ALERT DIGEST 14 of 1994

Part 2

VOCATIONAL EDUCATION AND TRAINING (STATE TRAINING WAGE) BILL

6.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Don Hayward MP with The Honourable Pat McNamara MP.

6.2

The purpose of the Bill is to amend the Vocational Education and Training Act 1990 so as to implement within the Victorian employee relations system the provisions of the National Training Wage Interim Award 1994 made by the Australian Industrial Relations Commission on 12 September 1994.

6.3

Clause 5 inserts a new section 9B which provides for the State Training Board to enter into agreements with NETTFORCE and to exercise its powers pursuant to any such agreement. NETTFORCE is also defined. Clause 6 inserts a new section 51(1A) into the Act and relates to training schemes. Before making a determination the Board must have regard to the need for there to be adequate consultation and negotiation with the employees in the relevant vocation. Clause 7 inserts a new section 53A. Section 53A gives effect to Schedule 3 which is inserted into the Principal Act by clause 11.

Clause 8 amends various provisions. Clause 9 extends the powers of authorised officers to include inspections related to the administration of the federal award. Clause 10 extends the evidentiary provisions of the Principal Act to the Employee Relations Act 1992. Clause 11 inserts Schedule 3 into the Act which relates to State Training Provisions.

The Committee makes no further comment.

GAMING AND BETTING (AMENDMENT) BILL

7.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jan Wade MP with The Honourable Tom Reynolds MP.

7.2

The purposes of the Bill are:-

to make miscellaneous amendments to the Gaming and Betting Act 1994;
to amend the Gaming Machine Control Act 1991 to: -
enable the Authority to refuse an application for a venue operator's licence in respect of certain premises which are not genuinely independent of an existing approved venue;
to enable the Authority to conduct on-going monitoring of associates;
to require bodies corporate and clubs which hold venue operator's licences to nominate a natural person who will be responsible as licensee under the Act;
to amend the Club Keno Act 1993 to provide powers of enforcement and to create new offences;
to make minor amendments to the Casino Control Act 1991 and the Racing Act 1958;

7.3 _Ż Amendment of the Gaming and Betting Act 1994

Clause 4 provides for a wholly owned subsidiary of TABCORP Holdings Limited to possess gaming machines and restricted components. Clause 5 extends the matters to be considered by the Authority in determining an application. Clause 6 gives the Authority the power to delegate any power or function under section 70 or 95. The Committee notes that the powers which may be delegated are limited.

Clause 7 makes provision for the appointment of club keno inspectors. Clause 9 gives the Treasurer the power to guarantee the liabilities of the TAB.

7.4 _Ż Amendment of the Gaming Machine Control Act 1991

Clause 15 amends section 21 of the Act to add to the matters which must be considered by the Commission in determining the granting of venue operators' licences. The Authority must not grant an application where the applicant's premises are within 100 metres of an approved venue of which the applicant or an associate is the venue operator unless it is satisfied that the management and operation of the two venues are genuinely independent.

Clause 16 inserts a new section 25A which introduces a mandatory nominee system for venue operator's licences in the case of a body corporate. It sets out the matters which the Authority must consider in approving a nominee. Clause 17 adds an additional ground to the "grounds for disciplinary action" in section 51 by adding the words " or found guilty". Clause 18 inserts a new section 142A which provides for the ongoing monitoring of associates and others. Subsection (4) sets out the matters which the Authority must consider. Subsection (6) provides that the Authority may require an associate or a person likely to become an associate to consent to having her or his finger and palm prints taken and must refer those prints to the police. The Committee wrote to the Minister to request his advice as to the circumstances when it is envisaged the provision will apply to a "person likely to become an associate". The Minister responded by way of a letter dated 28 November 1994. The relevant extract is set out:-

"Thank you for your letter of 24 November 1994, in which you sought advice on clauses 18 and 25 of the Bill.

In relation to clause 18, the following circumstances are examples of those in which it is likely that a person will become an associate.

