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Justice Legislation Further Amendment
Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill. The clause outlines the
purpose of amendments made by the Bill to the Children, Youth
and Families Act 2005, the Coroners Act 2008, the
Corrections Act 1986, the Country Fire Authority Act 1958,
the County Court Act 1958, the Crimes Act 1958, the Drugs,
Poisons and Controlled Substances Act 1981, the Emergency
Management Act 1986, Gambling Regulation Act 2003, the
Gambling Regulation Further Amendment Act 2009,
Guardianship and Administration Act 1986, Infringements
Act 2006, the Interpretation of Legislation Act 1984, the Legal
Profession Act 2004, the Liquor Control Reform Act 1998, the
Magistrates' Court Act 1989, the Metropolitan Fire Brigades
Act 1958, the Prostitution Control Act 1994, the Serious Sex
Offenders (Detention and Supervision) Act 2009, the Supreme
Court Act 1986 and the Victorian Civil and Administrative
Tribunal Act 1998 and for other purposes.
Clause 2 provides for the commencement of the Bill.
PART 2--CRIMES ACT 1958
Clause 3 Subclause(1) amends the definition of authorised person in
section 464JA(1) of the Crimes Act 1958 to include an
investigating official or person acting under his or her direction
and a person engaged by a Department or agency to store or
retrieve a recording.
561502 1 BILL LA INTRODUCTION 12/8/2010
The purpose of the amendment is to ensure investigating officials
other than members of the police and persons engaged to store
and retrieve records, can discharge their duties without being
exposed to the offences contained in section 464JA.
Subclause (2) amends the existing paragraph (a) in section
464JA(3) to clarify that a recording can be played for purposes
connected with any civil or criminal proceeding and any inquiry
before any court or tribunal. The amendment ensures that such
use of a recording does not constitute an offence.
Subclause (3) amends section 464JA(6) to clarify that the offence
in relation to tampering, erasing or modifying a recording is not
committed when a recording is destroyed at the expiration of the
period of retention required by section 464JC.
Clause 4 Subclause (1) amends section 464JC(1) of the Crimes Act 1958
by inserting a definition of Department Head. It has the same
meaning as in the Public Administration Act 2004.
Section 4(1) of the Public Administration Act 2004 defines a
Department Head as a person employed as a Department Head
under section 12 of that Act. The purpose of the amendment is to
provide for the retention of recordings made by investigating
officials other than by members of the police force.
Subclause (2) amends section 464JC(2) of the Crimes Act 1958
to clarify that the Chief Commissioner of Police is obliged to
keep a copy of a recording only where it has been made by a
member of the police force in the course of an investigation.
Subclause (3) amends section 464JC(2) of the Crimes Act 1958
by omitting the requirement to retain the recording for 7 years.
The amendment is related to the inclusion of the definition of
Department Head and the insertion of new sections 464JC(2A)
and (2B).
Subclause (4) inserts a new section 464JC(2A) and (2B) after
section 464JC(2) of the Crimes Act 1958. The new
subsection (2A) requires a recording made by an authorised
person not a member of the police force to be kept in the custody
of the Departmental Head for the Department, where the
authorised person made the recording in the course of carrying
out duties for or on behalf of that Department. The new
subsection (2B) requires a recording made by an investigating
official to be kept for a period of 7 years from the making of that
recording.
Subclause (5) amends section 464JC(3) of the Crimes
Act 1958 by inserting "or the Department Head" after
"Chief Commissioner of Police".
2
Subclause (6) amends section 464JC(5) of the Crimes Act 1958
by inserting "the Department Head" after "Chief Commissioner
of Police" in paragraphs (a) and (b).
The amendments made by subclauses (5) and (6) apply the
provisions allowing a court to make an order that a recording be
retained for a period longer than the minimum 7 years to a
Department Head.
Clause 5 Subclause (1) amends the definition of prescribed person in
section 464JD(1) of the Crimes Act 1958 to include an
investigating official or a person acting under his or her direction.
The effect of the amendment is to authorise the use of a recording
made by an investigating official other than a member of the
police force for training, teaching or testing purposes.
Clause 6 inserts a new section 616 at the end of Part 7 of the Crimes
Act 1958. The new section clarifies that the amendments to
sections 464JA, 464JB, 464JC and 464JD apply on or after their
commencement.
PART 3--LIQUOR CONTROL REFORM ACT 1998
Clause 7 inserts a new Part 8B in the Liquor Control Reform Act 1998
entitled "Closure and Evacuation of Licensed Premises for Fire
and Emergency Purposes" and has five Divisions.
Division 1, comprising new section 148S, sets out the definitions
that apply to new Part 8B.
Division 2, comprising new sections 148T to 148ZB, sets out the
process of entry and search of licensed premises by the Chief
Officer for serious fire threats to persons in or in close proximity
to the licensed premises and allows the Chief Officer to appoint
fire safety inspectors to carry out that power of entry and search.
Division 3, comprising new sections 148ZC to 148ZQ, deals with
the closure and evacuation of licensed premises where a serious
fire threat has been identified as existing or potentially arising in
the premises, and allows for revocation of the closure and
evacuation notice and any subsequent notice where the serious
fire threat has been rectified.
Division 4, comprising new section 148ZR, allows the Director
of Liquor Licensing to delegate any power, duty or function
under the new Part to an employee, employed under Part 3 of the
Public Administration Act 2004.
3
Division 5, comprising new sections 148ZS to 148ZZ, provides
for the Director to disclose information to a defined class of
persons, each of whom has a legitimate interest in that
information for the performance of their official duties under the
new Part 8B or other relevant legislation. The Division also
allows for an application for a review of the Director's decision to
close the licensed premises, the issuing of infringement penalties
and includes a sunset provision for the new Part.
Division 1--Preliminary
New section 148S sets out the new definitions for the purposes of
the new Part including authorised person which has the same
meaning as in Division 3 of Part 8 of the Liquor Control
Reform Act 1998 meaning a compliance inspector, Director of
Liquor Licensing or a member of the police force, Chief Officer,
closure and evacuation notice, emergency which has the same
meaning as in the Metropolitan Fire Brigades Act 1958
meaning an emergency due to the actual or imminent occurrence
of an event which in any way endangers or threatens to endanger
the safety or health of any person or which destroys or damages,
or threatens to destroy or damage, any property or endangers or
threatens to endanger the environment or an element of the
environment, including, without limiting the generality of the
foregoing an earthquake, flood, wind-storm or other natural event
and a fire, an explosion, a road accident or any other accident,
fire safety inspector, municipal building surveyor as defined in
the Building Act 1993 as a person for the time being appointed,
employed or nominated by a council as its municipal building
surveyor for the purposes of the Building Act 1993, premises
searched and serious fire threat.
Division 2--Power of Entry and Inspection
New section 148T allows the Chief Officer to, by instrument,
appoint as a fire safety inspector any person who is employed by
the Metropolitan Fire and Emergency Services Board (MFESB)
or an employee under the Country Fire Authority (CFA).
New section 148U provides that the Chief Officer must issue an
identity card to each fire safety inspector.
New section 148V provides that the fire safety inspector must
produce his or her identity card for inspection before, and at any
time if asked to do so during, the exercise of a power under the
new Part 8B, including the power of entry and search. Failure by
the fire safety inspector to produce his or her identity card does
not invalidate any action or thing done by a fire safety inspector.
4
New section 148W(1) provides that if a fire safety inspector
suspects on reasonable grounds that there is a serious fire threat
to that part of any premises that is a licensed premises or in close
proximity to licensed premises, the fire safety inspector may
enter, at any time without prior notice, to those premises. A part
of the premises that is in close proximity to the licensed premises
include an area used for the management or operation of the
business such as the kitchen or storage areas.
Subclause (2) provides that on entry under subclause (1), the fire
safety inspector may make inquiries, conduct a search and
examine any thing at the premises, which the fire safety inspector
reasonably believes may assist in determining if there is a serious
fire threat to those premises. These entry and search powers are
both reasonable and necessary to ensure safety at licensed
premises.
Subclause (3) provides that the fire safety inspector must leave a
notice setting out the details of entry and departure under the new
section 148W, with his or her contact details.
Subsection (4) provides that a fire safety inspector must not enter
or inspect any part of the premises that is used for residential
purposes.
New section 148W is required as the Director of Liquor
Licensing, MFESB and CFA currently have no powers under
existing legislation to request immediate rectification of any
identified serious threats, in relation to fire or emergency, to the
health or safety of persons in or in close proximity to the licensed
premises.
Section 229 of the Building Act 1993 provides the Chief Officer
of the MFESB and CFA as an "authorised person" under the
Building Act 1993, the power to enter any building or land at
any reasonable time for the purpose of carrying out any
inspection, authorised or required by the Building Act 1993 or
Building Regulations 2006 of the building, place of public
entertainment or any related equipment, installation, service,
records or reports. However, the requirement of providing
24 hours notice and obtaining the written consent of the occupier
prior to entry fails to provide an effective power of entry that
assists in addressing serious threats to health or safety, in relation
to fire or emergency, that may be present in licensed premises.
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It is considered that the existing powers as they apply to licensed
premises are inadequate to address serious threats to the health or
safety of patrons in licensed premises, in relation to fire or
emergency. A power of entry and search, without a warrant or
prior notice, will address this gap in legislation and allow fire
safety inspectors to properly identify and assess a serious fire
threat at licensed premises and facilitate the closure and
evacuation of unsafe licensed premises.
New section 148X provides that, where the fire safety inspector
has entered a premises on which a licensed premises is situated
under another Act, such as the Building Act 1993, and believes
on reasonable grounds that there is a serious fire threat which
falls under the new Part 8B, the fire safety inspector must advise
the licensee or permittee that he or she is going to conduct a
search of the premises under new section 148W. This may
involve showing their identity card or providing verbal advice
that they are now executing a search under the new Part 8B of the
Liquor Control Reform Act 1998 to make clear to the licensee
and permittee under which Act the fire safety inspector is now
acting.
New section 148Y allows the fire safety inspector, in the course
of carrying out a search under the new Part 8B, to require that the
licensee, permittee or person who appears to have management
or control of the licensed premises provide oral or written
information, produce documents or give reasonable assistance to
the fire safety inspector in the exercise of the power of search
under the new Part 8B to the extent that is reasonably necessary
to determine a serious fire threat.
Documents required to be produced under this section may
include the current liquor licence, the current plan or depiction of
the licensed premises, occupancy permits or records or reports
relating to the operation and maintenance of any fire safety or
emergency installations or equipment. The power to require
production of pre-existing documents is necessary to ensure fire
safety inspectors are able to properly identify and assess a serious
fire threat at licensed premises. It is designed to protect the
public interest in ensuring that fire safety inspectors have
adequate powers to investigate and enforce compliance with
obligations under this Part. It is noted that section 130F of the
Liquor Control Reform Act 1998 provides protection against
self-incrimination.
6
New section 148Z imposes a penalty of 60 penalty units on a
person who, without reasonable excuse, refuses or fails to comply
with a requirement of the fire safety inspector to provide oral or
written information, produce documents or give reasonable
assistance to the fire safety inspector under new section 148Y.
New section 148ZA imposes a penalty of 60 penalty units on a
licensee, permittee or person who appears to have management
or control of the licensed premises that refuses entry to the fire
safety inspector.
