Alert Digest No. 3 of 1997
22 April 1997

LAND (REVOCATION OF MISCELLANEOUS RESERVATIONS) BILL

1.1

This Bill was introduced into the Legislative Assembly on 2 April 1997 by the Honourable Marie Tehan MP with the Honourable Pat McNamara MP.

1.2

The Bill revokes reservations of areas of land and revokes a Crown grant in relation to one of those areas of land.

The Committee makes no further comment.

HIRE PURCHASE (AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 19 March 1997 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

2.2

The Bill amends the Hire Purchase Act 1959 to allow for the passing on of the rental business duty to the hirer. The Committee notes the comments in the explanatory memorandum:-

"The Bill makes a simple, technical amendment to the Hire-Purchase Act 1959 to permit the passing onto customers of the rental business duty which was made applicable to hire-purchase agreements as of 1 January 1997 by way of amendments to the Stamps Act 1958 which also reduced the rate of rental business duty from 1.5% to 0.75%. Rental business duty may already be passed on to customers in relation to leasing and other financial arrangements. The ability to pass on rental business duty to hire-purchase customers ensures that this type of commercial transaction is treated the same way as any other arrangement such as a lease."

The Committee makes no further comment.

EDUCATION (FURTHER AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 2 April 1997 by the Honourable Phil Gude MP with the Honourable Phil Honeywood MP.

3.2

The purpose of the Bill updates the Education Act 1958 to provide that regulations may be made under the Act which confer a discretion or duty on, or leave a matter to be determined or approved by the Minister or a Departmental officer. The Committee has written to the Minister requesting further detail in relation to the application of the extended power in the Bill.

The Committee makes no further comment.

LIVESTOCK DISEASE CONTROL (AMENDMENT) BILL

4.1

This Bill was introduced into the Legislative Assembly on 3 April 1997 by the Honourable Pat McNamara MP with the Honourable Bill McGrath MP.

4.2

The purposes of the Bill are:-

• to amend the Livestock Disease Control Act 1994;
• to amend the Stamps Act 1958; and
• to make further provision for livestock disease compensation funds.

4.3 Part 2 - Livestock Disease Control Act 1994, Part 3 - Stamps Act 1958

Clause 6 inserts a new Division 3A and establishes a Sheep and Goat Compensation Fund. New section 79I establishes the Sheep and Goat Advisory Committee. Clause 9 provides for the furnishing of monthly returns and payment of stamp duty by approved agents. Clause 13 increases the rate of stamp duty for the sale of cattle from 2c for every $20.00 to 5c for every $20.00. Clause 14 sets out the duty payable for the sale of any sheep or goat at 9 cents.

The Committee makes no further comment.

FIRE AUTHORITIES (AMENDMENT) BILL

5.1

This Bill was introduced into the Legislative Assembly on 2 April 1997 by the Honourable Bill McGrath MP with the Honourable Pat McNamara MP.

5.2

The purposes of the Bill are:-

• to amend the Country Fire Authority Act 1958 to improve the operation and administration of that Act; and
• to amend the Metropolitan Fire Brigades Act 1958 to improve the operation and administration of that Act.

5.3 Part 2 - Country Fire Authority Act 1958

Clause 7 inserts new section 23AA which provides for the formation of industry brigades. Pursuant to sub-section (2) the Authority may require any relevant owner or group of relevant owners in a designated area:-

• to form an industry brigade;
• to apply to the Authority for registration of the industry brigade; and
• at the owners' expense, provide such officers and members of the industry brigade as are determined by the Authority; and
• at the owners' expense provide the industry brigade with such apparatus for the prevention or suppression of fires and the saving of life at fires as is determined by the Authority.

Clause 9 inserts new sections 55A and 55B which require municipal councils to prepare and maintain fire prevention plans. Clause 10 inserts new Part VA which establishes a Country Fire Authority Appeals Commission. Clause 12 makes it clear which provisions of the Principal Act are not to apply to industry brigades.