(a) Where the person is the only candidate for a vacancy on a committee of management of a licensed club (which holds a venue operator's licence) and so will be declared to be elected unopposed;

(b) Where there are three vacancies on such a committee and there are four candidates for those vacancies, it is considered likely that each of those candidates will be elected, because the chances of successful election are more likely than not;

(c) Where the forthcoming appointment of a person to the board of directors of a company which owns and operates a hotel ( which holds a venue operator's licence) is announced;

(d) Where a company which is a listed manufacturer is to merge with another company and absorb its directors, those persons are likely to become associates of the manufacturer;"

Clause 19 amends section 149B to allow the Authority to recover its costs of investigating an application for approval of a nominee. Clause 20 allows for appeals to the Supreme Court in respect of the new section 25A. Clause 21 amends the regulation making powers.

7.5 _Ż Amendment of the Club Keno Act 1993

Clause 24 inserts new sections 13A to 13S. They provide for the appointment of inspectors and set out inspectors' rights, functions and powers. Inspectors may enter and remain on premises at any time to the extent that it is necessary to observe operations, ascertain whether regulations are being complied with or ascertain whether operations are being properly conducted. New section 13D sets out the powers of inspectors. New section 13E provides that an inspector with the consent of the Director or a member of the police force may apply to a magistrate for the issue of a search warrant. New section 13K sets out the offences relating to the obstruction of inspectors etc. New section 13L gives an individual protection against self-incrimination.

Clause 25 amends the regulation making powers to allow the regulations to leave any matter to be determined, applied, dispensed with or regulated by a class of persons specified in the regulations. It also allows the regulations to impose penalties not exceeding 20 penalty units for a contravention of the regulations. Any determination made by the Director or a person belonging to a class of persons specified in the regulations must be included in the annual report of the Victorian Casino and Gaming Authority. The Committee wrote to the Minister as it was concerned that clause 25 may contravene section 4D(a0(ii) in that it makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers. The Minister responded by way of a letter dated 28 November 1994. The relevant extract is set out: -

"In relation to clause 25(1), it should be noted that this is an amendment to an existing provision which already provides for regulations to leave matters to be determined by the Director of Gaming and Betting. The amendment merely extends the range of persons who may determine matters to a class of persons to be specified. It is intended that those persons will be gaming inspectors.

The purpose of this provision is to allow gaming inspectors who have inspected a licensed venue in relation to suitability for the conduct of club keno games at that venue. This relates only to functions under regulation 14 of the Club Keno Regulations 1994. The reason for the amendment is that there has been a large number of initial applications to conduct club keno and that the matters in regulation 14 are matters of which the gaming inspectors have direct knowledge.

It is proposed that the regulations to be made under the amended section 15(2)(d) will state with precision who belongs to the class of persons referred to in that section and will confine the matters to be determined by those persons too regulation 14."

Regulation 14 of the Club Keno Regulations 1994 is set out:-

"14 Approval to commence club keno games

(1) The participants must not commence the conduct of the game of club keno until notified by the Director in writing that the Director has approved the club keno system.

(2) The sale of tickets in club keno games at an approved venue must not commence until the Director has advised the participants in writing that the Director is satisfied that the approved venue has been connected to the club keno system in accordance with the specifications and criteria notified under regulation 13(1)."

The Committee accepts the Minister's explanation.

Clause 26 amends section 52 of the Casino Control Act 1991 to add an additional ground for disciplinary action against a licensee of being found guilty of an offence under that Act or of certain offences involving fraud or dishonesty. Clause 28 amends section 119 of the Racing Act 1958 to ensure that the industry portion of stamp duty in respect of bets with bookmakers made at greyhound race meetings is paid to the Greyhound Racing Control Board.

The Committee makes no further comment.

LOTTERIES GAMING AND BETTING (GENERAL AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Tom Reynolds MP with The Honourable Alan Stockdale MP.

