Alert Digest No.
12 of 1995
Part 4
PORT SERVICES BILL continued
3.12 ¯ Part 11 - Amendment of Marine Act 1988
Clause 156 amends references to authorised officers. Clause 157 inserts a new section 20A into the Act. It requires the owner or master of a trading or fishing vessel to report any damage or defect to the vessel and certain incidents to the Marine Board. Clause 159 inserts a new Part 3A which contains provisions relating to harbour masters. Clause 160 repeals various provisions which relate to pollution. Clause 164 adds to the functions of the Board. Clause 165 inserts new sections 66A to 66D which provide for the acquisition of land etc. Clause 167 inserts new sections 69 to 74E which relate to directors. Terms and conditions of appointment of directors are determined by the Minister. The Committee is concerned that there should be some transparency in respect of remuneration paid to directors. The Committee is of the view that the remuneration should be published either in the Government Gazette or in an appropriate annual report. The Committee wrote to the Minister on 19 October 1995 seeking his advice and requesting a copies of the relevant Cabinet guidelines and Public Service Commissioner guidelines in respect of the remuneration of directors. The Minister responded by way of letter dated 23 October 1995. The relevant extract is set out: -
"See the comments in relation to clause 25.
These provisions are standard for statutory corporations. If there is to be disclosure of directors' remuneration that would most appropriately be done by amendments to the Financial Management Act or through accounting standards. AAS 22 requires this disclosure for reporting entities but this standard has not (so far as I am aware) been endorsed for application by public sector business undertakings. The remuneration for directors has not been finally settled but is intended to be in line with Cabinet guidelines."
The Committee is still concerned that there should be transparency in respect of remuneration paid to directors.
Clause 168 substitutes a new section 76. It is a delegation provision. The Committee recognises the attempt to limit the scope of the provision by the use of the words "with the consent of the Minister". Nevertheless, the Committee is of the view that the provision would be more acceptable if the words "any other person" were more strictly defined. The Committee wrote to the Minister on 19 October 1995 seeking the appropriate amendment. The Minister responded by way of letter dated 23 October 1995. The relevant extract is set out:-
"This clause is necessary to enable delegation to a channel operator (see comments in relation to clause 26) or in relation to Associated Ports responsibilities which are divested to a Committee of Management."
In its current form, the Committee is of the view that the delegation provision constitutes an inappropriate delegation of power. If it is necessary to delegate powers to channel operators, the legislation should be amended to specify the powers to be delegated and the class of persons, namely, channel operators, to whom they are to be delegated. The Committee has written to the Minister.
Clause 170 inserts a new section 85A into Part 9 which sets out powers of entry in relation to lights and the prevention of collisions. Clause 175 substitutes a new section 98 which relates to unsafe vessels. Clause 179 amends Schedule 4 to insert further particular powers of the Board. Clause 180 sets out further subjects for the licensing of regulations.
3.13 ¯ Part 12 - Amendment of Pollution of Waters by Oil and Noxious Substances Act 1986
Clause 181 inserts various definitions. Clause 182 provides that an authorised officer may delegate to any other person any power as an authorised officer. The Committee notes that the wording of this provision is unusual. The Committee wrote to the Minister on 19 October 1995 seeking advice as to the reason for the wording and what circumstances it is envisaged the provision will be used. The Minister responded by way of letter dated 23 October 1995. The relevant extract is set out:-
"Part 12 transfers provisions from Part 5 of the Marine Act to POWBONS. Section 52 of the Marine Act already contains a wide delegation power recognising the role of the port authorities in this area. This delegation is required to allow various agencies to carry out functions during a pollution 'clean-up'."
Clause 183 inserts a new Division 2D which relates to discharges. Clause 187 substitutes section 28 of the Act so that certain sections of the Environment Protection Act 1970 are read and construed with the Act. This allows the Environment Protection Authority to prosecute for offences under the Act. Clause 188 inserts new section 34A into the Act. It allows for the manner of the execution of documents by the Environment Protection Authority. Clause 189 makes consequential amendments.
