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FIRE SERVICES PROPERTY LEVY BILL 2012
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30 August 2012
Statement of Compatibility
WELLS
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FIRE SERVICES PROPERTY LEVY BILL 2012
Statement of compatibility
Mr WELLS (Treasurer) tabled following statement in accordance with Charter of
Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006 (charter act), I make this statement of
compatibility with respect to the Fire Services Property Levy Bill 2012.
In my opinion, the Fire Services Property Levy Bill 2012, as introduced to the
Legislative Assembly, is compatible with the human rights protected by the
charter act. I base my opinion on the reasons outlined in this statement.
Overview of bill
The purpose of the bill is to abolish the insurance industry statutory
contributions to the Country Fire Authority and the Metropolitan Fire and
Emergency Services Board and provide for the imposition and collection of a
fire services property levy on all land in Victoria, unless specifically
exempted, for the purpose of funding the Country Fire Authority and the
Metropolitan Fire and Emergency Services Board to provide public services.
The Victorian Bushfires Royal Commission concluded that the current
insurance-based model is highly inequitable, lacks transparency and is a
disincentive to fully insure property. The bill implements recommendation 64
of the Victorian Bushfires Royal Commission that 'the state replace the fire
services levy with a property-based levy and introduce concessions for
low-income earners'.
Human rights issues
1. Human rights protected by the charter that are relevant to the bill
Freedom of movement
Section 12 of the charter provides that every person lawfully in Victoria has
the right to move freely within Victoria and to enter and leave it and has the
freedom to choose where to live.
Clause 54(2)(b) of the bill provides that the commissioner of state revenue
may require a person to attend at a specified time and place to answer
questions relevant to an authorised investigation. Similarly, clause 89(1)(c)
provides that the Essential Services Commission may require a person to appear
before the commission to provide evidence.
To the extent to which these provisions may require a person to move to, or
from, a particular location they may represent a limit on that person's
freedom of movement.
Right to privacy and reputation
Section 13 of the charter provides that a person must not have their privacy,
family, home or correspondence unlawfully or arbitrarily interfered with or to
have their reputation unlawfully attacked.
Clause 24 engages the right to privacy as it provides for the maintenance by
councils (collection agencies) of levy records which will to some extent
contain personal information. The levy will apply to non-rateable properties.
Currently councils (collection agencies) do not keep valuation records for
non-rateable properties.
For the purposes of collecting the levy, they will be required to keep records
of the value, description and names and addresses of owners to allow the
properties to be assessed for levy purposes. These provisions are reasonable
and necessary to enable collection agencies to maintain records that allow
them to perform their functions.
Clauses 54 empowers the commissioner of state revenue to require a person to
provide information, documents or evidence. Clause 55 empowers authorised tax
officers to enter, search and inspect premises, as well as to require persons
to provide documents for inspection and answer questions relevant to an
authorised investigation.
Certain safeguards have been included, for example:
a person may refuse to give information, produce documents or answer
questions on the grounds that it would incriminate that person;
an authorised officer may only enter premises with the consent of the
occupier or with the authority of a warrant. On request, an authorised
officer must produce their identity card;
particular information obtained under the act is prohibited from disclosure
without the consent of the person to whom the information relates, unless
its disclosure is required in connection with the administration or
enforcement of the act or otherwise required by law.
It is envisaged that the commissioner, in his or her oversight role, may
require a council officer to provide an annual return or other information
outlining the number and value of
Page 3880
properties in the councils' municipality and the extent of any underpayments by
property owners. This information will be used to ensure the council has
remitted the correct amount of revenue to the commissioner. The commissioner may
also be required to investigate the costs incurred by a council in collecting
the levy for the purposes of determining any fees to be paid.
The commissioner of state revenue will be responsible for overseeing councils
in the performance of their responsibilities as collection agencies under the
scheme. It may be necessary for the commissioner to require a person to comply
with a notice where the commissioner is of the view that a council is either
not accurately assessing property owners for the levy, is not taking
reasonable steps to collect the levy revenue, or is not remitting the correct
amount of revenue to the commissioner.
These qualified powers are therefore reasonable and necessary for the
administration of the scheme established by the bill, as they enable the
commissioner to conduct investigations for the purposes of exercising his or
her functions under part 4, in particular to monitor the performance of
councils as collection agencies for the levy.
