ALERT DIGEST 5 of 1995

1.1

This Bill was introduced into Legislative Assembly on 26 April 1995 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

1.2

This Bill makes a number of technical amendments to the Stamps Act 1958.

1.3

Clause 4 amends section 40A to enable authorised persons to endorse instruments as being exempt from stamp duty. Clause 5 inserts a new (1AA) into section 59. Section 59 relates to statements of sales of marketable securities. The amendment expands the operation of Section 59 to include interests in unit trusts. Clause 6 makes a minor amendment to section 60ED which provides that records must be made on the transfer of marketable securities. Clause 7 amends section 60H to ensure that stamp duty is paid in respect of the dealings in marketable securities of a company incorporated in Victoria where the transaction occurs on an overseas register and duty has not previously been paid.

Clause 9 makes technical amendments to the provisions exempting eligible first home buyers from stamp duty in Sections 71 and 71A. Clause 10 makes amendments to the current provisions in Section 71B which exempt eligible first home buyers from stamp duty. The Committee notes the comments in the Second Reading Speech:-

"A number of housekeeping amendments are being made to the Act to repeal obsolete provisions in relation to the former First Home Buyers' Scheme. The Act currently provides that certain eligibility criteria for the First Home Buyers' exemption may be determined by reference to the First Home Owners Act 1983 of the Commonwealth and to the Victorian Housing Act 1983. These references have now become obsolete and the Bill replaces those references to enable the Commissioner to determine an application on the same income criteria."

Clause 11 is a new anti-avoidance provision to deal with schemes designed to avoid the provisions in Section 75I. It provides that property will be excluded for the purposes of the asset test, if in the Commissioner's opinion it is owned or has been acquired by a corporation principally for the purpose of escaping the relevant provisions of the Stamps Act 1958. Clause 12 amends section 117 to remove the requirement that betting-books can only be obtained from the Comptroller of Stamps. Clauses 13 to 15 make minor amendments.

The Committee makes no further comment.

2.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

2.2

The purposes of the Bill are to:-

• provide for the more timely reporting and auditing of departments and public bodies and the reporting of State-owned corporations and other bodies;
• provide for all performance audits to be paid for by the Parliament;
• enable charges to be made for the giving of government guarantees and the obtaining of financial accommodation by certain authorities.

2.3 _¯ Part 2 - Amendment of the Financial Management Act 1994

Clause 4 substitutes new sections 45 to 47 in respect of the requirements of the Report of operations and the preparation of financial statements. Pursuant to new clause 47 the Minister may grant an exemption to the accountable officer of a department or public body from any provision of the Act relating to the contents, form or preparation of the financial statements of that department or public body. Notwithstanding this provision, all financial statements must be submitted to the Auditor-General. The Committee is of the view that whilst the provision does not contravene section the provisions of the Parliamentary Committees Act 1968, there may appear to be a lack of transparency in respect of its operations. The Committee is of the view that there should be an additional sub-section which provides that the exemptions granted under the section be reported in the annual report. The Committee has written to the Minister.

Clause 5 sets out the application of clause 4. Clause 6 provides for annual reports of State-owned corporations and other bodies with a public function to be tabled in Parliament.

Clause 7 widens various definitions in section 3 of the Act. It also amends sections 29 to 31 so that those sections can apply to interim-appropriation Acts as well as annual appropriation Acts. It amends section 55 so that the accountable officer and chief finance and accounting officer can write off debt as well as a Minister in accordance with the regulations.

New clause 7(1)(b)(p) repeals sub-sections (4) and (5) of section 59.

2.4 _¯ Part 3 - Guarantees and financial accommodation

Clause 9 inserts new Parts 6B and 6C into the Act which enable the imposition of Guarantee Charges payable in respect of financial accommodation to which a State Guarantee applies. The rate must not exceed the difference between the annual interest or discount rate and other costs of the financial accommodation and the estimated annual interest or discount rate and other costs of the financial accommodation that would apply if the State guarantee did not apply. New Part 6C relates to the imposition of a financial accommodation levy. Note that pursuant to new clause 40O a leviable authority is not liable to pay a guarantee charge.

2.5 _¯ Amendment of the Audit Act 1994

Clause 12 requires the Auditor-General to make a report on each annual audit within 4 weeks of receiving the relevant financial statements. Clause 13 extends the references to departments to include public bodies. The Committee notes the explanatory memorandum:-

"Payment for performance audits of authorities will be made from money appropriated to the Parliament. (previously the public bodies were required to make the payment) Further the conduct of performance audits of public bodies, like performance audits of departments, will be determined by the Auditor-General in consultation with the Public Accounts and Estimates Committee of the Parliament."