3.14
Part 13 - Amendment of Dangerous Goods Act 1985
Part 14 - Amendment of other Acts
Clauses 190 to 193 make various amendments to the Dangerous Goods Act 1985. Clauses 194 to 207 make amendments to various Acts. Clause 198 inserts a new section 6 into the Westernport Development Act 1967 which allows for the variation by agreement of the Agreement ratified by that Act. Any variation must be approved by Order of the Governor in Council and published in the Government Gazette and laid before both Houses of Parliament. Any variation specified in an Order in Council is subject to disallowance by the Parliament. Clause 200 amends the Westernport (Steel Works) Act 1970 to allow for variation by agreement of the Agreement ratified by that Act. It is subject to the same procedures as specified in clause 198.
ELECTRICITY INDUSTRY (FURTHER AMENDMENT) BILL
4.1
This Bill was introduced into the Legislative Assembly on 4 October 1995 by the Honourable Jim Plowman MP with the Honourable Alan Stockdale MP.
4.2
The purposes of the Bill are:-
- to make further amendments to the Electricity Industry Act 1993 to facilitate the transfer of land in the La Trobe Valley;
- to make further provision relating to the operation of the electricity industry.
4.3 ¯ Part 2 - Amendment of the Electricity Industry Act 1993
Clause 6 amends section 47 to allow officers or employees or persons authorised in writing by an electricity corporation to exercise powers given in section 47 of the Act on behalf of the electricity corporation in relation to entering onto land and performing works of the electricity corporation. Clause 8 inserts a new section 49A which provides for the appointment of a Deputy Administrator by the Treasurer after consultation with the Minister.
Clause 10 inserts new sections 84AA, 84AB and 84AC which contain provisions which relate to financial benefits and exemptions declared by the Governor in Council published in the Government Gazette. Clause 11 amends section 163 to add to the conditions which may be specified in licences. Clause 12 amends section 163 to enable the Office of the Regulator-General to amend certain specified industry codes or pool rules and resolve disputes. Clause 13 inserts new section 163AA which sets out charges payable to the Treasurer on publication of the Order of the Governor in Council in the Government Gazette. Clause 14 substitutes new section 167 which relates to the transfer of licences. Under the old section 167 a licence was not transferable. Clause 15 inserts a new section 171(4A) which provides that in certain specified circumstances, units in a unit trust are deemed to be shares in a corporation. Clause 16 inserts new sections 171A, 171B and 171C which relate to shareholders agreements. The Committee notes the explanatory memorandum:-
"Proposed section 171A allows relevant interests of an associate of a person to be disregarded if the Treasurer certifies on specified grounds that they should be disregarded. Interests of associates can be included in calculating whether a person has a controlling or substantial interest in a licensee. Where associations with a person exist only because of consortium arrangements and the Treasurer is satisfied that person does not have the power to control or influence the composition of the board or the conduct of affairs of the licensee except in certain limited respects which would be usual in such consortium arrangements, that association will not be included in determining whether a controlling or substantial interest exists.
Proposed section 171B similarly permits relevant interests which exist solely by virtue of section 32(c) or section 33 of the Corporations Law to be disregarded if the Treasurer is satisfied as to certain matters. Sections 32(c) and 53 of the Corporations Law deem a person to have a relevant interest in shares if they hold a specified percentage of shares in a corporation which holds those shares. Under the new section 171B, a person holding the specified percentage of shares in a corporation may not be deemed to have a relevant interest in shares held by that corporation, as long as the Treasurer is satisfied on various grounds that the person's power of control or influence in relation to the licensee is limited.
Proposed section 171C allows a certificate provided under sections 171A and 171B to cease to have effect if the Office of the Regulator-General determines a change in circumstances has occurred and that the certificate should no longer have effect."
Clause 17 provides that the Office of the Regulator-General is not bound, when selling forfeited shares under Part 13, by restrictions on sale contained in the memorandum or articles of association of the licensee or any other document.
4.4 ¯ Part 3 - Loy Yang and Hazelwood Land
Clause 18 inserts a new Part 15 into the Act relating to Loy Yang Land. New section 198 surrenders that land to the Crown. All Crown land is deemed to be unalienated land, freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. New sections 199 and 200 preserves current leases and certain specified interests. New section 202 revokes certain reservations. Clause 19 inserts a new Part 16 relating to Hazelwood Land. It contains the same provisions as set out in new Part 15 in respect of the surrender of land. Clause 20 inserts new Schedule 3B into the Act.
