ALERT DIGEST 13 of 1994

Part 5

7.1

This Bill was introduced into the Legislative Assembly on 19 October 1994 by The Honourable Geoff Coleman MP with The Honourable Phil Gude MP.

7.2

The Bill amends the Land Act 1958, the Crown Land (Reserves) Act 1978, the Conservation, Forests and Lands Act 1987 and the Forests Act 1958. Its purposes are to:-

rationalise provisions relating to agricultural tenure by amending the lease and licence provisions of those Acts;
ensure that other leasing and licensing provisions are flexible enough to be used for commercial purposes;
make other amendments to other Acts.

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

"The Bill will consolidate the agricultural use provision of the Land Act. There will be one generic lease with a maximum term of 35 years, the current maximum for cultivation leases. There will be a water frontage licence with a maximum period of 35 years and a generic licence for all other cases with a maximum 99 year period. Provision will be made for short-term agistment permits, as now. It is proposed that frontage licences will be issued for an initial five year period with six options to renew for further five year periods.

There will be an ability to impose conditions suited to individual cases and to give directions during the life of a lease or licence to meet changing circumstances. The statutory requirement for public access to water frontages will be fully retained.........

Water frontage licensees will have two options for paying their licence fees: annual as now or one payment at the beginning of each five year period. Holders of 99 year licences will have annual and up-front options and will also be able to pay triennially. Fees will be calculated in accordance with the Valuer-General's advice and discounts will be offered to encourage up-front payments. Farmers will be able to remain on the current annual payment system but those who opt to move to up-front payments will enjoy significant savings in overall rent paid."

7.3 _Ż Part 2 - Amendments to the Land Act 1958

Clause 3 amends various definitions in the Land Act 1958. Clause 4 sets out the application of the Land Act 1958. Clause 5 provides for documents describing land as a road to be evidence of that fact in the absence of evidence to the contrary. Clause 6 amends section 34 to clarify that it does not apply to the new leases and licences. The new division 8 contains specific provisions as to forfeiture, termination and cancellation.

Agricultural leases

Clause 8 inserts a new division 8 which sets out new provisions relating to agricultural leases. Under the new provisions, the Minister may grant a lease for agricultural purposes on such terms, conditions and restrictions that he or she thinks fit. Under the previous section, leases were granted by the Governor in Council on the recommendation of the Minister after certification by the Surveyor-General. The Committee notes that previously the granting of such leases was sufficiently important to be done by the Governor in Council. The Committee is of the view that there should be some reporting mechanism either by way of Government Gazette or tabling in the Parliament.

New section 122 sets out the maximum term of a lease. New sections 123 and 124 set out the land over which a lease may be granted and the general conditions to which a lease may be subject.

Agricultural licences

Clause 10 substitutes a new section 130 which provides for the granting of licences for agricultural purposes. The Minister may grant an agricultural licence on such terms and conditions as he or she thinks fit. Under the previous provisions the Governor in Council granted grazing licences. The Committee notes that previously the granting of such licences was sufficiently important to be done by the Governor in Council. The Committee is of the view that there should be some reporting mechanism either by way of Government Gazette or tabling in the Parliament.

New section 130AA sets out the maximum period of a licence. New sections 130AB and 130AC set out the land over which a licence may be granted and the general conditions to which a licence may be subject.

Clause 11 inserts a new subdivision 4 which sets out general provisions relating to agricultural licences and leases. The Director-General, with the approval of the Minister may waive rent in particular cases of hardship, drought or adversity. Pursuant to new section 133C if the Minister is satisfied after giving the lessee or licensee a reasonable opportunity to be heard, that the lessee or licensee has failed to comply with any of the terms and conditions of the licence, then the Minister may declare the lease forfeited or the licence cancelled by notice published in the Government Gazette. No compensation is payable in the circumstances set out in subsection (4) This is discussed later at 7.9.

New section 133D sets out the compensation provisions for improvements on forfeiture of a lease or cancellation of a licence. New section 133E provides for the termination of the lease where there is no breach. In that instance the relevant provisions of the Land Acquisition and Compensation Act 1986 apply as if the land were compulsorily acquired. New section 133F provides for the cancellation of a licence where there is no breach. The licensee is entitled to a refund of an amount of the licence fee paid to be determined by the Minister on a pro rate basis taking into account any period of the licence remaining at the date of the cancellation. This is discussed later at 7.9.

