Legislative Council Fifty-Second Parliament, First Session (52-1) 52 1 Parliament of South Australia Legislative Council published Bills Statutes Amendment (Budget 2011) Bill STATUTES AMENDMENT (BUDGET 2011) BILL Introduction and First Reading Introduction and First Reading Received from the House of Assembly and read a first time. Second Reading Second Reading The Hon. G.E. GAGO Legislative Council Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (17:42): I move: That this bill be now read a second time. I seek leave to have the second reading explanation inserted in Hansard without my reading it. Leave granted. This Bill introduces legislative amendments required to implement budget measures that have been announced as part of the 2011-12 Budget. This Bill amends the First Home Owner Grant Act 2000, Liquor Licensing Act 1997, Statutes Amendment (Budget 2010) Act 2010 and the Summary Procedures Act 1921. This Bill amends the First Home Owner Grant Act 2000 to phase out the $8,000 first home bonus grant by 1 July 2013. The bonus grant is currently available for eligible first home buyers who purchase or build a new home valued up to $400,000. The bonus grant currently phases out for newly constructed homes valued between $400,000 and $450,000. The amendments will reduce the first home bonus grant to $4,000 from 1 July 2012 and fully abolish the grant from 1 July 2013. The $8,000 first home bonus grant will continue to be available for eligible transactions entered into prior to 1 July 2012. Under current arrangements it is estimated that around 1600 first home buyers will be eligible for some level of first home bonus grant in 2011-12. The phasing out of the grant is expected to result in some first home buyers bringing forward their home purchase decisions, which could assist in stimulating the residential building sector in this period. In recognition that the bonus grant is now only available for a limited timeframe, the Bill includes similar commencement and completion conditions for the building of new homes as were in place for the Commonwealth's First Home Owner Boost Grant, which was provided for a specific period of time as part of the Commonwealth Government's economic stimulus measures. To qualify for the first home bonus grant, eligible first home buyers who enter into a comprehensive home building contract will be required to commence construction of the home within 26 weeks after the contract is made. In addition the contract must state that the new home will be completed within 18 months of commencement of the new home (i.e. the laying of foundations) or otherwise the home must actually completed within the same timeframe. Owner builders who are eligible for the bonus grant will be required to complete their new home within 18 months after the commencement date. There are also completion requirements for 'off-the-plan' homes which have regard to the nature of 'off-the-plan' constructions. The Commissioner has the discretion to allow a longer period for either the commencement of and/or the completion of the building of a home having regard to the specific circumstances of the transaction. The requirements for first home buyers to be eligible for the $7,000 First Home Owner Grant remain unchanged. This initiative is expected to provide estimated savings to the state budget of $21.3 million over four years. This Bill will amend the Liquor Licensing Act 1997 to introduce new fees for holders of liquor licences to offset the costs of compliance. Currently, fees are payable for an application for a licence but not for the grant of a licence and, since licences (apart from a limited licence) are ongoing and no subject to a renewal process, fees are not collected on an annual basis to cover the ongoing costs of compliance. The Bill introduces a legislative framework for the payment of annual fees for the ongoing licence classes. The regulations will fix the date for payment, the period to which the fee is to relate and the basis for the calculation of the fees. It is intended that the scheme will accommodate different fees that reflect the level of compliance effort required on the part of the Liquor and Gambling Commissioner. To that end it is proposed that there will be two base fees which will be different depending on the type of business conducted under the licence and significant additional fees for licences that authorise early morning trade. A limited licence is a licence for a special occasion or series of special occasions. Some of these licences are for very large commercial events such as the Clipsal 500 and the Big Day Out. The Bill introduces a legislative framework to enable the regulations to fix a fee payable on the grant of such a licence. The Liquor and Gambling Commissioner will have the discretion to grant either a reduction in the annual fee or an exemption under hardship provisions, both on application of the licensee. This initiative is estimated to cost $2.5 million over four years to implement, administer and enforce compliance. The initiative will provide estimated savings of $15.1 million over four years to offset the cost of providing liquor regulatory services. This Bill will amend the Statutes Amendment (Budget 2010) Act 2010 to reverse arrangements to employee recreation leave loading entitlements announced in the 2010-11 Budget. As part of the 2010-11 Budget initiatives, recreation leave loading for specified public sector employees was to be replaced with an additional recreation leave entitlement of two days per annum from 1 July 2012. This amendment means leave loading arrangements will now not be altered from 1 July 2012. This initiative is estimated to cost $66.9 million over three years from 2012-13. This Bill will amend the Summary Procedure Act 1921 to introduce a cap on court awarded costs against the police. Under