5.4 Part 3 - Metropolitan Fire Brigades Act 1958

Clause 19 substitutes new sections 6 to 21 which establish the Metropolitan Fire and Emergency Services Board. New clause 21 governs conflicts of interests. Note that pursuant to sub-section (6)(b) a member of the board is not to be regarded as having a conflict of interest in a contract or arrangement only because that contract or arrangement may benefit a company or other body in which the member has a beneficial interest that does not exceed $2000 or 1% of the total nominal value of beneficial interests in the company or body, whichever is the lesser. The Committee has written to the Minister seeking further information in relation to clause 21.

Clause 22 is a new delegation provision. Clause 26 substitutes a new section 26 which provides for the formation of units. Clause 33 inserts additional regulation making powers into the Act. Clause 54 substitutes new sections 79, 79A to 79S into the Act. These provisions establish the Metropolitan Fire and Emergency Services Appeals Commission.

5.5 Alteration or variation of Section 85 of the Constitution Act 1975 (Section 4D(b) of the Parliamentary Committees Act 1968)

Clause 60 inserts new section 94 into the Metropolitan Fire Brigades Act 1958. New section 94 declares the intention of section 54A to alter or vary section 85 of the Constitution Act 1975. New section 54A gives the Chief Officer and any members of a unit personal immunity for anything done or omitted to be done in good faith in the exercise of their duties under the Act. The Committee notes the comments in the Second Reading Speech:-

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

The functions of the Board are to provide fire prevention and suppression services and emergency prevention and response services. The nature of these responsibilities requires the people involved in the operation to enter dangerous situations and make instantaneous decisions on an appropriate course of action. These actions may put some third parties and their property at risk.

The operational staff are trained and highly skilled operators, and it is essential that in taking action, in situations of danger, they are free to make the decision which in their opinion, in the heat of the moment, is the most appropriate. If a further consideration required them to also consider whether they may then be responsible to a third party for damage, their ability to combat the emergency in the most appropriate manner would be compromised."

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

LOCAL GOVERNMENT (FURTHER AMENDMENT) BILL

6.1

This Bill was introduced into the Legislative Assembly on 2 April 1997 by the Honourable Rob MacLellan MP with the Honourable Pat McNamara MP.

6.2

The purposes of the Bill are to amend the Local Government Act 1989:-

• to clarify the powers of the Chief Executive Officers of Councils;
• to make changes concerning competitive tendering by Councils;
• to abolish the Local Government Board and to enable the creation of local government panels;
• to make changes concerning the payment of rates and charges and interest on overdue rates and charges; and
• to generally improve the operation of that Act.

6.3

Clause 2 is the commencement provision. Clause 4 substitutes new provisions in relation to the Chief Executive Officer. Clause 6 substitutes new section 95B which sets out the powers of the Minister in relation to the employment of senior officers. The provision is the same as the previous one except that it extends its operation to the Chief Executive Officer as well as the Council. Clause 8 inserts new section 97C which relates to the outside employment of senior officers. A register must be established which shows details of every approval given in relation to outside employment by senior officers. Sub-section (5) of new section 97C provides that the Minister may give a direction that public notice is not to be given of approval of such employment or that the approval is not to be shown on the register. The Committee has written to the Minister seeking further information in relation to sub-section (5) of new section 97C.

6.4

Clauses 9, 10, 12 and 13 make various changes to the payment of rates and charges as well as the payment in respect of the relevant interest. Clause 15 provides that the Council may sell land to recover unpaid rates or charges where the amount due is more than 3 years old.

Clause 16 amends section 186(5)(d). The Committee notes the comments in the Second Reading Speech:-

"To further improve efficiencies, the Bill provides that public tendering will not be required when a Council contract is a subcontract and valued at under $100,000 where there is an in-house agreement. However, the current requirement for public tendering for a council contract with an external supplier worth more than $50,000 will continue. The amendment will avoid `double tendering', whilst the $100,000 upper limit acknowledges that public accountability must still be demonstrated independently for significant supply contracts."