Clauses 89 and 91 are intended to enable the Essential Services Commission to
undertake a review of the movement in insurance premiums and to report on the
review to the government.
Such reports may contain personal or confidential information thus engaging
the right to privacy and reputation. Protections are provided in that the
report must be divided into a document containing confidential information (if
any) and another document containing the remainder of the report.
Further, the person or body potentially impacted may apply to the Essential
Services Commission (under section 38 of the Essential Services Commission Act
2001) for non-disclosure of the information and the Essential Services
Commission must not disclose the information where to do so would cause
detriment (a public interest test applies in certain circumstances).
These provisions are justified because the purpose of the review is to ensure
the protection of consumers of insurance after the transition to, and
implementation, of the fire services property levy. Further, the purpose of
the Essential Services Commission review would not be achieved without the
collection of some commercially sensitive information such as the price of
insurance premiums and policy inclusions. It is appropriate that this
information be separated from the remainder of the report to prevent
commercially sensitive information being made public if the report were
released.
Once the Essential Services Commission's functions are complete these
provisions will be repealed.
To the extent that information obtained under the bill is personal
information, the Information Privacy Act 2000 provides a further safeguard
that will assist in ensuring the right to privacy is upheld.
Whilst these clauses raise the right to privacy and reputation, for the
reasons stated above these clauses do not limit that right.
Freedom of expression
Section 15(2) of the charter provides a person the right to freedom of
expression.
Clauses 54 empowers the commissioner of state revenue to require a person to
provide information, documents or evidence. Clause 55 empowers authorised tax
officers to require persons to provide documents for inspection and answer
questions relevant to an authorised investigation.
Clause 89 empowers the Essential Services Commission to compel a person to
give evidence or produce documents.
To the extent that these clauses compel a person to provide information, they
engage the right to freedom of expression as freedom of expression encompasses
a freedom not to express.
Right to property
Section 20 of the charter protects against deprivation of property other than
in accordance with law.
Clauses 54 and 55 of the bill engage this right because they respectively
empower the commissioner of state revenue to require a person to provide
documents and empower authorised tax officers to enter, search and inspect
premises, as well as to compel persons to provide documents for inspection
relevant to the investigation including the power to retain a document, to
make a copy of it, or to take extracts from it.
An authorised tax officer may only enter premises with the consent of the
occupier or with the authority of a warrant. On request, an authorised tax
officer must also produce their identity card.
These appropriately circumscribed powers are reasonable and necessary for the
administration of the scheme. They are not arbitrary as they will enable the
commissioner to conduct investigations for the purposes of exercising his or
her functions under part 4, in particular to monitor the performance of
councils as collection agencies. The right to property is upheld by these
clauses because any deprivation of property will be neither unlawful nor
arbitrary.
Clause 89 also engages the right to property because it empowers the Essential
Services Commission to require a person to produce documents. It is envisaged
that the Essential Services Commission will primarily require the production
of documents by insurance companies and insurance brokers to undertake a
review of the movement in insurance premiums. The Essential Services
Commission may require information related to the current price of a range of
insurance policies, movements in pricing over time and levy amounts collected.
This power is reasonable and necessary so that the Essential Services
Commission can verify information provided to it, so as to ensure the accuracy
of its reviews of insurance premiums. Again, the right to property is upheld
because any deprivation of property by this clause will be neither unlawful
nor arbitrary.
Page 3881
Right to a fair hearing
Section 24 of the charter provides for the right to a fair hearing.
Clause 84 of the bill outlines that it is the intention of clauses 12, 15 and
37 (read with clause 5) to alter or vary section 85 of the Constitution Act
1975.
The levy rates for a particular land use classification is set by the minister
pursuant to clause 12. Pursuant to clause 15, the land use classification of a
particular parcel of land is based directly on the AVPCC allocated to that
parcel of land by the Valuation Authority under the Valuation of Land Act
1960.
The right to a fair hearing is engaged by clauses 12(5) and 15(5) insofar as
an objection, review or appeal in respect of a levy rates determination or
land use classification cannot be made under the bill.
Clause 37(6) does not engage the charter as it only circumscribes the standing
of councils which are not within the scope of the charter.
