Tuesday 28 September 2010
Hansard of the Legislative Council

Clause 8 -
(Disciplinary action)

Mr FINCH - In clause 8, which is about disciplinary action, it is stated that -

'The licensing authority may take disciplinary action against a licensee after the commencement of this Act if - …

(b) the licensing authority had not taken disciplinary action, or had decided not to take disciplinary action, against the licensee as at that commencement.'

It appears that the licensing authority is, by this provision, enabled to go back and amend a decision not to take disciplinary action and then to take disciplinary action. I contend that the decision not to take disciplinary action, once stated, should stand. I think that words 'or had decided not to take disciplinary action' ought to be deleted.

I would like to get clarification whether this is wording that is normally used. I just think that once you say disciplinary action is not going to be taken, that should be the end of it. It disallows a comeback to say after commencement of this that 'we did say that disciplinary action would not be taken but no, we are going to take disciplinary action'.

Mr PARKINSON - Mr Chairman, I think that what has happened here is that disciplinary action could only be taken where the licensing authority had served a written notice on the licensee in accordance with section 57 of the Trade Measurement Act, so it just enables disciplinary action to be taken in those circumstances notwithstanding that the bill has been repealed. Incidentally, my advice is, with some confidence, that no written notices have been served. There is probably nothing hinging on this. It is simply there as a standing provision, if you like, to capture the situation where a notice of say, non compliance, has been served and some new information has come to light perhaps so that people have thought this person should be prosecuted. It will allow prosecution to take place. That is the situation. It is not as if the person has been notified there would be no prosecution and now they are turning around and prosecuting. That is not the situation at all. It is where there has been noncompliance which could lead to prosecution and the authority decides to prosecute in the circumstances. Whether it is a justifiable situation no doubt would be sorted out by the courts in the event of a prosecution. My advice is that, to our knowledge, no such notices have been served.

Clause 8 agreed to and bill taken through the remaining stages.