2017
2017
2017-04-04
act
government
publicgeneral
act.reprint
allinforce
2017-03-07
2017-03-07
0
2017
none
act-2017-009
07cab337-9fa5-476d-93c1-e124593d8d03
f06b34cc-4597-40c6-8958-767d5a97297f
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to provide for the charging and collection
of a fire and emergency services levy; to abolish the emergency services
insurance contribution scheme; and to make related amendments to other
legislation.
Part 1Preliminary
1Name of
Act
This Act is the Fire and
Emergency Services Levy Act 2017.
2Commencement
This Act commences on the date of assent to this
Act.
3Definitions
(1)
In this Act:
ad
valorem component of levy—see section
17.
ad
valorem rate formula—see section 28.
area means an area within the
meaning of the Local Government Act
1993.
Note—
Lord Howe Island is taken to be an area under
this Act.
assessed
levy—see section 97.
assessed
rate or charge—see section 96.
Chief
Commissioner means the Chief Commissioner of State Revenue
under the Taxation Administration Act
1996.
collection instalment means a
collection instalment payable under section 99.
commercial land means land
classified as commercial land under this Act.
compliance certificate means a
compliance certificate issued by the Valuer-General under section 133 or by
the Chief Commissioner under section 136.
compliance issue—see sections
133 and 136.
council means a council within the
meaning of the Local Government Act
1993.
Court means the Land and Environment
Court.
Crown means the Crown in right of
New South Wales and includes any NSW Government agency and any statutory body
representing the Crown in right of New South Wales.
eligible
pensioner in relation to a levy on leviable land means a
person who is an eligible pensioner in relation to land under Chapter 15 of
the Local Government Act
1993.
farmland means land classified as
farmland under this Act.
FESL
revenue target means the FESL revenue target determined by
the Treasurer under section 36.
financial
year means a period of 12 months commencing on 1 July in
each year.
fixed
component of levy—see section 16.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
government land means land
classified as government land under this Act.
hardship
guidelines—see section 84.
industrial land means land
classified as industrial land under this Act.
land includes a stratum within the
meaning of the Valuation of Land Act
1916.
land
value—see section 18 (6).
lease has the same meaning as it has
in the Local Government Act
1993.
lease for
value means a lease for more than nominal
rent.
leviable
land has the meaning given by section 6.
levy (or FESL) means the fire and emergency
services levy payable under this Act.
levy
estimate information—see section 34.
levy
notice means the notice by which a levy is charged (see
section 78).
levy
recovery arrangement—see section 91.
levy
valuation—see section 21.
liable
person, in relation to land, means a person who is liable
for a levy for that land or who would be liable for a levy for the land if the
land were leviable land.
liable
State owned corporation means a State owned corporation that
is declared to be a liable State owned corporation by a regulation under
section 42.
Lord Howe
Island means the Island under the Lord
Howe Island Act 1953.
Monitor means the Emergency Services
Levy Insurance Monitor appointed under the Emergency
Services Levy Insurance Monitor Act 2016.
owner has the same meaning as it has
in the Local Government Act
1993.
parcel of
land includes a parcel that comprises a stratum within the
meaning of the Valuation of Land Act
1916.
Note—
See also section 10 for the circumstances in
which land is a separate parcel of land under this Act.
payment
order—see section 86.
pensioner
discount amount—see section 25.
property
sector—see section 40.
public
benefit land means land classified as public benefit land
under this Act.
published
ad valorem rate—see section 27.
quarterly
instalment period—see section 82.
relevant
payment—see section 95.
relevant
proportion—see section 30.
residential land means land
classified as residential land under this Act.
State
owned corporation means a State owned corporation (within
the meaning of the State Owned Corporations Act
1989) or a subsidiary of a State owned
corporation.
unvalued
land—see section 19.
vacant
land means land sub-classified as vacant land under this
Act.
vacant
land discount—see section 23.
Note—
The Interpretation
Act 1987 contains definitions and other provisions that
affect the interpretation and application of this Act.
(2)
Notes included in this Act do not form part of
this Act.
(3)
In this Act, a reference to a financial year,
when immediately preceded by a reference to particular years (in the format of
[year]/[year]), is a reference to the financial year that
commences and ends in those years (respectively).
Note—
For example, a reference to the 2017/2018
financial year is a reference to the financial year commencing in 2017 and
ending in 2018.
4Application of Act to Lord
Howe Island
The levy payable under this Act extends to land
situated on Lord Howe Island and, for that purpose:
(a)
Lord Howe Island is taken to be an area under
this Act, and
(b)
the Lord Howe Island Board is taken to be the
council for that area and has all the functions of a council in relation to
that area under this Act.
Part 2Fire and emergency services
levy
5Fire and emergency services
levy
A fire and emergency services levy is payable on
all leviable land.
6Land on which levy is
charged
(1)
For the purposes of this Act, leviable land is any land situated
in the area of a council that is within one of the following property
sectors:
(a)
public benefit land,
(b)
farmland,
(c)
residential land,
(d)
industrial land,
(e)
commercial land.
(2)
Land is within a property sector if the land is
classified to be within that property sector under this
Act.
7Who is liable to pay
levy
(1)
The owner for the time being of leviable land is
liable to pay the levy, except as provided by this
section.
(2)
If leviable land owned by the Crown or a State
owned corporation (other than a liable State owned corporation) is the subject
of a lease for value and the dominant use of the land is for the purposes of
the lease, the lessee under the lease is liable to pay the
levy.
(3)
If there are 2 or more owners, or 2 or more
lessees, who are liable to pay the levy in respect of the same land, they are
jointly and severally liable to pay the levy.
Note—
Government land is exempt from the levy. Land
owned by the Crown or a State owned corporation is to be classified as
government land under this Act unless the land is the subject of a lease for
value and the dominant use of the land is for the purposes of the lease. There
are some exceptions to that classification requirement.
8Levy is payable for each
financial year
The levy is payable for each financial
year.
Note—
The levy can be paid as a single instalment or as
quarterly instalments (see Part 6).
9Amount of
levy
The amount of the levy payable is provided for by
Part 3.
10Levy payable on each separate
parcel of land
(1)
A separate levy is payable for each separate
parcel of land.
(2)
Land is taken to be a separate parcel of land for
the purposes of this Act:
(a)
if the land is separately valued under the
Valuation of Land Act 1916,
or
(b)
if the land is the subject of one valuation under
that Act, or
(c)
in any other circumstances provided for by or
under this Act.
(3)
Subsection (2) does not affect the application of
this Act to land that is not valued under the Valuation of Land
Act 1916.
(4)
This section is subject to Parts 5 and 8 and any
regulations under this section.
Note—
Part 5 (Division 7) and Part 8 provide for
further circumstances in which land is treated as a separate parcel of land
for levy purposes.
(5)
The regulations may make further provision for
the circumstances in which something is, or is not, taken to be a separate
parcel of land under this Act.
11Levy payable to
council
The levy is payable to the council for the area
in which the leviable land is situated.
12Council must charge and
collect levy on behalf of State
(1)
A council is responsible for charging the levy on
land situated in the council’s area and for collecting the
levy.
(2)
A council charges and collects the levy on behalf
of the State.
(3)
The council must account for amounts collected by
paying collection instalments to the Chief Commissioner in accordance with
this Act.
13Levy to be apportioned over
whole year
(1)
A levy is proportionate to the portion of the
year for which land is leviable land.
(2)
A levy for land that is within a particular
property sector is proportionate to the portion of the year for which the land
is within that property sector.
14No levy for government
land
There is no levy payable in respect of government
land.
Note—
Land that is not within a council area is also
excluded because it is not leviable land.
Part 3Amount of
levy
Division 1Fundamentals
15Components of levy: fixed and
ad valorem
(1)
The levy payable is the total of the
following:
(a)
the fixed component of the
levy,
(b)
the ad valorem component of the
levy.
(2)
The components of the levy are based on the
property sector that the land is within.
Note—
Part 5 sets out how land is classified into
different property sectors.
16Fixed component of
levy
(1)
The fixed component of the levy is the base rate
for the property sector that the land is within.
(2)
The base
rate is as follows:
(a)
$100 for public benefit land,
(b)
$100 for residential land,
(c)
$200 for farmland,
(d)
$200 for industrial land,
(e)
$200 for commercial
land.
(3)
The regulations may prescribe a different base
rate for any property sector. If they do, the base rate for that property
sector is the prescribed rate.
(4)
The regulations may provide for adjustments to
the base rate for any property sector to account for movements in the consumer
price index. If they do, the fixed component of the levy is the adjusted base
rate (as provided for by the regulations) for the property sector that the
land is within for the financial year for which the levy is
charged.
17Ad valorem component of
levy
(1)
The ad valorem component of the levy is
calculated by applying the relevant ad valorem rate to the land value of the
parcel of land on which the levy is charged.
(2)
The relevant ad valorem rate is the published ad
valorem rate for the property sector that the land is within for the financial
year for which the levy is charged.
(3)
The council that charges the levy is to calculate
the ad valorem component of the levy.
18Land value of
land
(1)
The land value of land is the land value (within
the meaning of the Local Government Act
1993) used by the council for the purpose of levying rates
under Chapter 15 of the Local Government Act
1993, subject to this section.
(2)
For any period in which the rates payable in
respect of land are postponed under Division 2 of Part 8 of Chapter 15 of the
Local Government Act 1993, the levy is
to be charged as if the land value of the land were the non-attributable value
of the land (despite section 61 of the Valuation of Land
Act 1916).
