Alert Digest 1 of 2005 - Parliament of Victoria

No. 1 of 2005 Tuesday, 22 February 2005

On the

Channel Deepening (Facilitation) Bill

Corrections (Transition Centres and Custodial Community Permits) Bill Geothermal Energy Resources Bill Housing (Housing Agencies) Bill

Major Crime (Investigative Powers) Bill Occupational Health and Safety Bill

Public Administration Bill Retirement Villages (Amendment) Bill

Safety on Public Land Bill Statute Law Revision Bill

Victorian Civil and Administrative Tribunal (Amendment) Bill

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Table of Contents

Page Nos.

Alert Digest No. 1 of 2005 Channel Deepening (Facilitation) Bill 3 Corrections (Transition Centres and Custodial Community Permits) Bill 6 Geothermal Energy Resources Bill 8 Retirement Villages (Amendment) Bill 11 Statute Law Revision Bill 14

Ministerial Correspondence Housing (Housing Agencies) Bill 17 Major Crime (Investigative Powers) Bill 19 Occupational Health and Safety Bill 28 Public Administration Bill 29 Safety on Public Land Bill 31 Victorian Civil and Administrative Tribunal (Amendment) Bill 32

Appendices 1 –Index of Bills Reported 2005 35 2 –Committee Comments classified by Terms of Reference 37 3 – Ministerial Correspondence 39 4 – Statute Law Revision Bill referred to Committee 41

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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 of Reference

Parliamentary Committees Act 2003, section 17

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– Channel Deepening (Facilitation) Bill Corrections (Transition Centres and Custodial Community Permits) Bill Geothermal Energy Resources Bill Retirement Villages (Amendment) Bill Statute Law Revision Bill

The Committee reports on the following Ministerial Correspondence– Housing (Housing Agencies) Bill Major Crime (Investigative Powers) Bill Occupational Health and Safety Bill Public Administration Bill Safety on Public Land Bill Victorian Civil and Administrative Tribunal (Amendment) Bill

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Summary of Comments


[2]

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 explanatory memorandum and the second reading speech both explain that an indefinite commencement provision is desirable and necessary as commencement is conditional on State and Commonwealth environmental and other approvals.

The Committee notes that clause 2 will allow the majority of the provisions to commence on proclamation. The Committee notes the explanation for the indefinite commencement provision and accepts that in the circumstances it is appropriate.

[28]

Parliamentary Committees Act 2003, section 17(b)(i) and (ii) – Limitation on the jurisdiction of the Supreme Court.

The Committee notes that the section 85 limitation provisions will limit certain types of appeals and injunctive relief but will not preclude claims for compensation by aggrieved parties for any loss arising out of the project.

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

Geothermal Energy Resources Bill

[142]

Provides a protection against self-incrimination. However section 142(2) will provide that a person is required to produce documents that they are obliged to keep under the provisions of the Act notwithstanding the fact that the documents may tend to incriminate the person required to produce them.

Statute Law Revision Bill

[Schedule 1]

The Committee is satisfied that the amendments made to the Acts listed in Schedule 1 of the Bill are not of a substantive nature and only seek to correct minor grammatical, spelling cross-referencing or government nomenclature references and are therefore appropriate to be contained in a Statute Law Revision Bill.


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[Schedule 2]

The Committee is satisfied that the relocation of the transitional provisions into the Crimes Act 1958 and the Sentencing Act 1991 as provided in Schedule 2 of the Bill are appropriate as a consequence of the repeal of certain Acts that are to be made by Schedule 3 of the Bill.

[Schedule 3]

The Committee considers that the repeal of the 209 spent Acts listed in Schedule 3 is appropriate.

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Alert D igest No. 1 of 2005


Introduced 7 December 2004 Second Reading Speech 9 December 2004 House Legislative Assembly Minister introducing Bill Hon. Peter Batchelor MLA Portfolio responsibility Minister for Transport

Purpose

The primary purpose of this Bill is to facilitate the deepening by the Port of Melbourne Corporation of the channels, which serve the port. The Bill also amends the Port Services Act 1995 relating to wharfage and channel fees.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 30 come into operation on the day after Royal Assent the remaining provisions come into force on proclamation.

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 explanatory memorandum and the second reading speech both explain that an indefinite commencement provision is desirable and necessary as commencement is conditional on State and Commonwealth environmental and other approvals.

The Committee notes that clause 2 will allow the majority of the provisions to commence on proclamation. The Committee notes the explanation for the indefinite commencement provision and accepts that in the circumstances it is appropriate.

[5]. Defines the project as being a reference to the project for the deepening of channels providing shipping access to the Port of Melbourne.

[7]. Extends the existing functions vested in the Port of Melbourne Corporation by the Port Services Act 1995 to include the function of planning for, providing for or enabling provision for, managing, directing, controlling and carrying out the channel deepening project.

[9]. Empowers the Minister, on the recommendation of the Port of Melbourne Corporation to declare by Order published in the Government Gazette the whole or any part of the port of Melbourne waters or relevant port of Melbourne land, as defined in the clause, to be a "designated access area".


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[12]. Requires an Order made under section 9 to be published in a newspaper and in a manner readily accessible to a person likely to enter the area.

[13]. Empowers the Port of Melbourne Corporation to authorise any of its officers, employees or contractors and any workmen, vehicles, vessels or equipment to enter any part of a designated access area.

[15]. Gives the Port of Melbourne Corporation the ability to warn a person to leave any part of a designated access area and deems the Corporation to be the occupier of the land for the purposes of section 9(1) of the Summary Offences Act 1966 (wilful destruction of property).

[16]. Makes it an offence for any unauthorised person to enter into or remain in any part of a designated access area.

[18]. Creates two offence provisions relating to interference with activities.

[19]. Makes it an offence for a person in a designated access area not to produce a certificate of authorisation, or to give his or her name and address to a member of the police force. The offence has a penalty of five penalty units.

[20]. Allows a member of the police force to remove a person from a designated access area if an assembly is being carried on in a manner involving unlawful physical violence or if because of the number of persons involved, it is impractical to preserve or maintain order by arresting the person or persons committing such an offence. In removing a person from a designated access area, the member of the police force may use such force as is reasonable in the circumstances. These powers are in addition to the powers of arrest that a police member has under any other law.

[24]. Provides an immunity to the directors of the Port of Melbourne Corporation, and officers and employees of the Corporation when acting under a works declaration made under proposed clause 22 from personal liability. The immunity for the directors, officers and employees of the Corporation will only apply to anything done or omitted to be done in good faith in the exercise of a power or the discharge of a duty under a works declaration or in the reasonable belief that the act or omission was in the exercise of the power or discharge of the duty under a works declaration. Any liability that does not attach to a director, officer or employee, attaches instead to the Corporation.

[26]. Precludes any appeals, or any proceedings by way of certiorari, prohibition, mandamus, or quo warranto, or the grant of a declaration or injunction against a decision made by a Minister acting under the legislation, section 40 of the Coastal Management Act 1995, or section 97F of the Planning and Environment Act 1987 in relation to the project. (Refer to section 85, Constitution Act 1975 report below).

Report to the Parliament pursuant to section 17(b)(i) and (ii) 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)

[28]. Declares that it is the intention of the proposed section 26 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 –

Clause 26 of the Bill precludes any appeal against a decision of the Minister under this Act concerning works declarations or declarations of designated access areas or

Alert Digest No. 1 of 2005

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decisions of other Ministers under the Coastal Management Act 1995 or the Planning and Environment Act 1987 relevant to the channel deepening project.

The clause also precludes any proceedings being taken by way of certiorari, prohibition, mandamus or quo warranto or the grant of an injunction or any order under the Administrative Law Act 1978.

These provisions are considered vital to ensure that no action can be taken in the courts which might have the effect of delaying the project.

The channel deepening project is one of the most important infrastructure projects to be undertaken in Victoria. Not only will it require a substantial investment of capital but it will also involve the deployment of large dredges from overseas under contract to the Port of Melbourne Corporation.

It follows that any unnecessary delays which may impact on the availability of the dredges could put the viability of the project at risk.

The proposed statutory prohibition on the use of injunctions and similar actions will not affect the other rights which aggrieved parties are capable of exercising, such as the right to pursue fair and reasonable compensation for any actionable loss which may be attributed to the project. For example, government is concerned to protect the right of businesses operating in the bay such as aquaculture, tourism, diving and fishing to seek compensation for any such losses arising from this project.