Right to be presumed innocent
Section 25(1) of the charter provides that a person charged with a criminal
offence has the right to be presumed innocent until proven guilty according to
law.
Clause 55(6)(b) of the bill provides that it is an offence for a person to
refuse or fail, without reasonable excuse, to comply with a requirement made
by an authorised officer in the exercise of that officer's powers of search,
entry and inspection.
This right is engaged insofar as an evidentiary onus is placed on the accused
to provide a reasonable excuse for failing to comply. In the absence of any
evidence of reasonable excuse a conviction may ensue without the prosecution
proving all the elements of the offence in the usual way.
Right not to be compelled to testify against oneself
Section 25(2)(k) of the charter provides that a person charged with a criminal
offence has the right not to be compelled to testify against himself or
herself or to confess guilt.
Clauses 54 and 55 empower the commissioner of state revenue and authorised tax
officers (respectively) to require a person to produce documents or answer
questions on pain of penalty. Clause 89 similarly empowers the essential
services commissioner to compel a person to produce documents and provide
evidence.
This right could be engaged to the extent that clauses 54, 55 and 89 could be
used to compel a person charged with a criminal offence to provide information
that would tend to incriminate the person.
2. Consideration of reasonable limitations -- section 7(2)
Freedom of movement
The right to freedom of movement under section 12 of the charter may be
limited by operation of clauses 54(2)(b) and 89(1)(c) of the bill.
These limitations are important because they form part of the suite of powers
required to effectively monitor, investigate and enforce compliance with the
bill where cooperation with an investigation or review is not forthcoming.
The limitation only extends to an individual person who is required to attend
or appear and the limitation only operates for the period of time a person is
required to attend or appear.
Ordinarily, a person will be asked to answer questions or give evidence on a
voluntary basis, or provide the relevant information in writing.
However, attendance or an appearance may be considered necessary where a
person refuses or demonstrates a reluctance to do so, and the information
cannot be obtained from other sources.
These limitations are reasonable and necessary to achieve the legitimate aim
of establishing a regime which operates fairly and effectively. In so doing,
it is necessary to have some powers which can be used where cooperation with
an investigation or review is not forthcoming. Ultimately, these powers will
help to ensure that the Country Fire Authority and the Metropolitan Fire and
Emergency Services Board are funded to provide public services for the public
good.
Freedom of expression
To the extent that clauses 54, 55 and 89 compel a person to answer questions,
provide information or produce documents, they may limit the right to freedom
of expression under section 15 of the charter.
In the case of clauses 54 and 55, the purpose of the limitation is to ensure
that, where cooperation with an investigation is not forthcoming, the
commissioner of state revenue and authorised tax officers can effectively
conduct investigations for the purposes of exercising the commissioner's
functions under part 4, in particular to monitor the performance of councils
as collection agencies.
In the case of clause 89, the purpose of the limitation is to ensure that,
where cooperation with a review is not forthcoming, the Essential Services
Commission can effectively conduct reviews as the provision of information and
documents provides the means by which the Essential Services Commission can
verify information provided to it, so as to ensure the accuracy of its reviews
of insurance premiums.
The powers in clauses 54 and 55 are limited to being upon written notice from
the commissioner of state revenue or to during the exercise of an authorised
tax officer's entry, search and inspection powers. In each instance the
request can be made only in relation to matters relevant to an investigation
requested and authorised by the minister. The powers in clause 89 are limited
to being upon service of a notice or summons by the Essential Services
Commission.
Further, the powers provided for by clauses 54 and 55 would generally be used
only in relation to councils and the powers at clause 89 would generally be
used only in relation to insurance companies and brokerage companies (bodies
not encompassed by the charter).
The limitations are reasonable and necessary so that the commissioner of state
revenue and the Essential Services Commission can gather the information
necessary for the purpose of effectively implementing the scheme where
cooperation of persons is not otherwise forthcoming.
Page 3882
Right to a fair hearing
The right to a fair hearing under section 24 of the charter may be limited by
the operation of clauses 12, 15 and 37 of the bill.
Clause 12's limitation on review of the levy rates determination is required
for the efficient determination and collection of government revenue. The
setting of levy rates will be considered by budget and expenditure review
committee ministers. If the levy rates were challenged there would be a danger
that insufficient revenue would be collected to meet the fire services
budgets. Minister's discretion to determine rates should not properly be the
subject of review.
