ALERT DIGEST 11 of 1994

The Committee has considered the following Bills
Como Project Bill
Liquor Control (Amendment) Bill (No. 2)
Health Services (Amendment) Bill
Corrections (Amendment) Bill

The Committee reports on the following Bills
Como Project Bill
Liquor Control (Amendment) Bill (No. 2)
Health Services (Amendment) Bill
Corrections (Amendment) Bill

Consideration is proceeding on the following Bill
Employee Relations (Amendment) Bill

COMO PROJECT BILL

1.1

This Bill was introduced into the Legislative Assembly on 13 October 1994 by The Honourable Phil Gude on behalf of The Honourable Rob Maclellan MP with The Honourable Pat McNamara MP.

1.2

The main purpose of the Bill is to facilitate the development of the balance of the Como Project, South Yarra. In particular, it:-

repeals the South Yarra Project Act 1984;
ends the Agreement ratified by that Act;
amends the South Yarra Project (Subdivision and Management) Act 1985 to limit its operations to Stage 1 of the South Yarra Project and to make provision in relation to development contributions, rates and taxes in respect of certain land in that stage.

1.3

Clause 3 repeals the South Yarra Project Act 1984. Clause 4 provides that the Agreement which is set out in the Schedule to the Act ceases to have effect. Clause 5 provides that planning amendments No's L46 and L52 are valid notwithstanding the legislation. The Committee notes the comments in the Second Reading Speech:-

"Project A affects the land in the middle of the Como site (generally bounded by Prahran Main Drain, Chapel Street, Malcolm Street and River Street).

Planning approval for Project A has been sought from the City of Stonnington. The Council has recently prepared and given formal notice of Amendment L52 to the Prahran Planning Scheme. The Amendment provides for a 10 storey and a 12 storey apartment block and a 4 storey commercial development for shops, offices, restaurants and a health and fitness centre.

Project B affects the land at the north end of the Como site (generally bounded by Alexandra Avenue, Chapel Street, Malcolm Street and River Street).

On 13 April 1994, Amendment L46 to the Prahran Planning Scheme was approved to facilitate Project B. That action was supported by the former City of Prahran. The Amendment provides for a 263 apartment development in 8 towers. The towers will not exceed 10 storeys."

Clause 6 amends the definition of "South Yarra land" in the South Yarra Project (Subdivision and Management) Act 1985. It also repeals two provisions. The Committee notes the comments in the Second Reading Speech:-

"The Bill provides for the repeal of the South Yarra Project Act 1984 and the termination of the Agreement referred to in the Act. The South Yarra Project (Subdivision and Management) Act 1985 is proposed to be amended so that its provisions only continue to apply to the completed Stage 1 of the Jack Chia project. No rights or obligations with respect to that stage will be affected in any way."

Clause 7 repeals a redundant provision relating to the amalgamation of a common property between different stages of the entire former Jack Chia Como Project. It substitutes a new section 19 into the Act. The Council' s Public Open Space requirements do not apply to the subdivision of the South Yarra land.

The Committee makes no further comment.

LIQUOR CONTROL (AMENDMENT) BILL (NO.2)

2.1

The Committee notes that it reported on the Liquor Control (Amendment) Bill in Alert Digest No.9 on 4 October 1994. That Bill was subsequently withdrawn on 12 October 1994 and this Bill, the Liquor Control (Amendment) Bill (No.2) 1994 was introduced into the Legislative Assembly on 13 October 1994 by The Honourable Vin Heffernan MP with The Honourable Phil Gude MP.

2.2

The purposes of the Bill are to:-

facilitate the recovery of licence fees and other amounts payable under the Liquor Control Act 1987;
to make other amendments to that Act.

2.3

Clause 4 inserts the definition of "Commissioner of State Revenue" into the Act.

Clause 5 amends sections 12 and 36 by removing the compulsory retirement age for members of the Commission and the Chief Executive Officer. Clause 6 makes technical amendments.