On this basis the clause is considered to represent a reasonable balance between the interests of the public in ensuring that the work is carried out without disruption and the other rights of parties who may be affected by the project.

Parliamentary Committees Act 2003, section 17(b)(i) and (ii) – Limitation on the jurisdiction of the Supreme Court.

The Committee notes that the section 85 limitation provisions will limit certain types of appeals and injunctive relief but will not preclude claims for compensation by aggrieved parties for any loss arising out of the project.

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

[29]. Provides a regulation making power to give effect to the Act.

[30]. Provides for the expiry of the Act on 31 December 2010.

The Committee notes this extract from the explanatory memorandum –

As it is intended that the project will be finalised by this date, the Act will no longer be required.

The Committee makes no further comment.


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Corrections (Transition Centres and Custodial Community Permits) Bill

Introduced 7 December 2004 Second Reading Speech 8 December 2004 House Legislative Assembly Minister introducing Bill Hon. Andre Haermeyer MLA Portfolio responsibility Minister for Corrections

Purpose

The Bill amends the Corrections Act 1986 (‘the Act’) to provide for the establishment of transition centres and to provide for separate types of custodial community permits.


[Clauses]

[2]. The Bill commences on the day after Royal Assent. Any unclaimed provisions which do not come into operation before 1 August 2005 commence operation on that day.

[4]. Ensures that references to prisons include transition centres.

[5]. Establishes community transition centres. The Governor in Council may by Order published in the Government Gazette appoint any premises or place to be a transition centre.

The Committee notes the comments in the Second Reading Speech –

A site at Jeffcott St, West Melbourne (adjacent to the Melbourne Assessment Centre) has now been selected as the site of the 25-bed male CTU and it is anticipated that the facility will be constructed by the end of the 2005-06 financial year.

The CTU will not be a mini-prison. The CTU will be a non-institutional correctional facility managed by Corrections Victoria that will provide safe and secure custody of its residents while promoting positive behaviour change and responsible, supported engagement in the community.

[6]. Inserts section 56AC which provides for the transfer of prisoners to and from transition centres. It sets out the criteria which must be satisfied before the Secretary can direct that a prisoner be transferred to a transition centre.

[7]. Substitutes existing section 57 of the Act with new sections 57-57D. The Secretary may issue the following custodial permits to prisoners.

• A corrections administration permit;

• A rehabilitation and transition permit;

• A fine default permit.

New section 57A specifies the purposes for which the Secretary may issue a corrections administration permit. The duration of the permit is limited to 3 days, except in 2 specified cases.


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New section 57B specifies the purposes for which the Secretary may issue a rehabilitation and transition permit. The permit may be issued for a period of up to 30 days.

New section 57C regulates the issue of a fine default permit to require a person to carry out community work. The permit may only be issued to a person who is the subject of a penalty enforcement warrant or who failed to pay a monetary penalty or an instalment under an instalment order. The permit may be issued for the whole, or remaining part, of the term for which the person was to be imprisoned.

New section 57D sets out provisions which apply to all custodial community permits. The Secretary must be satisfied that adequate consideration has been given to the safety and welfare of the prisoner and members of the public and that facilities exist for the provision of adequate and suitable escort and transport where necessary.

[8]. Makes consequential amendments to the Act. In particular, the clause amends existing sections 6C(1) and 6E so that a person who is absent from a prison under a fine default permit is deemed released from the legal custody of the Secretary to the Department of Justice or the Chief Commissioner of Police

The Committee notes the comments in the Second Reading Speech –

The Bill will provide that persons released on fine default permits will be deemed to be released from the secretary's legal custody. Currently, fine defaulters released on a CCP will be deemed to remain in the custody of the secretary, DOJ, for the duration of the CCP. However, unlike in the cases of prisoners released on permits for other purposes, there appears to be no rationale for stating that fine defaulters should remain in the secretary, DOJ's, legal custody for the duration of the permit.

Defaulters of court-imposed fines who are subsequently given community-based orders to undertake community work as payment for the debt are not within the secretary's legal custody. Therefore, holders of a fine default permit will still have obligations under that permit and the secretary, DOJ, will have responsibilities with respect to such permit holders, but these persons will not be in the secretary's legal custody.

[9]. Makes consequential amendments to Schedule 7 of the Magistrates’ Court Act 1989 to recognise that custodial community permits issued to fine defaulters will now be called fine default permits.



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Geothermal Energy Resources Bill

Introduced 30 November 2004 Second Reading Speech 1 December 2004 House Legislative Assembly Minister introducing Bill Hon. Bob Cameron MLA Portfolio responsibility Minister for Energy Resources

Purpose

The purpose of the Bill is to regulate geothermal energy and extraction in Victoria. The Bill also amends the Petroleum (Submerged Lands) Act 1982.

The Committee notes this extract from the explanatory memorandum –

The exploration and development of geothermal resources is not currently regulated in Victoria. Geothermal energy is a clean and renewable energy source that is low in greenhouse gas emissions and is created naturally from heat deep within the earth. The Geothermal Energy Resources Bill aims to encourage large scale commercial and sustainable exploration and extraction of Victoria's geothermal energy resources. Small-scale uses will continue to be regulated by existing planning, environment and water law. The Bill is based on the regulatory model established in the Petroleum Act 1998 and will be subject to the Environment Effects Act 1978, and the Environment Protection Act 1970. Access to water will be regulated by the Water Act 1989.


[Clauses]

[2]. Part 1 comes into operation on the day on which the Bill receives the Royal Assent. The remainder of the Bill comes into operation on proclamation but not later than 30 June 2006.

[12]. Declares that the Crown owns all geothermal energy and geothermal energy resources on or below the surface of any land in Victoria that came to be on or below the land without human assistance. [13]. Provides that the Crown retains all rights to geothermal energy and geothermal energy resources on or below land.

[14]. Makes it an offence for a person to explore for geothermal energy unless authorised or permitted by the Act. [15]. Makes it an offence to extract geothermal energy unless authorised or permitted under the Bill.

[16]. Provides that geothermal energy and geothermal energy resources become the property of the person extracting it under the provisions of the Act.

[17 to 31]. Makes provision for applications for exploration permits, their terms and renewal.

[32 to 41]. Makes provision for ‘retention leases’ where a geothermal energy discovery is not immediately commercially viable but may become so within up to 15 years.

[42 to 55]. Makes provision for applications for extraction licences, their terms and the provision for development plans.


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[79]. Prohibits a person from carrying out geothermal energy operations on references, marine parks and sanctuaries and wilderness Crown land.

[87]. Provides that prior to the commencement of geothermal energy operations on any land, the authority holder must take reasonable steps to ensure that the operation will not contravene legislation relating to areas of aboriginal significance.

[88]. Prohibits geothermal energy operations on private land without the consent of the owners and occupiers of the land or agreement on compensation with the owners and occupiers or where the Victorian Civil and Administrative Tribunal has determined the amount of compensation payable to the owners and occupiers.

[89]. Provides for compensation that may be payable by an authority holder to owners and occupiers of private land and native title holders for loss or damage as a result of any geothermal energy operation.

[90]. Compensation is not payable for the value of any geothermal energy or any geothermal energy resource in or under the surface of any land.

[91]. In respect to Crown land compensation is payable to the Crown as a direct, natural and reasonable consequence of geothermal energy operations.

[94]. Provides for the determination of disputes on private or native title land by the Victorian Civil and Administrative Tribunal or the Supreme Court in accordance with the Land Acquisition and Compensation Act 1986.

[99]. An authority holder must hold insurance against expenses or liabilities in connection with the carrying out of geothermal energy operations.

[100]. An authority holder must take out a rehabilitation bond (clean-up work or pollution prevention) which is acceptable to the Minister and for an amount specified by the Minister.

[103]. Provides for the holder of an authority to pay to the Minister a royalty in respect of any geothermal energy extracted.

[111 and 112]. Provides that the holder of an authority must rehabilitate any land (or pay the costs of doing so) used for a geothermal energy operation.

[123]. Provides for authorisation of inspectors and the issue of identity cards.

[125]. Gives an inspector power to enter premises and to exercise certain powers for the purpose of monitoring compliance with this Bill or in connection with the issue of a prohibition notice. [126]. Gives an inspector power of entry and to exercise certain powers in an emergency situation.