New section 148ZB imposes a penalty of 60 penalty units on a
person who gives information to the fire safety inspector under
the new Part that the person believes or knows to be false or
misleading, or produces a document to the fire safety inspector
under the new Part that the person believes or knows to be false
or misleading without indicating the respect in which it is false or
misleading and if practicable, providing correct information.
Division 3--Closure and Evacuation Notices
New section 148ZC provides that a fire safety inspector who
reasonably believes that there is a serious threat, in relation to fire
or emergency, to the health or safety of persons in or in close
proximity to a licensed premises which exists or could arise, must
advise the Director of Liquor Licensing of his or her belief.
Subclause (2) outlines the matters that the fire safety inspector
may have regard to when forming a reasonable belief of a serious
fire threat. Subclause (2)(e) includes the use of smoke machines
or pyrotechnic effects. Subclause (2)(f) includes any relevant
condition not otherwise mentioned in subclause (2) and includes
where any area in the licensed premise appears to be
overcrowded, or where the licensed premise appears to be
exceeding its stipulated patron capacity.
Subclause (3) provides that a fire safety inspector, before
advising the Director of his or her reasonable belief that there is a
serious fire threat, may offer a licensee or permittee an
opportunity to carry out immediate rectification work such as
unlocking a locked emergency exit door or clearing blocked
paths of travel to exits. A fire safety inspector may require
additional temporary measures be taken while the immediate
rectification work is being carried out, such as turning on lights,
switching off music, ceasing to serve alcohol and not admitting
patrons. Any limitation on the right to freedom of movement
would be reasonable as the purpose of these provisions is to
ensure public safety where a fire safety inspector reasonably
7
believes, and the Director is satisfied that, a serious fire threat
exists.
New section 148ZD provides that the Director, on receipt of
advice of a fire safety inspector that he or she reasonably believes
a serious fire threat exists or could arise to persons in a licensed
premises, must issue a closure and evacuation notice requiring
that the licensed premises be closed and evacuated. The Director
must be satisfied that the requirements of the Part have been met
by the fire safety inspector.
Subclause (2) provides that if the Director is not satisfied that the
requirements of the Part have been met (such as entry and search
in accordance with the new Part 8B), the Director may instruct
the fire safety inspector to satisfy any requirements of the new
Part 8B or that the fire safety inspector leave that part of the
premises that is the licensed premises and that is in close
proximity to the licensed premises without taking further action.
New section 148ZE provides that, on the Director issuing a
closure and evacuation notice, the fire safety inspector must sign
and serve a copy of the prescribed form of the notice on the
licensee, permittee or person who appears to have management
or control of the licensed premises. The closure and evacuation
notice will come into effect when it is served. The intention is
that the fire safety inspector and Director will complete identical
versions of the same document to ensure a consistent record of
the information exchanged between the fire safety inspector and
Director where it may be oral advice or instruction.
New section 148ZF allows the Director, on receipt of advice of
the fire safety inspector, to issue a subsequent notice containing
additional information about the work that must be completed to
rectify the serious fire threat.
New section 148ZG contains the contents of the prescribed form
of the closure and evacuation notice, including the work that
must be completed to the satisfaction of the fire safety inspector
to rectify the serious fire threat, the fact that the licensee or
permittee may request the fire safety inspector to conduct an
inspection of the work completed and that the licensee or
permittee must provide written notification to the Director that
work to rectify the serious fire threat has been completed.
New section 148ZH provides for the evacuation of licensed
premises by the fire safety inspector or authorised person. A fire
safety inspector must produce his or her identity card as issued
pursuant to section 148U. An authorised person must produce
his or her identity card or proof of identity as provided for in the
relevant provisions of the Liquor Control Reform Act 1998 or
8
other relevant legislation. The fire safety inspector or authorised
person can direct, orally or in writing, any person in the licensed
premises to which the closure and evacuation notice applies, to
leave the licensed premises in the manner directed.
New section 148ZI allows the fire safety inspector to request the
assistance of a member of the police force to effect the immediate
closure and evacuation of a licensed premises on which a closure
and evacuation notice has been issued.
New section 148ZJ imposes a penalty of 240 penalty units on a
licensee or permittee who contravenes a closure and evacuation
notice that applies to the licensed premises. A person who fails
to comply with any direction to leave the licensed premises under
new section 148ZH may incur a penalty of 20 penalty units.
New section 148ZK provides that after service of a closure and
evacuation notice, a licensee or permittee must not allow a person
to enter the licensed premises until the notice is revoked under
new section 148ZP with failure to comply incurring a penalty of
120 penalty units. Entry would be allowed to a person engaged
in carrying out the rectification work specified in the closure and
evacuation notice and any subsequent notice.
New section 148ZL provides that a licensee or permittee must
display a prescribed sign at all entrances and exits of the licensed
premises when a closure and evacuation notice is in force in
respect of the premises, with failure to comply incurring a
penalty of 10 penalty units.
New section 148ZM provides that the Director may apply to the
Supreme Court for an injunction to prevent or restrain the
licensee or permittee from contravening a closure and evacuation
notice.
New section 148ZN provides that the Director must request that a
fire safety inspector inspect a licensed premises upon receiving
written notice from the licensee or permittee that rectification
work has been completed in accordance with the closure and
evacuation notice and any subsequent notice. Written Notice
from the licensee or permittee that rectification work has been
completed in accordance with the closure and evacuation notice
and any subsequent notice may also be provided to the fire safety
inspector. The fire safety inspector must inspect the premises
within 48 hours of being requested to do so under this section.
9
New section 148ZO provides that, after inspection of the licensed
premises under new section 148ZN(3) or at the request of the
licensee or permittee, the fire safety inspector must advise the
Director if the work required to rectify the serious fire threat has
been satisfactorily completed.
New section 148ZP provides that the Director, upon receiving
advice from the fire safety inspector that the work required to
rectify the serious fire threat has been satisfactorily completed,
must revoke the closure and evacuation notice and any
subsequent notice.
New section 148ZQ provides for the exchange of oral and written
advice, instruction or decision, and any record of such oral
instructions or directions to ensure consistent a record of such
oral information.
Division 4--Delegation
New section 148ZR allows the Director to delegate any power,
duty or function of the Director under the new Part, to a person
employed under Part 3 of the Public Administration Act 2004.
Division 5--General
The purpose of the new section 148ZS is to ensure the Director
has the ability to share information with a defined class of
persons, each of whom has a legitimate interest in that
information for the performance of their official duties under the
new Part 8B or other relevant legislation. Where information
is provided by the Director under this section to a person,
subclause (3) provides that information may only be used by the
Chief Officer or a municipal building surveyor to enforce
compliance with regulatory regimes they are responsible for
administering. Members of the police may only use such
information for the purposes of enforcement under this Part.
New section 148ZT provides that the Director must disclose
within 5 days of issuing a closure and evacuation notice,
particular information to a municipal building surveyor of a
relevant Council. The Director must also disclose to a municipal
building surveyor any other information related to a closure and
evacuation notice that the Director considers necessary for the
purpose of the effective and efficient enforcement of a relevant
provision of the Building Act 1993.
10
Subclause (2) provides that if the licence of the licensed premises
on which the closure and evacuation notice applies has been
surrendered, cancelled or suspended under the Liquor Control
Reform Act 1998, the Director must, within 5 working days,
disclose that information to the municipal building surveyor of
the Council within the municipal district of which the licensed
premises is situated. It is intended that the municipal building
surveyor would then attend to such information in their normal
course of business.
Subclause (3) provides that if the Director revokes a closure and
evacuation notice and any subsequent notice, the Director must,
within 5 working days, disclose that information to the municipal
building surveyor of the Council within the municipal district of
which the licensed premises is situated.
Subclause (4) provides that any information disclosed by the
Director under subclause (2) or (3) may only be used by the
municipal building surveyor for the purposes of the enforcement
of the Building Act 1993 or the Local Government Act 1989.
New section 148ZU allows a licensee or permittee who is served
a closure and evacuation notice to apply to the Victorian Civil
and Administrative Tribunal for a review of the Director's
decision to close and evacuate the licensed premises.
New section 148ZV provides that the Director, the Chief
Commissioner, a licensing inspector and the Council of the
municipal district in which the licensed premises are situated may
apply to the Victorian Civil and Administrative Tribunal to
conduct an inquiry under Division 1 of Part 6 of the Liquor
Control Reform Act 1998 if he or she considers that a licensee
or permittee who has been issued a closure and evacuation notice
has contravened that notice. If the Victorian Civil and
Administrative Tribunal is satisfied that any of the grounds set
out in new section 148ZV exists, the Tribunal may make an order
cancelling, suspending, varying or endorsing the licence or
permit, or impose a fine on the licensee or permittee not
exceeding $30 000.
New section 148ZW provides that despite anything to the
contrary in the Victorian Civil and Administrative Tribunal
Act 1998, the Victorian Civil and Administrative Tribunal, in
hearing an application by a licensee or permittee for a review of
the Director's decision to close the licensed premises, must not
order a stay of the closure and evacuation notice.
11
New section 148ZX provides that if an authorised person has
reason to believe that a person has committed an offence against
new section 148ZJ(2) of failing to leave the licensed premises
when directed to do so by a fire safety inspector or a member of
the police force, he or she has the power to serve an infringement
notice on that person.
New section 148ZY sets an infringement penalty of 2 penalty
units for the offence in new section 148ZJ(2) of failing to leave
the licensed premises when directed to do so by a fire safety
inspector or a member of the police force, which carries a penalty
of 20 penalty units. This infringement penalty is in accordance
with section 144 of the Liquor Control Reform Act 1998 which
provides that the infringement penalty for an offence against a
provision of the Liquor Control Reform Act 1998 is one-tenth
of the maximum penalty fixed by that provision for that offence.
New section 148ZZ provides that the new Part will be repealed
two years from the day the new Part is proclaimed to have come
into operation. This sunset provision is intended to incorporate
the review of fire safety enforcement in all public buildings being
undertaken by the Department of Justice, which may give rise to
legislative amendments.
Clause 8 amends section 91(1) of the Liquor Control Reform Act 1958
to provide that, if the Tribunal is satisfied that a ground set out in
new section 148ZV exists after conducting an inquiry, the
Tribunal may make certain orders, including cancelling,
suspending or endorsing the licence or permit.
Clause 9 amends section 92(1) of the Liquor Control Reform Act 1958
to provide that, if satisfied that a ground for making an order
under new section 148ZV exists, the Tribunal may order that
certain persons, including the licensee or permittee, be
disqualified from certain positions or activities.
Clause 10 amends section 93(1)(a) of the Liquor Control Reform Act
1958 to provide that, in any inquiry, the Tribunal may make an
order for the endorsement of the name of the owner or a
mortgagee of the licensed premises or their agent on the licence
or BYO permit if the Tribunal is satisfied that a ground for
making an order under new section 148ZV exists.
12
PART 4--DRUGS, POISONS AND CONTROLLED
SUBSTANCES ACT 1981
Clause 11 inserts a new Part VAB into the Drugs, Poisons and Controlled
Substances Act 1981 to provide for a prohibition on the display,
sale and supply of ice pipes in Victoria.
New section 80HA defines the term ice pipe. An ice pipe is
defined as a device that is capable of being used or intended for
use or designed for the introduction, or for introducing, into the
body of a person the drug of dependence, methylamphetamine,
by means of smoking or inhaling of smoke or fumes resulting
from the heating or burning of methylamphetamine in a
crystalline form. It also includes a device that is intended to be
used as such a device but that is not capable of being so used
because it needs adjustment, modification or addition.