(3)
The non-attributable value of land is
the land value of the land for the purpose of levying rates under Chapter 15
of the Local Government Act
1993 minus the attributable part of the land value (within
the meaning of Division 2 of Part 8 of Chapter 15 of the Local
Government Act 1993).
(4)
If the council does not levy rates on the land,
the land value of the land is the land value of the land determined in
accordance with the Valuation of Land Act
1916.
(5)
However, if the land is unvalued land, the land
value of the land is the land value of the land determined in accordance with
Division 2.
(6)
A reference in this Act to the land value of
land, for levy purposes, is a reference to the land value of land determined
as provided for by this section and Division 2.
Note—
Section 61 of the Valuation of Land
Act 1916 provides that land value must be ascertained by
reference to the valuation list, and any supplementary lists, provided by the
Valuer-General under Part 5 of the Valuation of Land
Act 1916.
Section 62 of the Valuation of Land
Act 1916 provides that the most recent valuation list is
to be used to determine land value.
Division 2Unvalued
land
19Unvalued
land—meaning
(1)
The following land is unvalued land:
(a)
land on Lord Howe Island,
(b)
any other land declared by the regulations to be
unvalued land.
(2)
Land is not unvalued land if it is required to be
valued for the purposes of another tax.
(3)
Land is required to be valued for the purposes of
another tax if the Valuer-General is required, under the Valuation of Land Act 1916, to provide a
valuation of the land which is used for the purposes of a rate or charge that
is payable under the Local Government Act
1993, land tax or any other rate or tax (other than the
levy).
20Regulations may specify land
value of unvalued land
(1)
The regulations may specify the land value of
unvalued land, or the method by which the land value of unvalued land is to be
calculated, for the purposes of this Act.
(2)
The land value of unvalued land, or the method by
which the land value is calculated, may be specified by reference to the owner
of the land, the liable person in relation to the land, the use of the land,
the location of the land or in any other way.
(3)
The regulations may specify a zero land value for
unvalued land. In that case, the land value of the land is zero and no levy is
payable on the land (including no fixed component).
(4)
The regulations have effect despite anything to
the contrary in the Valuation of Land Act
1916.
21Valuer-General to ascertain
land value of unvalued land
(1)
The Valuer-General is to ascertain the land value
of each parcel of land that is unvalued land in accordance with the
regulations.
(2)
The land value of unvalued land is the land value
as ascertained by the Valuer-General under this section.
(3)
A valuation made by the Valuer-General under this
section is a levy
valuation.
(4)
This section does not apply if the regulations
specify a zero land value for the unvalued land.
22Application of Valuation of Land Act
1916
(1)
Levy valuations are to be entered in the Register
of Land Values kept under the Valuation of Land
Act 1916.
(2)
Information entered in the Register of Land
Values about levy valuations is to be included in any valuation list or
supplementary lists compiled by the Valuer-General and furnished to a rating
or taxing authority under the Valuation of Land
Act 1916.
(3)
Subject to this Division, the Valuation of Land Act 1916 and the
regulations under that Act apply, with any necessary modifications, to levy
valuations and to the information about levy valuations entered in the
Register of Land Values in the same way as they apply to general valuations
and to the information about general valuations entered in the Register of
Land Valuers under that Act.
Note—
Parts 3 and 4 of the Valuation of Land Act 1916 permit
objections to, and appeals against, valuations made by the
Valuer-General.
Part 5 of the Valuation of Land
Act 1916, among other things, requires councils to use the
valuation list as the basis for charging rates or taxes.
(4)
For the purpose of applying the Valuation of Land Act 1916 to levy
valuations of unvalued land on Lord Howe Island:
(a)
Lord Howe Island is taken to be an area,
and
(b)
the Lord Howe Island Board is taken to be a
rating or taxing authority, and a council, for that
area.
(5)
The regulations under the Valuation of Land Act 1916 may modify
the application of, or disapply, any provision of the Valuation of Land Act 1916 or the
regulations under that Act in relation to unvalued land and levy
valuations.
Division 3Discounts
23Discount for vacant
land
(1)
A liable person is eligible for a vacant land
discount in respect of the levy payable on leviable land if the land is vacant
land.
(2)
The levy payable for a financial year is to be
reduced by the vacant land discount (expressed as a percentage) for the
financial year for which the levy is charged.
(3)
The vacant
land discount is 0.5 or, if another rate is prescribed by
the regulations, that rate.
(4)
The discount applies to the fixed and ad valorem
components only and not to any interest that accrues on overdue payments of
the levy.
(5)
The discount applies only to the proportion of
the levy that is payable for the number of quarterly instalment periods during
the financial year in which the land is vacant land.
24Discount for eligible
pensioners
(1)
A liable person is eligible for a pensioner
discount in respect of the levy payable on leviable land if the liable person
is an eligible pensioner.
(2)
The levy payable for a financial year is to be
reduced by the pensioner discount amount.
(3)
The pensioner discount amount is proportionate to
the number of quarterly instalment periods during the financial year in which
the liable person is an eligible pensioner.
(4)
Only one pensioner discount can be claimed in
respect of a parcel of land, even if more than one eligible pensioner is a
liable person in respect of the land.
(5)
If the pensioner discount amount is more than the
levy that (but for the discount) would be payable, the levy payable is
zero.
25Pensioner discount
amount
(1)
The pensioner
discount amount is:
(a)
$50 in the 2017/2018 financial year,
and
(b)
the indexed amount in any subsequent financial
year.
(2)
The indexed amount is the amount determined by
multiplying $50 by A/B, where:
A is the Sydney CPI number for
December in the financial year before the financial year for which the indexed
amount is being determined, and
B is the Sydney CPI number for
December 2016, and
A/B is calculated to the nearest 3
decimal places (and a fourth decimal place of 5 is to be rounded
up).
(3)
If the indexed amount is not a multiple of 10
cents, the amount is to be rounded to the nearest 10 cent multiple (and an
amount of 5 cents is to be rounded up).
(4)
The Treasurer is to publish a notice on the NSW
legislation website by 30 April before the commencement of each financial year
(starting with the 2018/2019 financial year) specifying the indexed amount for
that financial year, calculated in accordance with this
section.
(5)
In this section:
Sydney
CPI number means the Consumer Price Index (All Groups Index)
for Sydney issued by the Australian Statistician or, if the Australian
Statistician fails or ceases to issue that number, another number or index
prescribed by the regulations.
26Change of
circumstances
(1)
If circumstances occur during a financial year
that cause an entitlement to a pensioner discount on the levy to arise, the
entitlement is taken to arise at the beginning of the first day of the
quarterly instalment period that starts immediately after the quarterly
instalment period during which those circumstances
occurred.
(2)
If circumstances occur during a financial year
that cause an entitlement to a pensioner discount on the levy to cease, the
entitlement is taken to cease at the end of the last day of the quarterly
instalment period during which those circumstances
occurred.
(3)
If, at the time the entitlement is taken to arise
or cease, the levy for the whole year has been paid in full, the portion of
the payment that is proportionate to the number of quarterly instalment
periods remaining after that time is to be credited to the levy payable in
respect of the remaining part of the year.
Part 4Method for calculating ad
valorem rate
Division 1Treasurer to calculate ad
valorem rate
27Published ad valorem
rate
(1)
The Treasurer must, before the commencement of
each financial year, determine an ad valorem rate of the levy for the next
financial year.
(2)
The determination must specify an ad valorem rate
of the levy for each property sector (other than government
land).
(3)
The determination is to be made by order
published on the NSW legislation website.
(4)
The order is to be published on the NSW
legislation website by the date of 30 April that occurs immediately before the
commencement of the financial year.
(5)
An ad valorem rate specified in the order for a
property sector is the published
ad valorem rate for that property sector for the financial
year for which it is specified.
(6)
If an order specifying the ad valorem rate of the
levy for a financial year is not published on the NSW legislation website by
the date of 30 April that occurs immediately before the commencement of that
financial year, the published ad valorem rate for a property sector is taken
to be the published ad valorem rate for the financial year that immediately
precedes the financial year.
(7)
Subsection (6) does not apply to the ad valorem
rate for the 2017/2018 financial year.
Note—
Schedule 3 permits things required to be done by
30 April 2017 to be done later, if this Act has not commenced by 23
April.
28Ad valorem rate
formula
(1)
The Treasurer is to determine the ad valorem rate
of the levy for a property sector using the ad valorem rate
formula.
(2)
The ad
valorem rate formula is the following formula:
where:
A is the ad valorem rate of the levy
for the property sector for the financial year for which the determination is
being made.
R is the revenue target for the
property sector for the financial year.
F is the fixed component of the levy
for the property sector for the financial year.
Nnv is the estimated
number of non-vacant properties in the property sector for the financial
year.
D is 1 minus the vacant land
discount for the financial year.
Nv is the estimated
number of vacant properties in the property sector for the financial
year.
C is the pensioner discount amount
for the financial year.
P is the estimated number of
pensioner discount properties in the property sector for the financial
year.
Vnv is the estimated
value of non-vacant properties in the property sector for the financial
year.
Vv is the estimated value
of vacant properties in the property sector for the financial
year.
(3)
For the public benefit land and farmland property
sectors, Nv and Vv are taken to be
zero.
(4)
Expressions used in the ad valorem rate formula
have the meanings given by this Division.