[127]. Gives an inspector power of entry, search and seizure (with the consent of the occupier) if he or she has reasonable grounds for suspecting that there is evidence of an offence.

[130]. Gives an inspector the power to apply to a magistrate for the issue of a search warrant in specified circumstances in accordance with the forms, rules and procedures observed in accordance with the Magistrates’ Court Act 1989.

[137]. The Minister must pay compensation for damage caused by an inspector unless the inspection reveals that there has been a contravention of the Bill.


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[140]. An inspector has the power to require information or documents. [141]. makes it an offence for a person to fail to comply with a requirement of an inspector without a reasonable excuse.

Privilege against self-incrimination

[142]. Provides a protection against self-incrimination. However section 142(2) will provide that a person is required to produce documents that they are obliged to keep under the provisions of the Act notwithstanding the fact that the documents may tend to incriminate the person required to produce them.

[144 and 146]. Allows the Minister to issue improvement or prohibition notices to authority holders in certain circumstances and appeals to the Victorian Civil and Administrative Tribunal for review of an improvement or prohibition notice.

[153 to 163]. Provides for the Minister to establish and maintain a geothermal energy register and the effect of registration.

[166]. Provides for the Minister and the Secretary to delegate his or her powers to a person employed in the Department, other than the power of delegation.

[169]. Provides a prescriptive form of regulation making power for the purposes of the Act.

[170 to 174]. Makes consequential amendments to a number of related Acts.

[175]. Provides transitional and saving provisions including for geothermal energy extraction operations that existed before the commencement of the requirements under this Act. A former extraction licence is deemed to be license under the Act.



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Retirement Villages (Amendment) Bill

Introduced 7 December 2004 Second Reading Speech 9 December 2004 House Legislative Assembly Minister introducing Bill Hon. Rob Hulls MLA Minister responsible Mr. John Lenders MLC Portfolio responsibility Minister for Consumer Affairs

Purpose

The Bill amends the Retirement Villages Act 1986 (‘the Act’). In particular, it –

• Makes further provision in relation to the sale of premises in retirement villages, the operation and management of retirement villages and the occupation of premises in retirement villages;

• Establishes a register of retirement villages;

• Makes further provision for enforcement powers; and

• Provides generally for other matters in relation to retirement villages.


[Clauses]

[2]. Is the commencement provision. The Bill commences on a day to be proclaimed. If not proclaimed, the Bill commences operation on 1 August 2006.

[3]. Inserts various definitions into the Act. The Committee notes the comments in the Second Reading Speech –

Over the past two years an extensive review of the current scheme has been undertaken. …..The review has identified a number of issues relating to an imbalance of information and power between residents and operators of retirement villages which need to be addressed to ensure that minimum standards in the industry remain acceptable into the future.

The bill will address these matters in a fair and balanced way. The amendments centre on:

o regulation of contract terms;

o clearer rules around exit arrangements, including ongoing charging of fees, resale of units, and payment of exit entitlements;

o limitations on operators with regard to making decisions on behalf of individual residents; and

o improved dispute resolution.

To avoid regulatory overlap and simplify compliance, the bill excludes aged care facilities covered by the commonwealth Aged Care Act 1997.


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However, it will operate in such a way that facilities with any current residents who do not have the protection of that act remain subject to the Retirement Villages Act until all its residents do come within the coverage of the commonwealth act.

[4]. Provides that a retirement village notice must contain prescribed information.

[5]. Requires that the owner or the owner's agent must give the resident a copy of any residence contract 21 days before the residence contract is entered into. The manager must give the resident copies of any management contract and other specified documents 21 days before the management contract is entered into.

[7]. Makes it an offence not to use a contract which complies with the regulations. It provides that any contract entered into after the commencement of the provision is unenforceable against the resident to the extent that it is inconsistent with any requirements of the regulations.

[8]. Specifies the conditions to which an obligation to pay an amount recoverable under section 26(1) may be subject.

[9]. Provides for the extinguishment of a charge over part of land made subject to a charge by operation of the Act. The Committee notes the comments in the Second Reading Speech –

Provision has also been made for the Director of Consumer Affairs Victoria to approve an application for the lifting of the retirement village notice and extinguishment of the charge on a part of the land that will no longer be used as a retirement village. The current 'all-or-nothing' system has complicated subdivision proposals.

[10]. Inserts a new Part 5A. It governs the options to purchase of a person who holds it and the sale of premises by residents. It provides for a resident who owns a residence in a retirement village to appoint an agent other than the retirement village manager to sell that unit, conditional on the purchaser entering into a management contract with the manager of the retirement village. A manager of a retirement village who is not appointed as an agent for the sale of the premises of an owner resident is not to interfere with its sale. The Victorian Civil and Administrative Tribunal (VCAT) is to resolve any disputes in the event they are not resolved by mediation.

[12]. Provides that the role of a residents’ committee in a dispute between residents is to be a mediator. A residents’ committee must not act as a mediator in a dispute which is being dealt with by a manager.

[14]. Inserts new Part 6A which governs matters relating to the operation and management of retirement villages. This includes charges for personal services and maintenance charges in respect of former non-owner residents. It also deals with powers of attorney and proxies. A manager of a retirement village cannot require a resident to give him or her a power of attorney in favour of the manager. The manager cannot require a resident to appoint the manager as the proxy of the resident.

New clause 38E sets out the procedure for dealing with management complaints or dispute mediation. All residents are to be informed of complaints and dispute mechanisms. New clause 38H sets out the recording and reporting requirements.

New Part 6B sets out when payments are to be made on the cessation of occupation of residents. New Part 6C establishes a register of retirement villages.


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[18]. Applies certain provisions of the Fair Trading Act 1999 to specify who may bring proceedings for an offence against the Act and the regulations. New section 41A makes it an offence to supply false and misleading particulars to the Director of Consumer Affairs.

[20]. Inserts additional regulation making powers into section and increases the maximum penalty which may attach to an offence against the regulations from 5 penalty units to 20 penalty units.

[21]. Contains transitional provisions.

[22 to 24]. Repeal obsolete provisions.



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Statute Law Revision Bill

Introduced 26 February 2003 Second Reading Speech 14 December 2004 House Legislative Council Minister introducing Bill Mr. John Lenders MLC Minister responsible Hon. Steve Bracks Portfolio responsibility Premier

Purpose

The Bill –

• makes minor amendments to a number of Acts to revise the statute law of Victoria,

• relocates certain transitional provisions from amending Acts that are to be repealed to their principal Act, and

• repeals 209 redundant or spent Acts that are no longer required to remain on the Victorian statute books.

Office of the Chief Parliamentary Counsel

In the course of the Committee’s scrutiny of the Bill the Committee received evidence from the Chief Parliamentary Counsel Mr Eamonn Moran QC and from Parliamentary Counsel Ms Gemma Varley.

The Chief Parliamentary Counsel provided the Committee with a certificate declaring that the amendments made by the Bill are not intended to make substantive changes to the statute law of Victoria and that the Acts to be repealed by the Bill are entirely spent in their operation and can be safely repealed. The certificate of the Chief Parliamentary Counsel is shown at Appendix 4.


[Clauses]

[2]. All the amendments and repeals made by the Bill come into force on Royal Assent. There are no proposed retrospective amendments in the Bill.

[3]. Provides that the Acts listed in Schedule 1 are to be amended as set out in that Schedule.

Schedule 1 – Miscellaneous amendment to Acts

Amendments made in the items of the Schedule include typographical errors, errors of punctuation or spelling, cross-referencing errors, grammatical errors, corrects references to superseded Acts, Tribunals or public sector offices.

By way of examples of the amendments made in Schedule 1 of the Bill are the following –

• Administration and Probate Act 1958 in item 1, clarif ies that the references to ‘Registrar’ in certain sections of that Act are references to the ‘Registrar of Probates’.


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• Children’s Services Act 1996 in item 4, substitutes a new reference to the Victorian Civil and Administrative Tribunal for the old reference to the defunct Administrative Appeals Tribunal. Other items that make the same reference amendment are items15, 23 and 24.

• Labour and Industry Act 1958 in item 11, removes the out of date reference to the Chief Manager of the Department of Health in section 123(2) of that Act and substitutes the new reference to the Secretary of the Department of Human Services.

• Land Tax Act 1958 in item 12, removes the unnecessary conjunction ‘and’ in section 58A(1)(d).

• Metropolitan Fire Brigades Act 1958 in item 16, amends section 63(3) removing a reference to the repealed Liquor Control Act 1987 and substituting a reference to the new Liquor Control Reform Act 1998.

