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Victoria State Emergency Service Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill will establish the Victoria State Emergency Service Authority,
re-enact with amendments the Victoria State Emergency Service Act 1987,
amend the Country Fire Authority Act 1958 and the Metropolitan Fire
Brigades Act 1958, and make consequential amendments to certain other
Acts and for other purposes.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for commencement of the Bill. Sections 1 and 2
commence on the day after Royal Assent. The remaining
provisions come into operation on a day or days to be
proclaimed. If a provision does not come into operation before
1 July 2006, it comes into operation on that day.
Clause 3 contains the relevant definitions.
PART 2--VICTORIA STATE EMERGENCY SERVICE
AUTHORITY
Clause 4 establishes the Victoria State Emergency Services Authority (the
Authority). It also gives the Authority various attributes,
including being a body corporate, the right to sue and be sued and
capacity to take, purchase and sell real and personal property.
The Authority has an official seal.
Clause 5 The functions of the Authority are set out. These include
emergency management planning, emergency response,
emergency support and other authorised emergency activities.
Emergency management planning includes assisting councils in
relation to the performance of their responsibilities under the
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551300 BILL LA INTRODUCTION 24/5/2005
Emergency Management Act 1986. Emergency support
includes assisting other agencies and organisations in relation to
performance and exercise of their functions under the
Emergency Management Act 1986.
Clause 6 provides for duties of the Authority. These include that the
Authority must administer and direct the Service in the
performance of its functions. In addition the Authority may
provide advice to the Minister in relation to this Act, and on
matters referred by the Minister. Other duties specified include
assisting councils in relation to their responsibilities under the
Emergency Management Act 1986 and assisting government
and non-government agencies in relation to emergency
management.
Clause 7 sets out the powers of the Authority, which are those necessary
and convenient for or in connection with the performance of its
functions and duties. These powers include the ability to enter
agreements or arrangements, and do all things necessary to give
effect to such agreements or arrangements.
Clause 8 provides that the Authority is subject to the general direction and
control of the Minister in relation to performing its functions and
exercising its powers. Clause 8(3) provides matters that the
Minister may require the Authority to provide financial
information, a corporate plan and a report on matters specified by
the Minister.
Clause 9 provides for a Board of the Authority of up to 7 Directors.
The Board is responsible for the management of the affairs of the
Authority, and is appointed by the Governor in Council.
Clause 10 provides for appointment of Directors of the Board and sets out
the matters for which regard will be had in relation to
appointment. Clause 10(2) provides for a Chairperson of the
Board to be appointed by the Governor in Council.
Clause 11 provides for a Director to hold office subject to the instrument of
appointment for a period not exceeding 3 years. A Director may
be removed by the Governor in Council.
Clause 12 provides that a Director (other than an employee of the public
service) is entitled to receive remuneration and allowances that
are fixed by the Governor in Council. This does not apply to a
Director who is a member of the Legislative Council or the
Legislative Assembly.
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Clause 13 provides that the Public Administration Act 2004 (other than
Part 5) does not apply to a Director in respect of the office of
Director.
Clause 14 provides for resignation from the Board by a Director as
specified. It also provides circumstances in which the office of a
Director becomes vacant. These include bankruptcy, conviction
of certain offences and permanent incapacity to perform duties.
Clause 15 provides for acting Directors and enables the Governor in
Council to appoint a person to act in place of a Director who is
unable to perform his or her duties. An acting Director is to have
the same powers and functions as the Director.
Clause 16 provides that a Director must not in respect of the office of
Director be taken to hold an office or place of profit under the
Crown which would prevent the member sitting or voting in the
Legislative Council or Legislative Assembly, and other specified
matters.
Clause 17 sets out the circumstances in which a decision of the Board is not
invalid. These include defects in appointment and a vacancy in
membership.
Clause 18 provides that a Director is not personally liable for anything done
or omitted to be done in good faith in the circumstances
specified. In order to claim the immunity the act or omission
needs to be in the exercise of a power or discharge of a duty
under the Act or Regulations or the reasonable belief that this
was the case. If the immunity applies then liability attaches to
the Authority.
