeals, alters or varies section of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court.

Accident Compensation (Amendment) Bill 7 Channel Deepening (Facilitation) Bill 1 Land Tax Bill 11 National Electricity (Victoria) Bill 3 Parliamentary Administration Bill 4 Property (Co-ownership) Bill 11 Transport Legislation (Further Amendment) Bill 6

(iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue.

Commonwealth Games Arrangements (Miscellaneous Amendments) Bill 5 Owner Drivers and Forestry Contractors Bill 5 Transport Legislation (Further Amendment) Bill 6

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Appendix 3 Min is ter ia l Cor respondence

Table of correspondence between the Committee and Ministers during 2005

Bill Title Minister/ Member Date of Committee

Letter

Date of Minister's Response

Issue Raised in Alert Digest

No.

Response Published in

Alert Digest No.

Victorian Civil and Administrative Tribunal (Amendment) Bill

Planning 24.8.04 25.1.05 6 of 2004 1 of 2005

Major Crime (Investigative Powers) Bill Police and Emergency Services 3.11.04 24.1.05 9 of 2004 1 of 2005 Housing (Housing Agencies) Bill Housing 30.11.04 2.12.04 11 of 2004 1 of 2005 Occupational Health and Safety Bill Work Cover 30.11.04 3.12.05 11 of 2004 1 of 2005 Public Administration Bill Premier 30.11.04 21.12.04 11 of 2004 1 of 2005 Public Administration Bill1 Premier 8.12.04 11 of 2004 1 of 2005 Safety on Public Land Bill Environment 30.11.04 10.1.05 11 of 2004 1 of 2005 Parliamentary Administration Bill Premier 20.4.05 17.5.05 4 of 2005 7 of 2005 Commonwealth Games Arrangements (Miscellaneous Amendments) Bill

Commonwealth Games 3.5.05 21.6.05 5 of 2005 9 of 2005

Magistrates’ Court (Judicial Registrars and Court Rules) Bill

Attorney-General 3.5.05 1.8.05 5 of 2005 10 of 2005

1 Premier’s response to issue raised by minority opinion.


40

Bill Title Minister/ Member Date of Committee

Letter

Date of Minister's Response

Issue Raised in Alert Digest

No.

Response Published in

Alert Digest No.

Owner Drivers and Forestry Contractors Bill Industrial Relations 3.5.05 19.5.05 5 of 2005 7 of 2005 House Contracts Guarantee (Amendment) Bill Attorney-General 17.5.05 17.6.05 6 of 2005 9 of 2005 Accident Compensation (Amendment) Bill WorkCover 14.6.05 20.6.05 7 of 2005 9 of 2005 Racing and Gaming (Police Powers) Bill Gaming 14.6.05 27.7.05 7 of 2005 9 of 2005 State Taxation Acts (General Amendment) Bill Treasurer 14.6.05 20.7.05 7 of 2005 9 of 2005 Victoria State Emergency Service Bill Police and Emergency Services 14.6.05 20.7.05 7 of 2005 9 of 2005 National Parks (Otways and Other Amendments) Bill Environment 13.6.05 8 of 2005 Working with Children Bill Attorney-General 9.8.05 1.8.05 9 of 2005 11 of 2005

alert digest 11 of 2005 - parliament.vic.gov.au · property (co-ownership) bill serious offenders...

Documents