Thursday, 23 June 2022
Bills
Local Government Legislation Amendment (Rating and Other Matters) Bill 2022
Local Government Legislation Amendment (Rating and Other Matters) Bill 2022
Introduction and first reading
The PRESIDENT (17:26): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Local Government Act 1989 in relation to rates and charges, to make miscellaneous and technical amendments to the Local Government Act 2020, to make miscellaneous and technical amendments to the Essential Services Commission Act 2001, the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013, to amend the Domestic Animals Act 1994 in relation to reuniting pets with owners, and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr LEANE: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:27): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
Opening paragraphs
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 Local Government Legislation Amendment (Rating and Other Matters) Bill 2022.
In my opinion, the Local Government Legislation Amendment (Rating and Other Matters) Bill 2022, 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
The Bill amends:
• The Local Government Act 1989 (LG Act 1989) to implement reforms to the local government rating system, including arrangements for ratepayers facing financial hardship;
• The Local Government Act 2020 (LG Act 2020) to make various amendments including to update confidentiality and councillor conduct provisions;
• The Domestic Animals Act 1994 (DA Act) to permit regulations to be made related to reuniting lost pets with their owners.
The Bill will also make minor related amendments to:
• The Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985 to ensure consistency of exclusions from compensation for misconduct and serious misconduct processes; and
• The Essential Services Commission Act 2001 to clarify the functions of the Essential Services Commission in relation to the LG Act 1989.
Human Rights Issues
The Bill may engage the following rights under the Charter:
• Section 13(a)—privacy;
• Section 8—equality before the law;
• Section 20—right to property.
Right to privacy and reputation
Section 13(a) of the Charter provides all persons with the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have their reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
The right to privacy is broad and extends beyond information privacy to include, for example, the right to personal autonomy, dignity and identity. It may also apply to protect a person against unlawful or arbitrary restrictions on employment, which may affect a person’s personal relationships and private life.
The following clauses may engage the right to privacy and reputation:
• Clause 19, which amends a confidential information provision (section 125 of the LG Act 2020); and
• Clause 26, which amends section 149 of the LG Act 2020 to give the Principal Councillor Conduct Registrar (PCCR) the function of publishing any decision made by an arbiter and the reasons for that decision.
Section 125 of the LG Act 2020 prohibits the intentional or reckless disclosure of ‘confidential information’ by a current or former Councillor, member of a delegated committee or member of Council staff, except in the circumstances set out in that section. Clause 19 amends section 125 to provide that documents containing certain categories of confidential information are not ‘exempt documents’ by virtue of section 38 of the Freedom of Information Act 1982 (FOI Act). The purpose of this amendment is to improve consistency with exemptions under the FOI Act, whilst upholding the principles of transparency and accountability that underpin both Acts. The amendment will not require that confidential information be disclosed, but will enable FOI applications to Councils to be processed and considered in a manner consistent with FOI Act exemptions. While there is a small possibility that this amendment may result in some disclosure of personal information, when balanced against the right to access certain government-held information in the FOI Act I am satisfied that any limitation of the right to privacy would be neither unlawful or arbitrary.
The role of the PCCR includes receiving applications for an internal arbitration regarding an allegation of Councillor misconduct, and the appointing of an arbiter to hear that matter. Section 147 of the LG Act 2020 enables the arbiter to make a finding of misconduct against a Councillor if the arbiter determines that the Councillor has failed to comply with the standards of conduct, and to impose certain sanctions on the Councillor. The ability to publish an arbiter’s decision and reasons for the decision concerning Councillor misconduct may engage an applicant or Councillor’s right to privacy, to the extent that a person’s personal information is captured within a decision or reasons for a decision. However, I consider that any interference that occurs will be authorised by law and not arbitrary, and can be balanced against the need to ensure the transparent and accountable operation of councils and to prevent the misuse of public positions. Safeguards against arbitrary interference with privacy include specifying internal arbitration information (as specified in substituted section 145—inserted by clause 20) as ‘confidential information’ under the LG Act 2020, where section 125 (as amended by clause 19) restricts the circumstances in which such information may be disclosed. In addition, section 147 of the LG Act 2020 requires an arbiter to redact any confidential information from the copy of their decision and statement of reasons that is provided to the Council, applicant, respondent, and PCCR.
Equality before the law
Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.
‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in section 6 of that Act (including, for example, age, sex and disability). Discrimination can either be ‘direct’ or ‘indirect’. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.
The following provisions of the Bill may engage the right to equality:
• Division 4 of Part 2, which amends the LG Act 1989 to permit Councils to offer payment plans to ratepayers for unpaid rates or charges and imposes further restrictions on when a Council may commence proceedings for unpaid debt; and
• Division 5 of Part 2, which inserts new section 181AA to enable the Minister to issue guidelines relating to payment of rates and charges, including the meaning of hardship, content of hardship and financial hardship policies, and the process of applying for a payment plan.