Clause 14 repeals sections 21(2) and (3)

2.6 _¯ Part 5 - Amendment of other Acts

Clauses 15 to 19 make various amendments to other Acts. Clause 20 amends section 53 of the Legal Profession Practice Act 1958 to enable money to be paid out of the Solicitors' Guarantee Fund to defray the Auditor-General's costs of auditing the accounts of the Fund. Clause 21 inserts section 56 of the Legal Profession Practice Act 1958 to enable the Auditor-General to audit the accounts of the Solicitors' Guarantee Fund.

3.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

3.2

The purpose of this Bill is to make a number of technical amendments to the Financial Institutions Duty Act 1982 and a minor technical amendment to the Administrative Appeals Tribunal Act 1984.

3.3

Clause 4 amends the definition of "financial institutions duty" in section 3. The explanatory memorandum states that it "provides that amounts paid into exempt bank accounts which are not paid in accordance with the Act are financial institutions duty chargeable under the Act. Clause 5 amends section 38 to enable the Commissioner to place short-term dealers on an annual payment cycle. Clause 6 amends section 46 to enable the Commissioner to issue estimated assessments of liability for an exempt account holder to financial institutions duty. Any assessment made under the section may be amended.

Clause 7 amends the definition of "taxing Act" in the Administrative Appeals Tribunal Act 1984 to include the Debits Tax Act 1990 thereby allowing appeals under the Debits Tax Act 1990 to be made to the Administrative Appeals Tribunal.

4.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Rob Maclellan MP with The Honourable Phil Gude MP.

4.2

The purposes of this Bill are:-

• to amend the Local Government Act 1989 to enable the Minister to limit the amount of general rates and charges that municipal councils may levy in the next 3 financial years;
• to amend the Local Government Act 1989 and the Audit Act 1994 to make the Auditor-General responsible for the auditing of municipal councils;
• to amend the Local Government Act 1989 to make various changes concerning elections for the Melbourne City Council;
• to extend transitional provisions concerning the change of the dates of the municipal financial year in the Local Government (Amendment) Act 1994;
• to make various miscellaneous amendments to the Local Government Act 1989.

4.3

Clause 3 inserts a new Part 8A which gives the Minister the power to limit income from rates and charges. The Minister may give directions concerning rates and charges by Order published in the Government Gazette. Such powers are only given to the Minister until the end of the 1996-8 financial year. A council must comply with the Minister's direction. Failure to comply with a Ministerial direction does not affect the validity of any rates or charges levied in the financial year in respect of which the failure occurred. However, if the non-compliance continues future rates and charges may be affected.

Clause 4 provides that the Auditor-General is to be responsible for the audit of councils and corporations wholly owned by a council or councils and trusts for the benefit of a council or councils. Clause 5 inserts new provisions into the Act in relation to the keeping of records, spot audits and the preparation of audit reports on competitive tendering statements. Clause 6 provides that audit expenses are deemed to have been incurred under a competitive arrangement. The Committee notes the explanatory memorandum which states that the Auditor-General will contract with private audit firms to perform council audits under his direction and these contracts will generally be let after a public tendering process. Clause 7 is a transitional provision. Auditors may be appointed for the 1994-1995 financial year only.

4.4

Clause 8 clarifies certain common references in the technical descriptions of local government boundaries. Clause 9 provides that the Lord Mayor may be removed from office if 6 Councillors (ie: two thirds) pass a motion that the office be declared vacant. Note that pursuant to section 72 the office of the Lord Mayor may become vacant if the Lord Mayor is "ousted from office." There is no definition in the Act of "ousted".

Clause 10 makes changes to the Local Government Board to consist of up to 7 members, rather than being composed of 7 members. Up to 5 people are to be nominated by the Minister. Clause 11 provides for a council to set fees for on-street and residential parking and the recovery of impounded vehicles.

4.5 _¯ Part 3 - Amendments relating to Municipal elections

Pursuant to clause 12 a corporation is no longer required to appoint a person to represent it at a municipal election. If a person is appointed, notice of the appointment must be made in the prescribed form. Clause 13 gives corporations in the City of Melbourne the option of appointing 2 representatives who will, upon notice being given to the Chief Executive Officer, be enrolled unless they are already enrolled or entitled to be enrolled for a ward. Clause 15 substitutes a new section 18 which sets out the procedure on receipt of notice of appointment under section 13. Clause 17 provides that the availability of voters' lists for inspection must be advertised. Clause 18 inserts a new section 22A requiring the Chief Executive Officer for the Melbourne City Council to write to each person on the Chief Executive Officer's voters' list advising that he or she is enrolled and has a right to object.