2.4 _Ż Recovery of fees and evidentiary provisions

Clause 7 amends section 142, the evidentiary provisions of the Act. The effect of the amendment is that a certificate signed by the Chief Executive Officer is admissible evidence and proof of the matters contained in it. The matters include notice of a determination of a fee and fees payed or owing for a licence.

Clause 8 inserts a new section 142A which provides that the production of a notice of a determination of the Chief Executive Officer is evidence of the due making of the determination and that all the particulars are correct.

Clause 10 inserts a new division 3 of Part 6 which sets out provisions for the recovery of fees and fines. The new section 145A provides that any amounts due under the Principal Act are debts due to the Crown and payable to the Commission. The Commission can therefore recover these monies in the Magistrates Court or any other court of competent jurisdiction.

The new section 145B enables the Chief Executive Officer to collect money from a third person who owes money to the licensed person.

The Committee notes the comments in the Second Reading Notes:-

"This Bill introduces modern recovery provisions into the Act which are based upon recovery provisions in the Business Franchise (Tobacco) Act 1974. These provisions will make legal proceedings for the recovery of outstanding fees payable under the Act more simple. The amendments will also enable the recovery of outstanding licence fees from any third party who owes money to the licensed person. This is similar to recovery powers under other revenue Acts.

....It introduces recovery and evidentiary provisions which are consistent with other regulatory legislation by which licence fees are collected. These provisions will facilitate the efficient collection of fees and protect revenue by enhancing compliance with the Act."

The Committee wrote to the Minister. The State Revenue Office responded on behalf of the Minister in a letter dated 21 October 1994. The relevant extract is set out:-

"Your letter dated 13 September 1994 addressed to the Minister for Small Business with regard to the above Bill has been forwarded by the Liquor Licensing Commission to me to provide a response. I apologise for the delay in responding to you.

The statement contained in the portion of the Second Reading Speech which your letter has quoted is correct. Equivalent provision to Section 145B exist in the following Acts-

Stamps Act 1958 - Section 166AC

Business Franchise (Tobacco) Act 1974 - Section 19BA

Financial Institutions Duty Act 1982 - Section 59

Pay-Roll Tax Act - Section 31; and

Accident Compensation Act - Section 216

Neither Section 145B of this Bill nor any of the provisions referred to above make provision for the third party who is disputing a debt with the Crown debtor to raise a right of set off against that debtor.

My enquiries failed to locate an instance where this provision has been used except for the recovery of Pay-roll Tax and WorkCare Levy. In these cases, the power was used sparingly. I am advised that, in these cases, the State Revenue Office is not aware of any person disputing of the debt with the Crown debtor when served with a relevant notice.

In the fact situation raised by you, it would be difficult to proceed under a notice served under Section 145B where a debt was in dispute. The condition precedent for proceeding under that notice is that money was "due" by the third party to the Crown debtor. This would be very difficult for the Chief Executive Officer to objectively determine.

I am advised that in practice, if a debt was in dispute the Pay-roll tax Commissioner would not proceed to enforce payment from the third party. The notices would remain as an effective recovery tool which "freezes" payments by third persons to the Crown debtor. When the debtor is company or trading entity ,the notice usually has the result that the debtor felt compelled to resolve the outstanding debt to the Crown immediately in order to restore cash flow. It is anticipated that, where such notice is issued under the Liquor Control Act, the same practical result would be sought to be achieved.

It should be noted that the draft of section 145B(1) in the above Bill does enable the Chief Executive Officer to allow further time to a person full compliance with that notice. In the event of disputed debt, it remains open to the Chief Executive Officer to allow further time to the person served with this notice until that issue is resolved. For the reasons stated earlier, the most likely outcome would be that the Chief Executive Officer would grant further time to the third party as this would still have the desired effect to place pressure upon the Crown debtor.

The purpose of the insertion of a criminal penalty is to ensure strict observance with the notice served. The attention of relevant parties has been referred to this provision in the past in order to discourage any informal arrangement between a debtor and third party whereby the debtor understates the amount owing to him, enabling the third party to pay the actual balance outstanding direct to the debtor without knowledge of the Pay-roll Tax Commissioner. I am advised that, to date, this penalty has never been applied.