As to the limitation provided for by clause 15, the land use classification
under the bill is wholly contingent on the AVPCC allocated to a parcel of
land. Part III of the Valuation of Land Act 1960 provides for a person
aggrieved by a valuation or AVPCC allocation to make an objection. Therefore,
the restriction on review of land use classification is required to prevent
unnecessary proceedings and overlap with the review procedures under the
Valuation of Land Act 1960.
These limitations are reasonable and necessary to ensure the efficient
administration of the levy assessment and collection scheme established by the
bill, which is integral to the ultimate purpose of government's revenue
raising for funding the Country Fire Authority and the Metropolitan Fire and
Emergency Services Board to provide public services.
Right to be presumed innocent
The right to be presumed innocent under section 25(1) of the charter may be
limited by the operation of clause 55(6)(b) of the bill.
The importance of the purpose of this limitation is to enable a person who has
a 'reasonable excuse' to escape liability for what would otherwise be unlawful
conduct.
The limit recognises that individuals may make honest and reasonable mistakes,
or fail to comply because of circumstances which are beyond their control.
These are facts that are peculiarly within the knowledge of the defendant and
therefore it is reasonable that the defendant adduce or point to the evidence
which puts these matters in issue. The limit deals with the problems of
evidencing such matters.
The limitation will only apply where a defendant is charged with an offence
under clause 55(6)(b). In addition, when evidence of reasonable excuse is
adduced the prosecution will have the burden of disproving the matters raised
beyond reasonable doubt. Finally, the defendant will only be exposed to a
minor financial penalty.
The matters pertaining to reasonable excuse are peculiarly in the knowledge of
the person charged and therefore it is reasonable that they point to evidence
which puts the matter in issue.
Removing the defence altogether would mean that the relevant clauses no longer
imposed a limit on the right to be presumed innocent, but this would defeat
the purpose of the limitation, because a person charged could not avoid
liability even if they could point to a reasonable excuse for non-compliance.
To the extent that the limitation requires the defendant to meet an
evidentiary onus, rather than requiring that matter to be proven on the
balance of probabilities, the limitation already represents a less restrictive
means of achieving the purpose.
Right not to be compelled to testify against oneself
Where a person is charged with a criminal offence, the right under section
25(2)(k) of the charter not to be compelled to testify against oneself may be
engaged by clauses 54, 55 and 89 of the bill.
It is envisaged that clauses 54, 55 and 89 will be used primarily against
councils, insurance companies and brokerage companies where cooperation with
an investigation is not forthcoming. Such entities are not encompassed by the
charter.
To the extent that an individual person might be compelled, extensive
safeguards have been included in the bill under clauses 59 and 90, which
provide that a person may refuse to give such information if to do so would
tend to incriminate the person in respect of an offence other than an offence
under this bill. They further provide that any information given under clauses
54, 55 and 89 is not admissible in evidence against the person in any
proceeding in respect of an offence under this bill. In addition, these powers
are generally reserved for circumstances where an individual has failed to
cooperate with an investigation or review and the information cannot be
obtained from other sources.
There may be some remaining limitation on the right to the extent that a
person may be compelled to give information that could lead to subsequent
information being obtained and used as evidence for an offence under some
other law (a derivative use).
Finally, the courts also have a role in determining the admissibility of
information derived from compelled questioning.
Given the above, any remaining limitation is reasonable and proportionate as
it will ensure that, where cooperation with an investigation or review is not
forthcoming, the commissioner of state revenue or the Essential Services
Commission can obtain the information they need to effectively conduct full
and proper investigations or reviews for the purposes of the bill. This is
essential to ensure the fair and proper administration of the scheme.
Conclusion
For the reasons given in this statement, I consider that the bill is
compatible with the Charter of Human Rights and Responsibilities Act 2006.