29Revenue target for property
sector
The revenue
target for a property sector for a financial year is the
amount determined by applying the relevant proportion for the property sector
to the FESL revenue target for that financial year.
Note—
Division 2 sets out how the Treasurer determines
the FESL revenue target.
30Relevant
proportion
(1)
The relevant
proportion for each property sector is as follows:
(a)
for public benefit
land—0.33%,
(b)
for farmland—4.56%,
(c)
for residential
land—58.07%,
(d)
for industrial
land—10.38%,
(e)
for commercial
land—26.66%.
(2)
The regulations may specify a different relevant
proportion for any property sector and, if they do, the relevant proportion
for the property sector is the proportion specified in the
regulations.
(3)
The regulations may specify different proportions
for different financial years.
31Estimate of non-vacant
properties
(1)
The estimated
number of non-vacant properties in a property sector is an
estimate adopted by the Valuer-General, for a financial year, of the number of
non-vacant parcels of land in that property sector in that financial
year.
(2)
The estimated
value of non-vacant properties in a property sector is an
estimate adopted by the Valuer-General, for a financial year, of the total
land value, for levy purposes, of all non-vacant parcels of land in that
property sector in that financial year.
(3)
A parcel of land is non-vacant if it is not
sub-classified as vacant land.
(4)
The Valuer-General is to prepare and adopt an
estimated number of non-vacant properties and an estimated value of non-vacant
properties, for each property sector, and give each estimate to the Treasurer
by 15 March in the year in which the financial year for which the estimate is
made commences or by a later date approved by the
Treasurer.
(5)
An estimate of value is to be rounded to the
nearest multiple of $100,000 (with an amount of $50,000 rounded
up).
(6)
Estimates are not required for the government
land property sector.
(7)
In this section, a reference to a parcel of land
is a reference to a parcel of land that is a separate parcel of land under
this Act.
32Estimate of vacant
properties
(1)
The estimated
number of vacant properties in a property sector is an
estimate adopted by the Valuer-General, for a financial year, of the number of
vacant parcels of land in that property sector in that financial
year.
(2)
The estimated
value of vacant properties in a property sector is an
estimate adopted by the Valuer-General, for a financial year, of the total
land value, for levy purposes, of all vacant parcels of land in that property
sector in that financial year.
(3)
The Valuer-General is to prepare and adopt an
estimated number of vacant properties and an estimated value of vacant
properties, for each property sector, and give each estimate to the Treasurer
by 15 March in the year in which the financial year for which the estimate is
made commences or by a later date approved by the
Treasurer.
(4)
An estimate of value is to be rounded to the
nearest multiple of $100,000 (with an amount of $50,000 rounded
up).
(5)
Estimates are not required for the government
land, public benefit land or farmland property sectors.
(6)
In this section, a reference to a parcel of land
is a reference to a parcel of land that is a separate parcel of land under
this Act.
33Estimate of pensioner discount
properties
(1)
The estimated
number of pensioner discount properties in a property sector
is an estimate adopted by the Valuer-General, for a financial year, of the
number of parcels of land in that property sector that will be eligible for a
pensioner discount in that financial year.
(2)
The Valuer-General is to prepare and adopt an
estimated number of pensioner discount properties, for each property sector,
and give each estimate to the Treasurer by 15 March in the year in which the
financial year for which the estimate is made commences or by a later date
approved by the Treasurer.
(3)
An estimate is not required for the government
land property sector.
(4)
In this section, a reference to a parcel of land
is a reference to a parcel of land that is a separate parcel of land under
this Act.
34Councils to provide levy
estimate information to Valuer-General
(1)
Each council is to provide to the Valuer-General,
by 15 February in each year or by a later date prescribed by the regulations,
a return in a form approved by the Valuer-General that contains the levy
estimate information for the council’s area.
(2)
The levy
estimate information means the following:
(a)
information about the classification and
sub-classification of land in the council’s area,
(b)
information about the number of parcels of land
in the council’s area that are eligible for a pensioner discount under
this Act,
(c)
any other information that the Valuer-General
reasonably requires for the purpose of exercising his or her functions under
this Division.
(3)
The levy estimate information must be up to date
as of 31 December in the year before the return is required to be
provided.
(4)
In this section, a reference to a parcel of land
is a reference to a parcel of land that is a separate parcel of land under
this Act.
35Information to be used by
Valuer-General to provide estimates
(1)
The Valuer-General is to make the estimates
required to be made by the Valuer-General under this Division on the basis of
the levy estimate information provided to the Valuer-General by councils in
accordance with this Act and any other information that the Valuer-General
considers relevant.
(2)
If a council fails to provide any levy estimate
information for the council’s area by the date it is required to provide
that information under this Act, the Valuer-General may make the estimate on
the basis of any other information available to the
Valuer-General.
(3)
The Valuer-General may, in adopting an estimate
under this Division, make any adjustments or allowances that the
Valuer-General considers it appropriate to make.
Division 2FESL revenue target for ad
valorem calculation
36FESL revenue
target
(1)
The Treasurer is to determine the FESL revenue target for a financial
year using the following formula:
where:
ERt is the FESL revenue
target for the financial year (represented by “t”).
FTt is the funding target
for the financial year.
CCt is the collection
cost for the levy in the financial year.
ERt-2 is the FESL revenue
target for the financial year that commenced 2 years before the period
“t” (represented as “t-2”).
ARt-2 is the actual FESL
revenue for the financial year that commenced 2 years before the period
“t” (represented as “t-2”), as certified by the
Treasurer.
OCt is the recovered
over-collection amount for the financial year.
(2)
To avoid doubt, if
ERt-2−ARt-2 is a negative amount, that amount is
subtracted from the total.
(3)
When calculating the FESL revenue target for the
2017/2018 financial year and the 2018/2019 financial year,
ERt-2− ARt-2 is taken to be
zero.
(4)
The FESL revenue target is to include any
additions made under Part 2 of Schedule 3.
Note—
Under Schedule 3, the Monitor budget and start-up
costs for the levy can be added to the FESL revenue target during the initial
period of the scheme.
(5)
Expressions used in the FESL revenue target
formula have the meanings given by this Division.
37Funding
target
The funding
target for a financial year is the total of the following
funding targets for the financial year:
(a)
the SES funding target (within the meaning of
Part 5A of the State Emergency Service Act
1989),
(b)
the fire brigades funding target (within the
meaning of Part 5 of the Fire Brigades Act
1989),
(c)
the rural fire brigade funding target (within the
meaning of Part 5 of the Rural Fires Act
1997).
38Collection
cost
(1)
The collection cost for the levy in a
financial year is the amount calculated by the Treasurer in accordance with
this section.
(2)
The Treasurer is to calculate the collection cost
for a financial year using the following formula:
where:
CCt is the collection
cost for the financial year (represented by “t”).
ECt is the estimated
collection cost for the financial year.
ACt-2 is the actual
collection cost for the financial year that commenced 2 years before the
period “t” (represented as “t-2”).
ECt-2 is the estimated
collection cost for the financial year that commenced 2 years before the
period “t” (represented as
“t-2”).
(3)
The Treasurer must, before 30 April in each year,
prepare and adopt an estimate of the collection cost for the next financial
year (which is the estimated
collection cost for that financial
year).
(4)
The estimated collection cost for a financial
year is the Treasurer’s estimate of the total of the following:
(a)
the collection payments that will be made to
councils during the financial year,
(b)
the costs that will be incurred by or on behalf
of the Crown in exercising functions under this Act during the financial
year.
(5)
The actual
collection cost for a financial year is the amount certified
by the Treasurer to be the total of the following:
(a)
all collection payments that were made to
councils during the financial year,
(b)
all costs that were incurred by or on behalf of
the Crown in exercising functions under this Act during the financial
year.
(6)
For the 2017/2018 financial year and the
2018/2019 financial year, ACt-2−ECt-2 is taken to
be zero.
39Recovered over-collection
amount
(1)
The recovered
over-collection amount for a financial year is the sum of
all over-collection amounts paid to or recovered by the Chief Commissioner
under Part 3A of the Emergency Services Levy Insurance
Monitor Act 2016 in the period of 12 months ending on the
date of 31 March occurring before the commencement of the financial year, as
determined by the Chief Commissioner.
(2)
The Chief Commissioner is to advise the Treasurer
of the recovered over-collection amount by the date of 15 April that occurs
before the commencement of the financial year or by a later date approved by
the Treasurer.
Part 5Classification of land for
levy
Division 1Councils required to classify
land
40Land to be classified into
property sectors
(1)
For the purpose of charging the levy, a council
must classify each parcel of land in its area to be within one of the
following categories (each of which is a property sectorfor the purposes of
this Act):
(a)
government land,
(b)
public benefit land,
(c)
farmland,
(d)
residential land,
(e)
industrial land,
(f)
commercial land.
(2)
Each parcel of land that is a separate parcel of
land for the purposes of this Act must be separately
classified.
(3)
The land must be classified in accordance with
this Part.
(4)
For the purposes of this Act, land is within a
property sector if it is classified to be within that property sector under
this Part.
41Steps for
classification
(1)
When classifying land, a council must first
consider whether the land is government land.
(2)
The council is to classify the land as government
land if the land meets the requirements for classification as government
land.
(3)
If the land does not meet the requirements for
classification as government land, the council must:
(a)
consider whether the land is public benefit land,
and
(b)
if the land meets the requirements for
classification as public benefit land, classify the land as public benefit
land.