Clause 19 sets out the procedure for meetings of the Board. Provision is
made for the chairperson to preside, and in his or her absence, the
Deputy Chairperson. Voting procedures are set out.
Clause 20 provides for the Board to permit participation by Directors in
meetings by alternate means to being physically present.
The clause deems them to be present in the circumstances set out,
including by telephone and closed-circuit television.
Clause 21 provides for resolutions without meetings. This can occur when
reasonable steps are taken to give notice of the resolution
proposed to Directors, and it is signed by the required number of
Directors with an appropriate statement. The clause contains a
deeming provision in relation to such resolutions.
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Clause 22 provides for declaration of pecuniary interests by Directors in
relation to decisions of the Board. It also sets out the effect of a
Director having a conflict of interest. Clause 22(6) sets out
circumstances in which a Director is not to be regarded as having
a conflict of interest.
Clause 23 enables the Authority to delegate in the manner specified,
functions, duties and powers under the Act or Regulations to the
Chairperson, a Director or employees. The power of delegation
cannot be delegated.
Clause 24 provides for the appointment of a Chief Executive Officer, by the
Authority, with the approval of the Minister. The Chief
Executive Officer is responsible to the Board for the carrying out
of the functions of the Authority and must comply with the
directions of the Board.
Clause 25 sets out the circumstances in which the Authority must appoint
an acting Chief Executive Officer. These are vacancy in the
office of Chief Executive Officer or during any period when the
Chief Executive Officer is unable to perform those functions
because of illness or absence. It provides for the powers and
functions of the Acting Chief Executive Officer.
Clause 26 enables the Chief Executive Officer to delegate to a person,
office holder or position approved by the Authority, functions,
powers and responsibilities of the Chief Executive Officer.
This does not apply to the power of delegation.
Clause 27 provides for delegation by the Minister of the Minister's powers
or functions under the Act. This does not apply to the power of
delegation.
PART 3--VICTORIA STATE EMERGENCY SERVICE
Clause 28 provides that the Victoria State Emergency Service continues to
exist. The Service consists of the Director of Operations, the
persons employed under section 30 and registered and
probationary members.
Clause 29 provides for a Director of Operations to be appointed by the
Authority in consultation with the Chief Executive Officer.
The clause sets out the period of office by reference to the
instrument of appointment but not exceeding 5 years. It provides
that the Director of Operations shall be responsible to the Chief
Executive Officer in relation to his or her powers and duties.
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Clause 30 deals with staff. Provides that the Authority may employ any
persons that it considers necessary to assist in carrying out its
functions. It also provides for a probationary period of 3 months
for a new employee. Makes provision in relation to terms and
conditions of employment. These are the terms and conditions as
set out in the clause, until or unless any of those terms and
conditions are varied by the Australian Industrial Relations
Commission. Provision is made in relation to certain employees,
as set out, in relation to the State Superannuation Act 1988.
Clause 31 enables the Director of Operations to delegate his or her powers
and duties under the Act or regulations. This does not apply to
the power of delegation.
Clause 32 provides for the powers and duties of the Director of Operations.
The Director of Operations may encourage and facilitate the
formation of units, review the operation of existing units, direct
the emergency operations activities of registered units and
organise training of registered units.
Clause 33 provides that the Director of Operations must establish a register
of members, probationary members and units.
Clause 34 provides for an application for registration as a unit to be made to
the Director of Operations, in the circumstances specified.
The Director of Operations can approve or refuse an application.
There is also provision for the Director of Operations to
establish a unit, provided there is a need for it and the required
consultation has occurred. The Director of Operations may with
the approval of the Authority cancel registration or amalgamate
registered units.
Clause 35 provides for the appointment of controllers of registered units by
the Director of Operations. The Director may with the approval
of the Authority remove a controller after consultation with the
relevant council.
Clause 36 deals with applications to become a probationary member, and
sets out procedures for such applications. An application for
probationary membership can be approved or refused by the
Director of Operations.
Clause 37 provides for a probationary member to apply to become a
registered member and specifies certain criteria to be met.
The application may be approved or refused by the Director of
Operations.