New section 80HB makes it an offence to display an ice pipe in a
retail outlet in Victoria. A retail outlet for this purpose includes
market outlets as well as shops. The offence is limited to display
in retail outlets because it is not intended to make it an offence to
display an ice pipe in places such as museums or an organisation
that has an educational function in relation to drugs. The penalty
for displaying an ice pipe in a retail outlet in contravention of the
Act is 240 penalty units for individuals and 600 penalty units for
corporations.
New section 80HC inserts an offence to sell or supply an ice
pipe. The prohibition on the sale and supply of ice pipes applies
regardless of whether they are sold or supplied from a retail
outlet. The terms sell and supply are defined in section 4 of the
Drugs, Poisons and Controlled Substances Act 1981.
The term sell means to sell wholesale, retail or otherwise, barter,
exchange, deal in, agree to sell, offer or expose for sale, keep or
have in possession for sale, send forward, deliver or receive for
or for the purpose of sale or in the course of sale. It also includes
to authorize, direct, allow, cause, suffer, permit or attempt any of
these acts. The term supply means, amongst other things, the
provision, giving or delivery, whether or not for fee, reward or
consideration or in expectation of fee, reward or consideration.
This offence attracts a penalty of 240 penalty units for
individuals and 600 penalty units for corporations.
New section 80HD allows members of Victoria Police to seize
ice pipes if there is a reasonable suspicion that the ice pipe is
displayed or is for sale or supply in contravention of the Part.
13
New section 80HE provides for the retention and return of seized
ice pipes. A member of the police force must take reasonable
steps to return a seized ice pipe to the person from whom it was
seized, or its lawful owner, if the reason for its seizure no longer
exists. This allows for the circumstances where it is subsequently
determined that an offence has not been committed. If a seized
ice pipe has not been returned with 3 months of its seizure, a
member of the police force must take all reasonable steps to
return the ice pipe unless, legal proceedings have commenced
within that 3 month period and the proceedings have not been
completed, or an order has been made under section 80HF
extending the retention period.
New section 80HF allows a member of the police force to apply
to the Magistrates' Court to extend the period during which the
ice pipe may be retained. The Magistrates' Court may issue an
order extending this period if it is satisfied that it is in the
interests of justice, the total period of the retention does not
exceed 12 months, and the retention is necessary for the purposes
of an investigation into whether an offence under Part VAB has
occurred. Further, section 80HF(3) requires that at least 7 days
prior to the hearing of an application under this section, the
applicant must give notice of the application to the person from
whom the ice pipe was seized or its lawful owner.
New section 80HG provides for the forfeiture and destruction of
seized ice pipes. Any ice pipe that has been seized by a member
of the police force is forfeited to the Crown if the person from
whom it was seized or its lawful owner cannot be found despite
making reasonable enquiries or if the item cannot be returned
despite reasonable efforts to do so. An ice pipe forfeited to the
Crown under this provision may be destroyed in any manner the
Minister thinks fit.
New section 80HH provides that a court, which finds a person
guilty of displaying, selling or supplying an ice pipe in
contravention of the Act, may order that the ice pipe be forfeited
to the Crown and destroyed.
PART 5--AMENDMENT OF OTHER ACTS
Division 1--Children, Youth and Families Act 2005
Clause 12 amends section 263(1) of the Children, Youth and Families Act
2005 to remove the requirement for an undertaking to be signed
by a child, a parent and a suitable person or persons under
sections 263(1)(a), 263(1)(b) and 263(1)(c) of the Children,
Youth and Families Act 2005, respectively.
14
Repeals section 263(2) of the Children, Youth and Families
Act 2005 as a necessary consequence of removing the
requirement for an undertaking under section 263(1)(c) of the
Children, Youth and Families Act 2005.
Clause 13 amends sections 264(1) and 264(2) of the Children, Youth and
Families Act 2005 to remove the requirement that the duration of
an Interim Accommodation Order which, places a child with a
suitable person or persons under section s263(1)(c) and places a
child with an out of home care service under section 263(1)(d),
cannot exceed a period of 21 days.
Clause 14 amends sections 267(2)(a) and (b) of the Children, Youth and
Families Act 2005 to remove the requirement that the extension
of an Interim Accommodation Order which, places a child with a
suitable person or persons under section 263(1)(c) and places a
child with an out of home care service under section 263(1)(d),
cannot exceed a period of 21 days.
Division 2--Corrections Act 1986
Clause 15 amends the definition of position in section 30(1) of the
Corrections Act 1986 to include a person employed as a sheriff,
deputy sheriff, sheriff's officer or appointed as a deputised person
under Part 2 of the Sheriff Act 2009 and a person to whom
section 124J(1)(c) of the Magistrates' Court Act 1989 applies
when exercising powers or functions in connection with the
operations of a sub-contractor or contractor under an agreement
under section 124B(1)(b) of the Magistrates' Court Act 1989.
The effect of the amendment is to allow, pursuant to
section 30(3) of the Corrections Act 1986, the sheriff and staff
at the Sherriff's Communication Centre to access, disclose and
make use of particular offender information to the extent
necessary to perform their functions.
Division 3--Country Fire Authority Act 1958
Division 3 removes an unnecessary duplication of work by
removing the requirement that the penalty interest rate applicable
to the Country Fire Authority Act 1958 must be published
separately by Order in Council in the Government Gazette every
time the penalty interest rate changes under the Penalty Interest
Rates Act 1983.
15
Clause 16 amends section 78 of the Country Fire Authority Act 1958.
Subclause (1) amends the penalty interest rate applicable to
section 78(4)(b) of the Country Fire Authority Act 1958 to
provide that the Country Fire Authority may charge an insurance
company penalty interest at the rate fixed by the Attorney-
General by notice published in the Government Gazette under
section 2 of the Penalty Interest Rates Act 1983.
Subclause (2) amends the penalty interest rate applicable to
section 78(5)(e) of the Country Fire Authority Act 1958 to
provide that the Country Fire Authority may charge an insurance
company that has not lodged a return by 1 October and appears
unlikely to lodge a return, penalty interest at the rate fixed by the
Attorney-General by notice published in the Government Gazette
under section 2 of the Penalty Interest Rates Act 1983.
Clause 17 amends section 80(1)(d) of the Country Fire Authority Act
1958 to provide that the Country Fire Authority may charge an
insurance company penalty interest at the rate fixed by the
Attorney-General by notice published in the Government Gazette
under section 2 of the Penalty Interest Rates Act 1983.
Clause 18 amends section 81(1)(c) of the Country Fire Authority Act
1958 to provide that if the Country Fire Authority is satisfied
that, whether by reason of any error in a return or otherwise, the
amount contributed by an insurance company is more or less than
the proper contribution of that insurance company, the Country
Fire Authority may charge the insurance company penalty
interest at the rate fixed by the Attorney-General by notice
published in the Government Gazette under section 2 of the
Penalty Interest Rates Act 1983.
Division 4--Emergency Management Act 1986
Clause 19 amends an incorrect cross-reference in section 16(3) of the
Emergency Management Act 1986 to provide that a section 16
direction or appointment prevails over arrangements under,
among other provisions, section 55E of the Metropolitan Fire
Brigades Act 1958.
Division 5--Fair Work (Commonwealth Powers) Act 2009
Clause 20 amends the definition of State subject matters in section 3(1)(a)
of the Fair Work (Commonwealth Powers) Act 2009 to replace
"Equal Opportunity Act 1995" with "Equal Opportunity
Act 2010".
16
Division 6--Legal Profession Act 2004
Clause 21 inserts new section 6.7.1A in the Legal Profession Act 2004.
The new section clarifies that the powers of the Legal Services
Board to invest funds standing to the credit of the Public Purpose
Fund include the power to enter into financial arrangements to
facilitate such investment, including by way of an overdraft
facility.
In order to ensure that there is no question about the validity of
the Board's existing financial arrangements, the amendment
applies retrospectively from the commencement of the Legal
Profession Act 2004.
Clause 22 inserts subsection (1A) into new section 6.7.1A of the Legal
Profession Act 2004. This subsection requires the Legal
Services Board to obtain the Treasurer's approval for any
financial arrangements or financial accommodation under
subsection (1).
Division 7--Metropolitan Fire Brigades Act 1958
Division 7 removes an unnecessary duplication of work by
removing the requirement that the penalty interest rate applicable
to the Metropolitan Fire Brigades Act 1958 must be published
separately by Order in Council in the Government Gazette every
time the penalty interest rate changes under the Penalty Interest
Rates Act 1983.
Clause 23 amends the penalty interest rate applicable to the Metropolitan
Fire Brigades Act 1958.
Subclause (1)(a) amends the penalty interest rate applicable to
section 41(4)(b) of the Metropolitan Fire Brigades Act 1958 to
provide that the Metropolitan Fire and Emergency Services
Board (MFESB) may charge an insurance company that lodges a
return on or after 1 October, penalty interest at the rate fixed by
the Attorney-General by notice published in the Government
Gazette under section 2 of the Penalty Interest Rates Act 1983.
Subclause (1)(b) amends the penalty interest rate applicable to
section 41(5)(e) of the Metropolitan Fire Brigades Act 1958 to
provide that the MFESB may charge an insurance company that
has not lodged a return by 1 October and appears unlikely to
lodge a return, penalty interest at the rate fixed by the Attorney-
General by notice published in the Government Gazette under
section 2 of the Penalty Interest Rates Act 1983.
17
Clause 24 amends the penalty interest rate applicable to section 43(1)(e) of
the Metropolitan Fire Brigades Act 1958 to provide that the
MFESB may charge an insurance company penalty interest at the
rate fixed by the Attorney-General by notice published in the
Government Gazette under section 2 of the Penalty Interest
Rates Act 1983.
Clause 25 amends the penalty interest rate applicable to section 45(1)(c) of
the Metropolitan Fire Brigades Act 1958 to provide that if the
MFESB is satisfied that, whether by reason of any error in a
return or otherwise, the amount contributed by an insurance
company or municipal council is more or less than the proper
contribution due, the MFESB may charge the insurance company
or municipal council penalty interest at the rate fixed by the
Attorney-General by notice published in the Government Gazette
under section 2 of the Penalty Interest Rates Act 1983 on the
amount of any deficiency.
Clause 26 repeals section 63 of the Metropolitan Fire Brigades Act 1958,
which places an obligation on the owner and occupier of certain
buildings to "provide and keep in a fit state for use all such
appliances and apparatus for the saving of life in the event of fire
as shall be required by any regulation".
It is considered that the above powers as they apply to owners or
occupiers are inadequate to address risks to the health or safety of
patrons of licensed premises and other buildings caused by fire or
emergencies.
Division 8--Serious Sex Offenders (Detention and Supervision)
Act 2009
Clause 27 inserts subsections (3) and (4) in section 182 of the Serious Sex
Offenders (Detention and Supervision) Act 2009.
Section 182(3) specifies that media organisations may publish the
identity and location of an offender if such information is
published at the request of police, for example a media release,
and publication is in the course of law enforcement functions or
in the execution of a warrant or the arrest or apprehension of an
offender.
Section 182(4) defines the term media organisation.
