Hansard debates

Ms PULFORD (Minister for Agriculture) 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 (the charter), I make this statement of compatibility with respect to the Land Legislation Amendment Bill 2017 (the bill).

In my opinion, the bill, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview of the bill

The bill will make small, but important, changes to the Transfer of Land Act 1958, the Subdivision Act 1988 and the Valuation of Land Act 1960 to improve the operation of these acts.

A primary purpose of the bill is to accelerate the general law land conversion process to ensure that all freehold land in Victoria can be dealt with under the Transfer of Land Act 1958. It is intended that the registrar identify freehold owners of general law land in Victoria and create a provisional folio of the land in the freehold owner's name.

The bill will amend the Transfer of Land Act 1958 to clarify the powers of the registrar to act when a notice sent by the registrar to a landowner or customer is returned or not delivered. The bill will amend the Valuation of Land Act 1960 to provide valuation data in the same manner that property sales data is currently provided.

Charter rights that are relevant to the bill

Section 13 — privacy

Section 13 of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

The registrar holds records of general law land. This includes the name and address of the last owner registered against the land. As registration of a general law land transactions is not mandatory the details held by the registrar may not accurately reflect the details of the current owner. The bill introduces a mechanism for the registrar to verify the identity of the current owner and bring the land under the Transfer of Land Act 1958. In order to create a provisional folio of the register of land (the register), the bill permits limited information sharing. Information retained by the registrar/registrar-general will be checked against personal information held by municipal councils, statutory authorities or other persons to confirm the identity of the freehold owner of the general law land. The registrar will then create a provisional folio of the register in the owner's name.

The bill inserts a new section 26X of the Transfer of Land Act 1958. New section 26X(1) permits the registrar to make enquiries with municipal councils, statutory authorities or other persons (including financial institutions) for personal information that identifies who is the ratepayer or mortgagor of the land. Proposed section 26X(2) permits a municipal council, statutory authority or mortgagee to disclose personal information that identifies who is the ratepayer or mortgagor of the land to the registrar, i.e. names and addresses.

This personal information collected and held by a municipal council, statutory authority or mortgagee will be matched with information retained by the registrar/registrar-general that is already publicly available. The use of the personal information provided in this way will only extend to verification of the accuracy of the identified freehold owner in information retained by the registrar/registrar-general.

The amendments introduced by the bill only permit a municipal council, statutory authority or mortgagee to make disclosure of this information in specified limited circumstances. Proposed section 26X(2) states information must only be disclosed 'for the purpose of bringing land under this act'. This limits the disclosure of personal information to a specific purpose. The type of personal information that may be disclosed is also limited under proposed section 26X(2). Only personal information 'that identifies who is a ratepayer or mortgagor of the land' can be disclosed. The permitted disclosure serves a legitimate and necessary purpose. This purpose is not arbitrary and is authorised by law.

In addition, the personal information to be provided to the registrar is of a nature where complete privacy would not generally be expected by those persons whose personal information is relevant. That is, such personal information is routinely provided to the registrar for any person with an interest in land.

Further, existing section 114 of the Transfer of Land Act 1958 will apply to the information. It provides that any person may access the information and documents registered or recorded on the register. This means that once a provisional folio is created, any new information collected under these new provisions in the bill can be publicly searchable.

The process of identification and creation of provisional folios of the register is intended to benefit freehold owners of general law land. Sections 14 and 15 of the Transfer of Land Act 1958 provide mechanisms for a freehold owner to convert general law land to land under the Transfer of Land Act 1958. The process enabled by this bill will accelerate that process and alleviate costs and burdens to freehold owners of general law land in bringing their land under the Transfer of Land Act 1958.

Personal information sought by the registrar and provided by a municipal council, statutory authority or mortgagee is the required information for making a conversion application. The bill does not enable the disclosure of any further personal information under proposed section 26X(2).

The proposed amendments do not limit or interfere with the rights to privacy contained in section 13 of the charter.

The valuer-general collects statewide valuation information and retains a record of the data under the Valuation of Land Act 1960. The bill proposes to provide statewide valuation information to the public in line with government policy to make data as widely available as possible.

The bill inserts into section 2(1) of the Valuation of Land Act 1960 a definition of 'releasable information'. The definition limits the data disseminated to the wider community from the valuer-general to de-identified data. Valuation information will only be searchable by land description (e.g. address). Searches based on an individual person will not be permitted under the proposed changes. Information on tenancy rents will not be available to the public. The value of a house or property does not constitute personal information under the Information Privacy Act 2000 as it does not relate to the identity of an individual, but rather, relates to a property.