4.6

Clause 19 clarifies the voting entitlements of enrolled persons. It also inserts a new section 220Q which adds to the list of matters about which the Governor in Council may make Orders on the recommendation of the Minister. Clause 21 inserts a new section 40A which makes it compulsory for all persons enrolled on the voters' roll for the City of Melbourne to vote. Clause 22 inserts a new Part 4A into Schedule 3. It provides for a quota preferential system of voting for the Melbourne City Council where two or more councillors are to be elected in respect of a municipal district as a whole. Clause 23 amends section 14 of the City of Melbourne Act 1993. One councillor is to represent each ward rather than three. Five councillors are to represent the municipal district as a whole. The Melbourne City Council is to consist of 9 councillors rather than twelve.

4.7 _¯ Amendment to the Local Government (Amendment) Act 1994

Clause 24 extends the transitional provisions for the change of the municipal financial year to a 1 July commencement. New sub-sections are inserted to provide dates for the declaration and payment of rates in respect of 1995-1996 and 1996-1997.

The Committee makes no further comment.

5.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Jim Plowman MP with The Honourable Alan Stockdale MP.

5.2

The main purpose of the Bill is to provide for the winding up of the Gas and Fuel Corporation of Victoria. It repeals the Gas and Fuel Corporation Act 1958. It also makes minor amendments to the State Electricity Commission Act 1958 and the Gas Industry Act 1994.

5.3 _¯ Part 2 - Preference shareholders, Part 3 - Transfer of property to SEC

Clause 1 sets out various definitions. Clause 2 provides for the extra-territorial operation of the Act. Clause 6 provides for the return of capital to preference shareholders. Clauses 7 to 15 provide for the transfer of the Gas and Fuel Corporation of Victoria ("GFCV") to the State Electricity Commission("SEC").

5.4 _¯ Part 4 - Transfer of Gas Property from SEC

Clauses 16 to 20 provide for the transfer of property from the SEC. Clause 18 provides that the Minister may give directions for the transfer of property. Clause 26 gives the Registrar of Titles the power to make any necessary amendments. Clause 29 makes interim arrangements for the transferees of former SEC property.

5.5 _¯ Part 5 - General, Part 6 - Consequential amendments, Amendment of Gas Industry Act 1994

Clause 30 provides for the validity of things done under the Act. Clause 31 repeals the Gas and Fuel Corporation Act 1958. Clause 32 amends section 12 of the Gas Industry Act 1994. It clarifies that sub-section (1) does not prohibit the sale or disposal by GTC of gas contained in a storage facility acquired by GTC for the main purpose of the storage of gas by GTC if the gas sold or disposed of was contained in the facility at the time of the acquisition of the facility. Clause 33 makes minor amendments to the preparation requirements of corporate plans. Clause 34 inserts a new section 32A into the Act.

5.6

Clause 35 inserts a sub-section (5) into section 38 which provides that GASCOR is not liable to any penalty or damages for failing to supply gas if the failure arises out of any accident or cause beyond the control of GASCOR. Clause 36 inserts a new section 39 which exempts GASCOR from any liability to any penalty or damages for failing to convey gas through distribution pipelines, if the failure arises out of any accident or cause beyond the control of GTC or GASCOR. Clause 37 amends section 61 to clarify the effect of that section in relation to an easement vested in GTC. Clause 38 inserts new sections 62A to 62E which provide for written agreements for easements. Clause 39 inserts a new Part 6A which relates to gas supply emergency provisions. Pursuant to section 62G the Minister may give any directions that the Minister thinks necessary to ensure the safe and sure supply of gas. Any direction must be published in the Government Gazette. A direction may be addressed or directed to bodies and persons generally or particularly, in writing or verbally, by publication or advertisement or by any other means or in any other manner which appears to the Minister to be practicable, appropriate or expedient in the circumstances. These provisions are to be used in times of emergency

New section 62I provides that the Minister may by instrument delegate to any person all or any of the Minister's powers and functions under the Part 6A in relation to any matter or class of matters or part of Victoria specified in the instrument of delegation. The Committee accepts the delegated powers are limited to those in Part 6A. However the Committee is of the view that if possible the powers should be narrowed and clarified. The Committee is also of the view that instruments of delegation should be published in the Government Gazette. The Committee has written to the Minister.

Clause 40 provides that separate accounting records must be kept in relation to superannuation. Clause 41 inserts new sections 87A and 87B into the Act. They preserve the rights of former GASCOR staff who accept an offer of employment before 31 December 1996 and make provision for the superannuation rights of such employees. Clause 42 inserts a new section 90A which saves particular contracts. Clause 43 inserts a new section 96A sets out proceedings for offences. Clause 44 makes consequential amendments.