18
PART 6--AUTHORISED VERSIONS
Clause 28 inserts a new Part V into the Interpretation of Legislation Act
1984, which makes similar provisions for the authorisation of an
electronic version of Acts, statutory rules and consolidations of
Acts and statutory rules as currently apply in section 54 of the
Interpretation of Legislation Act 1984 to Acts and subordinate
instruments printed by the government printer.
New section 60 contains the definitions that apply to new Part V.
Authorised electronic version means an electronic version of an
Act, statutory rule or a consolidation of an Act or statutory rule,
that is authorised by the Chief Parliamentary Counsel in
accordance with new section 62 and published on the
Victorian Legislation Website by the Chief Parliamentary
Counsel. Authorised version means an authorised electronic
version or a copy of that authorised electronic version that has
been printed directly from the authorised electronic version.
Electronic version means a version of an Act, a statutory rule or
a consolidation of an Act or statutory rule published on the
Victorian Legislation Website by the Chief Parliamentary
Counsel. For the purposes of the new Part V, legislation means
an Act passed by the Parliament of Victoria, a statutory rule or a
consolidation of an Act or statutory rule. Statutory rule is
defined in section 3 of the Subordinate Legislation Act 1994 to
mean certain rules and regulations and instruments that are
deemed or prescribed to be statutory rules. Victorian Legislation
Website means www.legislation.vic.gov.au.
New section 61 provides that new Part V is in addition to,
and does not derogate from, section 54. Section 54 relates to
the construction of references to Acts. Of particular relevance
to new Part V are subsections (2A), (2B) and (2C).
These subsections confirm that documents purporting to be a
copy of an Act or subordinate instrument or a reprint of an Act or
statutory rule printed by the government printer of any
Australasian state (or a post-5 June 1996 copy of a reprint of an
Act or statutory rule printed by the Government Printer for
Victoria) is on the mere production of that document admissible
as evidence before all courts and persons acting judicially in
Victoria.
New section 62 provides that the Chief Parliamentary Counsel
may authorise an electronic version of legislation published on
the Victorian Legislation website. It also provides that an
electronic version is an authorised electronic if it is in the format
authorised by the Chief Parliamentary Counsel, the words
"Authorised Version" appear at the beginning of the version and
the words "Authorised by the Chief Parliamentary Counsel"
19
appear at the foot of each page of the version. An electronic
version which does not comply with these requirements, is not an
authorised electronic version.
New section 63 provides that a printed copy of an authorised
electronic version is an authorised version only if it is printed
directly from the authorised electronic version.
New section 64 is the evidentiary provision that applies to
authorised versions. It is consistent with section 54(2A), (2B)
and (2C) which relates to versions printed by government
printers. New section 64(1) provides that an authorised version
is, on the mere production of the authorised version, admissible
in evidence before all courts and persons acting judicially within
Victoria. The phrase "persons acting judicially" is defined in
section 3 of the Evidence Act 1958 to include "any court judge
arbitrator master and any person or body having by law or by
consent of parties authority to hear receive and examine evidence
and any officer in any public department having in the discharge
of his duties authority to examine evidence". New section 64(2)
provides for a presumption, (unless the contrary is proved), that a
document purporting to be an authorised version, is what it
purports to be. This avoids the need to prove the veracity of
authorised versions in most cases.
PART 7--MISSING PERSONS' ESTATES
Clause 29 inserts a new Part 5A into the Guardianship and
Administration Act 1986. The new Part will allow the
Victorian Civil and Administrative Tribunal (VCAT), upon
application, to appoint an administrator to manage the estate of a
missing person, where there is a need for decisions in relation to
the person's financial matters or property and the appointment is
in the best interests of the missing person.
New section 60AA
New section 60AA allows any person to apply to VCAT for an
order appointing an administrator in respect of the estate of a
missing person. In particular, this allows a member of the
missing person's family to apply for the appointment of an
administrator. The person proposed as the administrator is a
party to the proceeding on the application.
20
Section 44 of the Guardianship and Administration Act 1986
applies to these applications such that the following people are
entitled to notice of the application: the missing person's nearest
relative, the missing person's primary carer or guardian, the
Public Advocate and any person who has advised VCAT of an
interest in the missing person or his or her estate.
New section 60AB
New subsection (1) allows VCAT to make an order appointing an
administrator for the estate of a missing person if satisfied that--
· the person in respect of whom the application is made is
a missing person;
· the missing person usually resides in Victoria;
· while the person is missing, there is, or is likely to be, a
need for a decision in relation to his or her financial
matters or property; and
· the order is in the best interests of the missing person
while he or she is missing.
The appointment of an administrator in these circumstances is not
intended to permit distribution of an estate in the same way as in
the case of probate. Instead, the intention is to permit a limited
use of property where there is a demonstrated need for decisions
to be made in relation to the missing person's estate and it is in
the best interests for an administrator to be appointed to make
these decisions while the person is missing.
Part 5A provides further for this in sections 49 and 58B of the
Guardianship and Administration Act 1986, as modified by
new section 60AH, which provide that:
· the administrator must act in the best interests of the
missing person;
· the administrator must only take action that this
necessary and desirable for the following purposes--
· payment of the debts and engagements of, and
otherwise for the benefit of, the missing person;
· the maintenance and benefit of dependants of the
missing person;
· the care and management of the estate of the
missing person;
21
· the administrator must obtain the consent of VCAT
prior to selling, exchanging, partitioning or converting
into money any property that forms a part of the missing
person's estate.
New subsection (2) provides that VCAT may be satisfied that a
person is a missing person if satisfied that--
· it is not known whether the missing person is alive;
· reasonable efforts have been made to find the missing
person; and
· for at least 90 days, the missing person has not
contacted anyone who lives at his or her last-known
home address, or any relative or friend with whom the
person is likely to communicate.
Knowledge of whether a person is alive refers to knowledge of
those who would ordinarily be expected to have seen or to have
heard from or of the missing person. This includes the police.
It also involves proof that it is not known that the missing person
is dead, which could encompass such evidence as the results of
any police enquiries or confirmation of a physical search being
carried out in the area where the missing person disappeared.
Reasonable efforts to find the missing person will depend on the
particular circumstances of the case. However, they could
include--
· informing the police as well as the results of the police
investigation;
· carrying out a physical search and/or an internet search;
· seeking media publicity;
· listing the missing person on
www.missingpersons.gov.au; and
· involvement and enquiries by such organisations as the
Salvation Army or the Red Cross.
An applicant must show that there has been no contact with
people whom the missing person would be likely to
communicate, including family, friends and work colleagues, for
90 days. Contact includes contact by telephone or by physical
sighting of the missing person.
22
New subsection (3) provides that VCAT may appoint an
administrator to administer all or a specified part of the estate of
the missing person. Further to this, section 48 of the
Guardianship and Administration Act 1986, as modified by
new section 60AH, applies to provide that VCAT must, in the
order appointing the administrator, specify the kinds of decisions
the administrator may make and the parts of the estate in relation
to which the power may be exercised.
New subsection (4) provides that VCAT must not make an order
appointing an administrator in respect of the estate of a missing
person where that estate, or any part of it, is subject to an order or
application under section 24A of the Administration and
Probate Act 1958. This preserves the long-standing ability of
the Supreme Court to authorise a trustee company, or State
Trustees, to deal with "uncared for property" when it is not
known where the owner of the property is or whether the owner
is alive or dead.
New section 60AC
New section 60AC requires an administrator for a missing
person's estate to notify VCAT in writing and without delay
when he or she becomes aware that the missing person is alive or
has died. This is because the administration order is made on the
basis that it is not known whether the missing person was alive,
which also involves proof that it is not known that the
represented person is dead.
New section 60AD
New subsection (1) allows VCAT to order the removal of an
administrator of a missing person's estate on application by the
missing person. VCAT may also order the removal of an
administrator on application by someone else if satisfied that the
missing person is alive, or dead or may be presumed to be dead.
This is because the administration order is made on the basis that
it is not known whether the missing person was alive, which also
involves proof that it is not known that the represented person is
dead.
New subsection (2) requires VCAT to order the removal of an
administrator of a missing person's estate if--
· the Supreme Court, on being satisfied of the death of the
missing person, whether by direct evidence or on
presumption of death, makes a grant of probate of the
missing person's will or administration of the missing
person's estate under section 7 of the Administration
and Probate Act 1958;
23
· the registrar of probates, on being satisfied of the death
of the missing person, whether by direct evidence or on
presumption of death, makes a grant of probate of the
missing person's will or administration of the missing
person's estate under section 12 of the Administration
and Probate Act 1958; and
· if the presumption of death has been successfully
invoked in relation to the represented person for the
purpose of any other proceeding before a court in
Victoria or elsewhere in Australia.
VCAT must also order the removal of an administrator where the
missing person's estate becomes subject to an order under
section 24A of the Administration and Probate Act 1958.
This preserves the precedence of the jurisdiction of the Supreme
Court to authorise the management of uncared for property.
In accordance with section 57 of the Guardianship and
Administration Act 1986 (as modified by new section 60AI),
VCAT must give notice to an administrator for a missing person's
estate where VCAT knows that the person has ceased to be a
person whose estate is subject to an administration order.
However, an administrator is empowered to continue to act until
he or she has received such notice from VCAT.
In accordance with section 58D of the Guardianship and
Administration Act 1986 (as modified by new section 60AI), an
administrator for a missing person's estate must restore money
and property when the estate ceases to be subject to
administration.
New section 60AE
New section 60AE provides that the appointment of an
administrator for a missing person's estate must not last longer
than two years. This ensures that decision making by an
administrator is kept under close supervision by VCAT.
Upon application, VCAT will be able to extend an appointment
for up to two more years.
New sections 60AF and 60AG
New sections 60AF and 60AG allow VCAT, upon application, to
make a temporary order appointing an administrator in respect of
the estate of a missing person. A temporary order remains in
effect for a period not exceeding 21 days but can be renewed for
a further period not exceeding 21 days. After a temporary order
is made, VCAT must hold a hearing within 42 days to determine
24
whether an administrator should be appointed for the missing
person's estate in the longer term.
New section 60AH
New section 60AH limits the consequential effects of the making
of an administration order for a missing person's estate. While a
missing person will be a "represented person" for the purposes of
the Guardianship and Administration Act 1986, the Victorian
Civil and Administrative Tribunal Act 1998 and the State
Trustees (State Owned Company) Act 1994 because he or she
is someone in respect of whom an administration order is in
effect, he or she will not automatically be a represented person
for the purposes of other legislation or regulations. New Part 5A
is not intended to exclude or limit the operation of the
Administration and Probate Act 1958.
New section 60AI
New subsection (1) provides that Part 5 of the Guardianship
and Administration Act 1986 applies for the purposes of new
Part 5A, subject to a number of necessary modifications.
Section Application or modification
43 Does not apply--new section 60AA applies instead.
44 Applies
Each of the following is entitled to notice of the
making of an application for an order appointing an
administrator for a missing person's estate, as well as
notice of the hearing of the application and notice of
any VCAT order in respect of the application--
· the missing person's nearest relative available;
· any primary carer of the missing person;
· the Public Advocate;
· any guardian or the missing person;
· any person who has advised VCAT of an
interest in the missing person or the missing
person's estate.
45 Applies with modification
VCAT must commence to hear an application under
new section 60AA within 30 days after the day on
which VCAT receives the application.