8.2

Clause 4 inserts definitions. Clause 5 inserts new section 4A which provides that the Board may declare an organisation to be a community or charitable organisation if satisfied that the organisation is conducted in good faith. Clause 7 inserts a new section 5A which sets out the banking procedures that the holder of a bingo licence must follow. Clause 9 removes the requirement to obtain a permit to conduct a raffle where the total prize value is less than $5000 and removes the requirement to keep a register of persons conducting raffles and provides for regulations to be made about the conduct of raffles.

Clause 10 inserts a new section 6AAAA which sets out the fees payable on raffles. It also provides for statements of account. Clause 11 removes the requirement to obtain a permit to conduct a trade promotion lottery where the total prize is less than $5000 and specifies that the total prize value for a series of trade promotion lotteries must not exceed $250,000.

Clause 14 inserts the definition of "lucky envelope vending machine" and gives the Director the power to approve such vending machines. Clause 15 sets out a procedure for withdrawal or suspension of a permit. The Board must consider any submission made to it. Clause 17 amends section 6AD to provide that the Board may give its approval subject to any condition that it thinks fit. The Board must not give such approval unless it is satisfied that the person is of good repute and character and has paid the prescribed fee.

Clause 18 makes it an offence to supply lucky envelopes other than in accordance with the Act and the regulations. Clause 19 extends the regulation making power. Clause 20 inserts new definitions. Clause 21 amends section 6A to provide that only authorised representatives of community and charitable organisations may be granted bingo permits. However under (3A) a permit is not required to conduct a session or sessions of bingo games if no fee is charged directly or indirectly to participate in the game. The Committee notes the comments in the Second Reading Speech:-

"This Bill provides for the Victorian Casino and Gambling Authority to declare which bodies are community or charitable organisations for the purposes of the Act. This means that only bodies which satisfy the Authority that they are genuine community or charitable organisations will be able to benefit from the conduct of bingo, raffles and lucky envelopes........

The Bill ensures that there is a clear separation between the conduct of bingo for the benefit of the community and charitable organisations and the operation of electronic gaming machines by larger clubs for their members and by hotels for profit.

To this end, bingo centre operators will not be permitted to hold licences issued under the Gaming Machine Control act 1991. This reflects the intent of a former regulation that sought to prevent the location of gaming machines within bingo centres.

Special provision has been made for those bingo centre operators who already hold a venue operators licence under the Gaming Machine control Act 1991. These persons are given until the year 2000 to phase out their dual interests."

Clause 22 makes various amendments to section 6B. In particular it sets the amount paid for the expenses of a session of bingo games at not more than 10% of gross receipts or 12% where an agreement exists between the permit holder and centre operator. Clause 23 requires permit holders to provide to the Authority copies of relevant bank account statements and retain bingo records for 3 years. Clause 24 amends section 6F to consolidate the offence provisions in respect of unauthorised bingo games and increases penalties.

8.3 _Ż Bingo Centre Operator's licence

Clause 25 substitutes new sections 6FB and 6FC which govern the application for a bingo operator's licence. New section 6FD sets out the grounds for objection. New section 6FE sets out the matters to be considered by the Board in determining applications. The Board may carry out any investigations which it considers necessary. A person, the subject of an investigation must give his or her palm and finger prints and photograph to the Board. The Board must refer those prints and photographs to the police. New section 6FI governs the issue and renewal of operator's licences.

New section 6FN provides that bingo employees must be licensed. New section 6FO governs the application. Under this provision, an applicant must give his or her palm and finger prints and photograph to the Board. The Board must refer those prints and photographs to the police. The police must inquire into any matters that the Director requests. New section 6FS sets out the matters the Director must take into account in determining applications. An applicant aggrieved by a decision of the Director in respect of an employee's licence may appeal against that decision to the Board. New section 6FZA provides that an operator must not hold a venue operator's licence or a gaming operator's licence or be an associate within the meaning of the Gaming Machine Control Act 1991. New section 6FZB provides that a bingo permit holder may contract with the holder of the operator's licence for the conduct by the operator of bingo sessions. Fees, not exceeding 2 percent of the gross receipts are to be paid to the operator in addition to any amounts referred to in section 6(B)(1)(t). The operator is to keep accounts and submit Returns to the Board.