6.5 Competitive arrangements

Clause 19 amends section 208C which relates to the competitive process. The Committee notes the comments in the Second Reading Speech:-

"The proposed amendments in the Bill will enable councils to use an alternative competitive process by providing a threshold below which a council will not be required to go through the full CCT process. Thus clause 19 provides for certain arrangements for contracts valued at less than $50,000 to be `competitive processes' for the purposes of the Act when entered into by a council after an alternative competitive process conducted by the council in which:

• for contracts valued at up to $5000, the council has obtained a minimum of three verbal quotations; or
• for contracts valued at between $5000 and $50,000, the council has received three written quotations.

The use of quotation systems for small value contracts is similar to those used by the Victorian government purchasing board."

6.6 Local Government Panels

Clause 21 substitutes new Parts 10A and 10B into the Act which establish Local Government Panels. A member of a panel holds office on the terms and conditions determined by the Minister subject to compliance with any relevant guidelines published from time to time by the Office of the Public Service Commissioner. Pursuant to clause 23 the Minister may recommend that an Order in Council be made to give effect to minor boundary changes if he or she certifies to the Governor in Council that:-

• the proposed changes are of a minor nature only;
• any council whose municipal district is affected by the proposed changes has approved of the proposed changes; and
• public notice of the proposed changes has been given in the municipal district or districts affected by the proposed changes.

Clause 24 inserts new section 223A which provides for the appointment of inspectors of municipal administration by the Minister on such terms fixed by the Minister. The inspectors are not subject to the Public Sector Management Act 1992. New clause 223B sets out the powers of inspectors. The Committee notes that the new provisions relating to the appointment of inspectors are similar to repealed sections 130 and 131.

6.7 Alteration or variation of Section 85 of the Constitution Act 1975 (Section 4D(b) of the Parliamentary Committees Act 1968)

Clause 21 inserts new section 220I which declares the intention of section 220H to alter or vary section 85 of the Constitution Act 1975. New clause 220H excludes the review of local government panels in the Supreme Court. The Committee notes the comments in the Second Reading Speech:-

"Clause 21 of the Bill provides that it is the intention to vary or alter section 85 of the Constitution Act . The reason for limiting the jurisdiction of the Supreme Court is to ensure that the operation of Local Government Panels is not subject to the possibility of lengthy and expensive legal challenges which would uphold their proper purpose of advising the Minister. In fact, this provision mirrors the existing section 220O in relation to the Local Government Board."

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

MELBOURNE LANDS (YARRA RIVER NORTH BANK) BILL

7.1

This Bill was introduced into the Legislative Assembly on 10 April 1997 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

7.2

The purposes of the Bill are to:-

• enable the granting of long term leases for certain land adjacent to the Yarra River;
• provide for certain consequential rights;
• provide for the divesting of land shown on the plan in Schedule 2 from the Melbourne City Council;
• provide for the appointment of the Melbourne City Council as committee of management of the land shown hatched on the plan in Schedule 2; and
• provide for other related matters.

The Committee makes no further comment.

BUILDING (FURTHER AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 10 April 1997 by the Honourable Rob MacLellan MP with the Honourable Phil Gude MP.

8.2

The purpose of the Bill is to further amend the Building Act 1993 to improve the administration and operation of that Act.

8.3

Clause 10 amends section 97(1) to allow for the expenses of an adjoining owner incurred in assessing proposed protection work to be re-imbursed. Clause 11 inserts new section 160A which governs applications for determinations in respect of building design. Clause 13 removes the Building Practitioners Board mandatory obligation to pay costs if the Board makes a finding favourable to a registered building practitioner after an inquiry. The Committee notes the comments in the Second Reading Speech:-

"Section 181 currently provides that if the Building Practitioners Board (BPB) makes a finding favourable to a registered building practitioner, it must pay the costs of and incidental to the inquiry. This amendment will provide the BPB with the discretion to award costs and a decision not to do so will be subject to appeal to the Building Appeals Board."