The bill amends section 7E of the Valuation of Land Act 1960 to provide for access to releasable information upon payment of a fee and in accordance with ministerial policy. The change will make valuation information available in the same way as property sales information is provided under section 5(2) of the Valuation of Land Act 1960.

The proposed change will not make any personal information available by public search, only de-identified valuation information provided in the same manner as de-identified property sales information is currently provided.

Public searching of property valuation information will not affect personal privacy or a person's right to reputation. Public searching of valuations is currently available in other Australian jurisdictions. The amendments to sections 2(1) and 7E of the Valuation of Land Act 1960 do not limit or restrict the scope of the rights under section 13 of the charter.

Section 20 — property

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with the law.

While general law land will be converted without the request of the landowner, the landowner will be informed and will not lose any of their rights in the land. Converting the land from a general law to land under the Transfer of Land Act 1958 will enhance the landowner's title. Converted titles will be covered by the government guarantee of title, providing added certainty for landowners.

The registrar's conversion of general law land to land under the Transfer of Land Act 1958 will not limit a property owner's right to property. The effect of proposed sections 26X and 26Y will only be to change the land from freehold general law land to freehold land under the Transfer of Land Act 1958 i.e. Torrens title land.

The proposed amendments remove the option for a general law landowner identified by the new procedure to hold land under the general law. However, the benefits to the landowner of bringing land under the Transfer of Land Act 1958 will eclipse any concerns about a landowner no longer having this choice. The benefits to the landowner in gaining Torrens title to land and to the registrar in greater efficiencies in maintaining the register, together with the ability to transact electronically in land transactions, are legitimate objectives for the proposed change.

Proposed section 26Y will convert a provisional folio of land to an ordinary folio after 15 years. Any person with a competing interest in the land will be required under the proposed changes to make a claim to the land before the 15-year period lapses, or lose any rights in the land. This 15-year window for a person with a competing interest to make a claim is a reasonable limit to any potential property right. This is a sufficient and non-arbitrary period after which no further claims may be made. The conversion of a provisional folio at 15 years is necessary for the purpose of completing the bringing of general law land under the Transfer of Land Act 1958.

The proposed sections 26X and 26Y do not limit the right to property contained in section 20 of the charter. The bill does not limit the rights of landowners or any other person with competing interests because the proposed changes are in accordance with law and serve legitimate objectives.

Section 24 — fair hearing

Section 24 of the charter provides that a person who is party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The courts have determined procedural fairness to be co-extensive with the right to a fair hearing.

The bill will amend section 113(7) the Transfer of Land Act 1958 in relation to the powers of the registrar when a notice sent by the registrar to a landowner or customer is returned or not delivered.

Civil proceedings have been interpreted by the courts to include administrative proceedings. However, the amendment to section 113(7) does not relate to administrative proceedings. The bill clarifies what the registrar may do when a notice sent by the registrar is returned or not delivered. Notices from the registrar may be sent in relation to numerous administrative matters such as requests for further information or notice of an application being made where the person appears to have an interest in the subject land. The changes made by the bill do not relate to the registrar's participation in litigation. In litigation the registrar complies with the relevant court rules and the Victorian model litigant guidelines.

The amendment to section 113(7) will provide for the registrar to continue with an action when a notice is returned or not delivered. This means that in some specific instances a person may not receive a notice. However, the registrar will only proceed with an action when an attempt has been made to give notice. When a person has failed to keep their address current in the register or a customer has failed to keep their contact details up to date the registrar should not be prevented from acting on another person's application or updating the register. The requirement on the registrar to have attempted giving notice before proceeding is a reasonable measure to ensure as much as possible that a person is notified of any intended action by the registrar. For this reason this amendment is consistent with the procedural fairness aspect of the fair hearing right even though it does not relate to proceedings attracting section 24 of the charter.

The bill does not expand the registrar's powers to take an action without notice. The amendments to section 113(7) only extends the same treatment as other notices sent by the registrar to electronic notices.

The powers of the registrar replicated in proposed section 113(7) are consistent with section 24 of the charter.

Consequently, in my view and for the reasons given, the rights to privacy, property and procedural fairness are not limited by the bill.

Hon. Philip Dalidakis, MLC
Minister for Small Business, Innovation and Trade