New section 6FZF provides for the destruction of finger and palm prints. Under new section 6FZG The Board may recover the reasonable costs of investigating an application from the applicant. The Committee wrote to the Minister requesting his advice as to how "reasonable costs" are established and whether there is a refund for excessive fees. The Minister responded by way of a letter dated 28 November 1994. The relevant extract is set out:-

"Thank you for your letter of 23 November 1994 in which you sought advice on recovery of reasonable costs under new section 6FZG of the Bill.

I advise that this is a provision which is based on section 149B of the Gaming Machine Control Act. The reason for using section 149B as a basis is that it intended that Bingo Centre Operators licence applicants and their employees become subject to probity checking in the same way as applicants in the gaming machine area. The degree of checking will be a matter for judgement in each case.

It is proposed that the new section will operate in the same way as section 149B presently operates. An application for a licence is examined and a decision is made about the degree of probity checking which is appropriate for that case. A fingerprint check is standard for all licence applications. The police impose a charge for all fingerprint checks. In some cases, it may be necessary for an interstate or overseas trip to be made to investigate business interests outside Victoria which are related to the application. It may also be necessary to use external services such as private investigators to assist in investigating the application.

Accordingly, what constitutes reasonable costs may vary from case to case depending on an assessment of the necessary level of investigation.

In relation to a refund for excessive fees, I am informed that it is unlikely that an excessive amount would be charged, as the power is to charge only reasonable costs. However, where it may become necessary to return an amount to the applicant, this may be done by way of an accounting adjustment. I am advised that this is possible because the amounts charged are not characterised as fees, rather than as recoups of expenditure and so are not required to be paid into the Consolidated Fund."

Clause 26 extends the regulation making powers.

The Committee makes no further comment.

STATE TAXATION (AMENDMENT) BILL

9.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

9.2

The purpose of this Bill is to make amendments to certain taxation Acts.

9.3 _Ż Part 2 - Debit Tax Act 1990

Clause 4 substitutes the definitions of the Commonwealth Debit Tax Administration Act 1982. Clause 5 inserts new Parts 7 to 12 in the Act which reproduce the relevant provisions of the Commonwealth Debit Tax Administration Act 1982 including the objection and appeal provisions. Note that new section 60 limits the jurisdiction of the Supreme Court. This is discussed later at 9.8.

9.4 _Ż Part 3 - Financial Institutions Duty Act 1982

Clause 9 specifies a short term dealing for the purposes of the Act. Clause 10 amends section 10 to ensure that a financial institution is liable to duty for amounts which it credits to accounts held with it. Clause 11 provides that the re-investment of the amount of a term deposit upon the expiration of the term is not a dutiable receipt for the purposes of the Act. Clause 12 amends section 18 to include promissory notes in the class of receipts upon which financial institutions duty is payable.

Clause 13 amends section 25 to enable non-bank institutions to be declared by Order of the Governor in Council published in the Government Gazette. Clause 14 amends various provisions to define amounts paid into exempt accounts which are not paid in accordance with the Act as chargeable as financial institutions duty and introduces new provisions to enable the Commissioner to make assessments in respect of those amounts which the exempt account holder is liable to pay together with a penalty of double the amount of duty assessed.

9.5 _Ż Part 4 - Pay-Roll Tax Act 1971

Clause 15 limits the liability to payroll tax for wages paid to an employee outside Australia to a six month period. The amendment applies to wages payable at the time it commenced operation even if the first payment for services was made before the amendment commenced. The Committee notes the retrospectivity.

Clause 16 amends section 10 to insert two new paragraphs which exempt wages to paid to trainees and apprentices. Clause 17 amends section 13 to enable the Commissioner, by notice in writing, to vary the time within which employers are to furnish returns of taxable wages. Clause 18 substitutes a new section 17 which provides that pay-roll tax is payable within 7 days of the close of each month in which taxable wages were payable.