Clause 17 amends section 201(1A) to raise the threshold of the cost of building work from $3,000 to $10,000 for the purposes of applying the building permit levy for new applications. Clause 19 amends section 217 to extend the application of the Act to the Crown and public authorities including councils in relation to the obtaining of building permits. Clause 21 inserts new powers of compliance auditors. Clause 22 inserts new Division 1A into Part 13 in relation to performance audits. Clause 24 substitutes a new section 229 which sets out the power of entry in relation to inspections of building or plumbing work. Clause 25 substitutes new section 231 and 232 in relation to enforcement and the issue of search warrants. Clause 26 inserts a new section 234A confidentiality provision.

Clause 30 amends section 32(1A) of the Sale of Land Act 1962 to require a vendor to give a purchaser particulars of any required insurance in the case of a residence constructed in the preceding 7 years by an owner-builder to which the House Contracts Guarantee Act 1987 applies, or domestic building work constructed in the preceding 6 years and 6 months to which section 137B of the Building Act 1993 applies.

The Committee makes no further comment.

POLICE AND CORRECTIONS (AMENDMENT) BILL

9.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Bill McGrath MP with the Honourable Pat McNamara MP.

9.2

The main purposes of the Bill are:-

• to amend the Control of Weapons Act 1990 to regulate body armour;
• to amend the Corrections Act 1986 in relation to the contracting out of the transport of prisoners and detainees;
• to amend the Firearms Act 1996 to make further provision in respect of clay target shooters;
• to amend the Police Regulation Act 1958 to improve the management, accountability and ethical conduct of the Victorian police force; and
• to make consequential amendments to the Children and Young Persons Act 1989, the Crimes Act 1958 and the Sentencing Act 1991.

9.3 Control of Weapons Act 1990, Corrections Act 1986,

Clause 6 inserts new section 8A into the Control of Weapons Act 1990 which provides for the control of body armour. Clause 11 inserts new section 9AA into the Corrections Act 1986 which provides for the making of custodial service agreements by the Chief Commissioner of Police. Clause 12 provides for the authorisation of staff. The Committee has written to the Minister seeking further information.

Clause 15 provides for the appointment of monitors for the proposed contracts with the Chief Commissioner similar to those provided for prisons.

9.4 Firearms Act 1996

Clause 18 amends section 9 of the Firearms Act 1996 to limit the issue of category C firearms to a maximum of one rimfire rifle and one shotgun in all cases other than for clay target shooting where more than one shotgun may be possessed if the Chief Commissioner is satisfied that there is a genuine need. Clause 20 enables junior licence holders to be licensed for category C longarms for the purpose of clay shooting. Clause 27 provides for the approval of firearms safety instructors by the Chief Commissioner.

9.5 Police Regulation Act 1958

Clause 36 inserts new section 16B which enables the Chief Commissioner to initiate an inquiry into a member of the police force's fitness and capacity to discharge duties and to retire a member found incapacitated by infirmity of mind or body. The Committee notes the comments in the Second Reading Speech:-

"Discharge by the Chief Commissioner will not automatically entitle a member to superannuation entitlements. This decision will continue to be made by the relevant superannuation authority."

Clause 38 redefines "conduct" and "serious misconduct". Clause 41 inserts a requirement to answer questions in relation to a breach of discipline under section 69.

9.6 Alteration or variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 16 amends section 111A of the Corrections Act 1986 to declare the intention of section 9CB to alter or vary section 85 of the Constitution Act 1975. Section 9CB is amended to provide that a person who uses reasonable force in accordance with the section is not liable for injury caused by that use of force. The Committee note the comments in the Second Reading Speech:-

"The provision of transport services under agreements with the Chief Commissioner of Police will require the movement of prisoners and detained persons to and from various institutions. At times, it will be necessary for authorised persons under those agreements to use reasonable force to ensure the transport function is carried out.

The nature of the persons being transported and the need to ensure that transportation is carried out mean the amendment is desirable. Persons undertaking transport need to be confident that in acting in accordance with the section, they will be protected from proceedings against them when acting properly."

The Committee has written to the Minister before forming a view as to whether the proposed section 85 provision is appropriate and desirable in all the circumstances.