4.5 ¯Part 4 - Amendment of State Electricity Commission Act 1958
Clause 24 inserts a new Part VA which sets out the powers of the chief electrical inspector. An inspector may enter at any time during ordinary working hours on any business day or in the case of an emergency any premises that the inspector reasonably believes where there is equipment which does not comply with the requirements of the Act. An inspector is not entitled to enter a residence unless the occupier of the residence has consented in writing. Clause 26 substitutes new sections 63 and 63A which establish a Powerline Clearance Consultative Committee. Its members are appointed by the Minister. The remuneration is determined by the Minister.
4.6 ¯
Part 5 - Amendment of Electricity Industry (Amendment) Act 1995, Alpine Resorts
Act 1983
Part 6 - Water and Land Entitlements for Generation Companies
Part 7 - Amendment of other Acts
Clauses 28 to 30 make minor amendments to the Electricity Industry (Amendment) Act 1995. Clause 31 inserts new sections 28 and 28B into the Alpine Resorts Act 1983 which relate to the lease of land and the issue of licences over land to a generation company. Clause 33 inserts new sections 30A, 30AA and 30AB into the Act which provide for agreements, leases and licences between a generation company and Alpine National Park. Clauses 37 to 40 make other amendments to various Acts.
GAS INDUSTRY (EXTENSION OF SUPPLY) BILL
5.1
This Bill was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.
5.2
The purpose of the Act is to make provision for the supply of gas in new areas in Victoria.
5.3
Clause 5 inserts new sections 39B and 39C. New section 39B sets out the requirements in relation to new areas declared by Order of the Governor in Council on the recommendation of the Minister made at the request of a municipal council or another person. Clause 6 amends section 40 so that the Governor in Council may specify in an authority that a provision of the Act or the regulations apply and the regulations apply to the conveyance of gas by an authorised person. Clause 7 amends section 53 which gives powers for certain works. It provides notification and obligations in relation to entry of land. Clause 8 amends section 59(1)(f) in relation to the resupply of gas. Clause 9 amends sections 91 and 92 by providing that an officer or employee of a gas company includes an authorised agent or contractor.
The Committee makes no further comment.
ZOOLOGICAL PARKS AND GARDENS BILL
6.1
This Bill was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.
6.2
The purposes of the Bill are:-
- to establish the Zoological Parks and Gardens Board and;
- to provide for the management and administration of zoological parks and gardens.
6.3
Clause 3 sets out various definitions. Clause 4 sets out the objectives. Clause 6 establishes the Zoological Parks and Gardens Board. Its 9 members are appointed by the Governor in Council. Clause 10 sets out its functions. Clause 13 enables the Board to arrange for the provision of various services. Clause 14 governs crowd control. Clause 15 provides that the Board is to be regarded as the occupier of the land in relation to zoological parks. Clause 16 is the delegation provision. Clause 17 governs immunity of board members. Clause 18 obliges the Board to prepare a corporate plan. Clause 19 obliges the Board to prepare a statement of corporate intent. Pursuant to clause 21 the Board must keep a General Account.
6.4
Under clause 24 the Governor in Council may declare land to be a zoological park. Clause 26 provides that the Board may enter into agreements to manage freehold land. Publication of managed land must be in the Government Gazette pursuant to clause 29. Clause 33 establishes a power for the Board to grant leases, licences and permits over land for which it is responsible. A Chief Executive Officer may be appointed by the Minister under clause 34. Remuneration is determined by the Minister. Clause 36 governs his or her resignation or removal from office. Clause 40 sets out who may take proceedings. Clause 41 is the regulation making provision. Clauses 43 to 55 make minor amendments, repeal various Acts and contain transitional provisions.
The Committee makes no further comment.
WATER (FURTHER AMENDMENT) BILL
7.1
This Bill was introduced into the Legislative Assembly on 4 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.