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Clause 38 enables the Director of Operations to require a controller or
registered or probationary member to undergo a practical or
written examination or produce medical evidence in relation to
matters specified. It provides for the potential consequences of
failure to provide medical evidence.
Clause 39 provides that a registered unit must have the prior consent of the
Director of Operations to discharge a function under DISPLAN.
Clause 40 provides that an authorised emergency worker (which is defined
in the section) may direct traffic in the circumstances specified.
The power applies in the absence of police or at the direction of
police, where insufficient police are in attendance, as determined
by the most senior member of police present. Reasonable traffic
directions may be given to the driver of the vehicle in the
relevant circumstances. The power operates during a traffic
emergency which is defined in the section.
Clause 41 provides power for the Authority to authorise registered units to
perform functions outside of Victoria in the circumstances
specified. The power applies where the Authority receives a
request from the specified persons or bodies for emergency
response or to support a request for assistance in responding to an
emergency in a place outside Victoria or in protecting life or
property under threat in an emergency in that place. The ability
for the Authority to attend at that place and provide assistance as
specified, is subject to the direction and control of the person or
body requesting the assistance and having authority in that place.
Provides that for the purposes of the Act, a registered unit
carrying out a function under this clause, is taken to be acting in
the course of emergency service.
Clause 42 provides immunity for service members and volunteer emergency
workers. This prevents personal liability, for anything done or
omitted to be done in the exercise of a power or discharge of a
duty under the Act or regulations, or in the reasonable belief that
this was the case. Liability in these circumstances attaches
instead to the Authority.
Clause 43 provides that any damage to property caused by a Service
member or volunteer emergency worker in the circumstances
specified, shall be deemed to be damage caused by the
emergency, within the meaning of any policy of insurance
covering the property.
Clause 44 provides that a person must not wilfully damage or interfere with
property of the Authority or a registered unit.
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Clause 45 provides that a person must not obstruct, hinder or interfere with
a Service member performing functions under the Act.
Clause 46 provides for certain offences relating to impersonation.
These include that a person must not use names or titles to imply
an association with the Service without authorisation and that a
person must not impersonate an employee of the Service or a
registered member.
PART 4--COMPENSATION
Clause 47 provides for compensation for a registered or probationary
member, who suffers personal injury arising out of or in the
course emergency service, in accordance with Part 4. An injury
is deemed to arise out of emergency service in the circumstances
specified being engaging in an authorised activity as set out,
training for such activity or travelling to or from such activity as
set out. It provides that compensation is payable to those eligible
in the manner set out, which is based on the Accident
Compensation Act 1985. A claim for compensation under the
section must be made to the Victorian WorkCover Authority.
The clause provides that matters relating to compensation must
be determined by the Victorian WorkCover Authority, the
County Court or the Magistrates' Court as the case requires.
These bodies are to be guided by reference to the Accident
Compensation Act 1985.
Provision is made for assessing compensation and the computing
of average weekly earnings.
The clause also provides that the Victorian WorkCover Authority
may prepare a return to work plan and other matters for the
purposes of enabling return to work.
Clause 48 provides that if a person is entitled to compensation other than
under this Part, they may receive an amount, if any, by which the
amount payable under this Part, exceeds the amount to which the
person is entitled.
Clause 49 provides for compensation to registered and probationary
members for loss or damage to their property whilst engaging in
an authorised activity, training or practising for such activity or
travelling to or from any place where any such activity is to be or
has been engaged in. Application is made under the clause by the
member to the Chief Executive Officer. The Chief Executive
Officer may authorise payment as he or she considers reasonable.
Application for review to the Victorian Civil and Administrative
Tribunal is provided.
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Clause 50 provides that if a matter arises under this Part (except section 49),
that the County Court and the Magistrate's Court have the same
jurisdiction under this Act, as if the matter was one arising under
the Accident Compensation Act 1985.
Clause 51 provides that in proceedings under this Part the Victorian
WorkCover Authority represents the Crown and has the same
powers, rights and authorities as under the Accident
Compensation Act 1985.