Clause 50 inserts new section 585 into the Crimes Act 1958 which declares the intention of amended section 361 to alter or vary section 85 of the Constitution Act 1975. Section 361 of the Crimes Act 1958 governs the removal of accused persons to and from prisons. Clause 48 extends the operation of section 361 of the Crimes Act 1958 to other institutions such as approved mental health services etc.

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

"Clause 48 of the Bill amends section 361 of the Crimes Act 1958 by inserting a new sub-section (4) to extend the application of the section to police gaols and other specified institutions. Section 361 of the Crimes Act 1958 enables the movement of persons in a prison to and from a prison for the purposes of court appearances. Section 361 also provides that a person who acts in accordance with the section is not liable by reason of any removal or detainer under that section. The new references mean that persons acting in relation to police gaols and the specified institutions will also have this immunity. The reasons for limiting the jurisdiction of the Supreme Court are as follows;

This section is to be extended to apply to police gaols and other specified institutions. Historically police or other officers have undertaken this function as part of their traditional duties to assist court functions. The amendment clarifies the legislative base in a way that provides consistency with the process applicable to prisons. In addition the existing immunity provided to persons acting in accordance with the section is similarly applied.

The amendment is desirable to ensure that persons required to carry out the function of ensuring a detained persons attendance to assist the proper functioning of a court are confident that they are protected from proceedings against them when acting properly."

The Committee has written to the Minister before forming a view as to whether the proposed section 85 provision is appropriate and desirable in all the circumstances.

ROAD SAFETY (DISCLOSURE OF INFORMATION) BILL

10.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Robin Cooper MP with the Honourable Phil Gude MP.

10.2

The purposes of the Bill are:-

• to amend the Road Safety Act 1986 with respect to disclosure and use of information held by the Roads Corporation;
• to repeal the procedure set out in sections 456A to 456F of the Crimes Act 1958; and
• to make amendments of a statute law revision nature.

10.3

Clause 4 substitutes new section 92 in the Road Safety Act 1986. Sub-section (3) sets out the various lawful purposes for which confidential information may be used. Corporations must enter into confidentiality agreements which specify particular matters set out in sub-section (4).

The Committee makes no further comment.

ANGLICAN WELFARE AGENCY BILL

11.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Dr D Napthine MP with the Honourable Bill McGrath MP.

11.2

The purpose of the Bill is to incorporate an Anglican Welfare Agency as the successor in law of the Anglican Mission to the Streets and Lanes of Melbourne, the Mission of St James and St John at St John's Homes for Boys and Girls.

11.3

Clause 4 establishes Anglicare Victoria. Clause 9 provides for the transfer of all assets and liabilities. The Schedule contains the Constitution of Anglicare Victoria.

The Committee makes no further comment.

STATE TAXATION ACTS (AMENDMENT) BILL

12.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

12.2

The purpose of the Bill is to make various amendments to the Financial Institutions Duty Act 1982, the Land Tax Act 1958, the Pay-roll Tax Act 1971, the Stamps Act 1958 and the Taxation (Reciprocal Powers) Act 1987.

12.3 Financial Institutions Duty Act 1982, Land Tax Act 1958,
Pay-roll Tax Act 1971

Clause 3 ensures that amounts paid under a continuing credit contract can be paid into a credit provider's exempt account, thereby only attracting duty once. The Committee notes the retrospective effect of the provision from 12 November 1996. Clause 6 (1) clarifies that a public statutory body which is exempted from land tax can become liable for land tax by Order of the Governor in Council. Clause 7 increases the maximum penalty which may be provided for under the regulations from $100 to 20 penalty units. This is consistent with other state taxation statutes. Clause 10 amends the exemption for pay-roll tax for certain types of schools. The Committee notes the comments in the Second Reading Speech: -

"The exemption was previously based upon the ability of a school or college to provide education predominantly at or below the secondary level of education and be carried on for a non-profit purpose. The increasing variety of educational services provided by institutions has over a period of time made the determination of what is or is not secondary education more difficult, especially for officers of the State Revenue Office. The amendment replaces the secondary education requirement with a test of registration under Part III of the Education Act 1958. The consequence of this amendment is that revenue officers will not be required to make judgements about what constitutes secondary education, but will provide an objective basis to apply the exemption."