current provisions, the Magistrates Court can award costs to reimburse acquitted persons for the reasonable costs of professional representation. These costs are not bound by the scale of costs set under the Magistrates Court Act 1991. In contrast, the South Australia Police are rarely able to recover more than a nominal amount of costs for successful summary prosecutions. The amendment will reduce the Court's discretion to award costs against police in unsuccessful summary prosecutions through a general rule that costs are to be awarded against the Crown in such a case only if it is proper to do so. In deciding whether it is proper, the Court must consider a list of factors including whether the investigation into the alleged offence was conducted appropriately, whether the defence acted unreasonably, whether the dismissal was for technical reasons, whether the defendant by his conduct brought suspicion on himself and other matters. Further, if costs are to be awarded, the Court must ordinarily award costs on the scale of costs, unless a higher amount is justified. These amendments are consistent with similar legislative provisions recently introduced in Queensland. This initiative provides estimated savings of $1.6 million per annum from 2012-13. This Bill will further amend the Summary Procedure Act 1921 to introduce a court enforcement fee for police appearances at court. Currently, the South Australia Police may be awarded a $25 appearance fee for each court file finalised by a guilty plea or finding. From 1 July 2012, this fee will be replaced with a $100 court enforcement fee awarded at the time a defendant is found guilty in court. The fee would not apply where a defendant pleads guilty in writing without the need for any court hearing. This initiative will provide estimated savings of $13.4 million over three years from 2012-13 which will assist in meeting the cost of prosecution. I commend the Bill to Members. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title This clause is formal. 2—Commencement The Act will come into operation on a day to be fixed by proclamation. However, Part 2, which amends the First Home Owner Grant Act 2000, will be taken to have come into operation on 10 June 2011. 3—Amendment provisions This clause is formal. Part 2—Amendment of First Home Owner Grant Act 2000 4—Amendment of section 3—Definitions Section 3 of the First Home Owner Grant Act 2000 is amended by this clause to insert a definition of contract for an 'off-the-plan' purchase into the general definition section. The term is currently defined only for the purposes of section 13A but under this measure is also to be used in sections 18BA and new section 18BAB. 5—Amendment of section 13A—Special eligible transactions This clause removes the definition of contract for an 'off-the-plan' purchase from section 13A as the term is to be defined in section 4 for the purposes of the whole Act. 6—Amendment of section 18BA—Bonus grant for transactions on or after 17 September 2010 but before 1 July 2012 This clause amends section 18BA so that the first home bonus grant payable under that section is not available in relation to eligible transactions that commence on or after 1 July 2012. The clause also inserts additional criteria that are to apply in relation to eligible transactions with a commencement date of 10 June 2011 or later. Those criteria are as follows: if the eligible transaction is a comprehensive home building contract for a new home— the laying of the foundations for the home must commence within 26 weeks after the contract is made, or any longer period the Commissioner may, in particular circumstances, allow; and the contract must state that the eligible transaction is to be completed within 18 months after the laying of the foundations for the home is commenced or the eligible transaction must be completed within 18 months after the laying of the foundations for the home is commenced; if the eligible transaction is the building of a new home by an owner-builder—the transaction must be completed within 18 months after its commencement date; if the eligible transaction is a contract for an 'off-the-plan' purchase of a new home— the contract must state that the eligible transaction is to be completed on or before 31 December 2013; or the eligible transaction must be completed on or before that date. A new subsection authorises the Commissioner to extend the time within which an eligible transaction must be completed under the section if the Commissioner considers there are proper reasons for doing so. 7—Insertion of section 18BAB This clause inserts a new section. 18BAB—Bonus grant for transactions on or after 1 July 2012 but before 1 July 2013 Section 18BAB provides for an increase in the amount of a first home owner grant if— the commencement date of the eligible transaction is on or after 1 July 2012 but before 1 July 2013; and the transaction relates to a contract for the purchase of a new home, a comprehensive home building contract or the building of a new home by an owner builder; and the market value of the home is less than $450,000. The bonus is payable in the case of a comprehensive home building contract for a new home only if— the laying of the foundations for the home commences within 26 weeks after the contract is made, or any longer period the Commissioner may, in particular circumstances, allow; and the contract states that the eligible transaction must be completed within 18 months after the laying of the foundations for the home is commenced or, in any other case, the eligible transaction is completed within 18 months after the laying of the foundations for the home is commenced. In the case of the building of a new home by an owner builder, the bonus is payable if the eligible transaction is completed within 18 months of the day on which it commences. In