Kim Wells, MP TreasurerMr WELLS (Treasurer) -- I move: That this bill be now read a second time. This bill will enact the government's election commitment to implement the Victorian Bushfires Royal Commission's recommendation that the state
Second reading
Page 3883
replace the fire services levy with a property-based levy. The new levy will ensure that all property owners pay a fair contribution for fire services and that Victoria's fire services continue to operate with sufficient resources. The annual budgets of Victoria's fire services are mainly funded by financial contributions from insurance companies, the state government and metropolitan councils. The state and commonwealth governments provide additional funding in the event of major fires. Insurance companies recover the cost of their contributions by imposing a fire services levy (FSL) on insurance premiums. In February 2009, Victoria experienced its most devastating bushfire in the state's history. One hundred and seventy three people died as a result of the Black Saturday fires and, unlike previous major Victorian fires, many perished in and around their homes. In response, the state government established the Victorian Bushfires Royal Commission to examine the causes and circumstances of the deaths that occurred as a result of the Black Saturday bushfires. On 19 November 2009, the Victorian Bushfires Royal Commission released a discussion paper on insurance and the funding of fire services through the fire services levy. The Victorian Bushfires Royal Commission concluded that the current insurance-based model is highly inequitable, lacks transparency and is a disincentive to fully insure property. Under the current model, underinsured and uninsured property owners either do not contribute at all, or pay a lower contribution, to the cost of Victorian fire services. In addition, owners of similar assets can pay considerably different premiums, and therefore make different FSL contributions, depending on the deductible and the policies they choose. The insurance-based model also increases the cost of insurance, leading to non-insurance and under-insurance. Removing the FSL will make insurance more affordable, and assist more property owners to recover from adverse events. The bill will bring reform to a system that is complicated and unfair, involving a combination of insurance levies, and state and local government contributions. Although essential firefighting services and community safety programs have been available to all, only some people have contributed to them; indeed, many have received a free ride. From 2013-14 onwards, all Victorians will share the responsibility of supporting these services, just as all Victorians benefit from these services. This reform eliminates the tax on tax from the current FSL component of insurance premiums -- the GST and stamp duty -- which will not be recovered by the property levy. The removal of the tax on tax will significantly reduce the amount collected from taxpayers. Victoria's move to a property-based levy is consistent with recent reform in other states and territories. The Australian Capital Territory (2006-07), Western Australia (2003), South Australia (1999) and Queensland (1985) have introduced funding systems for fire services that require property owners to contribute via a levy on property. Tasmania levies residential property owners, while retaining an insurance-based levy on businesses. On 30 June 2011, the government released the fire services property levy options paper outlining a range of levy design and implementation issues. Over 130 submissions were received to this options paper. During October and November the government held 16 public consultation meetings across the state to allow Victorians to have their questions answered and comment on the options for the design of the new fire services levy. The government has taken into account written submissions on the options paper and views expressed at the public consultation meetings. This bill introduces a new levy on all real property, including non-rateable property and property owned by local councils. The state government contribution will be retained in lieu of a property levy on state government property, on the grounds of simplicity and lower administration costs. The bill removes the statutory requirement for municipal councils wholly or partly within the metropolitan area serviced by the MFB to contribute 12.5 per cent of the MFB's approved annual budget. Limited exemptions for network infrastructure assets such as roads and gas and water pipelines will be provided where there are significant limitations in obtaining accurate valuations and to prevent 'double charging' when networks cross leviable land. The exemptions would not extend to assets such as electricity generators where valuations can be obtained. Local councils will be responsible for collecting the property levy, as they already have an established relationship with property owners. Where relevant, the
Page 3884