12.4 Stamps Act 1958, Taxation (Reciprocal Powers) Act 1987

Clause 12 contains statutory revision corrections. The Committee notes the explanatory memorandum which states that the corrections are to effect amendments to the Pay-roll Tax Act 1971 which were ineffective when purportedly made by the State Taxation (Amendment) Act 1992. The Committee notes the retrospective effect of the amendments from 24 November 1992. Clause 13 inserts new section 41 into the Stamps Act 1958 which provides for the set-off of duty overpaid due to the miscalculation of duty on an instrument or arithmetical error in calculating the total of a return against that person's liability to duty under a later return. Clause 16 amends section 67A to include de facto spouses in the definition of relative so that the exemption for nominee transfers extends to transfers between de facto spouses. Clause 17 amends sections 131AA and 131AC. The Committee notes the comments in the Second Reading Speech:-

"The Bill also clarifies the position regarding the reduction in duty on amounts received in the course of rental businesses. The rate of duty was reduced from 1.5% to 0.75% as part of the Government's last budget package. This amendment clarifies the operation of that reduction so that the new lower rate applies only to agreements, including hire-purchase agreements, entered into on or after 1 January 1997. This amendment ensures that this tax reduction applies in the manner stated in the Second Reading Speech to the State Taxation (Further Omnibus Amendment) Bill 1996 made in the Legislative Council on 15 October last."

Clause 20 inserts new section 137MD into the Stamps Act 1958 which relates to the exemption from stamp duty for refinanced business loans. The Committee notes the comments in the Second Reading Speech:-

"As part of the last Budget, stamp duty relief was granted on mortgages which secured bona fide refinanced business loans, to enable borrowers to take maximum advantage of competition in interest rates between financial institutions. The existing provision does not cover mortgages securing refinanced business loans provided from moneys sourced from solicitors' trust accounts, unless the solicitors in question have formed a company. The Government did not intend to require solicitors to incorporate to obtain the benefit of the exemption which also flows though to their clients. Accordingly, the new provision makes it clear that a person or body corporate may enter a mortgage with a sole practitioner or partnership of solicitors and still obtain the exemption as long as the refinanced loan is for bona fide business purposes."

Clause 23 inserts new section 6A into the Taxation (Reciprocal Powers) Act 1987 in relation to false and misleading statements.

The Committee makes no further comment.

ELECTRICITY INDUSTRY (LOY YANG B) BILL

13.1

This Bill was introduced into the Legislative Assembly on 9 April 1996 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

13.2

The purpose of the Bill is to facilitate the sale of the Loy Yang B power station.

13.3

Clause 2 is the commencement provision. Part 1 of the Bill comes into operation on the day on which the Act receives the Royal Assent. The remaining provisions come into operation on a day or days to be proclaimed. The Committee notes the explanatory memorandum which states that the Bill is unable to commence on a named day as its commencement relates to the completion of the sale of the Loy Yang B power station. Clause 7 requires the SEC to give to the Treasurer and the Minister within three months, a statement approved by the Minister and signed by the Administrator relating to property, rights and liabilities of the SEC. Clause 9 provides for the transfer of the relevant property. Clause 11 authorises the Treasurer to enter into and give effect to the Loy Yang B Transaction Implementation Agreement and all transactions referred to or contemplated in the Loy Yang B Transaction Implementation Agreement.

13.4

Clause 12 amends section 153X of the Electricity Industry Act 1993 which sets out the exemptions from the Freedom of Information Act 1982. The amendment expands the specified matters to include the terms of the Loy Yang B Transaction Implementation Agreement and the transactions referred to or contemplated in that Agreement. The Committee notes the comments in the Second Reading Speech:-

"The Bill includes an exemption from the Freedom of Information Act 1992 for the documents relating to the revised Loy Yang B arrangements which contain commercially sensitive information."