Clause 52 entitles the Victorian WorkCover Authority to reimbursement of
its reasonable costs and expenses, in representing the Crown
under section 51. The clause also requires the Victorian
WorkCover Authority to make payment for compensation (other
than for section 49), out of the WorkCover Fund. Provision is
also made for monies to be paid into the WorkCover Fund out of
the Consolidated Fund as specified. Specific provision is made
in relation to compensation under section 49, which is to be paid
out of the Consolidated Fund.
Clause 53 provides that a person is not entitled to recover both
compensation under this Part and damages. It enables
proceedings to be taken to recover the amount of compensation
if this occurs.
Clause 54 provides that a person must not mislead the Minister, the
Victorian WorkCover Authority, the County Court, the
Magistrate's Court or any other person with regard to a
compensation claim.
PART 5--MISCELLANEOUS
Clause 55 makes provision for regulations in relation to the matters
specified.
Clause 56 repeals the Victoria State Emergency Service Act 1987.
It provides for previous references to the Director of the
Service to be construed as the Director of Operations, in the
circumstances specified. Also provides for references in relation
to the previous Act.
Clause 57 provides a number of transitional provisions. Provides for
continuation of the Victoria State Emergency Service
Regulations 1995 following commencement of the new Act.
Provides for staff employed already to be employed under
existing terms and conditions until or unless these are varied by
the Australian Industrial Relations Commission. Provides for
continued application of Part 3 of the previous Act as in force
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before the commencement of section 56, in respect of a personal
injury (including death) or loss of or damage to property arising
before commencement of clause 56.
Clause 58 makes consequential amendments to other legislation.
PART 6--AMENDMENTS TO THE COUNTRY FIRE
AUTHORITY ACT 1958
Clause 59 amends section 3 of the Country Fire Authority Act 1958 to
include certain relevant definitions required in relation to
amendments to the Country Fire Authority Act 1958.
Clause 60 amends section 24 of the Country Fire Authority Act 1958 to
insert new sub-sections (2) and (2A) to require the annual report
of the Authority which includes a statement under section 77(4)
to include certain matters. This includes a statement in relation
to amounts collected by an insurance company as being on
account of a fire service levy however described and amounts
paid to the Country Fire Authority as contributions.
Clause 61 amends section 77 of the Country Fire Authority Act 1958 to
insert new sub-sections (1A) and (1B) to require the Victorian
Managed Insurance Authority to lodge returns of gross premium
from relevant bodies.
Clause 62 sub-clause (1) substitutes section 77(2) of the Country Fire
Authority Act 1958 so that gross premiums shown in the return
shall include a notional premium for deductibles of $10 000.00 or
more, to be calculated in accordance with a prescribed formula in
regulations.
Sub-clause (2) amends section 77 to insert new sub-sections (4),
(5) and (6). Sub-section (4) requires the statutory declaration
lodged under section 77(3) to include a statement of the amount
collected by the insurance company on account of a fire service
levy in the documents specified.
New sub-section (5) provides that the return must include as a
discount any reduction in gross premiums as a result of the use of
net rating in the relevant policies of insurance and new sub-
section (6) defines "net rating".
Clause 63 amends section 80A of the Country Fire Authority Act 1958 to
include new sub-sections (2) to (3D) in relation to contributions
by owners and insurance intermediaries. Sub-section (2)
provides that within 14 days after the premium is paid under this
section, lodgement of the return is required as set out.
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New sub-section (3) provides that the insurance intermediary or
owner must within 14 days after the owner has paid the premium
pay the Authority a contribution in accordance with the formula
set out.
New sub-sections (3A) and (3B) provides that for returns lodged
under sub-section (2) by an insurance intermediary, the gross
premiums must include a notional premium for deductibles of
$10 000.00 or more, calculated in accordance with the prescribed
formula in regulations.
New sub-section (3C) provides for the return of owners or
insurance intermediaries to include as a discount any reduction in
gross premiums as a result of the use of net rating in the relevant
policies of insurance and new sub-section (3D) defines "net
rating".
Clause 64 repeals sections 87(9A) and 87(9B) of the Country Fire
Authority Act 1958 which are no longer required.
Clause 65 inserts a new section 103A in to the Country Fire Authority
Act 1958 which provides that Lloyd's must continue to operate
the Australian Fire Brigades Scheme, which is defined in the Bill.