• Southgate Project Act 1994 in item 20, corrects a misspelling of the word ‘amendments’.

• Wrongs (Public Contracts) Act 1981 in item 28 substitutes the modern spelling of ‘employee’ in sections 3(1) and 3(3).

The Committee is satisfied that the amendments made to the Acts listed in Schedule 1 of the Bill are not of a substantive nature and only seek to correct minor grammatical, spelling cross-referencing or government nomenclature references and are therefore appropriate to be contained in a Statute Law Revision Bill.

[4]. Provides that the Acts listed in Schedule 2 are to be amended as provided for in that Schedule.

Schedule 2 – Relocation of certain transitional provisions made by amending Acts into the appropriate principal Acts

The Schedule inserts into the Crimes Act 1958 and the Sentencing Act 1991 (the principal Acts) various transitional provisions made by a number of amending Acts which are to be repealed by Schedule 3 of the Bill. The amending Acts are spent in that their substantive provisions are now contained in the principal Acts and it is more appropriate to now relocate the transitional provisions relating to the amendments made into the principal Acts.

The Committee notes the Minister’s comments in the Second Reading Speech concerning the amendments made by Schedule 2 of the Bill –

The Bill also more appropriately places the transitional provisions contained in the following amending Acts – the Crime (Sexual Offences) Act 1991, the Crimes Amendment Act 1993, the Miscellaneous Acts (Omnibus Amendments) Act 1996, the Sentencing and Other Acts (Amendment) Act 1993 – into the principal Acts – the Crimes Act 1958 and the Sentencing Act 1991.

[5]. Provides that the Acts listed in Schedule 3 are to be repealed.


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The Committee is satisfied that the relocation of the transitional provisions into the Crimes Act 1958 and the Sentencing Act 1991 as provided in Schedule 2 of the Bill are appropriate as a consequence of the repeal of certain Acts that are to be made by Schedule 3 of the Bill.

Schedule 3 – Repeal of spent, redundant and unproclaimed Acts

The schedule consists of 209 Acts from 1972 and 2001 that are to be repealed.

The repealed Acts fall into 4 groups.

(a) Spent Principal Acts.

Amongst this group are the Constitutional Convention Act 1972 which was identified by the Committee as a redundant Act1 and the Australia Acts (Request) Act 19992 which never received Royal Assent. There is also a group of Appropriation Acts that are now entirely spent in their operation and can therefore be repealed.

(b) Spent Amending Acts with transitional or substantive provisions.

These amending Acts are wholly in operation and have amended or repealed the provisions in the Acts they were intended to amend or repeal. The transitional provisions are no longer necessary or are re-enacted by this Bill in the appropriate principal Act.

The substantive provisions are no longer required because they have taken effect or have been re-enacted in the relevant principal Act.

The explanatory memorandum makes it clear that any residual effect of the transitional provisions that have not been re-enacted are nevertheless covered by section 14 of the Interpretation of Legislation Act 1984.

(c) Spent amending Acts with unproclaimed provisions.

The Fisheries (Shark Fishery) Act 1990 (the unproclaimed Act) is to be repealed. The unproclaimed Act would have amended the Fisheries Act 1968. However the 1968 Act was repealed by the Fisheries Act 1995 and the unproclaimed Act is not longer necessary.

(d) Spent amending Acts.

Amending Acts that are wholly operational that have amended the Acts they were enacted to amend and contain no transitional or substantive provisions.

The Committee considers that the repeal of the 209 spent Acts listed in Schedule 3 is appropriate.


1 Review of the Constitutional Convention Act 1972 Report to the Parliament, May 2000. 2 The Acts commencement was conditional on the referendum concerning Australia becoming a

republic, which referendum was rejected by the electors on 6 November 1999 and thus the Act did not receive Royal Assent.

17

Minister ia l Correspondence

Housing (Housing Agencies) Bill

The Bill was introduced into the Legislative Assembly on 16 November 2004 by the Hon. Mary Delahunty MLA. The Committee considered the Bill on 29 November 2004 and made the following comments in Alert Digest No. 11 of 2004 tabled in the Parliament on 30 November 2004

Committee’s Comments

[9]

Parliamentary Committees Act 2003, section 17(a)(ii) – ‘makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers’

The Committee notes that clause 9 which substitutes a new section 35, will permit amongst other things, the Director to delegate powers to ‘any person. The Committee will seek further advice from the Minister why such an unlimited and undefined delegation provision is necessary or desirable in the circumstances.

Pending the Minister’s response the Committee draws attention to the provision.

Minister’s Response

Thank you for your letter of 30 November 2004. You have queried the proposed extent of the delegation power (clause 9 in the Housing (Housing Agencies) Bill 2004; substituting a new section 35 in the Housing Act 1983). The following is provided as background and explanation of this provision.

Section 35 of the Housing Act 1983 currently allows the Director of Housing (with the prior approval of the Minister) to delegate any of the powers, discretions, functions or authorities of the Director to:

• Any officer of the Ministry of Housing, in relation to any particular matter or class of matters; and

• Any regional housing council, or to any person or body of persons, in relation to any particular matter or class of matters concerned with the management and control of land (emphasis added)

There are two sets of issues to consider:

1. The management and control of land is dealt with under Section 15, which deals primarily with land and property development. Other powers, such as the power to acquire and dispose of land (Section 14), and the power to create easements (Section 16) are, by implication, outside the scope of the Director’s power to delegate to non-officers.


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Subsection 9(3) recognises that the Director also has powers conferred and duties imposed by other legislation. Examples include compliance with planning, building and land transfer legislation.

It is a growing trend for the Director to undertake property development and sale ventures in conjunction with other government instrumentalities and with private developers. The powers of the Director required for these ventures extend beyond ‘the management and control of land’. These ventures are undertaken pursuant to contract, and it would assist business efficacy to ensure that appropriate powers can be delegated to the joint venturer.

An example of powers that may be required for a particular project might be the power to execute contracts of sale and documentation under the Transfer of Land Act to give effect to a sale. Another might be seeking planning approval for a particular venture.

Rather than attempt to identify legislatively all the powers that could be needed for a particular venture, the Bill expresses the power in a broad form.

2. The Director of Housing is a body corporate, but does not have its own staffing structure. Its functions are carried out by officers of the Department of Human Services, into which the former Ministry of Housing has been absorbed. While this change has been dealt with by an administrative arrangement, it is considered appropriate to amend the reference in Section 35 to ‘the Ministry of Housing’ to ‘the Department’, with an appropriate definition of that term.

This removes an anomaly, and also clarifies the use of the Director’s powers in regional offices of the Department, where Regional Directors and their subordinates exercise powers under a range of legislation administered by different Ministers of the Department.

It is also appropriate to omit the reference to regional housing councils, since these have gone out of existence.

The safeguard against inappropriate use of the delegations power is the requirement that a delegation be approved by the Minister prior to being made by the Director. This makes every proposed delegation subject to scrutiny. Further, the Director has the inherent power to limit the extent of the power delegated, enabling the instrument of delegation to be tailored to the requirements of a specific project, or to the operational needs of a division or region within the Department of Human Services.

It is the practice of the Department to submit detailed briefings to this Ministry on the nature and purpose of an instrument of delegation.

I trust that this information satisfies your concerns.

Candy Broad MLC Minister for Housing

2 December 2004

The Committee thanks the Minister for this response.


19

Major Crime (Investigative Powers) Bill

The Bill was introduced into the Legislative Assembly on 16 September 2004 by the Hon. Andre Haermeyer MLA. The Committee considered the Bill on 29 October 2004 and made the following comments in Alert Digest No. 9 of 2004 tabled in the Parliament on 3 November 2004


Trespass unduly upon rights and freedoms – Parliamentary Committees Act 2003, section 17(a)(i)

1. Right to silence and the privilege against self -incrimination – Clauses 37, 39 and 49 – The Committee notes that the right to silence is a fundamental common law right available to any person suspected of having committed a criminal offence. The right to silence involves the privilege of a person to decline to answer any questions in the face of questioning by persons in authority, other than the statutory requirements of providing the persons name and address.

The Committee also notes the associated but distinct common law right, in the form of the privilege against self -incrimination. This common law privilege means that any person, not necessarily charged with an offence but a person giving information to authorities (perhaps under a statutory requirement) may decline to answer a question or questions that may incriminate them.