Clause 14 inserts new section 158BA in relation to the power to regulate charges. The Committee notes the comments in the Second Reading Speech:-

"The Bill provides that the Governor in Council , by order published in the Government Gazette may regulate in such manner as the Governor in Council sees fit, the prices payable by persons purchasing electricity from the wholesale electricity market for the purpose of reducing the price SECV pays for the power to be supplied to the aluminium smelters.

The purpose of this order is to reduce the losses incurred by SECV under the smelter power supply agreements. It will replace the current order which regulates the price which SECV is entitled to receive for the power it purchases from Loy Yang B and sells into the pool. The financial effect of the new order will be approximately equal to the financial effect of the existing arrangements."

The Committee makes no further comment.

TAXATION ADMINISTRATION BILL

14.1

This Bill was introduced into the Legislative Assembly on 9 April 1997 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

14.2

The Bill standardises the administration and enforcement provisions of a number of Victorian taxation laws. The Bill will initially apply to the Debits Tax Act 1990, the Financial Institutions Duty Act 1982, the Pay-roll Tax Act 1971 and the Taxation (Reciprocal Powers) Act 1987. By way of background the Committee notes the comments in the Second Reading Speech:-

"In 1994 as part of its commitment to micro-economic reform, the Government gave approval to the Victorian State Revenue Office to participate with the tax offices of New South Wales, South Australia, Tasmania and the Australian Capital Territory in planning to re-write the Stamps Act. The Stamp Duties Rewrite project soon recognised that the taxation legislation of each of the participating jurisdictions imposed administrative procedures which differed significantly, even among the taxing Acts within individual jurisdictions...

By consolidating the numerous administrative provisions in the taxing Acts into a simplified and modernised code which is consistent, wherever possible with other jurisdictions, compliance costs for taxpayers will be reduced. This Bill is also a step forward in the development of uniform State and Territory taxation legislation. A consistent approach to the administration of taxation collection will particularly assist those taxpayers with transactions in more than one jurisdiction. New South Wales and South Australia have already enacted their equivalent Acts and as I have said, the Bill is consistent with the legislation already enacted in those States."

14.3 Parts 1, 2, 3 and 4

Part 1 contains various definitions. Part 2 set out the relationship of the Bill with other taxation laws. Part 3 relates to the assessment of liability. Clause 12 provides for a compromise tax assessment where it is difficult or impracticable for the Commissioner to determine a person's tax liability under a taxation law. Note that an assessment or reassessment made under clause 12 with the agreement of the taxpayer is a non-reviewable decision. Part 4 governs tax refunds.

The Committee is of the view that the application of clause 19(2) is unclear. The Committee has written to the Minister.

14.4 Parts 5, 6 and 7

Part 5 provides for the payment of interest and penalty tax. Part 6 governs returns in general. Part 7 provides for the collection of tax.

Clause 47 specifically provides for the collection of tax from third parties:-

• a person by whom any money is due or accruing or may become due to the taxpayer;
• a person who holds or may subsequently hold money for or on account of the taxpayer;
• a person who holds or may subsequently hold money on account of some person for payment to the taxpayer;
• a person having authority from some other persons to pay money to the taxpayer.

14.5 Parts 8, 9, 10 and 11

Part 8 contains various record keeping provisions and set out the general offences. Part 9 sets out those provisions which relate to secrecy, tax officers and investigation. Clause 62 provides for a Commissioner of State Revenue to be appointed under the Public Sector Management Act 1992. Clause 76 provides that authorised officers may search without a warrant if he or she believes on reasonable grounds that there are documents or things on any premises that are relevant to the administration or execution of a taxation law. Clause 77 provides for a search by an authorised officer with a search warrant obtained from the Magistrates' Court. Part 10 provides for objections, reviews and appeals. Part 11 contains miscellaneous provisions.

14.6 Alteration or variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i) of the Parliamentary Committees Act 1968)

Clause 135 declares the intention of sections 5, 12(4), 18(1), 96(2), 100(4) and 108(1) to alter or vary section 85 of the Constitution Act 1975. It is convenient to consider each section in turn.

