Co-operative Schemes (Administrative Actions) Act 2001 (Vic)
Version No. 006
Co-operative Schemes (Administrative Actions) Act 2001
No. 41 of 2001
Version incorporating amendments as at
1 February 2014
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purpose
2Commencement
3Definitions
4Co-operative schemes to which this Act applies—relevant
State Acts5Administrative functions and powers conferred on Commonwealth authorities and officers
PART 2—VALIDATION OF INVALID ADMINISTRATIVE ACTIONS
6Invalid administrative actions to which Part applies
7Operation of Part
8Legal effect of invalid administrative actions
9Rights and liabilities declared in certain cases
10This Part to apply to administrative actions as purportedly in force from time to time
PART 3—MISCELLANEOUS
11Act binds Crown
12Corresponding authorities or officers
13Act not to give rise to liability against the State
14Supreme Court—limitation of jurisdiction
15Regulations
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 006
Co-operative Schemes (Administrative Actions) Act 2001
No. 41 of 2001
Version incorporating amendments as at
1 February 2014
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is to validate certain invalid administrative actions taken by Commonwealth authorities or officers of the Commonwealth under the Agricultural and Veterinary Chemicals (Victoria) Act 1994 and other State co-operative scheme laws by giving them the effect they would have had if they had been taken by State authorities or officers of the State duly authorised to take those actions.
2Commencement
This Act comes into operation on a day or days to be proclaimed.
3Definitions
In this Act—
administrative action means an act or omission of an administrative or legislative nature, and includes any act or omission of an administrative nature that is done or omitted in the course of or ancillary to or preliminary to or subsequent to judicial proceedings (civil or criminal);
commencement time means (except as provided by section 4(4))—
(a)in relation to the Agricultural and Veterinary Chemicals (Victoria) Act 1994—the time when section 4(1) commences; or
(ab)in relation to a Gas Act—the time when Part 7 of the Energy Legislation (Consumer Protection and Other Amendments) Act 2003 commences; or
(b)in relation to any other relevant State Act—the time when it becomes a relevant State Act for the purposes of this Act by a proclamation made under section 4(2);
Commonwealth authority means an authority or body (whether incorporated or not) that is established or continued in existence by or under an Act of the Commonwealth, but does not include the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court of Australia;
confer includes impose;
function includes a duty;
Gas Act means—
(a)the Gas Industry Act 1994;
(b)the Gas Industry (Residual Provisions) Act 1994;
(c)the Gas Industry Act 2001;
invalid administrative action means an administrative action of a Commonwealth authority or an officer of the Commonwealth taken, or purportedly taken—
(a)pursuant to a function or power conferred, or purportedly conferred, by or under a relevant State Act (the relevant function or power); and
(b)in circumstances where the relevant function or power could not have been conferred on the authority or officer by a law of the Commonwealth the operation of which in the relevant respect was based on the legislative powers of the Parliament of the Commonwealth (including, for example, circumstances where the authority or officer was, or purportedly was, under an express or implied duty to perform the function or exercise the power)—
that was invalid because of the circumstances referred to in paragraphs (a) and (b), whether or not it was also invalid on any other ground;
liability includes a duty or obligation;
officer of the Commonwealth has the same meaning as in section 75(v) of the Constitution of the Commonwealth;
relevant function or power means a function or power referred to in paragraph (a) of the definition of invalid administrative action;
relevant State Act is defined in section 4;
right includes an interest or status.
4Co-operative schemes to which this Act applies—relevant State Acts
(1)For the purposes of this Act, relevant State Act means—
(a)the Agricultural and Veterinary Chemicals (Victoria) Act 1994; and
(ab)a Gas Act; and
(b)any other Act specified in a proclamation under subsection (2)—
and includes any law applying as a law of the State by force of any such Act.
(2)The Governor in Council may, by proclamation published in the Government Gazette, declare that a specified Act is a relevant State Act for the purposes of this Act.
(3)A proclamation under subsection (2) commences—
(a)at the beginning of the day on which it is published in the Government Gazette; or
(b)at a later time, being a specified time of a day specified in the proclamation.
(4)The Governor in Council may, by proclamation published in the Government Gazette, declare that the commencement time in relation to a relevant State Act is the specified time of a day specified in the proclamation (being a day that is not later than the day on which the proclamation is published in the Government Gazette). This Act has effect in respect of the commencement time so declared whether or not it has already had effect in respect of an earlier commencement time.