The Committee notes the provisions in clauses 37(2)(a), 39(3)(d) and 49(1)(b) provide penalties that may abrogate the right to remain silent in the face of questioning and the privilege against self -incrimination.

Clause 37(2)(a) provides that a person attending a summons as a witness must not, without reasonable excuse refuse or fail to answer a question required to be answered by the Chief Examiner (penalty up to 5 years imprisonment). Clause 39(3)(d) provides that a persons answers may be used against them in confiscation proceedings. Clause 49(1)(b) provides that a witness commits a contempt of the Chief Examiner if he or she refuse to be sworn or refuses or fails, without reasonable excuse, to answer any question.

The Committee notes that under the proposed Act a person will be compelled to give evidence that may subject that person to a pecuniary penalty under the Confiscation Act 1997 or to give evidence that is not protected by the privilege against self -incrimination (derivative use) which may lead to further evidence, independently obtained inculpating that person with an offence. The Committee also notes that the provisions (with certain safeguard provision) apply to children between 16 and 18 years.

The Committee is of the opinion that the provisions may abridge the right to silence and the privilege not to give self -incriminatory evidence to a person in authority.

The Committee also notes the Second Reading Speech makes it clear that there is no immunity for ‘derivative use’ of information obtained in the course of an examination. The Committee will seek clarification from the Minister whether that fact will be clearly communicated to a witness in language capable of understanding by a reasonable person as part of the preliminary requirements before questioning commences as may be contemplated by clause 33.


20

The Committee will seek further advice from the Minister concerning the possible abrogation of long standing common law rights and why these provisions are justified in the context of the objectives of the proposed legislation.

2. Length of time of questioning – Clauses 30, 35 and 36 – The Committee notes that there does not appear to be any clear legislative guidelines as to the length of time questioning may take place and it is unclear whether indefinite questioning may take place. The Committee will seek further advice why there is no legislative minimum standards provided for in the Bill itself prescribing minimum standards of conduct for the treatment of persons subject to compulsory interrogation by the State.

3 Immediate attendance on Examiner – Legal assistance – Clauses 14(10) and 15(9) – The Committee notes that there are provisions in the Bill for a summons to be issued requiring immediate attendance for examination (clauses 14(10) and 15(9)). It is unclear to the Committee whether an Examiner would be obliged to defer questioning until a witness has had adequate time to consult with a legal adviser. The Committee will seek further advice from the Minister concerning a witnesses rights to consult with a legal adviser prior to a summons for immediate attendance for examination.

4. Issue of summons by Examiner – Clause 15 – The Committee notes that the provisions of the Bill will permit the Chief Examiner to issue a summons on his or her own motion or on the application of a member of the police force. The Committee notes that normally a summons is issued by an independent body (a judge or registrar) and directs a person to appear before a judicial body. The Committee will seek advice from the Minister whether it is appropriate to permit the examining body to hold a summonsing power or whether the power should remain the exclusive preserve of an independent court.

5. Legal aid or assistance at examination and costs – Clause 19 – The Committee notes that the Bill imposes significant penalties, including contempt provisions for various forms of non-compliance, and may expose persons to significant criminal sanctions for evidence they do give in the course of an examination. The Committee notes that whilst legal representation is permitted there is no provision for legal aid for persons unable to pay for legal assistance. The Committee will seek advice whether legal aid will or should be provided. Further the Committee will seek advice whether a person mistakenly summoned and who is immediately or at some later time cleared of being a suspect or in any way implicated with the organised crime should be reimbursed any legal expenses in complying with the summons.

6. Examination of children between 16 and 18 years of age – Clauses 14, 15, 31 and 34 - The Committee notes the Bill makes particular provisions in clause 34 for the examination of children between 16 and 18 years of age. The Committee notes that there may be serious consequences arising from the coercive powers orders and the possible abrogation and or abridgment of common law rights, the Committee will seek further information from the Minister concerning the justification to include children between 16 and 18 years within the coercive powers regime provisions proposed by the Bill.

7. Qualifications and independence of Examiners – Clause 21 – The Committee notes that under proposed section 21(2)(b) the only disqualification for appointment as an Examiner is not to be a Member of an Australian Parliament. The Committee is concerned that it may be possible for a member or former member of a police force or an officer or former officer of the DPP, Ombudsman’s Office or the Office of the Director Police Integrity or some other prosecuting authority to be appointed as an Examiner. The Committee will seek further advice from the Attorney-General whether


21

the appointment of such persons may unduly compromise or diminish the independence and integrity of the office of Chief Examiner or Examiner.

8. Legal representation of witness at examination – Clauses 34 and 35 – The Committee notes the Bill permits legal representation of a witness at an examination. The Committee also notes that the Chief Examiner is not bound by the rules of natural justice and may regulate the conduct of proceedings as they think fit and give directions as to who may be present at an examination (clauses 34 and 35). The discretion to regulate proceedings may in circumstances mean that an examiner may prevent a particular lawyer from appearing at an examination, if allowing that lawyer to appear may prejudice the effectiveness of the investigation. For example when a legal practitioner seeks to appear for multiple witnesses and thereby possibly compromise the inquiry. The Committee notes the competing interests of the right to representation of choice on the one hand and on the other hand the need for efficacious examination procedures. The Committee considers that the question of the desirability or otherwise of the provisions abridging the right to legal representation of choice is a matter for Parliament to consider.

The Committee draws attention to the provision.

9. Legal professional privilege – Clauses 40 to 42 – The Committee notes that legal professional privilege is provided by the Bill and that in the course of an examination questions arising in respect to the claim of legal professional privilege are to be determined, in the case of oral evidence, by the Examiner, and by the Magistrates Court in respect to documents and things (clauses 41 and 42). The Committee notes that notwithstanding the claim of privilege clause 40(2) requires a legal practitioner, when required by the Examiner, to divulge the name and address of the person to whom or by whom the claimed privileged communication was made.

(a) In respect to the requirement for a practitioner to divulge a clients name and address the Committee notes the following extract (footnotes edited) from the 6th Edition of Cross on Evidence [25225] at pages 706-707.

The name (295) of a lawyer’s client is not privileged since it must be revealed if the retainer necessary to establish the privilege is to be proved and since it is usually a fact observed while acting as distinct from a confidential communication necessary for obtaining of legal advice. A client’s address is normally not privileged (296) unless it was communicated confidentially, of its disclosure would operate as a real deterrent to the seeking of professional advice. However, a client’s name may be privileged where so much has been divulged with regard to the legal services rendered or the advice sought that to reveal the client’s name would be to disclose confidential communications (297).

295 Southern Cross Commodities Pty Ltd v Crinis[1984] VT697; Cf Cook v Leonard[1954] VLR 591 296 Ex parte Campbell; Re Cathcart (1870) 5 Ch App 703; All ER Rep 469 (CA) 297 Commissioner of Taxation (Cth) v Coombes (1999) 164 ALR 131 (Fed C of A FC)

The Committee notes that the requirement to give name and address may in certain circumstances abridge the right to legal professional privilege and will seek advice from the Minister whether clause 40 is intended to displace the case law allowing a discretion not to divulge the name and address of a client where to do so would effectively disclose confidential communications.

The Committee further notes that the claim for legal professional privilege, is in the context of legal proceedings, a shield preventing confidential communications passing between a client and a legal adviser from disclosure in those proceedings. In


22

contrast the exercise of executive powers under the Bill, the disclosure of the name and address of the person to whom the privilege applies may subject that person to examination involving a requirement to answer questions and, as it would seem self -incriminate, liability under the Confiscation Act and the prospect of a pecuniary penalty under that Act.

The Committee notes that the provision may be an undue trespass to the right of legal professional privilege and the right of confidential communication with a legal practitioner and will seek further advice from the Minister.

(b) In respect to the split decision process the Committee will seek additional advice from the Minister why it is considered necessary to distinguish between the claim for privilege for oral evidence and the production of documents and other things. The Committee will seek further advice from the Minister whether, given the serious consequences which may arise from divulging privileged communications it may be more appropriate to have all claims to legal professional adjudicated independently by the judiciary.

10. Contempt of Examiner – imprisonment for indefinite period until contempt purged – Clause 49 – The Committee notes that punishment for contempt is ordinarily an incident of the exercise of judicial power (but note also contempt of Parliament). The Committee notes that the powers given by the Bill may involve the judiciary in imprisoning a witness for an indefinite period for a contempt for failure to comply or co-operate with an evidence gathering function of the executive.