5.6 _¯ Amendments to the State Electricity Commission Act 1958

Clause 45 inserts certain definitions into the State Electricity Commission Act 1958. Clause 46 substitutes new sections 12A and 12B into the Act. The new sections set out general functions and powers of the Commission and its functions and powers in relation to gas. Clause 47 makes consequential amendments. Clause 48 inserts new sections 83, 84, 85 and 85A into the Act which provide for the establishment of an Electricity Fund and a Gas Fund. The Commission must ensure that there are separate accounts and records of its transactions in respect of electricity and gas. Clause 49 makes consequential amendments. Clause 50 inserts a new section 85C into the Act. It provides that if an amount is paid by the Treasurer or the Treasurer provides an amount to the SEC for payment to the Gas Fund to enable the SEC to carry out its gas functions or meet its liabilities in respect of the Gas Fund, the Treasurer may require each gas company to pay such part of such an amount into the Consolidated Fund as the Treasurer determines. Clauses 51 and 52 make consequential amendments.

The Committee makes no further comment.

6.1

This Bill was introduced into the Legislative Assembly on 26 April 1995 by The Honourable Vin Heffernan MP with The Honourable Phil Gude MP.

6.2

This purposes of this Bill are:-

to establish a procedure for conciliation of disputes;

to extend the prohibition on the receipt of key-money by landlords or people on their behalf

6.3

Clause 4 inserts various definitions into the Retail Tenancies Act 1986. Clause 5 prohibits the landlord or any person acting on behalf of the landlord, from requesting, receiving or retaining the payment of any key-money. The Committee notes the comments in the Second Reading Speech:-

"A recent Supreme Court decision on the operation of the Act's key-money provisions has indicated that the scope of the protection afforded to tenants in this area is much narrower than previously thought.......

In the recent case of Burke V Gillett, the Supreme Court decided that key-money provisions of the Retail Tenancies Act only prohibit the payment of key-money in circumstances where the tenant was under some legally enforceable obligation to pay. This means that in the common situation where a landlord demands key-money as the price of renewing a lease or granting a further option for renewal, the Act would not operate to prohibit the payment of key-money as the tenant is under no legally enforceable obligation to pay it. Yet, the real commercial pressure on the tenant to pay key-money in these circumstances is clear.

The Government will extend the scope of the legislative provisions to prohibit a landlord or any person acting on his or her behalf from requesting, receiving or retaining any payment of key-money.......The prohibition will extend to all cases where key-money is paid in relation to the granting, renewing or assignment of a lease or sub-leases."

Clause 6 inserts a new Part 3 which provides for the determination of disputes. Disputes may be referred for conciliation. The procedure for conciliation is at the discretion of the conciliator. Evidence given is not admissible in any other proceedings. The fees and expenses of the conciliator are to be borne jointly by the parties to the dispute. The parties to the dispute bear their own costs of the conciliation. The dispute may be referred to arbitration if the conciliation fails or it is inappropriate. The arbitrator is given the power to grant injunctive relief. The arbitration must be conducted in accordance with the Commercial Arbitration Act 1984.

Clause 7 provides that upon the commencement of the new Part 3, the terms and conditions of appointment applying to current panel members will be transferred to the new system of dispute resolution and that they will become working members of the panel of conciliators and arbitrators. Clause 8 is a statute law revision provision.

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

New clause 22E provides that a member of the panel is not personally liable for anything done or omitted to be done by the member in good faith in the capacity of conciliator or arbitrator under the Act.

New clause 22G declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from:-

(a) entertaining any action in relation to a dispute referred to in section 20, other than an appeal or application in accordance with Part V of the Commercial Arbitration Act 1984 or an action under section 9(4) for the recovery of key-money or goodwill; and

(b) entertaining any action for liability in relation to a matter in respect of which section 22E provides that there is no liability.

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

"Proposed section 22G of the Bill provides that it is the intention of that clause to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of any action or proceeding in relation to a dispute referred to in proposed section 20 or any action or proceeding in the circumstances referred to in proposed section 22E.

The reasons for limiting the jurisdiction of the Supreme Court are as follows:

Firstly, in relation to limiting the Court's jurisdiction under new section 20 of the Principal Act, the intention has been to avoid costly and time consuming litigation in respect of a wide range of matters that are readily amenable to non-judicial determination. In the commercial arena such cost and time savings are of great importance. Despite the introduction of conciliation procedures, the limitation on the Court's jurisdiction is maintained at the same level as currently exists in Part Three of the Act.

Secondly, in relation to the immunity provisions, it is not uncommon for members of a tribunal or similar body to be afforded a measure of protection from legal proceedings in order to allow them to perform their duties properly and with confidence. Clearly defining the liability of panel members will enable them to act with confidence that their actions are supported by conventional guarantees against personal liability. Due to the introduction of a dual role for panel members this immunity is extended to all panel members, whether acting in the capacity of conciliator or arbitrator."

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

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