I suspect that it would be difficult for the Chief Executive Officer to prosecute the third party in the case where the debt is disputed as he would have to prove that money was "due" by the third party to the debtor."

The Committee notes that the explanation offered by the State Revenue Office is a practical one. The Committee also notes that the provision has only been used in respect of the recovery of Pay-roll Tax and Workcare levy and that the power is used sparingly. However the Committee is of the view that the provision may contravene section 4D(a)(ii) and has written to the Minister suggesting that there should be an avenue of appeal for a debtor who disputes the debt.

The new section 145C provides for service of process.

2.5 _Ż Extended investigation powers to the Commissioner of State Revenue; the power to demand entry

Clause 11 amends section 154 which relates to the entry onto licensed premises to provide that the Commissioner of State Revenue or authorised staff will have the power to demand entry at any time to any licensed premises. Previously, this power was restricted to the Commission, Deputy Commission, an officer or employee of the Commission authorised in writing by the Commission, an authorised member of the police force or a licensing inspector.

Clause 12 amends section 158 which relates to the power for licensing fund assessors to search licensed premises. The effect of the amendment is that the Commissioner of State Revenue or authorised staff have the same powers as those of licensing assessors to search licensed premises.

Clause 13 makes minor amendments to the Act.

The Committee makes no further comment.

HEALTH SERVICES (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 12 October 1994 by The Honourable Marie Tehan MP with The Honourable Phil Gude MP.

3.2

This Bill amends the Health Services Act 1988. In particular, it:-

repeals the provisions relating to nursing homes and hostels;
makes minor other amendments.

3.3 _Ż Background

By way of back ground the Committee notes the comments in the Second Reading Speech:-

"The current situation of dual government responsibility (State and Commonwealth) has resulted in considerable confusion within the nursing home and hostel industries.

As the funding authority for nursing homes and hostel services, the Commonwealth has taken the lead role in ensuring that adequate standards of care are maintained within these facilities. Agencies which receive Commonwealth funding are comprehensively regulated by two Commonwealth Acts.......

By 1 July 1994 all Commonwealth funded nursing homes and hostels in Victoria, including those provided through state facilities had been transferred to new funding arrangements with the Commonwealth. Nursing home funding is provided by the Sam-Cam funding scheme under the National Health Act 1953.

The Health Services Act has not been consistent in its application to all Victorian nursing homes. State funded public nursing home facilities are excluded from its operation. Currently there are 311 private and voluntary/charitable nursing homes registered under the Act and 115 public facilities offering the same service which are not required to be registered under the Act.

I am satisfied that the department's responsibilities for aged citizens in nursing homes and hostels are adequately covered by the Commonwealth's outcome standards and monitoring role. The department has moved public sector nursing homes and hostels to full Commonwealth funding and these are now subject to Commonwealth standards and monitoring provisions."

3.3 _Ż Part 2 - Nursing Homes and Hostels

Clause 5 amends various definitions in the Act. The Committee notes the explanatory memorandum. The definitions of "nursing home" and "hostel" have been amended to reflect that the Commonwealth nursing home or hostel benefit is paid to the agency in respect of the person receiving the service, not to the person directly. The definition of "health service establishment" is amended to remove the categories of "nursing home" and "hostel" as these agencies will no longer be regulated within the category of health service establishments under the Principal Act. As a result Part 4 of the Act which currently contains provisions generally regulating health service establishments will no longer apply to nursing homes and hostels. The definition of "registered funded agency" is amended to include "state funded nursing homes". This amendment clarifies the current position of State funded nursing homes. State funded nursing homes will continue to be regulated as registered funded agencies under Part 3 of the Act and treated in the same manner as registered funded agencies to reflect that they receive funding from the State Government."

Removal of definitions and references in the Act.

Clause 8 amends section 10 to remove references to "hostels" and "nursing homes" from the principles which apply to various institutions. Clauses 9 to 21 repeal various definitions and references to "hostels" and "nursing homes".

The Committee makes no further comment.

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