legislation is modelled on the Local Government Act 1989 to ensure continuity of the administrative framework in which local councils operate. The State Revenue Office will provide oversight. The bill provides that local councils will receive fees for performing their administrative functions under the act. In addition, the state government will also fund establishment costs for local councils. The State Revenue Office will work closely with local councils to implement the new levy. The government will also conduct public information campaigns to raise awareness and understanding of the new levy. The most significant levy design feature is the valuation base. The levy will be assessed on the capital improved value (CIV) of property. CIV is consistent with the valuation base used by most local councils in levying rates. Using a consistent valuation base reduces the administration costs of the new property levy. CIV is also the most equitable valuation base as it will not significantly benefit some land uses to the detriment to others. As CIV recognises the value of land as well as improvements, it strikes a fair balance between land intensive activities, such as farming, and capital intensive uses, such as industrial activities. Non-rateable properties will be brought into the tax base and need to be valued so that they can be levied. As there will not be another property valuation cycle before 1 July 2013, the valuer-general will value these properties for the first time. This will ensure that non-rateable properties are valued in a timely and consistent manner. Consequential amendments to the Valuation of Land Act 1960 allow for local councils to value these properties as part of future valuation cycles. The property levy rates will be set annually to ensure the fire services receive the appropriate level of funding. It will be the Treasurer's responsibility to determine the levy rates that are payable for a levy year by reference to a number of factors, including the annual funding requirement for the MFB and the CFA, and the administrative costs of the councils in performing their functions under the legislation. The legislation will allow the Treasurer to declare the levy rate by 31 May each year in the Government Gazette, prior to the commencement of the levy year in which the levy rates are to apply. The levy is designed to meet the standard funding requirements of the fire services. Any additional funding, such as for catastrophic bushfire events, would continue to be funded from consolidated revenue. This reflects the current arrangements for funding responses to major fires. The bill will provide for the fire services property levy to comprise a fixed component and an ad valorem charge. The fixed component would reflect the public benefits received from the fire services, such as on-call capacity and fire prevention activities, while the ad valorem property rate (a charge calculated as a percentage of property value) will reflect the benefits to individual property owners, as well as capacity to pay. An ad valorem component reflects the value of the asset protected from fire damage and the additional cost of the fire brigades attending an incident at a large high-value retail complex over a small detached residential property. The fixed charge will be $100 for residential property and $200 for non-residential property, and will be indexed annually by CPI. The fixed charges have been set at level sufficient to ensure revenue exceeds collection costs from owners of low-valued property by an appropriate margin, while still reflecting the capacity to pay. Under the current insurance-based fire services levy, the fire services are funded by contributions from insurers on the basis of the value of property insured in each service's area. This leads to different rates in the CFA and MFB areas. The new property levy will continue to apply differently in each area. This bill will allow for different levy rates to apply to broad property classifications, according to the following: residential, commercial, industrial, primary production, public benefit and vacant. Treating properties differently according to broad property classifications is common in other jurisdictions, and will ensure a smooth transition to the new system. The property classifications will be fixed in the legislation, subject to future review, with the proportion of the required funding contribution from each classification to be determined with each rate setting cycle. Having different property classifications provides flexibility to set different levy rates for each property classification to ensure an equitable contribution from each sector and smooth the impact on property owners of the new levy. The bill also provides the Treasurer with power to set a maximum property levy amount payable in respect of leviable land, if required by notice published in the Government Gazette. The bill provides that certain land vested in, occupied by, or under the care, control and management of any council which is non-commercial or non-business in nature and has a public benefit property classification
Page 3885