25
Section Application or modification
46 Does not apply--new section 60AB applies instead.
47 Applies with modification
VCAT may appoint as an administrator of a missing
person's estate any person who consents to act as
administrator if VCAT is satisfied that the person--
· will act in the best interests of the missing
person;
· is not in a position where their interests do or
may conflict with the interests of the missing
person;
· is a suitable person to act as administrator;
· has sufficient expertise to administer the estate
or there is a special relationship or other
special reason why he or she should be
appointed as administrator.
In determining whether a person is suitable to act as
the administrator, VCAT must take into account--
· the wishes of the missing person, so far as
they can be ascertained;
· whether the proposed administrator was a
member of VCAT as constituted for a
proceeding under the Guardianship and
Administration Act 1986.
VCAT may appoint State Trustees as administrator of
a missing person's estate.
Subsection (2)(b) does not apply.
47A Applies
An administrator of a missing person's estate, other
than an administrator who carries on a business of the
administration of estates, is not entitled to receive
remuneration from the missing person's estate for
acting as administrator unless VCAT orders
otherwise. The remuneration of a professional
administrator must be approved by VCAT.
26
Section Application or modification
47B Applies
In appropriate cases, a court or tribunal (including
VCAT) may approve payment of reasonable costs out
of the estate of a missing person to an administrator
or former administrator of that estate. This includes
payment from the estate of any costs of a proceeding,
all or part of the administrator's costs of a proceeding
and the costs incurred in administering an estate
(including the costs of any proceeding) incurred by
an administrator or former administrator.
An administrator or former administrator for a
missing person's estate is able to make an application
under section 55 of the Guardianship and
Administration Act 1986, or otherwise, to apply for
the costs incurred in administering an estate,
including the costs of any proceeding.
48 Subsections (1) and (3) apply with modification
An administrator for a missing person's estate will
have the powers and duties conferred by Division 3
of Part 5 (other than the power to make gifts under
section 50A) and any powers and duties referred to in
Division 3A of Part 5 as specified in VCAT's order
appointing the administrator.
Further, the VCAT order appointing the administrator
for a missing person's estate must specify the kinds of
decisions the administrator may make and the parts of
the missing person's estate in relation to which the
power may be exercised.
Subsection (4) does not apply--new section 60AD
applies instead.
49 Applies with modification
An administrator for a missing person's estate must
act in the best interests of the missing person.
27
Section Application or modification
An administrator acts in the best interests of the
missing person if he or she only takes actions that he
or she considers necessary or desirable for--
· the payment of the debts and engagements of,
and otherwise for the benefit of, the missing
person;
· the maintenance and benefit of dependants of
the missing person;
· the care and management of the estate of the
missing person.
50 Applies
An administrator for a missing person's estate is able,
on behalf of the missing person, to do all things
necessary to give effect to his or her administration
powers and duties. However, the administrator does
not have the power to execute a will in the name of
the missing person.
50A Does not apply
An administrator for a missing person's estate cannot
make a gift of the missing person's property.
51 Applies
Subject to the VCAT order appointing the
administrator for a missing person's estate, an
administrator other than State Trustees may maintain
investments made by the missing person and may re-
deposit money that the missing person deposited in a
bank after it becomes payable. The administrator
may also exercise the same powers as if he or she
were a trustee under the Trustee Act 1958.
52 Does not apply
A provision rendering any dealing by a represented
person in respect of any part of his or her estate under
the control of an administrator void will not be
applicable in the context of a missing person. If a
missing was attempting to deal with his or her estate
her or she would not satisfy the test to be deemed a
missing person.
28
Section Application or modification
53 Applies
The interests of a missing person whose estate is
subject to administration in any money or property
arising from any sale or disposition by an
administrator under powers given to the administrator
under the VCAT order, and which have not been
applied under those powers, will not be altered by
such sale or disposition. Further, an administrator for
a missing person's estate must keep a separate
account of such money or property.
54 Applies
VCAT is able to open and read the will of a missing
person whose estate is subject to administration.
55 Applies
An administrator for a missing person's estate is able
to apply to VCAT for advice on any matter relating to
the scope of the administration order or the exercise
of any power under the administration order.
VCAT may approve or disapprove any act proposed
to be done by the administrator and give such advice
as it considers appropriate. VCAT may also give a
direction or advisory opinion to an administrator on
its own initiative.
56 Applies
A person interested in an estate of a missing person
subject to administration, whether a creditor,
beneficiary, next of kin or otherwise, is able to apply
to VCAT in relation to any matter arising out of the
administration of the estate. In response to the
application, VCAT may make any order required by
the circumstances of the matter.
57 Applies with modification
VCAT is required to give notice to an administrator
for a missing person's estate where VCAT knows that
the person has ceased to be a person whose estate is
subject to an administration order. However, an
administrator is empowered to continue to act until he
or she has received such notice from VCAT.
29
Section Application or modification
58 Applies with modification
VCAT may order that the accounts of the estate of a
missing person subject to administration be audited
or examined, and, unless VCAT orders otherwise, the
administrator for the missing person's estate must
lodge accounts of the administration annually.
58AA Applies
Any prescribed fees that are paid in respect of estates
subject to administration, including a missing
person's estate, must be paid into the Guardianship
and Administration Fund.
58AB Does not apply--new section 60AC applies instead.
58A Applies
The Governor in Council may make regulations to
prescribe annual fees to be paid in respect of estates
of missing person's subject to administration.
58B Applies with modification
Subject to VCAT's administration order and other
duties in the Guardianship and Administration Act
1986 (such as under section 49), an administrator for
a missing person's estate:
· has the general care and management of the
estate;
· must take possession and care of, recover,
collect, preserve and administer the missing
person's property and generally exercise the
rights that the missing person might exercise if
he or she were not missing;
· can act on behalf of the missing person with
respect to the estate in the same way as the
missing person could have were he or she not
missing.
30
Section Application or modification
If provided for in the VCAT order, the administrator
of a missing person's estate may, amongst other
things--
· collect, receive and recover income;
· pay any debts and settle any demand against
the estate;
· pay a sum for the maintenance of the missing
person's dependants.
However, the administrator must obtain VCAT's
consent prior to selling, exchanging, partitioning or
converting into money any property, particularly
land, that forms a part of the missing person's estate.
Subsection (3) does not apply.
58C Does not apply
It is not intended that an administrator for a missing
person's estate would be able to exercise certain
powers vested in the missing person, such as where
the missing person had been appointed to act as
trustee or guardian.
58D Applies with modification
An administrator for a missing person's estate must
restore money and property when the estate ceases to
be subject to administration.
58E Applies
A person who was missing and whose estate was
subject to administration, or his or her legal
representative, is entitled to inspect the
administrator's books and accounts regarding the
administration of the estate.
58F Applies
An administrator for a missing person's estate is able
to sell unclaimed personal effects and require the
proceeds to be paid into the Consolidated Fund.
31
Section Application or modification
58G Applies
An administrator for a missing person's estate is able
to open and read the missing person's will deposited
with the administrator.
59 Does not apply
New section 60AE applies instead.
60 Does not apply
New section 60AF applies instead.
New subsection (2) provides that Part 6 of the Guardianship
and Administration Act 1986 applies for the purposes of new
Part 5A, other than sections 60A(6)(b) and 60A(6)(c).
Applying Part 6 enables a party or person who was entitled to
notice of the original application for the order for administration
of a missing person's estate to apply for a rehearing of that
application. A person entitled to notice but who was not a party
to the original application may bring an application for a
rehearing only with the leave of VCAT.
An application for a rehearing must be brought within 28 days
after the date of the order, although under section 60A(5), if
written reasons are requested, the 28-day time limit begins to run
from the date that the written reasons are provided.
Section 60A(6) sets out the circumstances in which there is no
right of rehearing. For the purposes of Part 5A, this would be
either where the President of VCAT made the order or where a
rehearing of the original application has already been conducted.
Sections 60A(6)(b) and 60A(6)(c) have been excluded as they
relate to rehearings in respect of medical or other treatment for a
person with a disability and would not apply in the context of the
administration of a missing person's estate.
Applying Part 6 also allows for the reassessment of orders
appointing an administrator for a missing person's estate.
Under Division 2 of Part 6, VCAT may conduct a reassessment
of an administration order at any time, either on its own initiative
or on application. Further, VCAT must conduct a reassessment
of an administration order within 12 months after making the
order, and, in any case, at least once within a three-year period
after making the order, unless it orders otherwise.
32
Upon completing a reassessment, VCAT may amend, vary,
continue, replace or revoke an administration order.
New subsection (3) provides that Part 6A of the Guardianship
and Administration Act 1986 applies for the purposes of new
Part 5A, other than sections 63A(a) and 63F.
Applying Part 6A allows for the possibility of recognising
interstate orders in relation to represented missing persons,
provided that there is a Governor in Council Order declaring a
law of another State to be a corresponding law. This may be
used to deal with situations where a represented missing person
has property in Victoria, as contemplated by section 63A(b).
New section 60AJ modifies the application of section 4(2) of the
Guardianship and Administration Act 1986 to new Part 5A.
It is the intention of Parliament that the provisions of the
Guardianship and Administration Act 1986 be interpreted and
that every function, power, authority, discretion, jurisdiction and
duty conferred or imposed by the Act be exercised or performed
so that--
· the best interests of a missing person are promoted;
· the wishes of a missing person are given effect to
wherever possible.
Clause 30 inserts a new purpose into the Guardianship and
Administration Act 1986, which is to enable the making of
administration orders and temporary administration orders in
respect of the estate of a missing person.
Clause 31 amends certain definitions in the Act to take into account
Part 5A.
The definition of administration order is amended to include an
order of VCAT appointing a person as an administrator or
temporary administrator of the estate of a missing person under
Part 5A.
The definition of represented person is substituted with a new
definition. The new definition mirrors the previous definition
except that the definition now also encompasses a person whose
estate is subject to an administration order or temporary
administration order under Part 5A.
33
However, it is noted that, under new section 60AH a person who
is a represented person under Part 5A is only a represented
person for the purposes of the Guardianship and
Administration Act 1986, the Victorian Civil and
Administrative Tribunal Act 1998 and the State Trustees
(State Owned Company) Act 1994.
Clause 32 inserts a new object into the Guardianship and Administration
Act 1986, which is to enable the making of administration orders
and temporary administration orders in respect of the estate of a
missing person.
Clause 33 makes consequential amendments to Schedule 1 to the Victorian
Civil and Administrative Act 1998.
Clause 31(1) of Schedule 1 to the Victorian Civil and
Administrative Act 1998 is amended so that, for a proceeding
under Part 5A of the Guardianship and Administration Act
1986, if the Tribunal is to be constituted by a single member, that
member must be a legal practitioner.
Clause 32(2) of Schedule 1 to the Victorian Civil and
Administrative Act 1998 does not apply in the context of an
application for an administrator of a missing person's estate.
VCAT will not be required to inform the Public Advocate if it
makes an order dispensing with service of a copy of an
application under the Guardianship and Administration Act
1986 for an administration order on the person in respect of
whom the application is made.
Clause 37 of Schedule 1 to the Victorian Civil and
Administrative Act 1998 does not apply in the context of an
application for an administrator of a missing person's estate.
Clause 37 prohibits a person from publishing or broadcasting a
report of a proceeding under the Guardianship and
Administration Act 1986 that identifies a party to the
proceeding. However, an application for the appointment of an
administrator of a missing person's estate should not require
confidentiality in the same was as applications for an
administration order in relation to a person with a disability.