Further the Committee has previously noted that under the Bill a person may be required to self -incriminate and subject themselves forfeiture and to a pecuniary penalty.

The Committee is concerned that in such circumstances the judiciary may be seen to be an agent of the executive by enforcing the coercive questioning powers provisions of the Bill by the indefinite imprisonment of a person in order to compel a witness to give evidence which may self -incriminate that person.

Whilst the Committee notes that the provisions will sunset after an initial trial period of 42 months the Committee is concerned that the contempt provisions may be inappropriate or infringe the separation of judicial and executive powers and may constitute an undue trespass to rights and freedoms.

11. Right of complaint to Special Investigations Monitor (SIM) – Clause 54 – The Committee notes that a person summoned and examined may complain to the SIM within 3 days after the completion of the examination. The Committee is concerned that the provision of 3 days in which to make a complaint may be an inadequate allowance and will seek further information from the Minister concerning the adequacy of this limitation.

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 – Parliamentary Committees Act 2003, section 17(a)(iv)

12. Protecting personal privacy rights – Information Privacy Act 2000 – In respect to the oversight role of the Special Investigations Monitor (SIM) the Committee notes the submission made by the Victorian Privacy Commissioner (paragraph 16 to 26). To the extent that the submission may raise issues concerning an adverse impact on personal privacy and or a trespass to rights and freedoms pursuant to the terms of reference of the Committee the Committee refers the submission to the Attorney-General for any comment.


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[75]

The Committee notes that the provision is retrospective providing an immunity to person engaged from 11 May 1988 onwards. The Committee will request advice from the Minister whether the provision is likely to effect any person known to have a case in pending proceedings.


Thank you for your letter of 3 November 2004, on behalf of the Scrutiny of Acts and Regulations Committee, regarding the Major Crime (Investigative Powers) Act.

I understand the Attorney General has written to you separately about the matters on which the Committee has indicated it will seek his advice.

The Act has been introduced to provide Victoria with access to coercive questioning powers as exist in a number of other Australian jurisdictions. The Commonwealth, NSW, Queensland and Western Australia have all found it necessary to implement coercive questioning powers.

The recent issues surrounding organised crime and gangland murders has highlighted the need for access to such powers in Victoria.

The Supreme Court is required to issue the coercive questioning orders in Victoria, whereas in a number of other jurisdictions the use of coercive questioning is determined by a Board of Management, as is the case for the Australian Crime Commission and the New South Wales Crime Commission. The Victorian Act also provides additional checks and balances in the system including provision for oversight of the use of coercive questioning powers by the Special Investigations Monitor.

The answers to your specific questions are as follows:

1. (a) Will the derivative use of information be clearly communicated as part of the preliminary requirements before questioning?

Section 31(c) requires an examiner to inform a witness that the privilege against self -incrimination does not apply but that there are restrictions on the use that can be made of evidence obtained in the course of the examination and to specify those restrictions.

1. (b) What is the justification for the abrogation of long standing common law rights in the context of the objectives of this legislation?

The capacity to coercively question witnesses is a powerful investigative tool, intended to enable investigators to go behind organised crime’s “code of silence”. Its value is recognised by the Commonwealth and other State Governments who have conferred the same powers on their own crime and anti-corruption bodies.

Whilst the Act abrogates the privilege against self -incrimination where people are questioned by an examiner, it provides three safeguards:

• examinations may only be conducted if the Supreme Court has issued a coercive powers order to allow use of the powers to investigate a particular organised crime offence;

• the Examiners are independent statutory officers; and


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• the answers to questions cannot be directly used in prosecuting the person who gave the answer (unless the prosecution is related to the giving of the answer itself – for example, if the answer was false and the person is being prosecuted for perjury).

Because of the nature of the powers, it is vital that they be overseen effectively. The Act provides for this, by requiring all examinations to be video recorded, and the recordings to be provided to the Special Investigations Monitor (SIM). In addition the SIM is able to make recommendations to the Chief Examiner and the Chief Commissioner about how the powers are exercised, as well as reporting on the use of the powers to Parliament. This external oversight by the SIM provides checks and balances comparable to other jurisdictions.

2. Why are there no minimum standards of conduct for the treatment of persons subject to compulsory questioning?

Examiners, who are experienced lawyers, appointed by the Governor in Co uncil, are given the discretion to conduct each individual examination as the Examiner sees fit. This is consistent with coercive questioning powers in New South Wales, Queensland, WA and the Commonwealth.

3. Will a witness have the right to consult with a legal adviser prior to a summons for immediate attendance for examination?

A summons for immediate attendance can be issued if the Court or an Examiner (whichever issues the summons) reasonably believes that a delay in the person’s attendance is likely to result in evidence being lost or destroyed, the commission of an offence, the escape of an offender, or the serious prejudice to the conduct of the investigation. While a person may, in these circumstances, be summoned to attend immediately, this needs to be read in conjunction with other provisions in the Act about conduct of an examination once the person attends.

Section 34(1) of the Act provides a right to legal representation. Section 35(2) expressly precludes an Examiner from preventing a legal practitioner being present at an examination.

4. Is it appropriate for the examining body to hold a summonsing power or should that power remain the exclusive preserve of an independent court?

Empowering an Examiner to issue a witness summons is consistent with the approach used in the national legislative scheme that establishes the Australian Crime Commission (formerly the National Crime Authority). The Chief Examiner and Examiners are independent statutory appointments. To be appointed, a person must be a lawyer of 5 years’ standing, which is the same level of qualification required for appointment as a Supreme Court judge.

The Act also sets out matters of which an Examiner must be satisfied before issuing a summons. The Examiner must be satisfied that it is reasonable to issue the summons in the circumstances, having regard to the evidentiary or intelligence value of the information sought and the age and any mental impairment of the person to be summoned. These grounds are identical to those on which the Supreme Court may issue a summons under the Act.

In addition, an Examiner is required to record the grounds on which each summons is issued and to report to the SIM after the issue of any summons. The SIM has extensive powers to ensure that Examiners are complying with the legislation. These include:


25

• A power of the SIM to require Examiners or police to provide information about examinations;

• An entitlement to full and free access to relevant records of the Examiners and the police;

• A requirement for the SIM to report annually to Parliament and a discretion to report to Parliament at any time on any matter relevant to the SIM’s function of overseeing the use of the examination power; and

• An ability to make recommendations to the Chief Examiner and to require him or her to subsequently report on what action, if any, the Chief Examiner has taken in response to such recommendations.

5. If a person is mistakenly summonsed will they be reimbursed their legal expenses in complying with the summons?

Section 19 provides that a person attending an examination is entitled to be paid the same allowances and expenses that would be payable to a Crown witness in criminal proceedings in the Magistrates’ Court. It is not intended that there will be a reimbursement of legal costs for a person appearing as a witness before an examination who exercises his or her right to have legal advice or representation.

6. What is the justification for including children under 18 within the coercive powers regime?

Persons aged between 16 and 18 may have information critical to the investigation of organised crime.

7. The Committee notes that it may be possible for a member or former member of the police force, an officer or former officer of the DPP, Ombudsman’s office or Office of Police Integrity or some other prosecuting authority to be appointed as an Examiner. The Committee seeks the advice as to whether the appointment of such persons may unduly compromise the independence or integrity of the office of Chief Examiner or Examiner.

All appointments for Chief Examiner or Examiner positions are made by Governor in Council. The employment history of proposed appointees, and whether it is compatible with the expectations of the role, can be considered by Cabinet prior to Governor in Council appointment. To exclude all people who have worked in prosecuting authorities or in offices such as the Ombudsman would be unnecessarily restrictive. Each proposed appointee must be considered on his or her merits, including his or her employment history.]

8. The Committee notes that an Examiner may prevent a particular lawyer from appearing if that lawyer’s appearance may prejudice the effectiveness of the examination. The Committee also draws to Parliament’s attention the competing interest of the right to representation of choice.

The Act provides witnesses with a right to legal representation. However, in some cases the Examiner may use his or her general power to regulate the conduct of an examination to prevent a particular lawyer f rom appearing if allowing that lawyer to appear may prejudice the investigation.

An example, as noted by the Committee, may be if several witnesses may want to be represented by the same lawyer. This may not be appropriate as it may compromise the confidentiality or effectiveness of the examination.