9.6 _Ż Part 5 - Stamps Act 1958

Clause 21 enables the Comptroller of Stamps a broad power to mitigate or remit any penalty payable on stamping and is consistent with other powers in the Act. Clause 22 enables a company to register a transfer of marketable securities which is exempt from duty where an officer expresses an opinion in writing that the transfer is exempt and makes technical amendments. Clause 23 inserts a new section 23B into the Act. It excludes the amount attributable to refurbishment of property from stamp duty in the case of units purchased "off the plan".

Clause 24 inserts a new section 67A which clarifies the duty payable in respect of two or more transactions or conveyances. The Committee notes the comments in the Second Reading Speech:-

"The provisions which relate to sub-purchases of real property and the use of nominee clauses upon the purchase of real estate will be clarified. The amendment will prevent the use of nominee clauses as a device to avoid stamp duty. However the genuine use of a nominee clause to enable the purchase of real property on behalf of a family member, a family company or a company related to the purchaser will not be affected."

Clause 27 amends section 131AC of the Act to ensure that amounts received in respect of rental business are dutiable, notwithstanding that they are not actually received by the registered person but on his or her behalf. Clause 29 exempts from duty transfers of marketable securities and real property between superannuation funds. Clause 30 inserts provisions to specify the requisite nexus to Victoria in respect of a transfer of marketable securities in order that duty is imposed under the Stamps Act 1958. The provisions apply to transfers which are not conducted on the Clearing House Electronic Sub-register System ("CHESS") of the Australian Stock Exchange and are consistent with the nexus provisions for transfers under CHESS which were incorporated into the Act by the Stamps (Securities Clearing House) Act 1994.

Clause 31 exempts a transfer of shares which are part of a share buy-back permitted by section 206CA of the Corporations Law. Clause 32 reduces the percentage of duty payable on the aggregate bets taken by Bookmakers from 2.25% to 2.00% for metropolitan meetings and from 1.75% to 1.50% for country meetings. The amendment takes effect from 3 October 1994. The Committee notes the retrospectivity.

9.7 _Ż General amendments to other Acts

Clause 33 repeals obsolete references and substitutes the current provisions of the Corporations Law. Clause 34 amends section 6 of the Stamps (Further Amendment) Act 1993 to ensure that where property is secured in part by property in Australia and in part by property overseas, duty will not be payable in respect of the overseas component of the loan security. Clause 35 ensures that where, as a result of an objection to a valuation land tax is refunded, interest is payable under the Act in respect of the overpaid land tax.

9.8 _ŻVariation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

New section 60 inserted by clause 5 declares its intention to vary or alter section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining proceedings of a kind to which section 29(1) applies, except as provided in that section. New section 29 governs the refund or recovery of tax paid or purportedly paid under the Act and provides that actions cannot be brought against the Commissioner except as specified in that section. The Committee notes the comments in the Second Reading Speech:-

"The proposed new section 60 of the Debits Tax Act, to be inserted by clause 5 of the Bill, will provide that it is the intention of that provision to alter or vary section 85 of the Constitution Act. This provision precludes the Supreme Court from entertaining proceedings of a kind to which the proposed new section 29(1) of the Debits Tax Act applies.

The reason for limiting the jurisdiction of the Supreme Court is that refunds of overpaid debits tax (other than refunds claimed on the grounds of invalidity of provisions in the Act) are only to be made where the person seeking the refund has lodged an application for the refund within three years of the date of overpayment. The purpose of the proposed new section 29 of the Act would not be achieved if the Supreme Court could entertain an action seeking such a refund notwithstanding that no application for a refund had been lodged with the Commissioner within three years from overpayment.

This limitation of the Supreme Court's jurisdiction is consistent with the limitation which already applies under the refunds regime proposed by the previous government and enacted in the State Taxation (Amendment) Act 1993."

The Committee is of the view that the provision is appropriate and desirable in all the circumstances.

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