An application for the appointment of an administrator of a
missing person's estate must demonstrate that reasonable efforts
have been made to find the missing person, which necessarily
involves a level of publicity and public inquiry.
34
PART 8--AMENDMENT OF GAMBLING LEGISLATION
Division 1--Gambling Regulation Act 2003
Clause 34 substitutes a new definition of electronic monitoring system in
section 1.3(1) of the Gambling Regulation Act 2003 to provide
that it has the meaning given by section 1.3B.
Clause 35 inserts a new section 1.3B into the Gambling Regulation Act
2003, which contains a definition of electronic monitoring
system. The new definition clarifies that the electronic
monitoring system includes certain systems and devices that
enable a venue operator to conduct gaming through a linked
jackpot arrangement.
Clause 36 substitutes a new definition of linked jackpot arrangement in
section 3.1.2 of the Gambling Regulation Act 2003. This new
definition reflects how linked jackpot arrangements will operate
under the new gaming industry structure.
The clause also substitutes a new definition of jackpot, repeals
the definition of linked jackpot equipment and makes
consequential amendments to the definition of significant event.
The definition of linked jackpot equipment is being repealed as
the equipment referred to in the current definition will be
included in the definitions of gaming equipment and monitoring
equipment for the purposes of the post 2012 gaming industry
structure.
Clause 37 makes a minor correction to the definition of monitoring licence
in section 3.2A.1 of the Gambling Regulation Act 2003.
Clause 38 amends section 3.4.1 of the Gambling Regulation Act 2003 to
clarify the authority conferred by the venue operator's licence
under the new gaming industry structure with respect to the
conduct of gaming through a linked jackpot arrangement, the
acquisition and possession of gaming equipment, and the
possession of monitoring equipment.
This clause also corrects a reference to a "venue operator" and
substitutes it with a reference to "the licensee", and removes
references to "linked jackpot equipment" as a consequence of the
repeal of the definition of linked jackpot equipment by clause 36.
Clause 39 inserts a new section 3.4.1B into the Gambling Regulation Act
2003. New section 3.4.1B provides that a venue operator must
comply with the standards made by the Victorian Commission
for Gambling Regulation ("Commission") under new section
10.1.5B in respect of the conduct of gaming. A venue operator
35
must also comply with any operational requirements determined
by the Commission under section 10.1.5C.
A venue operator must not conduct gaming through a linked
jackpot arrangement that does not comply with the standards
made by the Commission under new section 10.1.5B.
A venue operator must ensure that any gaming machines on
which it conducts gaming comply with the standards made by the
Commission under section 3.5.3. New section 3.4.1B imposes a
duty on venue operators to comply with the Commission's
standards. A breach of this duty will be a ground for disciplinary
action under paragraph (d)(ii) of the proposed new definition of
grounds for disciplinary action to be inserted in section
3.4.25(1) of the Gambling Regulation Act 2003 by clause 11 of
the Gambling Regulation Amendment (Licensing) Bill 2010,
which is currently before Parliament.
Clause 40 substitutes new section 3.4.4(1)(b)(i) and (1)(c)(i) of the
Gambling Regulation Act 2003 to remove references to linked
jackpot equipment as a consequence of the repeal of the
definition of linked jackpot equipment by clause 36.
Clause 41 inserts a new section 3.4.4B into the Gambling Regulation Act
2003. New section 3.4.4B provides that the monitoring licensee
must comply with the standards made by the Commission under
new section 10.1.5B. The monitoring licensee must also comply
with any operational requirements determined by the
Commission under new section 10.1.5C.
New section 3.4.4B also provides that the monitoring licensee
must not conduct monitoring of linked jackpot arrangements that
do not comply with the standards made by the Commission under
new section 10.1.5B. The monitoring licensee must also ensure
that its technical equipment and systems comply with the
standards made by the Commission under section 10.1.5A.
New section 3.4.1B imposes a duty on the monitoring licensee to
comply with the Commission's standards. A breach of this duty
will be a ground for disciplinary action under section
3.4.59D(d)(ii) of the Gambling Regulation Act 2003.
Clause 42 makes consequential amendments to section 3.4A.2(1)(a) and
section 3.4A.2(2) of the Gambling Regulation Act 2003.
Clause 42(1) amends section 3.4A.2(1)(a) of the Gambling
Regulation Act 2003 and clause 42(2) amends section 3.4A.2(2)
of that Act to substitute references to gaming machines and
restricted components with references to gaming equipment and
monitoring equipment.
36
Clause 43 makes consequential amendments to section 3.4A.9(6) of the
Gambling Regulation Act 2003.
Clause 43(1) amends paragraph (a) of the definition of
preparatory action in section 3.4A.9(6) of the Gambling
Regulation Act 2003 and clause 43(2) amends paragraph (ab) of
the definition of preparatory action in that section to substitute
references to gaming machines and restricted components with
references to gaming equipment.
Clause 43(2) has been drafted on the basis that proposed
amendments to section 3.4A.9(6) of the Gambling Regulation
Act 2003 contained the Gambling Regulation Amendment
(Licensing) Bill 2010, which is currently before Parliament, will
be passed. That Bill inserts paragraph (ab) of the definition of
preparatory action. In the event that the amendments contained
in the Gambling Regulation Amendment (Licensing) Bill 2010
are not passed by Parliament, the Minister for Gaming will
ensure that clause 43(2) will not come into operation.
Clause 44 makes consequential amendments to section 3.5.1(1), (4) and (6)
of the Gambling Regulation Act 2003.
Clause 44(1) amends section 3.5.1(1) of the Gambling
Regulation Act 2003 to substitute a reference to a gaming
machine and a restricted component with a reference to gaming
equipment and monitoring equipment.
Clause 44(2) substitutes a new section 3.5.1(4) of the
Gambling Regulation Act 2003 and clause 44(3) substitutes a
new section 3.5.1(6) of the Gambling Regulation Act 2003 to
replace references to gaming machines and restricted components
with references to gaming equipment and monitoring equipment.
Clause 45 substitutes new section 4.3.6(1)(a) and (b) in the Gambling
Regulation Act 2003. The effect of these new provisions is that
the tax rate payable by the wagering licensee under section
4.6.3(1) of that Act does not apply to sums invested by premium
customers. A premium customer is defined as any person who
invests more than a prescribed amount of money in totalisators
conducted by the licensee, wagering operator or wagering and
betting licensee in a financial year. The relevant amount of
money will be prescribed by regulations made under the
Gambling Regulation Act 2003.
New section 4.6.3(1AA) and (1AB) are inserted.
These provisions provide for the wagering licensee to pay a
prescribed rate of tax on sums invested by premium customers.
This rate cannot be more than 19·11 per cent.
37
Section 4.6.3(1A)(a) and (b) are substituted. The effect of these
new provisions is that the tax rate payable by the wagering and
betting licensee under 4.6.3(1A) of the Gambling Regulation
Act 2003 does not apply to sums invested by premium
customers.
New sections 4.6.3(1B) and (1C) are inserted. These provisions
provide for the wagering and betting licensee to pay a prescribed
rate of tax on sums invested by premium customers. This rate
cannot be more than 7·6 per cent.
New section 4.6.3(6) is inserted and provides for regulations to
be made for the purposes of section 4.6.3 on the recommendation
of the Treasurer.
New section 4.6.3(7) is inserted and provides a definition of
premium customer.
Clause 46 inserts new sections 10.1.5B and 10.1.5C into the Gambling
Regulation Act 2003.
New section 10.1.5B provides that the Commission may, with the
approval of the Minister, make and amend standards in respect to
linked jackpot arrangements, the conduct of gaming and the
conduct of monitoring. New subsection (2) provides for
consultation requirements before the Commission can make or
amend a standard. New subsection (3) provides for the
publication of the standard by the Commission.
New section 10.1.5C provides that the Commission may
determine operational requirements in relation to linked jackpot
arrangements, the conduct of gaming and the conduct of
monitoring. These may include operational requirements in
respect of information and reporting requirements, testing of
gaming equipment, monitoring equipment, gaming machines and
equipment, an electronic monitoring system and responsible
gambling measures.
Clause 47 inserts a new Part 25 of Schedule 7 into the Gambling
Regulation Act 2003. The new clause 25.1 is a transitional
provision that provides that the definition of electronic
monitoring system currently in that Act continues to apply in
relation to things the holder of the gaming operator's licence and
the holder of the gaming licence are authorised to do, until
15 August 2012, being the remaining term of the licences held by
the gaming operators.
38
Division 2--Gambling Regulation Further Amendment Act 2009
Clause 48 amends the definitions of gaming equipment and monitoring
equipment substituted and inserted in the Gambling Regulation
Act 2003 by section 4 of the Gambling Regulation Further
Amendment Act 2009. These amendments are consequential
amendments arising from the amendment to the definition of
electronic monitoring system by clause 34 and clause 35 of this
Bill and the repeal of the definition of linked jackpot equipment
by clause 36 of this Bill.
Clause 49 makes consequential amendments to section 8(1) of the
Gambling Regulation Further Amendment Act 2009, which
amends section 3.2.2(2) of the Gambling Regulation Act 2003.
These consequential amendments substitute references to a
gaming machine and gaming equipment with references to
gaming equipment and monitoring equipment.
Clause 49(a) amends proposed section 3.2.2(2A) of the
Gambling Regulation Act 2003, clause 49(b) amends proposed
section 3.2.2(2B) of that Act and clause 49(c) amends proposed
section 3.2.2(2C) of that Act to substitute references to a gaming
machine and gaming equipment with references to gaming
equipment and monitoring equipment.
Clause 50 amends section 18 of the Gambling Regulation Further
Amendment Act 2009, which substitutes a new section 3.4.1(ac)
of the Gambling Regulation Act 2003 to make a minor
correction to a section reference, and to correct an incorrect
reference to the "venue operator" and substitute it with a correct
reference to "the licensee".
Clause 51 repeals section 119 of the Gambling Regulation Further
Amendment Act 2009. Section 119 of that Act is an
unproclaimed provision that amends section 3.4.1 of the
Gambling Regulation Act 2003.
Section 119 of the Gambling Regulation Further Amendment
Act 2009 is being repealed as a consequence of the substitution
of the definition of electronic monitoring system by clause 34
and clause 35 of this Bill and the repeal of the definition of
linked jackpot equipment by clause 36 of this Bill.
Related amendments to section 3.4.1 of the Gambling
Regulation Act 2003 are made by clause 38 of this Bill.
Clause 52 repeals section 126 of the Gambling Regulation Further
Amendment Act 2009. Section 126 of that Act is an
unproclaimed provision that amends section 3.4A.2 of the
Gambling Regulation Act 2003.
39
Section 126 of the Gambling Regulation Further Amendment
Act 2009 is being repealed as a consequence of the substitution
of the definition of electronic monitoring system by clause 34
and clause 35 of this Bill and the repeal of the definition of
linked jackpot equipment by clause 36 of this Bill.
Related amendments to section 3.4A.2 of the Gambling
Regulation Act 2003 are made by clause 42 of this Bill.
Clause 53 repeals section 127 of the Gambling Regulation Further
Amendment Act 2009. Section 127 of that Act is an
unproclaimed provision that amends section 3.5.1 of the
Gambling Regulation Act 2003.