the case of an 'off-the-plan' purchase of a new home, the bonus is payable if— the contract states that the eligible transaction must be completed on or before 31 December 2014; or in any other case, the eligible transaction is completed on or before that date. The amount of the bonus grant will, if the market value of the home does not exceed $400,000, be $4,000. If the market value of the home exceeds $400,000, the amount of the bonus grant is to be determined in accordance with a formula set out in the section. The Commissioner is authorised to extend the time within which an eligible transaction must be completed under the section if the Commissioner considers there are proper reasons for doing so. 8—Amendment of section 18BB—Market value of homes This amendment is consequential and ensures that section 18BB, which sets out how the market value of a home is to be determined, applies for the purposes of new section 18BAB. 9—Amendment of section 18C—Amount of grant must not exceed consideration The amendment made by this clause is consequential. 10—Transitional provision Under this clause, the amount of a payment made to a person under section 18BA of the First Home Owner Grant Act 2000 in relation to an eligible transaction with a commencement date of 10 June 2011 or later will be recoverable from the person as a debt due to the Crown if the person is not entitled to the payment under section 18BA as amended clause 6. Part 3—Amendment of Liquor Licensing Act 1997 11—Insertion of section 50A This clause inserts a new section for the collection of annual licence fees 50A—Annual fees The scheme for imposition of annual fees is to be set out in the regulations. It will not apply to a limited licence since a limited licence is not ongoing. The section provides for a default penalty and for suspension of a licence if the annual fee remains outstanding. 12—Amendment of section 53—Discretionary powers of licensing authority Section 53(3) currently provides that a licensing authority may, on such conditions (if any) as it thinks fit, vary or waive compliance with formal requirements relating to an application. The amendment also contemplates variation or waiver of the payment of fees relating to the grant of the application. 13—Insertion of section 59A This clause inserts a new section for the collection of licence fees on the grant of a licence. 59A—Licence fee payable on grant of licence There are 2 components to this provision. The first is a fee payable for a limited licence. A limited licence is a licence for a special occasion or series of special occasions, including large commercial events such as the Clipsal 500 and the Big Day Out. The details of the fee will be set out in the regulations. The second is a pro rata payment of the first annual fee payable for a licence other than a limited licence that is payable on the grant of the licence. 14—Amendment of section 138—Regulations This clause amends the general regulation making power so that a regulation may provide for the Commissioner to waive, reduce or refund fees payable under the Act. 15—Transitional provision The transitional provision enables the initial regulations under section 50A to make adjustments to the scheme in its introductory period. It is also provided that an application to reduce trading hours to match actual hours made before the date for payment of the first annual fee need not be advertised and may be made without payment of a fee. Part 4—Amendment of Statutes Amendment (Budget 2010) Act 2010 16—Repeal of sections 60 and 61 17—Repeal of section 63 These clauses provide for the repeal of those sections of the Statutes Amendment (Budget 2010) Act 2010 that relate to leave loading allowances for recreation leave. Part 5—Amendment of Summary Procedure Act 1921 18—Substitution of section 189 This clause substitutes current section 189 with a more detailed scheme relating to costs. 189—Costs generally This section retains the existing general rule relating to costs. 189A—Costs payable by Crown in certain criminal proceedings New section 189A provides that, in proceedings for an offence prosecuted by a police officer that are dismissed or withdrawn, costs may only be awarded if it is proper to do so. Subsection (2) sets out a list of circumstances relevant to the making of a costs order. Subsection (3) provides that costs may only be awarded in accordance with either a scale prescribed in the regulations or, if there is no such scale prescribed, the scale of costs prescribed in relation to criminal proceedings under section 49(1)(e) of the Magistrates Court Act 1991. Subsection (4) provides that the Court may allow a higher amount for costs if satisfied that the higher amount is just and reasonable having regard to the special difficulty or complexity of the case, or where the Court finds that the prosecution has not acted in good faith in bringing the proceedings. 189B—Costs payable by defendant in certain criminal proceedings New section 189B provides that, if the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the defendant must pay costs of $100 (or, if an amount is prescribed by regulation, that amount), unless the prosecution agrees that no costs order should be made. 189C—Costs in preliminary examination This section retains the existing provision that costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings 189D—Costs against complainant in proceedings for restraining order This section retains the existing provision that costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings 189E—Costs—delay or obstruction of proceedings This section retains the existing provisions relating to the award of costs in the event of the delay or obstruction of proceedings (and retains the existing procedures in relation to such awards of costs). Debate adjourned on motion of Hon. D.W. Ridgway.