I consider that these provisions promote the right to equality, as they will enable Councils to offer persons who are financially disadvantaged (including by reason of a protected attribute) more flexible options for the payment of rates and charges. The Bill does not impose specific eligibility criteria for payment plans. The Bill creates a head of power for ministerial guidelines to be made (clause 15) regarding payment plans and other matters related to hardship. Councils will be required to comply with those guidelines.
Right to property
Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.
Where the Bill impacts obligations and liabilities related to matters such as rates and charges, it does so in a clear, precise and structured manner, consistent with the Charter.
Section 181 of the LG Act 1989 permits a council to sell land to recover unpaid rates or charges in limited circumstances, where the amount is more than 3 years overdue, no current arrangement exists for the repayment of that amount, and the Council has a Court order requiring payment of the amount or part thereof. That section also sets out the process to be followed if land is to be sold on that basis. Clause 14 will amend section 181, to provide that a Council is additionally restricted from pursuing the sale of land for unpaid rates or charges if there is a payment plan. I consider that this amendment will promote the right to property, as it will impose additional restrictions on when Councils may sell land to recover rates or charges.
The Hon. Shaun Leane MP
Minister for Local Government
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr LEANE: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Bill forms the first part of legislative reforms arising from the Local Government Rating System Review from December 2020. It also incorporates recommendations from the Victorian Ombudsman’s 2020 report ‘Investigation into how local councils respond to ratepayers in financial hardship’.
These reports have shone a light on the way many councils respond to ratepayers in need. Some councils have clearly improved their practices as a result of the pandemic, but overall, the local government sector has fallen behind other sectors in the compassionate and proportionate treatment of those who are facing financial difficulties.
Amendments to the Local Government Act 1989
The Bill will improve council practices for imposing rates and ensure ratepayers experiencing financial hardship are treated fairly. Alternative means of paying rates via a payment plan will be formalised in legislation, especially for those experiencing financial hardship and family violence.
The Bill provides a new requirement for the Minister for Local Government to set the maximum rate of interest that may be levied by councils on unpaid rates and charges. This will ensure the maximum interest rate amount—which is currently 10 per cent—does not place those experiencing financial hardship under even more financial strain and is proportionate for unpaid local government rates and charges.
The Essential Services Commission will be required to provide advice to the Minister in setting the maximum interest rate.
The Bill will also allow for the Minister for Local Government to make Ministerial Guidelines for councils on the collection of unpaid rates and charges and financial hardship. The Ministerial Guidelines will require councils to proactively work with ratepayers experiencing financial hardship to explore different arrangements and solutions, and more punitive actions such as legal actions and the application of penalty interest will be only available when ratepayers refuse to engage and all other approaches are exhausted. Councils will be required to comply with the Ministerial Guidelines.
Currently 77 of the 79 councils routinely use debt collectors to recover unpaid rates. The new arrangements will ensure that people are treated fairly and that the use of court actions and forced sale of property are an absolute last resort.
The Bill makes improvements to ‘service rates and service charges’, ensuring all contemporary waste and recycling management costs for councils may be recovered through service charges.
The Bill makes improvements to ‘special rate and special charge’ schemes declared by councils to ensure that affected ratepayers enjoy the benefits of such schemes promptly.
The Bill will allow councils to offer new rate concessions and rebates for properties that provide a public benefit. The new contemporary criteria—developed by the Ministerial Panel for the Local Government Rating System Review following extensive consultation—will allow councils to offer rate rebates and concessions for properties that offer a public benefit that is available free or at minimal cost to their communities.
The changes to legislation will be supported by changes to regulations and guidance to councils to support better practices.
Amendments to the Local Government Act 2020
The Bill will amend the confidentiality provisions in the Local Government Act 2020, which affect the processing and handling of Freedom of Information (FOI) requests by councils. The Bill will improve transparency of council information by ensuring that councils process FOI requests for certain categories of confidential information under the Local Government Act 2020 in accordance with the applicable exemptions under the FOI Act.
The Bill will make technical amendments to improve aspects of the Local Government Act 2020 in relation to council electoral provisions and councillor conduct processes without significantly altering the policy objectives of the legislation.
Amendments to other legislation
Further, this Bill will make minor technical amendments to correct inaccurate or outdated legislative references, and make technical consequential changes to, the Workplace Injury Rehabilitation and Compensation Act 2013, the Accident Compensation Act 1985, and the Essential Services Commission Act 2003.
Amendments to the Domestic Animals Act 1994
This Bill also makes a minor amendment to the Domestic Animals Act 1994, introducing a regulation making power relating to reuniting lost pets and deceased pets.
Any specific requirements relating to deceased pets will be implemented via amendments to regulations. These will be designed to minimise unnecessary burden on councils and largely align with existing council practices.
In summary, this Bill covers a wide range of matters but its objectives are clear and focused on better supporting ratepayers who are dealing with financial hardship and improving council operations.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:27): I move, on behalf on my colleague Mr Davis:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.