Section 127 of the Gambling Regulation Further Amendment
Act 2009 is being repealed as a consequence of the substitution
of the definition of electronic monitoring system by clause 34
and clause 35 of this Bill and the repeal of the definition of
linked jackpot equipment by clause 36 of this Bill.
Related amendments to section 3.5.1 of the Gambling
Regulation Act 2003 are made by clause 44 of this Bill.
PART 9--CAYPINS AMENDMENTS
Division 1--Amendments to the Children, Youth and Families
Act 2005
Clause 54 amends the note at the foot of section 344A to remove the
reference to section 40AA of the Infringements Act 2006 as
clause 59 of this Bill repeals this section.
Clause 55 removes the words "having regard to the time when the offence is
alleged to have been committed" from clause 3(2)(i) of
Schedule 3 to the Children, Youth and Families Act 2005.
Clause 3(2) of Schedule 3 to the Children, Youth and Families
Act 2005 sets out the matters that must be included in a
certificate. This includes certifying that a charge-sheet may still
be filed in relation to the offence. The words "having regard to
the time when the offence is alleged to have been committed" is
limiting because this date is not the only date relevant to when a
charge-sheet may be filed. Clause 17 of Schedule 3 to the
Children, Youth and Families Act 2005 and section 53 of the
Infringements Act 2006 each set out an extended time frame for
filing a charge-sheet.
40
Clause 56 removes the reference to section 40AA of the Infringements Act
2006 from clause 17(1)(b) of Schedule 3 to the Children, Youth
and Families Act 2005 as clause 59 of this Bill repeals this
section.
Clause 56(2) inserts a new subclause after clause 17(1)(b) of
Schedule 3 to the Children, Youth and Families Act 2005
which provides that if an infringement notice is reviewed under
Division 3 of Part 2 of the Infringements Act 2006 and the
enforcement agency notifies the child of its decision under
section 24(3) of the Infringements Act 2006, an enforcement
agency has 6 months from the date of service of the internal
review decision or 12 months from the date of the alleged offence
to file a charge-sheet.
This provides an exception to the 6 month time limit in
section 344A of the Children, Youth and Families Act 2005
where an internal review is conducted under the Infringements
Act 2006.
Clause 57 inserts a new section 616A into the Children, Youth and
Families Act 2005 which provides transitional provisions for
Part 9 of the Bill.
Clause 57(1) provides that the amendments apply to a summary
offence alleged to have been committed--
· on or after 1 January 2010; and
· if the child has applied for an internal review under
Division 3 of Part 2 of the Infringements Act 2006
where the internal review decision is served on the child
under section 24(3) of the Infringements Act 2006, on
or after 1 July 2010.
The transitional provision applies retrospectively to internal
review decisions that are served on a child on or after 1 July
2010.
This transitional provision enables an enforcement agency to
register an infringement penalty with the Children and Young
Persons Infringement Notice System (CAYPINS) on or after
1 July 2010, where an internal review has been conducted and the
enforcement agency serves the internal review decision on a child
outside of the 6 month time limit for filing a charge-sheet.
Clause 3(2)(i) of Schedule 3 to the Children, Youth and
Families Act 2005 provides that the time limit for registering an
infringement penalty with CAYPINS is the same time limit for
filing a charge-sheet.
41
Clause 57(2) provides that a registration or purported registration
with CAYPINS that is made in accordance with the time-frame
referred to in section 40AA is a valid registration as if the
amendments to Schedule 3 to the Children, Youth and Families
Act 2005 by this Bill were in operation.
Division 2--Amendments to the Infringements Act 2006
Clause 58 removes the reference to "subject to section 40AA" from
section 40(4) of the Infringements Act 2006 as clause 59 of this
Bill repeals section 40AA.
Clause 58(2) inserts a note at the foot of section 40(4) of the
Infringements Act 2006. It refers to the time limits that are
relevant to the filing of a charge-sheet in children's infringement
matters that are found in section 344A of the Children, Youth
and Families Act 2005 and clause 17 of Schedule 3 to the
Children, Youth and Families Act 2005.
Clause 59 repeals section 40AA of the Infringements Act 2006.
Section 40AA is replaced by clause 17(1)(ba) of Schedule 3 to
the Children, Youth and Families Act 2005. Clause 17(1)(ba)
provides that if an infringement notice is reviewed under
Division 3 of Part 2 of the Infringements Act 2006 and the
enforcement agency notifies the child of its decision under
section 24(3) of the Infringements Act 2006, an enforcement
agency has 6 months from the date of service of the internal
review decision or 12 months from the date of the alleged offence
to file a charge-sheet.
PART 10--JUDICIAL AND OTHER IMMUNITIES
Clause 60 amends section 542 of the Children, Youth and Families Act
2005, which provides that the principal registrar, registrar and
deputy registrar of the Children's Court have, in the performance
of their duties, the same protection and immunity as a magistrate
has in the performance of his or her duties as a magistrate.
The amendment will provide that, in order for the immunity and
protection of a magistrate to apply to these non-judicial officers,
they must act in good faith in the performance of their duties.
Under section 14 of the Magistrates' Court Act 1989, a
magistrate has, in the performance of his or her duties as a
magistrate, the same protection and immunity as a Judge of the
Supreme Court. Therefore, section 542 of the Children, Youth
and Families Act 2005 should be read in conjunction with
section 14 of the Magistrates' Court Act 1989 and clause 66 of
the Bill, which inserts new section 24D in the Supreme Court
42
Act 1986 to extend the immunity and protection of a Judge of the
Supreme Court to the performance or exercise of an
administrative function or power conferred on the Judge or the
Court by or under any law. The combined effect of section 542
of the Children, Youth and Families Act 2005, section 14 of
the Magistrates' Court Act 1989 and new section 24D of the
Supreme Court Act 1986 is to extend the immunity and
protection of the principal registrar, registrar and deputy registrar
of the Children's Court to the performance of administrative
functions.
Clause 61 amends section 101(2) of the Coroners Act 2008, which
provides that the registrar of the Coroners Court has, in the
performance of his or her duties, the same protection and
immunity as a Judge of the Supreme Court has in the
performance of his or her duties as a Judge. The amendment will
provide that, in order for the immunity and protection to apply,
the registrar must act in good faith in the performance of his or
her duties.
Section 101(2) should now be read in conjunction with clause 66
which inserts new section 24D in the Supreme Court Act 1986
to extend the immunity and protection of a Judge of the Supreme
Court to the performance or exercise of an administrative
function or power conferred on the Judge or the Court by or
under any law. The combined effect of section 101(2) of the
Coroners Act 2008 and new section 24D of the Supreme Court
Act 1986 is to extend the immunity and protection of the registrar
of the Coroners Court to the performance of administrative
functions.
Clause 62 inserts new section 19 into the County Court Act 1958, which
provides that a registrar or deputy registrar of the County Court
has, in the performance of his or her duties, the same protection
and immunity as a judge of the County Court has in the
performance of his or her duties as a judge. The amendment will
provide that, in order for the immunity and protection to apply,
the registrar or deputy registrar must act in good faith in the
performance of his or her duties.
Under section 9A of the County Court Act 1958, a judge of the
County Court has, in the performance of his or her duties as a
judge, the same protection and immunity as a Judge of the
Supreme Court.
43
Section 19 should now be read in conjunction with section 9A
and clause 66 which inserts new section 24D in the Supreme
Court Act 1986 to extend the immunity and protection of a
Judge of the Supreme Court to the performance or exercise of an
administrative function or power conferred on the Judge or the
Court by or under any law. The combined effect of sections 9A
and 19 of the County Court Act 1958 and new section 24D of
the Supreme Court Act 1986 is to extend the immunity and
protection of a registrar or deputy registrar of the County Court to
the performance of administrative functions.
Clause 63 amends section 14 of the Magistrates' Court Act 1989 to
provide that the protection and immunity that a magistrate has in
the performance of his or her duties as a magistrate extends to the
conduct of a committal proceeding. Under section 14 of the
Magistrates' Court Act 1989, a magistrate has, in the
performance of his or her duties as a magistrate, the same
protection and immunity as a Judge of the Supreme Court in the
performance of his or her duties as a Judge of the Supreme Court.
Section 14 should now be read in conjunction with clause 66 of
the Bill, which inserts new section 24D in the Supreme Court
Act 1986 to extend the immunity and protection of a Judge of the
Supreme Court to the performance or exercise of an
administrative function or power conferred on the Judge or the
Court by or under any law. The combined effect of section 14 of
the Magistrates' Court Act 1989 and new section 24D of the
Supreme Court Act 1986 is to extend the immunity and
protection of a magistrate to the performance of administrative
functions. For example, the immunity will cover a magistrate
when he or she issues a warrant.
There is some uncertainty as to whether the conduct of a
committal proceeding in the Magistrates' Court can be classified
as an administrative function or whether it is sui generis.
The intention of clause 63 is to make it beyond doubt that the
immunity and protection that a magistrate enjoys under
section 14 of the Magistrates' Court Act 1989 extends to the
conduct of a committal proceeding.
Clause 64 amends section 24 of the Magistrates' Court Act 1989, which
provides that a principal registrar, deputy registrar or other
registrar of the Magistrates' Court has, in the performance of his
or her duties, the same protection and immunity as a magistrate
has in the performance of his or her duties as a magistrate.
The amendment will provide that, in order for the immunity and
protection to apply, the registrar must act in good faith in the
performance of his or her duties.
44
Under section 14 of the Magistrates' Court Act 1989, a
magistrate has, in the performance of his or her duties as a
magistrate, the same protection and immunity as a Judge of the
Supreme Court. Therefore, section 24 of the Magistrates' Court
Act 1989 should be read in conjunction with section 14 and
clause 66 of the Bill, which inserts new section 24D in the
Supreme Court Act 1986 to extend the immunity and protection
of a Judge of the Supreme Court to the performance or exercise
of an administrative function or power conferred on the Judge or
the Court by or under any law. The combined effect of
sections 14 and 24 of the Magistrates' Court Act 1989 and new
section 24D of the Supreme Court Act 1986 is to extend the
immunity and protection of a principal registrar, deputy registrar
or other registrar of the Magistrates' Court to the performance of
administrative functions.
Clause 65 repeals section 17G(4) of the Supreme Court Act 1986.
That section previously provided that a costs registrar of the
Supreme Court has, in performing functions under Division 2B
of Part 2 of that Act, the same protection and immunity as a
Costs Judge has in assessing, settling, taxing or reviewing costs.
The immunity of a costs registrar is now provided under new
section 24F, as inserted by clause 66 of the Bill.
Clause 66 inserts new sections 24D, 24E and 24F in the Supreme
Court Act 1986 to extend the immunities and protection
enjoyed by Judges, Associate Judges and other court officers.
New section 24D will cover any administrative actions
performed by a Judge of the Supreme Court in his or her official
capacity, as well as any administrative functions or duties
performed in his or her personal capacity as a persona designata.
For example, the immunity will apply when a Judge issues a
warrant.
The amendment is not intended to extend the immunity to apply
to a Judge knowingly acting outside jurisdiction. Nor is it
intended that the immunity would apply to a Judge in relation
to matters such as those that fall within workplace law.
For example, if a Judge were to dismiss his or her court secretary
and were then sued for wrongful dismissal, it is not intended that
the immunity would apply to that action.