(4)
If the land does not meet the requirements for
classification as either government land or public benefit land, the council
must:
(a)
consider whether the land should be classified as
farmland or residential land, and
(b)
if the land meets the requirements for
classification as farmland or residential land, classify the land as farmland
or residential land, respectively.
(5)
If the land does not meet the requirements for
classification as government land, public benefit land, farmland or
residential land, the council must:
(a)
consider whether the land should be classified as
industrial land, and
(b)
if the land meets the requirements for
classification as industrial land, classify the land as industrial
land.
(6)
If the land does not meet the requirements for
classification as government land, public benefit land, farmland, residential
land or industrial land, the council is to classify the land as commercial
land.
Note—
Commercial land is the default classification for
leviable land. If land cannot be classified into one of the other categories,
it is to be classified as commercial land.
42Requirements for
classification as government land
(1)
Land meets the requirements for classification as
government land, subject to the
regulations, if:
(a)
the land is owned by the Crown, unless:
(i)
the regulations declare that the land is not
government land, or
(ii)
the land is leased and subsection (2) applies to
the land, or
(b)
the land is owned by a State owned corporation,
unless:
(i)
the regulations declare that the corporation is a
liable State owned corporation, or
(ii)
the land is leased and subsection (2) applies to
the land, or
(c)
the land is owned by the Commonwealth,
or
(d)
the land is owned by a council, unless:
(i)
the regulations declare that the land is not
government land, or
(ii)
the land is leased and subsection (2) applies to
the land, or
(e)
the land is situated within any part of the
Western Division (within the meaning of the Crown Lands Act
1989) that is not constituted as an area under the Local Government Act 1993,
or
(f)
the land is the premises of a mission to which
the Diplomatic Privileges and Immunities Act
1967 of the Commonwealth applies, or
(g)
the land is declared by the regulations to be
government land.
(2)
Land that is owned by the Crown, a State owned
corporation or a council does not meet the requirements for classification as
government land if the land is the subject of a lease for value and the
dominant use of the land is for the purposes of the
lease.
(3)
However, subsection (2) does not apply if:
(a)
the land is owned by the New South Wales Land and
Housing Corporation, or by the Aboriginal Housing Office, and the dominant use
of the land under the lease is for residential accommodation,
or
(b)
the land is owned by the Crown and leased to an
individual who is employed in the service of the Crown, in his or her capacity
as an employee, and the dominant use of the land under the lease is for
residential accommodation, or
(c)
the land is owned by a State owned corporation
and leased to an individual who is employed by the State owned corporation, in
his or her capacity as an employee, and the dominant use of the land under the
lease is for residential accommodation, or
(d)
the land is owned by a council and leased to an
individual who is employed by the council, in his or her capacity as an
employee, and the dominant use of the land under the lease is for residential
accommodation, or
(e)
a regulation under subsection (1) (g) declares
the land to be government land (unless otherwise provided by the
regulations).
(4)
Residential accommodation means the type of
residential accommodation that permits rateable land to be categorised as
residential under section 516 of the Local Government
Act 1993.
(5)
A provision of a regulation that is made under
this section may specify the date on and from which the provision takes effect
for classification purposes. The date may occur before, on or after the date
of publication of the regulation on the NSW legislation website but not before
the commencement of the financial year in which publication
occurs.
(6)
If no date is specified, any change in the
requirements for classification of land made by the regulation is taken to
have effect at the beginning of the first date of the next quarterly
instalment period after the regulation takes effect.
43Requirements for
classification as public benefit land
(1)
Land meets the requirements for classification as
public
benefit land if:
(a)
the land is not-for-profit land,
and
(b)
the liable person is using the land for a purpose
referred to in Schedule 1, and
(c)
that purpose is the dominant use of the
land.
(2)
Land is not-for-profit land if:
(a)
the land is not used for any profit-making
purpose, or
(b)
the dominant use of the land is for a purpose
that is not a profit-making purpose.
(3)
Land may be used for a profit-making purpose even
if no profit is made.
(4)
The regulations may declare any use of land to
be, or not to be, for a profit-making purpose.
(5)
The regulations may amend Schedule
1.
(6)
A provision of a regulation that is made under
this section may specify the date on and from which the provision takes effect
for classification purposes. The date may occur on or after the date of
publication of the regulation on the NSW legislation
website.
(7)
If no date is specified, any change in the
requirements for classification of land made by the regulation is taken to
have effect at the beginning of the first date of the next quarterly
instalment period after the regulation takes effect.
44Requirements for
classification as farmland
Land meets the requirements for classification as
farmland if it is categorised as
farmland by the council for ratings purposes under the Local
Government Act 1993 or would be so categorised if it were
rateable land under that Act.
45Requirements for
classification as residential land
Land meets the requirements for classification as
residential land if it is
categorised as residential by the council for ratings purposes under the
Local Government Act 1993 or would be so
categorised if it were rateable land under that Act.
46Requirements for
classification as industrial land
(1)
Land meets the requirements for classification as
industrial land if the dominant use
of the land is for a purpose referred to in Schedule 2.
(2)
The regulations may amend Schedule
2.
(3)
A provision of a regulation that is made under
this section may specify the date on and from which the provision takes effect
for classification purposes. The date may occur on or after the date of
publication of the regulation on the NSW legislation
website.
(4)
If no date is specified, any change in the
requirements for classification of land made by the regulation is taken to
have effect at the beginning of the first date of the next quarterly
instalment period after the regulation takes effect.
47Classification of land not yet
being used
Section 519 of the Local
Government Act 1993 applies to the classification of land
as public benefit land or industrial land under this Act in the same way as it
applies to the categorisation of land as farmland or residential under that
Act.
Division 2Classification
process
48Declaration of property
sector
(1)
A council classifies land to be within a
particular property sector by declaring the land to be within that property
sector.
(2)
A council may change the classification of a
parcel of land at any time by making another
declaration.
(3)
A classification of a parcel of land ceases to
have effect when a subsequent classification of the land takes
effect.
(4)
A council must change the classification of land
that is in a property sector if the requirements for classification in that
property sector change and, as a result, the land ceases to meet the
requirements for classification in that property sector.
(5)
A council may classify or change the
classification of land on its own initiative or on the application of a liable
person.
49Effective date for
classification
(1)
A classification of land takes effect from the
date specified for the purpose in the declaration of the council (this is the
effective
date for the classification).
(2)
The effective date for the classification must be
a date of 1 July, 1 October, 1 January or 1 April.
Note—
These dates are the beginning of each quarterly
instalment period for the levy.
(3)
The effective date for the classification may be
a date that is before the date the declaration is made.
Note—
See also sections 72 and
73.
50Notice of
classification
(1)
A council must give notice to a liable person of
the classification declared for any parcel of land for which the person is a
liable person, and the effective date for the classification, within 30 days
after it is made.
(2)
The notice must, if the council classified the
land on its own initiative:
(a)
state that the person has the right to apply to
the council for a review of the classification of the land, or of the
effective date for the classification, or both, and
(b)
state that the person has the right to appeal to
the Land and Environment Court if dissatisfied with the council’s
review.
(3)
Notice is not required to be given if the land is
classified as government land.
51Application for classification
or review of classification
(1)
A liable person may apply to the council at any
time:
(a)
to have the person’s land classified as
being within a particular property sector for the purposes of this Act,
or
(b)
for a review of a classification by the council
of the person’s land or the effective date for the classification (or
both).
(2)
An application:
(a)
must be in a form approved by the council,
and
(b)
must include a description of the land,
and
(c)
must nominate the property sector that the
applicant considers the land should be within (if a different classification
is sought), and
(d)
must set out the reasons why the applicant
considers the land should be within that property sector,
and
(e)
must nominate the effective date for the
classification that is sought by the applicant, and
(f)
must be accompanied by the fee (if any) charged
by the council for the application.
(3)
If the council has reasonable grounds for
believing that the land does not meet the requirements for classification for
the nominated property sector, or that the effective date for classification
nominated is not appropriate, it may notify the applicant of any further
information it requires in order to decide the
application.
(4)
The regulations may prescribe a maximum fee that
may be charged by a council for making an application under this
section.
52Council to decide
application
(1)
After considering an application for
classification or review of classification, and any further information
provided at the request of the council, the council must declare the property
sector for the land and specify the effective date for the
classification.
(2)
The council must declare the land to be within
the property sector nominated in the application unless it has reasonable
grounds for believing that the land does not meet the requirements for
classification within that property sector.
(3)
The council must notify the applicant of its
decision.
(4)
If the council declares the land to be within a
property sector that is not the property sector nominated by the applicant or
declares an effective date for the classification that is not the date
nominated by the applicant, the council must include in the notice:
(a)
the reasons for the decision,
and
(b)
information about appeals to the Land and
Environment Court (including the time limit for making an
appeal).
(5)
If the council has not notified the applicant of
its decision within 40 days after the application is made to it, the council
is taken, at the end of the 40-day period, to have declared the land to be
within its existing property sector with the same effective date as it
previously specified.
(6)
The fee (if any) for making an application for
classification or review of classification is to be refunded:
(a)
if the council declares the land to be within the
property sector nominated by the applicant, or
(b)
if the council fails to notify the applicant of a
decision within 40 days after the application is made to
it.
Division 3Sub-classification of land as
vacant land
53Sub-classification of land as
vacant land
(1)
A council may sub-classify a parcel of land as
vacant land if the land meets the requirements for sub-classification as
vacant land.