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This is consistent with decisions by the Federal Court when applying an equivalent provision for legal representation in the National Crime Authority scheme (which was the predecessor to the current Australian Crime Commission scheme). The Court held that an examiner can refuse to permit a particular legal representative to appear for a witness if the examiner concludes on reasonable grounds and in good faith that to allow the representation will, or may, prejudice the examination.

Even if the Examiner decides that a witness may not be represented by a particular lawyer, the right to legal representation remains and the witness may be represented by another lawyer of his or her choice.]

9. (a) The Committee has sought advice about whether section 40 is intended to displace case law allowing a discretion not to divulge the name and address of a client where to do so would effectively disclose confidential communications. The Committee has sought advice about whether the provision may be an undue trespass on the right of legal professional privilege and the right of confidential communication with a legal practitioner.

The intention of section 40(2) is to ensure that where legal professional privilege may apply to information sought from a lawyer, the Examiner is given the details of the holder of the privilege (the client) so that, if appropriate, inquiries may be made of that person about whether he or she wishes to waive his or her privilege.

The Committee correctly notes that the holder of the privilege may be subject to examination. However, this could only occur if the criteria for the issue of a summons (see Sections 14 and 15) are met in respect of that person.

Legal professional privilege is a privilege of a client that applies to certain confidential communications with lawyers, to preserve that confidentiality. It is important to note, as the Committee did, that the general rule is that a client’s name is not privileged as the client-lawyer relationship must be demonstrated to establish privilege and this requires disclosure of the client’s identity. In addition, as the Federal Court noted in FCT v Coombes (1999) 164 ALR 131, in almost all cases the client’s name and address will not have been communicated confidentially. As the Federal Court noted, the name and address of the client will usually be collateral facts, the lawyer’s knowledge of which does not arise out of confidential professional communications.

9. (b) Why is a claim for privilege for oral evidence being treated differently to the production of documents or things? Would it be more appropriate for all claims of legal professional privilege to be adjudicated by the judiciary?

It is intended that both types of determination may be made by a court. Whilst the Act does not expressly provide for the determination of claims in relation to oral answers, if legal professional privilege is claimed in relation to the answer to a question, it is intended that general administrative law principles will apply, and that an application may be made to the Supreme Court for an appropriate order (whether a declaration as to whether the privilege applies to the answer, or a review of a decision that the privilege does not apply).

10. The Committee notes that the contempt provisions may involve the judiciary in imprisoning a witness for an indefinite period for contempt. The Committee is concerned that the judiciary may be seen to be an agent of the executive by enforcing these provisions, in order to compel a witness to give evidence which may self -incriminate the person.


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It is not unusual for Victorian legislation to provide a contempt process to ensure that people comply with obligations to provide information to certain inspectors in the course of an in vestigation. An example is section 223C of the Local Government Act 1989. That section makes it an offence for a person to fail to provide information to an inspector of municipal administration, or to refuse to take the oath or affirmation when appearing before such an inspector, etc. It also provides that the inspector may certify the failure to the Supreme Court, and that the court may make an order punishing the person as if he or she had been guilty of contempt of court. This would appear to include the full range of punishments for contempt, including indefinite detention. The contempt provisions in the Act are analogous to the Queensland regime for the Crime and Misconduct Commission.

Section 18 of the Securities Industry Act 1975 is an example of such a contempt provision in combination with an abrogation of the privilege against self -incrimination and a use-immunity.

11. The Committee has sought information about the adequacy of the three day time limit for complaints.

The grounds on which complaints may be made are specified in the Act. The three day time limit ensures complaints can be investigated by the SIM in a timely manner.

12. The Committee referred the submission of the Victorian Privacy Commissioner to the Attorney-General for any comment.

The Victorian Privacy Commissioner’s submissions have been addressed in the Attorney-General’s response to the Committee.

I trust this information is of assistance to the Committee.

ANDRE HAÉRMEYER MP Minister for Police and Emergency Services

25 January 2005



28

Occupational Health and Safety Bill

The Bill was introduced into the Legislative Assembly on 17 November 2004 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 29 November 2004 and made the following comments in Alert Digest No. 11 of 2004 tabled in the Parliament on 30 November 2004.


[156]

Parliamentary Committees Act 2003, section 17(a)(ii) – ‘makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers’

The Committee notes that clause 156 will permit the Minister to delegate ‘to any person’ all or any of the Minister’s powers and functions under the Act or the regulations.

The Committee will seek further advice from the Minister concerning the necessity or desirability to provide such a wide and undefined delegation provision.

The Committee will also points out to the Minister the incomplete explanation provided for clause 156 in the explanatory memorandum which simply provided ‘allows the Minister to delegate all or any of his or her functions or powers under the Bill or regulations’. It would appear to the Committee that the vital ingredient to this clause note is a concise explanation to whom the power of delegation is permitted.



I refer to your letter dated 30 November 2004 seeking further clarification in relation to the delegation provisions in clause 156 of the Occupational Health and Safety Bill 2004.

Section 57 of the Occupational Health and Safety Act 1985 currently provides a power of delegation to the Minister with essentially an identical effect as clause 156 of the Bill. Please find attached a copy of section 57 for your information.

The Bill simply preserves the Minister’s existing power but expresses it in modern language.

I note that section 57 of the Act has not been used during my time in the WorkCover portfolio, and I do not envisage a need to use the provision in the foreseeable future.

I expect that if it was to be used, it would be in the rarest of situations where the Minister delegates a power or function to his or her relevant Department Head or the Chief Executive Officer of the Victorian WorkCover Authority.

I would be pleased to answer any further questions relation to section 57 of the Act at the request of yourself or the Committee.

Rob Hulls MP Minister for WorkCover

3 December 2004



29

Public Administration Bill

The Bill was introduced into the Legislative Assembly on 11 November 2004, by the Hon. Steve Bracks MLA. The Committee considered the Bill on 29 November 2004 and made the following comments in Alert Digest No. 11 of 2004 tabled in the Parliament on 30 November 2004.


[109]

Parliamentary Committees Act 2003, section 17(a)(ii) – ‘makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers’ The Committee notes the wide delegation provision and will seek further advice from the Premier concerning the necessity or desirability to include such unfettered delegation powers. Pending the Premier’s response the Committee draws attention to the provision.

Premier’s Response

Thank you for your letter concerning clause 109 of the Public Administration Bill seeking my comments on the necessity or desirability to include wide delegation powers in the Bill.

Clause 109 is based upon currently operational sections in the Public Sector Management and Employment Act 1998 (PSMEA).

Section 43(4) of the PSMEA provides that:

“The Public Employment Minister may, by instrument, delegate to any person any of his or her functions under this Act, other than this power of delegation.”

Section 54 of that Act provides that:

“The Agency Minister may, by instrument, delegate to any person any of his or her functions under this Act, other than this power of delegation”.

Clause 109 of the Bill combines the current sections 43(4) and 54 of the PSMEA. It is sensible to main tain a separation of the delegable functions of the Premier (referred to in the PSMEA as the “Public Employment Minister”) from the delegable functions of a public service body Minister (referred to in the PSMEA as an “Agency Minister”). It is, however, nonetheless logical to locate the powers of delegation in the same provision, for ease of reference and accessibility.

The separation of delegable functions recognises that the Premier has unique functions under the Public Administration Bill which public service body Ministers do not have, such as enabling a notice to be delivered to a public entity requiring it to provide information other than financial information (clause 94), requesting the State Services Authority to include an instrument in the Authority’s register (clause 72), and causing an annual report to be laid before each House (clause 74).

Clause 109, like its predecessor sections 43(4) and 54, recognises the reality that many of these functions are administrative in nature. It is therefore appropriate that, where the Premier or public service body Minister thinks it appropriate, delegation powers should be flexible enough to enable administrative functions to be delegated to a person of appropriate authority.


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In any event, when exercising the power of delegation in clause 109, section 42A of the Interpretation of Legislation Act 1984 will apply, so that appropriate conditions or limitations can be applied to any delegation. This, together with the scrutiny of and accountability to Parliament, will ensure that the administrative powers are sufficiently defined having regard to their intended purpose.

Furthermore, it is noted that sections 43(4) and 54 of the PSMEA have been in operation for a number of years now. As far as I am aware, the power of delegation under the PSMEA has been exercised at all times in a prudent and appropriate manner in the interests of promoting good governance in Victoria. I expect that clause 109 will continue to operate in the same way.