Provision is made requiring Lloyds to provide a copy of the 1982
Agreement within the time frame specified, to the Minister.
Provision is also made regarding notification of changes.
The consequences of failure to comply are specified.
Clause 66 inserts a new section 109D in to the Country Fire Authority
Act 1958 which specifies that proceedings for an offence against
section 80A(2) or 80A(3) may be commenced within 2 years
after commission of the offence.
PART 7--AMENDMENTS TO THE METROPOLITAN FIRE
BRIGADES ACT 1958
Clause 67 amends section 3 of the Metropolitan Fire Brigades Act 1958
to include certain relevant definitions required in relation to
amendments to the Metropolitan Fire Brigades Act 1958.
Clause 68 amends section 27 of the Metropolitan Fire Brigades Act 1958
to insert new sub-sections (1A) and (1B) to require the annual
report of the Board which includes a statement under
section 40(4) to include certain matters. This includes a
statement in relation to amounts collected by an insurance
company as being on account of a fire service levy however
described and amounts paid to the Board as contributions.
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Clause 69 amends section 40 of the Metropolitan Fire Brigades Act 1958
to insert new sub-sections (1A) and (1B) to require the Victorian
Managed Insurance Authority to lodge returns of gross premium
from relevant bodies.
Clause 70 sub-clause (1) substitutes section 40(2) of the Metropolitan Fire
Brigades Act 1958 so that gross premiums shown in the return
shall include a notional premium for deductibles of $10 000.00 or
more, to be calculated in accordance with a formula prescribed in
regulations.
Sub-clause (2) amends section 40 to insert new sub-sections (4),
(5) and (6). Sub-section (4) requires the statutory declaration
lodged under section 40(3) to include a statement of the amount
collected by the insurance company on account of a fire service
levy however described in the documents specified.
New sub-section (5) provides that the return must include as a
discount any reduction in gross premiums as a result of the use of
net rating in the relevant policies of insurance and new sub-
section (6) defines net rating.
Clause 71 amends section 44A of the Metropolitan Fire Brigades Act
1958 to include new sub-sections (2) to (3D) in relation to
contributions by owners and insurance intermediaries.
Sub-section (2) provides that within 14 days after the premium is
paid under this section, lodgement of the return is required as set
out. New sub-section (3) provides that the insurance
intermediary or owner must within 14 days after the owner has
paid the premium pay the Authority a contribution in accordance
with the formula set out.
New sub-sections (3A) and (3B) provides that for returns lodged
under sub-section (2) by an insurance intermediary, the gross
premiums must include a notional premium for deductibles of
$10 000.00 or more, calculated in accordance with a formula
prescribed in regulations.
New sub-section (3C) provides for the return of owners or
insurance intermediaries to include as a discount any reduction in
gross premiums as a result of the use of net rating in the relevant
policies of insurance and new sub-section (3D) defines "net
rating".
Clause 72 repeals sections 66(8A) and 66(8B) of the Metropolitan Fire
Brigades Act 1958 which are no longer required.
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Clause 73 inserts a new section 69A in to the Metropolitan Fire Brigades
Act 1958 which provides that Lloyd's must continue to operate
the Australian Fire Brigades Scheme, which is defined in the Bill.
Provision is made requiring Lloyds to provide a copy of the 1982
Agreement within the time frame specified, to the Minister.
Provision is also made regarding notification of changes.
The consequences of failure to comply with this clause are
specified.
Clause 74 inserts a new section 77A in to the Metropolitan Fire Brigades
Act 1958 which specifies that proceedings for an offence against
sections 44A(2) or 44A(3) may be commenced within 2 years
after commission of the offence.
PART 8--AMENDMENT TO THE VICTORIAN MANAGED
INSURANCE AUTHORITY ACT 1996
Clause 75 amends section 7 of the Victorian Managed Insurance
Authority Act 1996 to insert a new sub-section (4) to clarify that
the Authority has the same obligations as any other insurance
company under the Country Fire Authority Act 1958 and the
Metropolitan Fire Brigades Act 1958 with regard to the
collection, recovery and payment of contributions.
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