(2)
Land may be sub-classified as vacant land only if
a liable person for the land applies to the council for that
sub-classification, in accordance with this Part.
(3)
A council sub-classifies land as vacant land by
declaring the land to be vacant land.
54Criteria for
sub-classification
Land meets the requirements for
sub-classification as vacant land if:
(a)
the land is residential land, industrial land or
commercial land, and
(b)
there are no buildings or structures on the land
that are being used or that could be used for a residential, industrial or
commercial purpose, and
(c)
the land is not being used for storage or
treatment of goods, materials or any other thing, and
(d)
the land and any use of the land meets any other
requirements for sub-classification as vacant land specified in the
regulations.
55Application for
sub-classification
(1)
A liable person for land may apply to the
relevant council at any time to have the person’s land declared to be
vacant land.
(2)
An application:
(a)
must be in a form approved by the council,
and
(b)
must include a description of the land concerned,
and
(c)
must include the reasons why the applicant
considers the land to be vacant land, and
(d)
must nominate the date from which the applicant
considers the land should be sub-classified as vacant land,
and
(e)
must be accompanied by the fee (if any) charged
by the council for the application.
(3)
If the council has reasonable grounds for
believing that the land does not meet the requirements for sub-classification
as vacant land, it may notify the applicant of any further information it
requires in order to be satisfied that the land is within that
sub-category.
(4)
The regulations may prescribe a maximum fee that
may be charged by a council for making an application under this
section.
56Council to decide
application
(1)
After considering an application for land to be
declared to be vacant land, and any further information provided by the
applicant, the council must either:
(a)
declare the land to be vacant land,
or
(b)
refuse the
application.
(2)
The council must declare the land to be vacant
land if the council is satisfied that the land satisfies the requirements for
sub-classification as vacant land.
(3)
The council must notify the applicant of its
decision. The council must include the reasons for its decision if it refuses
the application.
(4)
If the council refuses the application, the
council must include in the notice:
(a)
the reasons for the decision,
and
(b)
information about appeals to the Land and
Environment Court (including the time limit for making an
appeal).
(5)
If the council has not notified the applicant of
its decision within 40 days after the application is made to it, the council
is taken, at the end of the 40-day period, to have refused the
application.
(6)
The fee (if any) for making an application that
land be declared to be vacant land is to be refunded:
(a)
if the council declares the land to be vacant
land, or
(b)
if the council fails to notify the applicant of a
decision within 40 days after the application is made to
it.
57Effective date for
sub-classification
(1)
A declaration that a parcel of land is vacant
land takes effect from a date specified for the purpose in the declaration
(this is the effective
date for the sub-classification).
(2)
The effective date for the sub-classification
must be a date of 1 July, 1 October, 1 January or 1 April.
Note—
These dates are the beginning of each quarterly
instalment period for the levy.
(3)
The effective date for the sub-classification may
be a date that is before the date the declaration is
made.
(4)
However, the earliest effective date for the
sub-classification is the date of 1 July in the financial year in which the
application is received by the council. The effective date for the
sub-classification cannot be in a previous financial year (despite any other
provision of this Act).
Note—
See also sections 72 and
73.
58Sub-classifications to be
reviewed
(1)
A council must ensure that it reviews the
sub-classification of any land as vacant land at least once every 4
years.
(2)
A council is to give written confirmation to the
Valuer-General that it has complied with this section if requested to do so by
the Valuer-General.
Division 4Revocation of
sub-classification of land
59Revocation of
sub-classification
(1)
A sub-classification of land as vacant land
ceases to have effect when it is revoked by the council.
(2)
A council may revoke the sub-classification of
land as vacant land at any time by making a declaration to that
effect.
(3)
A council must revoke the sub-classification of
land as vacant land if it ceases to meet the requirements for
sub-classification as vacant land.
(4)
A council must consider whether the
sub-classification of land as vacant land should be revoked if information
comes to its attention that the land is not vacant land.
(5)
Sub-classification of land as vacant land is
taken to cease to have effect if the classification of the land changes and
the new classification is government land, public benefit land or
farmland.
60Effective date for revocation
of sub-classification
(1)
A revocation of sub-classification takes effect
on a date specified by the council in its declaration that the
sub-classification is revoked (this is the effective date for the
revocation).
(2)
The effective date for the revocation must be a
date of 1 July, 1 October, 1 January or 1 April.
Note—
These dates are the beginning of each quarterly
instalment period for the levy.
(3)
The effective date for the revocation may be a
date that is before the date the declaration is made.
61Notice of
revocation
(1)
A council must give notice to a liable person of
the revocation of a sub-classification of land as vacant land, for any parcel
of land for which the person is a liable person, and the effective date for
the classification, within 30 days after it is made.
(2)
The notice must:
(a)
state that the person has the right to apply to
the council for a review of the revocation, or of the effective date for the
revocation, or both, and
(b)
state that the person has the right to appeal to
the Land and Environment Court if dissatisfied with the council’s
review.
62Application for review of
revocation
(1)
A liable person may apply to the council at any
time for a review of any of the following decisions of a council:
(a)
a decision to revoke the sub-classification of
the person’s land as vacant land,
(b)
a decision to specify the effective date for the
revocation.
(2)
An application:
(a)
must be in a form approved by the council,
and
(b)
must include a description of the land,
and
(c)
must set out the reasons why the applicant
considers the land should continue to be sub-classified as vacant land (if
sub-classification is sought), and
(d)
must nominate the effective date for the
revocation of sub-classification of the land as vacant land (if
sub-classification is no longer sought), and
(e)
must be accompanied by the fee (if any) charged
by the council for the application.
(3)
The regulations may prescribe a maximum fee that
may be charged by a council for an application under this
section.
63Council to decide
application
(1)
After considering an application for review of a
council decision under this Division, and any further information provided at
the request of the council, the council must:
(a)
affirm its decision, or
(b)
set aside its
decision.
(2)
If the council sets aside its decision, it may
substitute a new decision.
(3)
The council must notify the applicant of its
decision.
(4)
If the council affirms its original decision, the
council must include in the notice:
(a)
the reasons for the decision,
and
(b)
information about appeals to the Land and
Environment Court (including the time limit for making an
appeal).
(5)
If the council has not notified the applicant of
its decision within 40 days after the application is made to it, the council
is taken, at the end of the 40-day period, to have affirmed its decision to
revoke sub-classification with the same effective date as it previously
specified.
(6)
The fee (if any) for making an application that
land be declared to be vacant land is to be refunded:
(a)
if the council sets aside its original decision,
or
(b)
if the council fails to notify the applicant of a
decision within 40 days after the application is made to
it.
Division 5Appeals
64Appeals to Land and
Environment Court
(1)
A liable person who is dissatisfied with a
relevant decision may appeal to the Land and Environment Court against the
decision.
(2)
In this Division, a relevant decision means:
(a)
a decision that the council makes on an
application by the person for the classification of the person’s land,
or
(b)
a decision that the council makes on an
application for a review of the classification of the person’s land, or
the effective date for the classification, or both, or
(c)
a decision that the council makes on an
application by the person for the sub-classification of the person’s
land as vacant land, or
(d)
a decision that the council makes on an
application for a review of the revocation of the sub-classification of the
person’s land as vacant land, or the effective date for the revocation,
or both.
(3)
An appeal must be made no later than 30 days
after notice of the relevant decision is given to the
person.
65Council to give Valuer-General
notice of appeal
(1)
A council is to give the Valuer-General notice of
any appeal against a relevant decision of the council that is made to the Land
and Environment Court.
(2)
The notice must be given to the Valuer-General
within 7 days after the council is given notice of the
appeal.
66Powers of Land and Environment
Court on appeal
The Land and Environment Court may do any of the
following on an appeal against a relevant decision:
(a)
affirm or vary the decision of the
council,
(b)
set aside the decision of the council and make a
new decision in substitution for that decision,
(c)
order the council to refund the fee paid for
making the application for classification, sub-classification or review (as
the case requires).
Division 6Provision of information to
Valuer-General
67Councils to provide annual
return to Valuer-General
(1)
Each council is to provide to the Valuer-General,
by 15 February in each year, a return for the year ending on the preceding 31
December relating to the decisions made by the council under this
Part.
(2)
The return is to contain the following
information about the year ending on the preceding 31 December:
(a)
information about the decisions made by the
council under this Part, including any information specified in the
regulations,
(b)
any other information that the Valuer-General
reasonably requires for the purpose of exercising his or her functions under
this Act.
(3)
The return is to be in a form approved by the
Valuer-General.
(4)
The information provided must be up to date as of
31 December in the year before the return is required to be
provided.
(5)
The regulations may make further provision for
returns under this section.
(6)
Without limiting subsection (5), the regulations
may require the general manager or the public officer of a council to certify
the accuracy and completeness of information contained in the
return.
68Valuer-General may require
further information
(1)
The Valuer-General may, at any time, by notice to
a council, require the council to provide the following to the
Valuer-General:
(a)
information about decisions made by the council
under this Part (including reasons for decisions),
(b)
any other information the Valuer-General
reasonably requires for the purpose of exercising his or her functions under
this Act.
(2)
A council must not fail to comply with any such
requirement.
(3)
The Valuer-General may require the general
manager or the public officer of a council to certify the accuracy and
completeness of any information that the council provides under this
section.