HON STEVE BRACKS MP Premier of Victoria

Premier’s response to Minority Report in Alert Digest No 11 of 2004 On 30 November 2004 a Minority Report was received by 3 members and was published in Alert Digest No. 11 of 2004. The Premier responded to this report on 8 December 2004.

I understand that a Minority Report of the Scrutiny of Acts and Regulations Committee (SARC) has been included in the SARC Alert Digest No. 11 (dated 30/11/04).

The minority members have sought clarification of section 107 of the Public Administration Bill. Th is provision prevents detrimental action against a public official “for the reason that the other person is such an official”.

I understand that the minority members are concerned that the provision may:

• infringe the privileges of the Parliament or a citizen’s right to free speech;

• limit Parliament’s ability to hold the executive government to account; and

• limit the ability of citizens to raise matters of concern and public importance about executive government.

This provision, together with section 108, does not, and is not intended to, affect the operation of Parliamentary privilege. I note that such a change would require express intent.

Further, these provisions do not prevent public discussion or criticism of public officials. Such criticism can be made without breaching the provision where the criticism is based on the official’s performance, or the performance of his or her organisation, as this is a matter within his or her responsibilities.

The provisions are primarily aimed at protecting people with direct public interaction who can be subject to verbal or physical attack because:

• they are perceived as representing the relevant organisation merely because they are employed by that organisation; and

• the public official is doing his or her job and that impacts negatively on a member of the public.

I hope this addresses the queries expressed in the Minority Report.

STEVE BRACKS MP, Premier

20 December 2004

The Committee thanks the Premier for both responses.


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Safety on Public Land Bill

The Bill was introduced into the Legislative Assembly on 16 November 2004 by the Hon. John Thwaites MLA The Committee considered the Bill on 29 November 2004 and made the following comments in Alert Digest No. 11 of 2004 tabled in the Parliament on 30 November.


[4]

Parliamentary Committees Act 2003, section 17(a)(vi) – ‘inappropriately delegates legislative power’

The Committee notes that clause 4 would permit the Secretary to declare an area of State forest to be a public safety zone for the specific purposes and also for any purpose that may be prescribed by regulations.

Given the consequences and executive powers that flow from such a declaration the Committee is concerned that the provision may constitute an inappropriate delegation of legislative power. The Committee will seek further advice from the Minister as to why an exhaustive listing of purposes is not possible in the circumstances sought to be covered by the Bill.



Thank you for your letter of 30 November 2004 seeking further clarification in respect to clause 4 of the Safety on Public Land Bill.

The Secretary of the Department of Sustainability and Environment requires the capacity to declare public safety zones for a range of purposes to ensure public safety and the better management of State forests for a multiplicity of forest values. Section 4(2)(a) to (h) list a range of purposes for which public safety zones can be declared. They cover all known situations for which the Secretary may need to declare a public safety zone. However, unforseen circumstances may arise in the future to make it necessary to prescribe another purpose for which a public safety zone may be declared.

If that situation arises, the provisions of the Subordinate Legislation Act 1994 will apply to ensure appropriate public consultation through the Regulatory Impact Statement process. Parliamentary oversight will occur through your Committee’s oversight of statutory rules and the Parliamentary disallowance process under the Subordinate Legislation Act 1994.

John Thwaites MP Minister for Environment

10 January 2005



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The Bill was introduced into the Legislative Council on 26 May 2004 by the Hon. Justin Madden MLC. The Committee considered the Bill on 23 August 2004 and made the following comments in Alert Digest No. 6 of 2004 tabled in the Parliament on 24 August 2004


[59(6) and (7)]

Section 17(a)(i) – Trespasses unduly upon rights or freedoms

The Committee notes that new clause 59(6) and (7) provides that the new provisions apply to a proceeding existing on or after the commencement of the Victo rian Civil and Administrative (Amendment) Act 2004. This clause may alter existing rights of parties currently involved in litigation.

The Committee resolved to write to the Minister:

(a) to seek his advice as to whether there are in fact proceedings on foot which may be affected by the Bill;

(b) to seek his explanation as to why the Bill applies to existing proceedings.


I refer to your recent letter to the Hon. Rob Hulls, Attorney General, regarding provisions of the Bill for this Act. I have been asked to respond to the issues raised by the Scrutiny of Acts and Regulations Committee.

I note that the Committee was concerned about the impact of the changes on existing proceedings at the Victorian Civil and Administrative Tribunal, and why they should apply to existing proceedings.

The amending Act provides a reinstatement of a general call-in power that has long existed, its use being determined on a case by case basis. Within the terms of the Planning and Environment Act 1987 this relates to a proceeding which raises a major issue of policy, and the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

For many years it has been understood that when the Tribunal held what is often referred to as a ‘directions hearing’, it would not be considered to have commenced to hear the matter. Such a hearing would, therefore, not be relevant to the calculation of the time up to which the Minister could ‘call in’ an application for review.

However, in may this year the President of the Victorian Civil and Administrative Tribunal in Buttigieg v. Melton Shire Council [2004 VCAT 868 14 May 2004] held that:

‘where the tribunal hears from the parties to the proceeding, following notice being given of the time and place of that hearing in accordance with section 99 of the act, the tribunal is engaged in hearing the proceeding. This is so even if the hearing is solely for the purpose of receiving submissions from the parties and then, following receipt of those submissions, making directions’.


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The effect of the changes made by the amending Act is that, in calculating timing when an application for review may be “called in”, any hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing is disregarded. The amendments thus restored the Minister’s call-in power so that it could be exercised as formerly, at any time up to 7 days before the final hearing of the matter.

At the time the Act commenced there were proceedings on foot which were affected by the change. It was appropriate to apply this to existing proceedings because:

• Any proceeding commenced before the decision of VCAT President Justice Morris on 14 May 2004 would have been commenced on an understanding that the law relating to when a review on a planning matter could be “called in” permitted a call in at any time up to 7 days before the final hearing of the matter.

• The Act was made to clarify the law and to create greater certainty in relation to when matters may be called in, by restoring the ability to call-in a matter, as formerly, at any time up to 7 Days before the final hearing of the matter.

• Although the Act relates to reviews under all “planning enactments”, it is primarily about actions under the Planning and Environment Act 1987. It is well understood by those dealing with planning issues that decisions are made in accordance with the law as it exists when the decision is made – whether that be at the responsible authority, or at VCAT on review. The approach taken to the procedural issue is consistent with this.

• The amending Act has not actually affected the basis for making decisions, but simply the question of the extent of the Minister’s power to “call in” a review before the Tribunal. To have limited this in relation to existing proceedings would have limited the rights of those applicants to seek that a matter be called in.

Taking account of all the above matters, the Government considered that it was not appropriate to maintain the former Act provisions in respect to matters already before the Tribunal.

If you have any queries, please contact the Minister for Planning’s Adviser, Rachael Joiner, on telephone 9637 8855.

John Pandazopoulos MP Acting Minister for Planning

25 January 2005


Committee Room 21 February 2005


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35

Appendix 1 I n d e x o f B i l l s R e p o r t e d 2 0 0 5

Alert Digest No.

Channel Deepening (Facilitation) Bill .......................................................................... 1 Corrections (Transition Centres and Custodial Community Permits) Bill........................ 1 Geothermal Energy Resources Bill .............................................................................. 1 Housing (Housing Agencies) Bill ................................................................................ 1 Major Crime (Investigative Powers) Bill ...................................................................... 1 Occupational Health and Safety Bill ............................................................................ 1 Public Administration Bill........................................................................................... 1 Retirement Villages (Amendment) Bill ........................................................................ 1 Safety on Public Land Bill .......................................................................................... 1 Statute Law Revision Bill............................................................................................ 1 Victorian Civil and Administrative Tribunal (Amendment) Bill..................................... 1


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37

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

b y T e r m s o f R e f e r e n c e

Alert Digest Nos. Section 17(a)

(i) trespasses unduly upon rights or freedoms

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers

(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

(vi) inappropriately delegates legislative power

(vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

Section 17(b)(i), (ii) and (iii)

(i) and (ii) repeals, alters or varies the jurisdiction of the Supreme Court


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39

Appendix 3 Min ister ia l Correspondence

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.


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 Bill‡ 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

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


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Appendix 4 Statute Law Revis ion Bi l l

Cer t i f icate

Documents

Alert Digest 1 of 2005 - Parliament of Victoria