(a) Section 5 - General provision - definition of non-reviewable decision

Section 5 defines the meaning of non-reviewable decisions in relation to the Bill. It states that if a provision of the Bill provides that a decision is a non-reviewable decision no court or administrative review body, including the Tribunal has jurisdiction or power to entertain any question as to the validity or correctness of the decision.

(b) Section 12(4) - Compromise assessment

Section 12 provides for compromise assessments where it is difficult or impracticable for the Commissioner to determine a person's tax liability under a taxation law. Subsection (4) of section 12 provides that such an assessment is a non-reviewable decision as defined by section 5. The Committee notes the comments in the Second Reading Speech:-

"The reasons for limiting the jurisdiction in relation to a compromise assessment under section 12 are that agreement has been reached between the Commissioner and the taxpayer on the taxpayer's liability and the purpose of the section would not be achieved if the decision was reviewable."

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

(c) Section 18(1) - Tax refunds

Section 18 sets out the application of the Bills in relation to tax refunds. Subsection (1) provides that proceedings for the refund or recovery of tax paid must be brought except as provided for in the Part. The Committee notes the comments in the Second Reading Speech:-

"Section 18 of the legislation establishes a procedure, the adherence to which is a condition precedent to taking any further action for recovering refunds. The refund provisions replicate those existing in the current taxation Acts. The purpose of the provisions is to give the Commissioner the opportunity to consider a refund application before any collateral legal action can be taken. The purpose of these provisions would not be achieved if the Commissioner's actions were subject to judicial review."

The Committee has written a letter to the Minister before forming a view as to whether the proposed section 85 provision is appropriate and desirable in all the circumstances. In that context, the Committee has also written requesting further information about the operation of clause 19(2).

(d) Section 96(2) - Objections

Section 96 provides that a taxpayer may lodge a written objection if dissatisfied with an assessment other than a compromise assessment. Section 96(2) provides that no court or administrative review body including the Tribunal has jurisdiction or power to consider any question concerning an assessment except as provided by the Part. Note that section 106 provides that a taxpayer who is dissatisfied with the Commissioner's determination may request the Commissioner to refer the matter to the Tribunal or the Supreme Court. Subject to certain time limits set out in section 106(2) the Commissioner must refer the matter for review or cause the objection to be set down for hearing in the Supreme Court. The Committee notes the comments in the Second Reading Speech:-

"Section 96 of the legislation establishes an exclusive code for dealing with objections and appeals. This code establishes the rights of objectors in a statutory framework and preclude any collateral actions for judicial review. The objections and appeals provisions establish that review of assessments is only to be undertaken in accordance with an exclusive code identified in that division. The purpose of these provisions would not be achieved if the Commissioner's consideration of an objection were subject to judicial review."

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

(e) Section 100(4) - Objections lodged out of time - Non-reviewable decision

Section 100 provides that the Commissioner may permit a person to lodge an objection after the 60 day period. Section 100(4) provides that the Commissioner's decision under section 100 is a non-reviewable decision. The Committee notes the comments in the Second Reading Speech:-

"A new power is provided to the Commissioner under section 100 which provides the Commissioner with the discretion to allow an objection to be lodged even though out of time. This decision is non-reviewable to ensure the efficient administration of the Act and to enable outstanding issues relating to assessments to be concluded expeditiously."

The Committee has written a letter to the Minister before forming a view as to whether the proposed section 85 provision is appropriate and desirable in all the circumstances.

(f) Section 108(1) - Review or appeal prohibited unless tax is paid

Section 108(1) provides that a taxpayer cannot exercise a right of review or appeal unless the whole of the amount of the tax to which the appeal relates has first been paid. The Committee notes the comments in the Second Reading Speech:-

"Section 108(1) of the Bill prevents a taxpayer from lodging an appeal unless the tax owing has been paid. The jurisdiction of any Court to hear the appeal is ousted unless the tax is paid or the Commissioner agrees that the appeal may proceed. The purpose of this provision would not be achieved if taxpayers were able to use the appeal provisions as a means of unduly delaying payment of tax."

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

Committee Room
21 April 1997

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