will pay the fixed component of the levy only, not the ad valorem component. Council-owned community service and sporting club rooms and halls will also pay the fixed component only. While focusing on the desire to ensure that the new funding system is more equitable than current circumstances, the government has also been mindful that there are people in the community whose ability to pay is limited. In this regard the bill provides a $50 concession for holders of pensioner concession cards and Department of Veterans' Affairs gold cards only to align with the rates concession. The concession will only be provided for the eligible card holder's principal place of residence. Local councils will be allowed to retain the bank interest they make on levy amounts and levy interest before they transfer these amounts to the commissioner of the SRO. The bill provides that the commissioner may require this bank interest to be paid to the SRO if a council fails to perform its duties or breaches its obligations under the act. The commissioner has discretion to send a series of warnings before this action is taken. However, if there is a serious breach, the Treasurer may seek the Minister for Local Government to exercise his/her powers under section 219 of the Local Government Act 1989. The bill provides for the Essential Services Commission to review the insurance industry during and following the implementation of the new levy and provide reports to the Treasurer. The Treasurer may provide these reports to a third party. Finally, I draw members' attention to clause 84 as this bill proposes to limit the jurisdiction of the Supreme Court. Accordingly I provide the following statement: Statement under section 85(5) of the Constitution Act 1975 I wish to make a statement under section 85(5) of the Constitution Act 1975 of the reasons for altering or varying that section by this bill. Clause 84 of the bill provides that it is the intention of sections 5, 12, 15 and 37 of the Fire Services Property Levy Bill 2012, as those sections apply after the commencement of clause 84, to alter or vary section 85 of the Constitution Act 1975. These provisions preclude the Supreme Court from entertaining proceedings of a kind, to which these sections apply, except as provided by those sections. Section 5 of the Fire Services Property Levy Bill 2012 defines the meaning of non-reviewable in relation to the Fire Services Property Levy Bill 2012. 'Non-reviewable' is referred to in sections 12, 15 and 37 of the Fire Services Property Levy Bill 2012. The reason for limiting the jurisdiction of the Supreme Court in relation to the determination of the levy rates under section 12 of the bill is that the levy rates will be determined by the minister each year having regard to the funding requirements of the MFB and CFA, the administrative costs of local councils as collection agencies and other relevant matters. This clause limits the jurisdiction of the court in order to provide for the efficient determination and collection of government revenue to fund Victoria's fire services which would not be achieved if the minister's decision was reviewable. The reason for limiting the jurisdiction of the Supreme Court in relation to the determination of the land-use classification under section 15 of the bill is that the determination is based on the allocation of the Australian valuation property classification codes, or AVPCC, to all parcels of land by the valuation authority under the Valuation of Land Act 1960. Part III of the Valuation of Land Act 1960 permits a person aggrieved by the allocation of an AVPCC to make an objection. This clause limits the jurisdiction of the court to review the land-use classification determination to prevent unnecessary proceedings and overlap with the review procedures under the Valuation of Land Act 1960 in respect of the allocation of the AVPCC. The reason for limiting the jurisdiction of the Supreme Court in relation to levy amounts and levy interest collected by the collection agency to be kept in a dedicated account (under section 37 of the Fire Services Property Levy Bill 2012) is that the commissioner may require interest earnt by a collection agency on levy amounts and levy interest to be paid to the commissioner if he or she determines that a collection agency has failed to perform its duties or is in breach of its obligations under the act. This clause is intended to encourage compliance and penalise collection agencies that fail to perform their duties under the act. This is important, because breach of a collection agency's obligation may compromise the funding of Victoria's fire services. This clause limits the jurisdiction of the court in order to ensure the effectiveness of this provision as a penalty and deterrent in order to preserve the integrity of Victoria's new fire services funding model. I commend the bill to the house. Debate adjourned on motion of Mr HOLDING (Lyndhurst). Debate adjourned until Thursday, 13 September.
DRUGS, POISONS AND CONTROLLED SUBSTANCES AMENDMENT BILL 2012
Statement of compatibility
Mr RYAN (Minister for Police and Emergency Services) tabled following statement
in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006 (charter act), I make this statement of
compatibility with respect to the Drugs, Poisons and Controlled Substances
Amendment Bill 2012.
In my opinion, the Drugs, Poisons and Controlled Substances Amendment Bill
2012, as introduced to the Legislative Assembly, is compatible with the human
rights protected by the charter act.
I base my opinion on the reasons outlined in this statement.
Overview of bill
The purpose of the bill is to amend the Drugs, Poisons and Controlled
Substances Act 1981 (the DPCSA) to add synthetic cannabinoids and other
synthetic substances to the list of prohibited drugs of dependence in schedule
11 to the DPCSA, and to make a technical amendment to the DPCSA.
Human rights issues
Charter act rights that are relevant to the bill
There are no human rights protected by the charter act that are relevant to
the bill.