7.2
The main purposes of the Bill are:-
- to enable an Authority to delegate its power to set tariffs; and
- to enable the sale of unallocated water in certain water storages; 7.3
Clause 4 widens the objects of management plans set out in section 30. Clause 5 widens section 36 to enable bulk entitlements to be granted to water in any works of a person holding a water licence or a water and sewerage licence. Clause 6 clarifies the power for a resource manager to be appointed under an Order granting a bulk entitlement. Clause 7 inserts a new section 43A which provides for the appointment of storage operators and resource managers. Clause 8 enables an Authority to permanently transfer a bulk entitlement in whole or in part to irrigators with the approval of the Minister. Clause 10 inserts a new section 47D which enables the Minister to sell unallocated water. Clause 11 widens section 51 so that a licence to take and use water may be issued in respect of water from any works of an Authority or from any works of a person holding a water licence, a water and sewerage licence or a water headworks licence under the Water Industry Act 1994. Clause 12 makes consequential amendments. Clause 13 removes paragraph (f) of section 111, effectively giving the Authority the ability to delegate the power to set tariffs. The Committee notes the comments in the Second Reading Speech:-
"Scope to delegate price-setting will enable greater customer involvement in the management of irrigation distribution networks. Any delegation is subject to conditions set by the delegating authority, so a committee will have to exercise price setting powers within a financial framework established by the water authority.
Price setting by water authority advisory committees is in line with the Government's October 1993 policy document 'Reforming Victoria's Water Industry'."
Clause 14 makes minor amendments. Clause 15 is a transitional provision.
The Committee makes no further comment.
STATE TAXATION (FURTHER AMENDMENT) BILL
8.1
This Bill was introduced into the Legislative Assembly on 12 October 1995 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.
8.2
The purpose of the Bill is to make numerous technical amendments to various State Revenue Acts. It amends the Business Franchise (Tobacco) Act 1974, the Financial Institutions Duty Act 1982, the Gift Duty Act 1971, the Land Tax Act 1958, the Pay-roll Tax Act 1971, the Probate Duty Act 1962 and the Stamps Act 1958.
8.3 ¯ Part 2 - Business Franchise (Tobacco) Act 1974
Clause 5 provides that the Commissioner may communicate information to an officer of the Australian Customs Service. Clause 6 provides for the imposition of application fees for licence applications. The fee is to be prescribed by regulation. Clause 7 ensure that a person intending to cease wholesaling tobacco is precluded from selling tobacco at a price less than the approved discount price. Clause 8 inserts new sections 13B, 13C and 13D relating to the transportation of tobacco products, the records required, the production of records and the temporary custody of road vehicles. Clause 9 amends section 14 to provide that if goods are seized, appropriate written notice must be given to the person in possession or custody of such goods. An inspector may retain possession of accounts and records for such period as is necessary to enable them to be inspected and copies of them to be made on behalf of the Commissioner. Clause 10 makes it an offence for a person to hinder another person from complying with a requirement of the Commissioner. Clause 11 substitutes new sub-section (3A) which applies to the seizure of tobacco or petroleum products. Clause 12 inserts new section 15B which relates to the forfeiture of tobacco and petroleum products. Clause 13 substitutes new section 18D to enable the Commissioner to withdraw any assessment under the Business Franchise Acts. Clause 14 creates an offence of supplying a false statement of intent. Clause 16 inserts a new section 19AB which provides that an assessment under the Business Franchise Acts is not invalid merely because a provision of the Act has not been complied with.
8.4 ¯ Part 3 - Financial Institutions Duty Act 1982
Clause 20 amends section 11A by substituting a new sub-section (2) which provides if an amount received by a person in the course of a short-term dealing is re-invested on term deposit with a financial institution, the amount is deemed to be a dutiable receipt despite sub-section (1). Clause 21 makes various amendments to sections 18, 33, 34 and 35 in respect of the duty payable on certain transactions. Clause 22 inserts new section 35A which specifies the details required by the Commissioner of Victorian brokers at the end of each month. Clause 24 provides that certain amounts paid as financial institutions duty are deemed to have been paid. The Committee notes the comments in the Second Reading Speech:-
"The Bill also removes the potential for an anomalous outcome regarding past collections of financial institutions duty following a recent amendment to the Act. Since the Act commenced, duty has been collected upon credits to bank accounts held in Victoria which was deposited by the account holder outside Victoria. Whilst these amounts were paid in good faith on what was the generally accepted intention of the Act, more recently doubt has been cast as to whether duty was payable on these receipts. An amendment to the Act which took effect on 21 August 1995 ensured that these receipts were dutiable. This Bill now deems any duty paid in respect of these credits before 21 August 1995 to have been validly paid under the Act."