Division 7Miscellaneous
69Rules about classification and
sub-classification
(1)
The Treasurer may, by order published on the NSW
legislation website, issue rules about the circumstances in which land is or
is not to be treated as having met any requirements for classification or
sub-classification under this Part.
(2)
Without limiting subsection (1), the rules may
provide for the circumstances in which a use of land for a specified purpose
is, or is not, to be treated as the dominant use of the
land.
(3)
A council must comply with the rules when
exercising its functions under this Part.
70Zoning and use
changes
A council must review its classification of a
parcel of land and its sub-classification (if any) if:
(a)
the zoning or designated use for the land under
an environmental planning instrument changes, or
(b)
a change in use for the land is approved by the
council.
71Adjustment of levy following
change in classification or sub-classification
(1)
A council must make an appropriate adjustment of
any levy paid or payable, and to any instalments payable, by a liable person
following a change in classification or sub-classification of land or a
revocation of sub-classification.
(2)
If, at the effective date for a new
classification or sub-classification, or a revocation of sub-classification,
the levy for the whole year has been paid in full, the portion of the payment
that is proportionate to the number of quarterly instalment periods remaining
in the year is to be credited to the levy payable in respect of the remaining
part of the year.
72Changes deemed to take effect
at end of quarterly instalment period
(1)
If circumstances occur during a financial year
that justify a new classification, the sub-classification or the revocation of
sub-classification of a person’s land, those circumstances are to be
treated by a council, for the purpose of setting an effective date for the new
classification, sub-classification or revocation, as having occurred on the
date that is the first date of the next quarterly instalment period after the
quarterly instalment period during which the change actually
occurred.
(2)
This section does not apply to a new
classification that is made because of the making of a regulation that changes
the requirements for classification of land.
Note—
A regulation that changes classification
requirements may specify when it takes effect for classification
purposes.
73Notice of change of
circumstances is required
(1)
A liable person must give notice to the council
within 30 days of any change in circumstances that justifies:
(a)
a new classification of the person’s land,
or
(b)
the sub-classification of the person’s
land, or
(c)
the revocation of sub-classification of the
person’s land.
(2)
If a liable person fails to give notice of a
change in circumstances that would justify a new classification of the land in
respect of which a lower levy would be payable, or the sub-classification of
the land, within the period required by this section, the council may set an
effective date for the classification or sub-classification that is the first
day of the next quarterly instalment period after notification (regardless of
when the change in circumstances occurred).
(3)
The next quarterly instalment period after
notification is the next quarterly instalment period to occur after the
quarterly instalment period during which the change in circumstances is
notified to the council in accordance with this section.
(4)
A notice under this section must be given in a
form and manner approved by the council.
(5)
A council may require the notice to be given in
the form of an application for classification or sub-classification of the
land.
74Classification of mixed
development land
(1)
If a valuation is furnished under the Valuation of Land Act 1916 for mixed
development land, a council may:
(a)
classify the part of the land that is
non-residential land as industrial land, commercial land or public benefit
land, as the case requires (the first
classification), and
(b)
classify the remaining part of the land as
residential land (the second
classification).
(2)
In that case, the levy payable is the sum of the
following amounts:
(a)
the amount obtained by applying the apportionment
factor to the levy that would be payable for the land if it were wholly within
the first classification,
(b)
the amount obtained by applying the remainder
factor to the levy that would be payable for the land if it were wholly within
the second classification.
(3)
The apportionment factor is the apportionment
factor for the parcel ascertained under section 14X of the Valuation of Land Act
1916.
(4)
The remainder factor is the factor obtained by
deducting the apportionment factor from 100%.
(5)
In this section, mixed
development land and non-residential land have the same
meanings as in Division 5 of Part 1B of the Valuation of Land
Act 1916.
75Parcel of land in 2 or more
areas
(1)
If different parts of the same parcel of land are
situated in different areas, each part of the parcel that is situated in a
separate area is taken, for the purposes of this Act, to be a separate parcel
of land.
(2)
Accordingly, a council must:
(a)
classify, and sub-classify (if necessary), the
part of the parcel of land that is situated in the council’s area, as if
that land were a separate parcel of land, and
(b)
charge a levy in respect of the part of the
parcel of land that is within the council’s area, as if that land were a
separate parcel of land.
Note—
Section 28 of the Valuation of Land
Act 1916 provides for the apportionment of a land
valuation between parcels of land that are situated in more than one
district.
(3)
However, a council may, on application by a
liable person, waive or refund part of the fixed component of the levy charged
by the council in respect of a parcel of land if satisfied that the parcel of
land is situated in more than one area and that, accordingly, more than one
levy is payable in respect of the parcel.
(4)
The maximum amount that can be waived or refunded
under this section is the amount obtained when the appropriate proportion is
deducted from the fixed component of the levy.
(5)
The appropriate proportion is the amount
that is obtained by dividing the fixed component of the levy that would be
payable if the land were situated wholly in the council’s area by the
number of areas in which the parcel of land is situated.
(6)
This section is in addition to, and does not
limit, the functions of a council under Part 8.
76Powers of entry and
inspection
To avoid doubt, Part 2 of Chapter 8 of the
Local Government Act 1993 applies to a
council’s functions under this Act.
Note—
Part 2 of Chapter 8 of the Local
Government Act 1993 enables council employees to enter
premises and conduct inspections for the purpose of enabling a council to
exercise its functions. These powers could be exercised in connection with the
council’s classification functions under this Part or other functions
under this Act.
Part 6Charging and collection of
levy by council
Division 1Charging of
levy
77Council must charge
levy
A council must charge a levy for each financial
year on all leviable land in its area.
78Levy to be charged by
notice
(1)
A council is to charge a levy by serving notice
of the levy on the liable person.
(2)
The levy notice is to contain the following
information:
(a)
the land on which the levy is
charged,
(b)
the classification of the
land,
(c)
the sub-classification of the land (if
any),
(d)
the amount of the levy
payable,
(e)
the land value, for levy purposes, of the land to
which it relates,
(f)
the date of 1 July by reference to which the land
is valued (unless the land is unvalued land),
(g)
any other information specified in the
regulations.
(3)
The levy is to be described as the “NSW
Government Fire and Emergency Services Levy” or as the “NSW Govt
FESL”. The description may include a reference to the property sector
that the land is within.
(4)
It is not necessary to specify the name of the
liable person or the person liable to pay the charge in the notice if the
council does not know the person’s name.
(5)
If rates and charges are payable in respect of
the land under the Local Government Act
1993, the levy notice is to be combined with the notice of
the rates or charges that is served under that Act, subject to any exceptions
provided for by the regulations.
(6)
Subject to the regulations, the levy notice may
be combined with the following:
(a)
notice of classification of the land under this
Act,
(b)
notice of categorisation of the land under the
Local Government Act
1993.
(7)
The regulations may make provision for the form
of the levy notice and the manner in which information is to be set out in the
levy notice.
79Timing for service of levy
notice
(1)
A levy notice may be served at any time after 1
July in the year for which the levy is charged or in a subsequent
year.
(2)
A levy notice that is required to effect an
adjustment of levy may be served in the year for which the levy is charged or
in a subsequent year.
80Time for payment of
levy
(1)
The levy may be paid in a single instalment or by
quarterly instalments, as provided for by this Part.
(2)
If a rate or charge under Chapter 15 of the
Local Government Act 1993 payable for
the same period as the levy is paid by single instalment, the levy must be
paid by single instalment.
(3)
If a rate or charge under Chapter 15 of the
Local Government Act 1993 payable for
the same period as the levy is paid by quarterly instalments, the levy must be
paid by quarterly instalments.
81Payment by single
instalment
(1)
If a levy is paid by single instalment, the
instalment is payable by 31 August.
(2)
However, if the levy notice is not served by 1
August, the single instalment is payable by 30 November, or the day that is 30
days after service of the notice, whichever is the
later.
82Payment by quarterly
instalments
(1)
If the levy is paid by quarterly instalments, a
quarterly instalment is payable for each of the following periods (each of
which is a quarterly
instalment period):
(a)
the period starting on 1 July and ending on the
next 30 September,
(b)
the period starting on 1 October and ending on
the next 31 December,
(c)
the period starting on 1 January and ending on
the next 31 March,
(d)
the period starting on 1 April and ending on the
next 30 June.
(2)
The start dates and end dates of a quarterly
instalment period are inclusive.
(3)
A quarterly instalment is payable by the date of
31 August, 30 November, 28 February or 31 May that falls within the quarterly
instalment period for which the instalment is payable.
(4)
However, if the levy notice is not served by 1
August, the first 2 quarterly instalments are payable by 30 November, or by
the day that is 30 days after service of the notice, whichever is the
later.
(5)
Section 562 (2) of the Local
Government Act 1993 applies in relation to the calculation
of quarterly instalments of the levy in the same way as it applies in relation
to the calculation of quarterly instalments of a rate or charge under that
Act.
(6)
On or before 31 October, 31 January and 30 April,
a council must send reminder notices to each person whose levy is being paid
by quarterly instalments.
(7)
The reminder notice may be sent in conjunction
with a reminder notice relating to rates and charges under the Local Government Act 1993 but must be
sent separately from a levy notice.
83Accrual of interest on overdue
levies
(1)
Interest accrues on any levy or part of a levy
that remains unpaid after it becomes due and payable.
(2)
Interest accrues on a daily
basis.
(3)
The rate of interest is that set by the council
but must not exceed the rate specified for overdue rates and charges by the
Minister administering the Local Government
Act 1993 under section 566 of that
Act.