I therefore conclude that the bill is compatible with the charter act. Peter Ryan, MLA Minister for Police and Emergency ServicesMr RYAN (Minister for Police and Emergency Services) -- I move: That this bill be now read a second time. The bill amends the Drugs, Poisons and Controlled Substances Act 1981 to add synthetic cannabinoids and other synthetic substances to the list of drugs of dependence in that act. The effect will be to ban these substances as illicit drugs in Victoria. Changes to the illicit drug market in Australia have seen the emergence of new psychoactive substances. These chemical compounds are often marketed as 'legal highs' and are used to mimic the effects of, or provide alternatives to, illegal drugs. Although the long-term toxicity and health impacts of these synthetic substances are not yet known, the negative effects on drug users can be similar to those of illegal drugs. Importantly, these substances have not been demonstrated to be safe for human consumption and are not subject to quality control processes in production. This increases the risks for drug users, particularly young people who may hold the mistaken notion that because synthetic stimulants are marketed as 'legal highs', they are safe. Synthetic cannabinoids, for example, are designed to mimic the effects of natural cannabis. Marketed under brand names such as Kronic and Spice, they have been associated with adverse effects in users such as anxiety, memory impairment, increased heart rate and, in some reported cases, psychosis. The Victorian government is determined to deter the supply and use of these psychoactive substances, and to make it clear that these potentially harmful drugs pose risks similar to those of the illicit drugs they seek to emulate. Accordingly, the bill makes a number of amendments to schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981, which lists drugs of dependence and the quantities of drugs in pure and mixed forms that constitute thresholds for trafficking and possession offences. Firstly, the bill adds eight synthetic cannabinoids and relevant quantities to schedule 11. In response to rising concerns about the availability of synthetic cannabis products in Victoria, the Victorian government in 2011 temporarily prescribed eight synthetic cannabinoids as drugs of dependence under the Drugs, Poisons and Controlled Substances (Drugs of Dependence -- Synthetic Cannabinoids) Regulations 2011. These regulations expire on 8 November 2012. The bill adds the eight substances to schedule 11 with effect from 8 November 2012, to ensure these substances will continue to be prohibited as illicit drugs. Secondly, the bill widens the ban on synthetic cannabinoids by expanding schedule 11 to include eight generic chemical classes of synthetic cannabinoids and relevant quantities. The aim is to capture all currently known synthetic cannabinoids, as well as emerging synthetic substances that fit within the identified classes. Classes of synthetic cannabinoids are already controlled in Victoria as schedule 9 poisons under the national poisons standard and hence the unauthorised supply, possession and use of these substances is prohibited under Victoria's poisons control regime. By adding eight generic chemical classes of synthetic cannabinoids to schedule 11 of the Drugs, Poisons and
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Controlled Substances Act 1981, the bill aims to boost the deterrent effect of Victoria's controls by enabling the higher penalties applicable to the possession and trafficking of illicit drugs to be applied to synthetic cannabinoids. The bill specifies that the addition of the eight classes to schedule 11 will take effect on 8 November 2012. Thirdly, the bill adds five other synthetic substances to schedule 11. Three of these substances are psychoactive drugs commonly used as alternatives to illicit drugs. The synthetic drug known as 4-MMC (also known as mephedrone or 'meow meow') is a synthetic analogue of the illicit drug methcathinone and similar in effect to ecstasy. The synthetic drugs known as BZP and MDPV have stimulant effects comparable to amphetamine. Adverse effects of these psychoactive drugs will vary according to the particular drug used, but may include increased heart rate, elevated blood pressure, memory loss, nausea, depression and confusion, with more severe effects including paranoia, psychosis and violent behaviour. The other synthetic substances being added to schedule 11 are the industrial chemicals commonly known as 1,4-BD and GBL. These chemicals may be used as substitutes for the illicit drug known as GHB because when ingested they convert in the body to GHB, a depressant drug that slows down the activity of the central nervous system. GHB and its substitutes are used as a form of 'liquid ecstasy' to produce euphoria and sociability or to 'come down' from stimulant drugs. They can cause negative side effects including memory lapses, decreased blood pressure, dizziness and tremor. Disturbingly, police report that they may also be used as 'date rape' drugs. 1,4-BD and GBL are widely and lawfully used in industry as tyre-and-wheel cleaning agents, paint strippers and in the manufacture of plastics, among many other industrial uses. It is intended that these lawful uses will be protected from the effects of scheduling the chemicals as illicit drugs of dependence. To achieve this, the schedule 11 entries for 1,4-BD and GBL in the bill explicitly except lawful industrial purposes where the chemicals are not for human consumption. The bill makes one further amendment to schedule 11 by moving the illicit drug GHB from part 1 to part 3 of the schedule, to facilitate the forensic analysis of GHB in mixed and small quantities. Finally, the bill makes a technical amendment to correct an outdated reference in section 52 of the Drugs, Poisons and Controlled Substances Act 1981. Section 52(1) prohibits the setting of poison baits. Section 52(2) provides exceptions to this offence. For many of those exceptions, section 52(2) requires that reasonable precautions be taken to prevent access to the baits by domestic animals, including cattle. The bill removes an outdated reference to the Pounds Act 1958 and clarifies the meaning of the term 'cattle'. I commend the bill to the house. Debate adjourned on motion of Mr HOLDING (Lyndhurst). Debate adjourned until Thursday, 13 September.