(5)Before submitting a draft proclamation under subsection (2) to the Governor in Council for making, the Minister must refer the draft to the Scrutiny of Acts and Regulations Committee for consideration and report to the Minister and the Parliament as to whether the proposed declaration, as a relevant State Act for the purposes of this Act, of an Act specified in the draft proclamation is in all the circumstances appropriate and desirable.
(6)Before submitting a draft proclamation under subsection (4) to the Governor in Council for making, the Minister must refer the draft to the Scrutiny of Acts and Regulations Committee for consideration and report to the Minister and the Parliament as to whether the proposed declaration, in relation to a relevant State Act, of the commencement time specified in the draft proclamation is in all the circumstances appropriate and desirable.
(7)On submitting a draft proclamation to the Scrutiny of Acts and Regulations Committee under subsection (5) or (6), the Minister must specify a date by which a report must be given to him or her. The specified date must be not less than 1 month after the date on which the draft proclamation is submitted to the Committee.
(8)A draft proclamation, when submitted to the Scrutiny of Acts and Regulations Committee under subsection (5) or (6), must be accompanied by a statement of the reasons for the proposal to make the proclamation.
(9)The Minister must consider any report given to him or her by the Scrutiny of Acts and Regulations Committee under this section on or before the date specified by him or her under subsection (7) in relation to that report and, after considering that report, may decide to submit, or not to submit, the draft proclamation to the Governor in Council for making.
5Administrative functions and powers conferred on Commonwealth authorities and officers
(1)A relevant State Act does not purport to impose any duty on a Commonwealth authority or an officer of the Commonwealth to perform a function, or to exercise a power, in relation to a matter arising under the relevant State Act if the imposition of the duty would be beyond the legislative power of the Parliament of the State.
(2)This section does not limit the operation of section 6 of the Interpretation of Legislation Act 1984.
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PART 2—VALIDATION OF INVALID ADMINISTRATIVE ACTIONS
6Invalid administrative actions to which Part applies
This Part applies to invalid administrative actions that have been taken, or have purportedly been taken, under a relevant State Act at or before the commencement time in relation to that Act.
7Operation of Part
(1)Subject to subsection (2), this Part extends to rights or liabilities arising between parties to proceedings initiated at or before the commencement time in relation to a relevant State Act where an allegedly invalid administrative action is or was the subject of or relevant to the proceedings.
(2)This Part does not affect rights or liabilities arising between parties to proceedings heard and finally determined at or before the commencement time in relation to a relevant State Act to the extent to which those rights or liabilities arise from, or are affected by, an invalid administrative action.
(3)This Part extends to administrative actions as affected by the operation of section 28B of the Agricultural and Veterinary Chemicals (Victoria) Act 1994.
8Legal effect of invalid administrative actions
Every invalid administrative action has, and is deemed always to have had, the same force and effect for all purposes as it would have had if—
(a)it had been taken, or purportedly taken, by a State authority or officer of the State; and
(b)the relevant function or power had been duly conferred on that officer or authority.
9Rights and liabilities declared in certain cases
(1)Without affecting the generality of section 8, the rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, for all purposes the same as if—
(a)every invalid administrative action had been taken, or purportedly taken, by a State authority or officer of the State; and
(b)the relevant function or power had been duly conferred on that authority or officer.
(2)A right or liability conferred or affected by subsection (1)—
(a)is exercisable or enforceable; and
(b)is to be regarded as always having been exercisable or enforceable—
as if it were a right or liability conferred or affected by (or arising from) an administrative action of a State authority or officer of the State on which or whom the relevant function or power had been duly conferred.
(3)Any act or thing done or omitted to be done at or before the commencement time in relation to a relevant State Act under or in relation to a right or liability conferred or affected by subsection (1)—
(a)has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and
(b)is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law—
as if it were done, or omitted to be done, to give effect to, or under the authority of, or in reliance on, an administrative action of a State authority or officer of the State on which or whom the relevant function or power had been duly conferred.
10This Part to apply to administrative actions as purportedly in force from time to time
(1)The purpose of this section is to ensure that this Part operates to give to an invalid administrative action that has subsequently been affected by another action or process no greater effect than it would have had if the administrative action, or any other relevant administrative action, had not been invalid on constitutional grounds (arising from the circumstances referred to in paragraphs (a) and (b) of the definition of invalid administrative action in section 3).