Leases for Non-agricultural purposes

Clause 13 amends section 137AA of the Land Act 1958 to provide for options to renew and overholding clauses in commercial leases or Crown land. Clause 14 amends section 137A to provide for options to renew and overholding clauses in industrial leases. Clause 15 makes consequential amendments. Clause 16 amends section 140 to increase the maximum term for non-agricultural licences from one year to ten years.

Clause 17 amend section 412 to limit the jurisdiction of the Supreme Court. This is discussed later at 7.9.

7.4

Clauses 18 to 31 repeal various provisions. Clauses 32 to 34 make consequential amendments on the creation of new leases and licences. Clause 37 abolishes the North-West Mallee Committee, and any Land Classification Board or Local Land Advisory Committee under the Land Act 1958. Pursuant to clause 46 any reference in the Act to a Land Classification Board or North-West Committee is deemed to be a reference to the Minister.

7.5 _Ż Part 3 - Amendments to the Crown Land (Reserves) Act 1978

Clause 48 inserts a new section 17F which provides for options to renew and overholding clauses in leases under the Crown Land (Reserves) Act 1978.

7.6 _Ż Part 4 - Amendments to the Conservation, Forests and Lands Act 1987

Clause 50 provides for the Director-General to the Department of Conservation and Natural Resources to be able to enter into agreements with the Victorian Conservation Trust for the management of land owned by the VCT. Clause 51 amends the evidentiary provisions of the Act in relation to roads on Crown land. Clauses 52 and 53 make consequential amendments.

7.7 _Ż Part 5 - Amendments to the Forests Act 1958

Clause 54 permits the transfer of responsibility for fire prevention and suppression in alpine resorts from the Department of Conservation and Natural Resources to the Country Fire Authority. Clause 55 amends the regulation making powers. Clauses 56 and 57 make consequential amendments.

7.8 _Ż Part 6 - Consequential amendments to other Acts

Clauses 58 to 60 make consequential amendments to other Acts.

7.9 _Ż Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 17 of the Bill amends section 412 of the Land Act 1958 to declare its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in the circumstances where section 133C(4) or 133F(3) provides that no compensation is payable.

Clause 11 of the Bill inserts new sections 133C and 133F(3). The Committee notes the comments in the Second Reading Speech:-

"The Land Act as proposed to be amended by clause 11 of the Bill will include compensation provisions and it is for this reason that the ability of the Supreme Court to award compensation is restricted. In the case of termination of a lease, the Land Acquisition and Compensation Act will apply. In the case of termination of a licence, there will be a pro rata refund of the licence fee. Where a lease or licence is terminated because of non-compliance with its terms, compensation would not be appropriate and will not be payable. However, a lessee or licensee will be entitled to remove improvements which he or she owns whether the lease or licence is terminated because of non-compliance or otherwise."

The Committee is of the view that clause 17 together with new sections 133C(4) and 133F(3), (clause 11) may contravene section 4D(a)(i)(ii) and (iii) of the Committee's Terms of Reference. The Committee has made inquiries and confirmed that although the Minister's decision in respect of new 133C is reviewable in the Supreme Court, no compensation is payable in respect of the vesting of improvements in the Crown, the forfeiture of money to the Crown or the extinguishment of any interest, right or privilege. A lessee or licensee is only entitled to remove improvements which he or she owns.

In respect of new section 133F(3), where a licence may be cancelled even if there is no breach, the only compensation payable is the amount of the licence fee refunded by the Minister. The decision to cancel the licence may be reviewed in the Supreme Court but not the compensation which is payable under the provision.

Chairman's Note:

The Chairman has communicated with the Minister to identify the Committee's concerns and to seek an amendment to ensure that the provisions will be rectified so that there is no contravention of section 4D(a)(i)(ii) or (iii) of the Parliamentary Committees Act 1968. The Committee is also writing to Chief Parliamentary Counsel to clarify the drafting practices used where Ministers' drafting instructions request clear title to enable the Government to deal with land.