(4)
If the council charges interest on overdue rates
and charges under the Local Government Act
1993, the rate of interest set by the council must be the
same as the rate of interest charged on overdue rates and
charges.
(5)
Accrued interest is, for the purpose of its
recovery, taken to be part of the levy that is due and
payable.
(6)
Interest continues to accrue on an unpaid levy or
part of a levy even though judgment for payment of the levy may have been
obtained in a court. Interest is not payable on the amount of the judgment
(exclusive of any order for costs), despite any other
Act.
Division 2Waiver or reduction of
levy
84Hardship
guidelines
(1)
The Treasurer may, by order published in the
Gazette, approve guidelines relating to the waiver or reduction of the levy
because of hardship.
(2)
The guidelines published under this section are
hardship
guidelines.
85Chief Commissioner may waive
or reduce levy
(1)
The Chief Commissioner may waive or reduce the
levy payable by any person in accordance with the hardship
guidelines.
(2)
If the Chief Commissioner decides to waive or
reduce the levy payable by a person, the Chief Commissioner must give notice
of that decision to the council responsible for recovering the
levy.
(3)
The council is required to give effect to that
decision by:
(a)
waiving or reducing the levy payable, as the case
requires, and
(b)
writing off the amount that is waived or the
amount of the reduction.
(4)
A council may not take proceedings to recover an
amount written off under this section.
(5)
If a levy that is waived or reduced is subject to
a levy recovery arrangement, subsections (3) and (4) apply to the Chief
Commissioner in the same way as they apply to the
council.
(6)
This section does not limit the power of a
council to waive or reduce the levy payable by a person under the provisions
of the Local Government Act
1993 that apply to the levy under Part
8.
86Liable person required to make
full and true disclosure
(1)
A liable person who makes a claim for a waiver or
reduction of a levy by the Chief Commissioner must fully and truly disclose to
the Chief Commissioner all the facts and circumstances relating to that
claim.
Maximum penalty: 100 penalty
units.
(2)
The Chief Commissioner may, by order in writing
served on a person (a payment
order), require a person to pay to the Chief Commissioner a
specified amount if:
(a)
the Chief Commissioner waived or reduced the levy
payable by the person, and
(b)
the Chief Commissioner is satisfied that the
person contravened subsection (1) in relation to the person’s claim for
a waiver or reduction of the levy.
(3)
A payment order may require the person to pay the
whole or part of a waived amount to the Chief Commissioner by a date specified
in the order (being not less than 30 days after the date of service of the
order).
(4)
A waived
amount is the amount of the levy that was waived or, if the
levy was reduced, the amount of the reduction.
(5)
A payment order may require the person to pay
interest in respect of the waived amount, calculated as provided for by this
Division.
(6)
A payment order may be made whether or not the
person against whom it is made has been prosecuted for, or found guilty of, an
offence under subsection (1).
(7)
A payment order cannot be made more than 3 years
after the contravention of subsection (1) is alleged to have
occurred.
(8)
In this section:
Chief
Commissioner includes a delegate of the Chief Commissioner
and any other person engaged in the administration of this
Act.
87Application of Taxation Administration Act
1996
(1)
The applied provisions of the Taxation Administration Act 1996 apply
in relation to a payment order as if this Act were a taxation law and the
amount payable under the order were a tax payable by the person to the Chief
Commissioner.
(2)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
Division 1 of Part 7,
(c)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(d)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(e)
sections 114, 115, 116, 118 and
120,
(f)
any provisions that are relevant to the
interpretation of the above provisions.
(3)
For the purposes of the applied provisions, a tax
default is taken to have occurred on the date the Chief Commissioner waived or
reduced the levy, unless the Chief Commissioner decides that a later date
should be treated as the tax default date.
(4)
If the Chief Commissioner decides that a later
date should be treated as the tax default date, a tax default does not occur
until that later date.
(5)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a payment order or to the exercise of any of the Chief
Commissioner’s functions under this Division (including under the
applied provisions of the Taxation Administration Act
1996).
88References to levy include
interest on levy
(1)
Any accrued interest on the levy may be waived or
reduced under this Division in the same way as the levy.
(2)
Accordingly, a reference in this Division to the
levy includes a reference to accrued interest on the
levy.
Division 3Recovery of
levy
89Recovery of levy as
debt
(1)
A levy payable to a council under this Act may be
recovered by the council as a debt in a court of competent
jurisdiction.
(2)
The levy has the same priority as rates or
charges that are owed to the council under the Local Government
Act 1993.
Note—
Part 8 gives the council the same remedies for
the recovery of the levy as the council has for rates and
charges.
90Levies paid to be kept in
council’s consolidated fund
(1)
Money received by a council in payment of the
levy is to be held in, and forms part of, the council’s consolidated
fund.
(2)
A council may retain any proceeds of investment
of the levy money.
(3)
This section does not affect the requirement that
the council pay collection instalments under this Act.
91Transfer of levy recovery to
Chief Commissioner
(1)
A council may enter into an arrangement (a
levy
recovery arrangement) with the Chief Commissioner that
enables the council to refer to the Chief Commissioner, for recovery by the
Chief Commissioner, any levy, part of a levy or class of levies, that is
payable to the council in respect of land that is not subject to a rate or
charge under the Local Government Act
1993.
(2)
If a levy, part of a levy or class of levies (a
referred
levy) is referred to the Chief Commissioner under a levy
recovery arrangement, on the transfer date:
(a)
the referred levy (and any interest that accrued
before the transfer date) becomes an amount payable to the Chief Commissioner
(not to the council), and
(b)
the referred levy ceases to be an assessed levy
of the council, and
(c)
the applied provisions of the Taxation Administration Act 1996 apply
to the referred levy as if it were a tax under a taxation law payable by the
person liable for the levy.
(3)
A failure to pay a referred levy is a tax default
for the purposes of the applied provisions of the Taxation Administration Act 1996 and, on
and from the transfer date, interest on any overdue amount accrues in
accordance with that Act (and not at the rate set by the
council).
(4)
If the referred levy became overdue before the
transfer date, a tax default is taken to occur, for the purposes of the
applied provisions, on the transfer date.
(5)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
Division 1 of Part 7,
(c)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(d)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(e)
sections 114, 115, 116, 118 and
120,
(f)
any provisions that are relevant to the
interpretation of the above provisions.
(6)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a referred levy or to the exercise of any of the Chief
Commissioner’s functions under a levy recovery arrangement (including
under the applied provisions of the Taxation
Administration Act 1996).
(7)
Any amount recovered by the Chief Commissioner
under a debt recovery arrangement:
(a)
is payable to the Consolidated Fund (not to the
council), and
(b)
is not to be included in the council’s
relevant payments under Part 7.
(8)
Section 571 of the Local
Government Act 1993, as it applies to the levy under Part
8, continues to apply in respect of a referred levy as if a reference in that
section to the council were a reference to the Chief
Commissioner.
(9)
The regulations may make further provision for
the application of the Local Government Act
1993 in respect of a referred levy, including by modifying
the application of any provision of that Act that applies to a levy that is
payable to the council.
(10)
In this section:
transfer
date means the date agreed in writing between a council and
the Chief Commissioner as the date on which a referred levy is referred to the
Chief Commissioner for recovery.
92Record of
levies
(1)
A council is required to keep a record of the
following:
(a)
each levy charged by it,
(b)
the land value, for levy purposes, of each parcel
of land on which the levy is charged,
(c)
the classification and any sub-classification of
the land,
(d)
the liable person for each parcel of land (if
known).
(2)
The council may amend the record at any
time.
93Collection
payments
(1)
The Treasurer is to make payments to councils to
reimburse the reasonable costs incurred by councils that are associated with
any of the following:
(a)
collecting and recovering the levy on behalf of
the State,
(b)
responding to, or defending, appeals in the Land
and Environment Court against decisions made by the council under this
Act,
(c)
otherwise implementing or administering this
Act.
(2)
Payments are to be made from the Consolidated
Fund out of money provided by Parliament.
(3)
A payment made by the Treasurer under this
section is a collection
payment.
Part 7Payment of levy to
State
Division 1Preliminary
94Council required to apportion
relevant payments
A council is to:
(a)
apply all relevant payments made to the council
in accordance with this Part, and
(b)
pay a proportion of those payments to the Chief
Commissioner in accordance with this Part.
95Relevant
payment—meaning
(1)
A relevant
payment means a payment made to a council in or towards
payment of any or all of the following:
(a)
an assessed rate or charge,
(b)
an assessed levy.
(2)
A payment is made to a council when it is
received, recovered or accepted by the council.
(3)
A payment includes the value of any capital
contribution received by the council under section 565 of the Local Government Act 1993 in payment of
an assessed rate or charge.
96Assessed rate or
charge—meaning
(1)
An assessed
rate or charge is a rate or charge that has been levied by
the council under Chapter 15 of the Local Government
Act 1993.
(2)
An assessed rate or charge includes any amount
payable as accrued interest on an assessed rate or
charge.
(3)
An assessed rate or charge does not
include:
(a)
any amount payable for the out-of-pocket expenses
incurred by the council in tracing persons that may be recovered as a rate or
charge under the Local Government Act
1993, or
(b)
a rate or charge, or a part of a rate or charge,
that has been written off or the payment of which has been waived by the
council.
(4)
If a rate or charge is reduced by a council, the
reduction is not to be included in an assessed rate or
charge.