45
The clause also inserts new section 24E in the Supreme Court
Act 1986 to provide that an Associate Judge has in the
performance of his or her duties the same protection and
immunity as a Judge of the Court has in the performance of his or
her duties as a judge. This amendment does not limit any other
immunity or protection that Associate Judges enjoy at common
law.
This clause also inserts new section 24F in the Supreme Court
Act 1986 to provide that the immunity and protection of a Judge
of the Supreme Court extends to non-judicial court officers such
as the prothonotary, registrar of probates, registrar, deputy
registrar, costs registrar, deputy costs registrar, deputy
prothonotary and assistant registrar of probates when they
exercise their functions (which are predominantly administrative
in nature) in good faith. Such court officers may exercise powers
conferred on them under legislation and the Rules of Court.
Their powers may include issuing warrants, preparation and
processing of administrative and statutory documentation and
exercising judgment in applying quasi-judicial and statutory
powers in accordance with the law, Rules of Court or the Court's
practice directions. The immunity provided under this clause
will not cover these officers if they perform their administrative
functions in bad faith.
Clause 67 amends section 63(1A) of the Victims of Crime Assistance Act
1996, which provides that a principal registrar, deputy registrar or
other registrar of the Victims of Crime Assistance Tribunal has,
in the exercise of powers or performance of his or her duties, the
same protection and immunity as a magistrate has in the
performance of his or her duties as a member of the Tribunal has
under section 63(1). Under section 63(1), a member of the
Tribunal has, in the performance of his or her duties as a
member, the same protection and immunity as a Judge of the
Supreme Court in the performance of his or her duties as a Judge
of the Supreme Court. The amendment will provide that, in order
for the immunity and protection to apply, the registrar must act in
good faith in the performance of his or her duties.
Section 63(1A) should now be read in conjunction with clause 66
of the Bill, which inserts new section 24D in the Supreme Court
Act 1986 to extend the immunity and protection of a Judge of the
Supreme Court to the performance or exercise of an
administrative function or power conferred on the Judge or the
Court by or under any law. The combined effect of
section 63(1A) and new section 24D of the Supreme Court Act
1986 is to extend the immunity and protection of a principal
46
registrar, deputy registrar or other registrar of the Tribunal to the
performance of administrative functions.
Clause 68 amends section 143(8)(b) of the Victorian Civil and
Administrative Tribunal Act 1998, which provides that a
principal registrar or registrar of the Victorian Civil and
Administrative Tribunal has, in the exercise of powers or
performance of duties the same protection and immunity as a
member of the Tribunal has in the performance of his or her
duties as a member of the Tribunal. Under section 143(1), a
member of the Tribunal has, in the performance of his or her
duties as a member, the same protection and immunity as a Judge
of the Supreme Court in the performance of his or her duties as a
Judge. The amendment will provide that, in order for the
immunity to apply to a registrar, the registrar must act in good
faith in the performance of his or her duties.
Section 143(8) should now be read in conjunction with clause 66
of the Bill, which inserts new section 24D in the Supreme Court
Act 1986 to extend the immunity and protection of a Judge of the
Supreme Court to the performance or exercise of an
administrative function or power conferred on the Judge or the
Court by or under any law. The combined effect of
section 143(8) and new section 24D of the Supreme Court Act
1986 is to extend the immunity and protection of the principal
registrar or another registrar of the Tribunal to the performance
of administrative functions.
PART 11--AMENDMENT OF PROSTITUTION CONTROL
ACT 1994
Clause 69 inserts new Part 2A into the Prostitution Control Act 1994
("the PCA"). New Part 2A introduces provisions enabling
authorised members of the police force to issue a notice banning
a person who is suspected of an offence against section 12(2)(b)
of the PCA for a specified period from a declared area.
New section 21B defines declared area, relevant offence and
relevant police member for the purposes of Part 2A.
relevant member is defined to mean an authorised member of the
police force or a member of the police force authorised under
section 21K to be a relevant police member.
relevant offence is defined to mean an offence against
section 12(2)(b) of the PCA. Under section 12(2)(b) it is an
offence for a person in a public place to invite or solicit any
person to prostitute himself or herself with him or her or another
person.
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declared area is defined to mean an area for which a declaration
under section 18(4) of the Summary Offences Act 1966 is in
force. Section 18(4) provides that the Minister responsible for
the administration of that Act may, by notice published in the
Government Gazette, declare one or more areas for the purposes
of subsection 18(1)(c) if the Minister is satisfied that conduct
contrary to section 12 or 13 of the Prostitution Control Act
1994 frequently occurs in the area or areas.
New section 21C sets out the procedure for the issuing of a
banning notice.
Subsection 21C(1) provides that a relevant police member who
suspects on reasonable grounds that a person is committing or
has just committed a relevant offence within a declared area may
give the person a notice banning them from the declared area for
a specified period.
Subsection 21C(2) provides that the maximum period that can be
specified is 72 hours from the time the notice is given to the
person.
Subsection 21(3) provides that the relevant police member must
not issue the notice to the person unless they believe on
reasonable grounds that giving the notice may be effective in
preventing or deterring the person from committing the relevant
offence again.
Subsection 21C(4) sets out the matters that the relevant police
member must consider in determining whether there are
reasonable grounds for the belief, which include whether the
person is likely to commit a further offence against
section 12(2)(b) of the PCA and whether the person should be
arrested in relation to the relevant offence.
Subsection 21C(5) requires the relevant police member to
produce proof of his or her identity and official status before
giving a banning notice to a person, unless he or she is in
uniform.
Subsection 21C(6) provides that a relevant police member cannot
give a banning notice to a person if he or she believes, or has
reasonable grounds to believe, that the person lives or works in
the declared area.
Subsection 21C(7) provides that only one banning notice may be
given to a person for a declared area in respect of the same
relevant offence. However, a banning notice may be given to a
person to whom a notice has already been issued if it is given in
respect of a separate relevant offence.
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New section 21D sets out the required content of a banning
notice, which must include the person's name, the declared area
(including a map of the declared area), the specified period and
identification details for the relevant police member.
Subsection 21D(2) requires further that the banning notice must
state--
· that the relevant police member suspects that the person
has committed the relevant offence within the declared
area;
· the grounds for the suspicion;
· that the person must not enter the declared area during
the specified period;
· that if the person is in the declared area, they must leave
the area as directed by a member of the police force;
· that it is an offence not to comply with the notice or the
direction; and
· the maximum penalties for those offences.
Subsection 21D(3) provides that the banning notice must also
include advice that the person the subject of the notice may apply
to a member of the police force (of a rank of sergeant or above)
for a review of the notice.
New section 21E provides that a relevant police member may
request a person to state their name and address before giving
that person a banning notice, and must inform that person of the
intention to give that person a banning notice.
Subsection 21E(3) provides that it is an offence punishable by a
maximum penalty of 5 penalty units for that person to--
· refuse or fail to comply with the request unless they
have a reasonable excuse for doing so;
· give a false name; or
· give an address other than the full and correct address of
his or her ordinary place of residence or business.
Subsection 21E(4) provides that the person may ask the relevant
police member to state their name, rank and place of duty.
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Subsection 21E(5) provides that it is an offence punishable by a
maximum penalty of 5 penalty units, for the relevant police
member to not comply with the request (including to do so in
writing if this is requested), state a false name or rank, or state a
place of duty other than that police station which is his or her
ordinary place of duty.
Subsection 21E(6) provides that if the relevant police member
suspects on reasonable grounds that the name or address provided
may be false, he or she may request the person to produce
evidence of its correctness. The person must comply with the
request unless they have a reasonable excuse for doing so. It is
an offence to fail to comply with the request punishable by a
maximum penalty of 5 penalty units.
Subsection 21E(8) provides that an offence is not committed if a
person fails to comply with a request under subsections 21E(1)
or (6) if the relevant police member did not inform the person, at
the time of the request, that it is an offence to fail to comply with
the request.
New section 21F provides for variation and revocation of a
banning notice--
· a person who has been given a banning notice may
apply in writing or orally to a member of the police
force of the rank of sergeant or above for a review of the
notice;
· A member of the police force of the rank of sergeant or
above may vary or revoke a banning notice, by notice in
writing to the person the subject of the notice.
However, the period set out in the original notice cannot
be extended;
· Variation or revocation does not give rise to a right to
compensation in relation to the original notice.
New section 21G deals with the offences of contravening a
banning notice or failing to comply with a direction from a
member of the police force.
Subsection 21G(1) provides that it is an offence, punishable by a
maximum penalty of 20 penalty units, for a person the subject of
a banning notice to enter or attempt to enter the declared area in
contravention of the banning notice. Penalty: 20 penalty units.
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Subsection 21G(2) provides that a person the subject of a
banning notice that is in a declared area in contravention of the
banning notice must comply with any direction given by a
member of the police force under section 21H. It is an offence to
fail to comply with the direction, punishable by a maximum
penalty of 20 penalty units.
Subsection 21G(3) sets out defences for the offences in
subsections 21G(1) and (2); namely--
· the defendant was under a mistaken but honest and
reasonable belief about relevant facts; or
· the conduct constituting the offence was caused by
circumstances beyond the control of the defendant, and
the defendant had taken reasonable precautions to avoid
the offence; or
· at the time of the contravention, the person lived or
worked in the declared area.
Subsection 21G(4) provides that it is not an offence to fail to
comply with a direction given by a member of the police force
under section 21H if the member of the police force did not
comply with subsection 21H(3).
Subsection 21G(5) provides that section 72 of the Criminal
Procedure Act 2009 applies to subsection 21G(4), to the effect
that the defendant must present or point to evidence that suggests
a reasonable possibility of the non-compliance with subsection
21H(3) by the member of the police force.
New section 21H deals with directions to leave a declared area.
Where a person the subject of a banning notice is in the declared
area, a member of the police force may direct that person to leave
the area. Subsection 21H(4) provides that the direction can be
oral or in writing and must be reasonable in all the circumstances.
Subsection 21H(3) requires that the member of the police force in
giving such a direction--
· must produce proof of his or her identity official status
before giving the direction, unless he or she is in
uniform; and
· must inform the person that the member is empowered
to direct the person to leave the declared area and that it
is an offence to not comply; and
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· must make all reasonable attempts to ensure that the
person understands the direction.
New section 21I provides that a member of the police force may
use reasonable force in preventing entry to a declared area, or
removing a person from a declared area.
New section 21J allows a member of the police force to issue an
infringement notice with an infringement penalty of 2 penalty
units for offences against sections 21G(1) and (2).
New section 21K provides that a member of the police force of
the rank of sergeant or above may authorise another member to
be a relevant police officer for the purposes of new Part 2A, and
that such authorisation may be given orally, by telephone or in
writing.
New section 21L requires the Chief Commissioner to report to
the Minister administering the Police Regulation Act 1958 on
the operation of new Part 2A within 3 months following
31 December 2011. The Minister must table the report in each
House of Parliament within 7 sitting days after the report is
received.
New new section 21M provides for the automatic repeal of new
Part 2A on the anniversary of the commencement of Part 11 of
the Justice Legislation Further Amendment Act 2010.
PART 12--REPEAL OF AMENDING ACT
Clause 70 provides for the repeal of the amending Act. This repeal does not
affect the continuing operation of the amendments made by this
amending Act (see section 15(1) of the Interpretation of
Legislation Act 1984).
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