ENVIRONMENT EFFECTS (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Council on 9 November 1994 by The Honourable R. Knowles, MLC

8.2

The purpose of the Bill is to provide that Environmental Effects Statements (EES's) for public works are only required at the direction of the Minister administering the Act ie: the Minister for Planning. By way of background the Committee notes the comments in the Second Reading Speech:-

"The need for separate provisions in the Act for public and private works has lessened over time, as statutory approvals for public works have been introduced, notably in the provision of the Planning and Environment Act 1988 that provides that planning schemes bind the Crown..........

It has recently come to our attention that successive governments have misinterpreted the Act. It was thought that the Minister administering the Act had the power to determine when an EES was required. In fact, the Minister has discretion to determine whether an EES is required for private works but such discretion does not apply to public works.

In order to provide that public works and private works are treated similarly, the Bill specifies that the Act only applies to those public works declared by the Minister. This reflects the long standing practice where the Minister has decided when an EES was required for public works. When he has declined to require an EES, he has given reasons for his decision. This practice will continue."

8.3

Clause 4 amends section 2 of the Principal Act. It extends the definition of "public works" so that the Act will apply to works whether commenced before, on or after the commencement of this new Act. It repeals the definition of "report" which is the preliminary environment report.

Clause 5 substitutes a new section 3 into the Act so that the Act applies to works which are declared to be public works by Order of the Minister published in the Government Gazette.

Clause 6 substitutes a new subsection (1) into section 4 of the Act to require that the proponent of public works to which the Act applies must have an Environmental Effects Statement prepared. It also repeals section 7 which provided that other Ministers could require the preparation of an Environment Effects Statement.

CLASSIFICATION OF FILMS AND PUBLICATIONS (AMENDMENT) BILL

9.1

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

9.2

The purpose of the Bill is to give effect to an agreement executed on 25 October 1994 between the Governor of Victoria and the Governor General of the Commonwealth. It ensures that the Governor General of the Commonwealth has the power to classify films on Victoria's behalf as was the intention of original Act, the Classification of Films and Publications Act 1990. Clause 4 inserts a new section 73 which gives effect to these matters.

The Committee makes no further comment.

VICTORIAN ARTS CENTRE (AMENDMENT) BILL

10.1

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

10.2

This Bill amends the powers of the Victorian Arts Centre Trust to enable its participation in joint venture arrangements and a joint venture for a national ticketing and related marketing services business. It specifically allow the Trust to carry on a business of providing ticketing, inventory management of admissions, marketing and related services. Clauses 5 and 6 give effect to these matters.

The Committee makes no further comment.

LAND TAX (AMENDMENT) BILL

11.1

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

11.2

This Bill:-

amends the Land Tax Act 1958 to implement the measures announced in the Budget;
resolves ambiguities in the provisions relating to the unimproved value of land;
clarifies the operation of the charity exemption provisions;
extends the pensioner concession to bring the provisions in line with those of the Commonwealth;

11.3

Clause 4 substitutes a new subsection (2) into section 3 of the Act. It specifies how land tax is to be calculated. It also defines "relevant date" to mean the date as at which rateable properties within the municipal district were valued for the purposes of the last general valuation returned to the municipal council before 1 January in the year immediately preceding the year for which the land tax is assessed. Clause 5 provides that land which is used exclusively for charitable purposes is exempt from land tax.

Clause 6 amends section 10 which relates to special land tax to define "unimproved land" for the purposes of the section. Clause 7 amends section 54 which relates to the liability of the mortgagee in possession as the owner. It specifies how land tax is to be assessed in that instance. Clause 8 extends the exemption from land tax for a principal place of residence to any person granted a Pensioner Concession Card from the Commonwealth Government.

Clause 9 amends the Second Schedule. It provides that land tax assessments for the 1995 year will not differ more than 40% from the land tax that would have been payable in respect of the same land holdings for the 1993 year. The Committee notes the comments in the Second Reading Speech:-

"The Bill implements the measures which I announced in the Budget, by which the increase or decrease in a taxpayer's land tax liability for the 1995 year from his or her liability for the 1993 year on unchanged holdings is restricted to no more than 40 per cent."

The Committee makes no further comment.

Committee Room
14 November 1994