(2)If administrative action taken by a Commonwealth authority or an officer of the Commonwealth was affected (whether by way of revocation, modification or otherwise) at or before the commencement time in relation to a relevant State Act by any later administrative action or by any judicial process or by any administrative review process, this Part applies to the administrative action as so affected from time to time.
(3)In this section, a reference to administrative action taken includes a reference to administrative action purportedly taken, and a reference to administrative action affected in any way includes a reference to administrative action purportedly affected in that way.
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PART 3—MISCELLANEOUS
11Act binds Crown
This Act binds the Crown in right of Victoria and, in so far as the legislative power of the Parliament of Victoria permits, the Crown in all its other capacities.
12Corresponding authorities or officers
It is immaterial, for the purposes of this Act, that a Commonwealth authority or an officer of the Commonwealth does not have a counterpart in the State, or that the powers and functions of a counterpart State authority or a counterpart officer of the State do not correspond exactly or substantially with those of the Commonwealth authority or the officer of the Commonwealth.
13Act not to give rise to liability against the State
(1)The State is not liable to any action, liability, claim or demand arising from the enactment, commencement or operation of this Act or the making, publication or operation of a proclamation under section 4 or the enactment, commencement or operation of Part 7 of the Energy Legislation (Consumer Protection and Other Amendments) Act 2003.
(2)Without limiting subsection (1), no proceedings lie against the State in respect of an administrative action affected by this Act, except to the extent that the proceedings would lie had this Act not been enacted or a proclamation under section 4 not been made or this Act had not been amended by Part 7 of the Energy Legislation (Consumer Protection and Other Amendments) Act 2003.
(3)In this section—
proceedings includes proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief;
the State includes any State authority or officer of the State, and also includes—
(a)the Crown in right of the State; and
(b)the Government of the State; and
(c)a Minister of the Crown in right of the State; and
(d)a statutory corporation, or other body, representing the Crown in right of the State.
14Supreme Court—limitation of jurisdiction
(1)It is the intention of section 13 to alter or vary section 85 of the Constitution Act 1975.
(2)It is the intention of section 13 as amended by the Energy Legislation (Consumer Protection and Other Amendments) Act 2003 to alter or vary section 85 of the Constitution Act 1975.
15Regulations
(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
(2)Without limiting subsection (1), the regulations may deal with matters of a savings or transitional nature consequent on the enactment of this Act or the making of a proclamation under section 4 or the amendment of this Act by Part 7 of the Energy Legislation (Consumer Protection and Other Amendments) Act 2003.
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ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 17 May 2001
Legislative Council: 14 June 2001
The long title for the Bill for this Act was "A Bill relating to administrative actions taken by Commonwealth authorities or officers of the Commonwealth under the Agricultural and Veterinary Chemicals (Victoria) Act 1994 and other State co-operative scheme laws, to amend the Parliamentary Committees Act 1968 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 17 May 2001
Legislative Council: 14 June 2001
Absolute majorities:
Legislative Assembly: 12 June 2001
Legislative Council: 20 June 2001
The Co-operative Schemes (Administrative Actions) Act 2001 was assented to on 27 June 2001 and came into operation on 2 August 2001: Government Gazette 2 August 2001 page 1775.
2. Table of Amendments
This Version incorporates amendments made to the Co-operative Schemes (Administrative Actions) Act 2001 by Acts and subordinate instruments.
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Energy Legislation (Consumer Protection and Other Amendments) Act 2003, No. 40/2003
Assent Date: 11.6.03 Commencement Date: Ss 28–32 on 26.2.09: Government Gazette 26.2.09 p. 444 CurrentState: This information relates only to the provision/s amending the Co‑operative Schemes (Administrative Actions) Act 2001
Parliamentary Committees Act 2003, No. 110/2003
Assent Date: 9.12.03 Commencement Date: S. 56 on 10.12.03: s. 2 CurrentState: This information relates only to the provision/s amending the Co-operative Schemes (Administrative Actions) Act 2001
Courts and Other Justice Legislation Amendment Act 2013, No. 68/2013
Assent Date: 19.11.13 Commencement Date: S. 20 on 1.2.14: Special Gazette (No. 17) 28.1.14 p. 1 Current State: This information relates only to the provision/s amending the Co-operative Schemes (Administrative Actions) Act 2001
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3. Explanatory Details
No entries at date of publication.
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