8.5 ¯ Part 4 - Land Tax Act 1958
Clause 27 amends section 5 to ensure the Commissioner of State Revenue has the power to delegate to any officer or employee of the Public Service employed in the administration of execution of the Act all or any of his powers or functions. The Committee notes that this provision was drafted some time before the Committee came into existence. In the Committee's view, the provision is too broad. Either the powers to be delegated should be limited or those people to whom the powers are given should be specified. The Committee has written to the Treasurer seeking an appropriate amendment to bring the provision into line with modern drafting practices.
Clause 29 limits the application of section 42 to leases entered into before December 1978. The Committee notes the comments in the Second Reading Speech:-
"The Bill also introduces an anti-avoidance provision to limit the ability to apportion land tax between the lessor and lessee where a landlord is disadvantaged by the terms of a lease. Section 42 of the Land Tax Act was intended to cover 'old-style' long term leases where a 'peppercorn' rent is being received for valuable Central Business District Property. Today virtually all modern leases impose rental at market rates and therefore section 42 should not have wide application. This Bill limits the application of section 42 leases entered into before 30 December 1978."
Clause 30 corrects an obsolete reference. Clause 31 amends section 54 which relates to the assessment of land tax. The Committee notes the comments in the Second Reading Speech:-
"A potential anomaly addressed by this Bill is the provision of the Land Tax Act which provides that lands held by a mortgagee in possession will be taxed as if they were still held by a mortgagor for three years after the mortgagee takes possession. An ambiguity in the present provision suggests that the provision could be applied to assess land where a mortgagee is in possession as if the land were held by the mortgagor for as long as possession by the mortgagee continues. This Bill amends the provision to give the Act its intended effect."
Clause 32 substitutes a sub-section in section 58A which imposes additional tax at the rate of 20% per annum where an amended assessment has increased the amount of land tax payable and the tax remains unpaid for more than 14 days after it becomes due and payable. Clause 33 amends the rate of land tax in the Second Schedule to the Act.
8.6 ¯ Part 5 - Pay-Roll Tax Act 1971
Clause 34 makes various amendments which have the effect of imposing pay-roll tax on accrued leave paid on termination of employment. The Committee notes the comments in the Second Reading Speech:-
"Pay-roll tax is levied in respect of accrued leave payments in Western Australia, South Australia, the ACT and New South Wales and this amendment will make Victoria's legislation consistent with those jurisdictions. However, this amendment will levy pay-roll tax only on leave which accrues after 1 January 1996 and which is paid on the termination of employment. Additionally, the Bill repeals section 9A(1D) of the Pay-Roll Tax Act 1971 to remove an anomaly in the grouping provisions which prevent businesses owned by the same person from being grouped with other businesses in which that person has a controlling interest."
8.7
Part 6 - Stamps Act 1958
Part 7 - Further amendment of the Stamps Act 1958
Part 8 - Amendment of other Acts
Clause 39 substitutes a new section 60C which requires Victorian dealers to lodge returns and imposes duty. Clause 40 substitutes new section 60EI which relates to the notice given by the Comptroller of Stamps. Clause 42 substitutes a new section 60L which sets out the requirements in respect of the lodging of returns by futures members. Clause 44 inserts a new subdivision (5A) which imposes duty on sales and purchases of marketable securities where the orders are lodged in non-corresponding States. Clause 45 makes consequential amendments. Clause 46 amends section 37B(2) of the Gift Duty Act 1971. It deletes the reference "within the prescribed time" and substitutes the expression " within 6 weeks after the date on which it confirmed the assessment" as the period within which the Administrative Appeals Tribunal may re-open the matter and review the assessment. Clause 47 amends section 19D(2) of the Probate Duty Act 1962. It deletes the reference to "within the prescribed time" and substitutes the expression "within 6 weeks after the date on which it confirmed the assessment" as the period within which the Administrative Appeals Tribunal may re-open the matter and review the assessment.
The Committee makes no further comment.
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