(5)
If the payment of any part of a rate is postponed
under Division 2 of Part 8 of Chapter 15 of the Local
Government Act 1993:
(a)
the postponed rate is not an assessed rate or
charge, during the period in which payment is postponed,
and
(b)
any interest on the postponed rate, that accrues
under section 592 of that Act, is taken to be an assessed rate or
charge.
(6)
The regulations may make further provision for
the calculation of an assessed rate or charge, including by modifying the
application of any provision of this section.
(7)
The Minister is not to recommend the making of a
regulation under this section unless the Minister certifies that the
regulation is made with the concurrence of the Minister administering the
Local Government Act
1993.
97Assessed
levy—meaning
(1)
An assessed
levy is a levy that has been charged by the council under
this Act.
(2)
An assessed levy includes any amount payable as
accrued interest on an assessed levy.
(3)
An assessed levy does not include a levy, or a
part of a levy, that has been written off or the payment of which has been
waived by the council.
(4)
If a levy is reduced by a council, the reduction
is not to be included in an assessed levy.
(5)
The regulations may make further provision for
the calculation of an assessed levy, including by modifying the application of
any provision of this section.
(6)
The Minister is not to recommend the making of a
regulation under this section unless the Minister certifies that the
regulation is made with the concurrence of the Minister administering the
Local Government Act
1993.
Division 2Payment of collection
instalments to State
98Relevant payments to be
applied towards old debt first
(1)
A council is to apply relevant payments towards
the payment of the assessed rates or charges and assessed levies in respect of
which the payment was made in the order in which they became
due.
(2)
For the purposes of this Part, a council applies
a relevant payment (or a part of a relevant payment) towards a
financial year if the council applies the relevant payment
(or part):
(a)
towards payment of an assessed rate or charge, or
an assessed levy, that became due in that financial year,
or
(b)
towards payment of accrued interest on an
assessed rate or charge, or an assessed levy, and the assessed rate or charge
or assessed levy became due in that financial year.
99Collection instalments to be
paid to Chief Commissioner
(1)
A council is to pay collection instalments to the
Chief Commissioner.
(2)
The collection instalments are payable for any
relevant payments that are applied by a council towards the 2017/2018
financial year or a subsequent financial year.
(3)
A collection instalment is payable in respect of
each reconciliation period.
100Reconciliation
periods
(1)
Each of the following periods is a reconciliation period:
(a)
the first quarter reconciliation
period—which is the period starting on 1 June and ending on 31 August in
the same year,
(b)
the second quarter reconciliation
period—which is the period starting on 1 September and ending on 30
November in the same year,
(c)
the third quarter reconciliation
period—which is the period starting on 1 December and ending on 28
February in the next year (or 29 February in a leap year),
(d)
the fourth quarter reconciliation
period—which is the period starting on 1 March and ending on 31 May in
the same year.
(2)
The start dates and end dates of a reconciliation
period are inclusive.
(3)
For the 2017/2018 financial year, the first
quarter reconciliation period is taken to start on 1 July
2017.
101Amount of collection
instalment
(1)
The amount of the collection instalment payable
is the total of the following:
(a)
the levy proportion of any relevant payments made
to the council during the reconciliation period that were applied towards the
financial year in which the reconciliation period ends,
(b)
the levy proportion of any relevant payments made
to the council during the reconciliation period that were applied towards a
previous financial year.
Note—
Councils may recover overdue amounts of rates and
charges, or levies, over time. Accordingly, this provision ensures that they
are still required to account to the Treasurer for the levy component of
amounts recovered even when they are recovered after the financial year in
which they are due.
(2)
The levy proportion of any relevant payments that
are applied towards a financial year that commences before the 2017/2018
financial year is taken to be zero.
102Calculation of levy
proportion
(1)
The levy
proportion of any relevant payments made to a council that
are applied towards a financial year is to be calculated as follows:
where:
L is the levy proportion of the
relevant payments.
C is the total of all relevant
payments made to the council during the reconciliation period that were
applied by the council towards the financial year for which the calculation is
being made.
B is the total of all assessed
levies charged by the council for the financial year towards which the
relevant payments are applied.
A is the total of all assessed rates
or charges levied by the council for the financial year towards which the
relevant payments are applied.
(2)
The levy proportion is to be rounded to the
nearest cent (with an amount of half a cent rounded up).
103Payment dates for
reconciliation periods
(1)
A council must pay a collection instalment to the
Chief Commissioner on or before the payment date for the reconciliation period
for which the instalment is payable.
(2)
The payment dates are as follows:
(a)
for the first quarter reconciliation
period—30 September,
(b)
for the second quarter reconciliation
period—31 December,
(c)
for the third quarter reconciliation
period—31 March,
(d)
for the fourth quarter reconciliation
period—30 June.
104Council to keep a record of
relevant payments
(1)
A council is to keep a record of all relevant
payments that are made to the council and the financial year towards which
those relevant payments are applied.
(2)
The record is to contain any other information
required by the regulations.
Division 3Functions of Chief
Commissioner
105Chief Commissioner may recover
collection instalment from council
If the whole or part of a collection instalment
payable by a council is not paid to the Chief Commissioner as required, the
unpaid amount is recoverable by the Chief Commissioner from the council as a
debt in a court of competent jurisdiction.
106Application of certain
provisions of Taxation Administration Act
1996
(1)
The applied provisions of the Taxation Administration Act 1996 apply
in relation to the collection instalments payable by a council under this Act
as if this Act were a taxation law and the collection instalments were a tax
payable by a council under a taxation law.
(2)
A tax default occurs if the whole or part of a
collection instalment is not paid by the due date.
(3)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Part 3 (Assessment of tax
liability),
(b)
Division 1 (Interest) of Part
5,
(c)
Division 1 of Part 6
(Returns),
(d)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(e)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(f)
sections 114, 115, 116, 118, 119 and
120,
(g)
any provisions that are relevant to the
interpretation of the above provisions.
(4)
A council is liable to pay collection instalments
to the Chief Commissioner whether or not the Chief Commissioner has issued an
assessment for the amount payable.
(5)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a collection instalment or to the exercise of any of the Chief
Commissioner’s functions under this Division (including under the
applied provisions of the Taxation Administration Act
1996).
107Councils to provide annual
return to Chief Commissioner
(1)
Each council is to provide to the Chief
Commissioner, on or before 31 July in each year, a return for the financial
year ending on 30 June that year relating to the council’s liability for
collection instalments under this Part.
(2)
The return is to contain the following
information about the financial year for which it is made:
(a)
information about the council’s liability
for collection instalments under this Part, including any information
specified in the regulations,
(b)
any other information that the Chief Commissioner
reasonably requires for the purpose of exercising his or her functions under
this Act.
(3)
The return is to be in a form approved by the
Chief Commissioner.
(4)
The regulations may make further provision for
returns under this section.
(5)
Without limiting subsection (4), the regulations
may require the general manager or the public officer of a council to certify
the accuracy and completeness of information contained in the
return.
108Provision of other information
to Chief Commissioner
(1)
The regulations may require councils to provide
further information or returns to the Chief Commissioner for the purposes of
this Act.
(2)
This section does not limit the functions of the
Chief Commissioner under Division 2 of Part 9 of the Taxation Administration Act 1996 as it
applies to the collection instalments payable by a
council.
Part 8Harmonisation with council
rates and charges
109Strata lots and company titles
treated as separate parcels
(1)
Section 495A of the Local
Government Act 1993 applies in respect of the charging of
a levy under this Act in the same way as it applies in respect of the levying
of an annual charge under that Act.
(2)
Anything that is taken, under that section, to be
a separate parcel of rateable land is taken to be a separate parcel of land
under this Act.
(3)
Section 518A of the Local
Government Act 1993 applies to the classification and
sub-classification of land under this Act in the same way as it applies to the
categorisation of land under Part 3 of Chapter 15 of that
Act.
(4)
Anything that is taken, under that section, to be
a separate parcel of land for the purposes of categorisation is taken to be a
separate parcel of land for the purposes of classification or
sub-classification under this Act.
110Application of Act to company
title
(1)
Section 547 of the Local
Government Act 1993 applies for the purposes of this Act
in the same way as it applies for the purposes of that
Act.
(2)
For that purpose, a reference in that section to
a rate or charge includes a reference to the levy.
111Aggregation of
parcels
(1)
If a council aggregates the land values of
parcels under section 548A of the Local Government
Act 1993 for the purpose of charging a rate, the council
must also aggregate the land values of the parcels for the purposes of
charging the levy, subject to this section.
(2)
The parcels as aggregated are taken to be a
separate parcel for the purposes of this Act and the levy is to be charged on
the aggregated land values of those parcels.
(3)
The land values of parcels may be aggregated
under this section for the purpose of charging the levy only if the parcels
(disregarding the aggregation) have the same classification or
sub-classification (if any) under this Act.
112Levy is a charge on
land
(1)
Section 550 of the Local
Government Act 1993 applies to the levy in the same way as
it applies to a rate or charge levied under that Act.
(2)
A reference in that section to interest on a rate
or charge includes a reference to interest on the levy accrued under this
Act.
113Writing off levy and accrued
interest
(1)
Section 567 of the Local
Government Act 1993, and any regulations under section 607
of that Act, apply to the levy in the same way as they apply to rates and
charges under that Act.
(2)
However, a council is not to write off any levy
or any accrued interest on a levy payable by a person unless it writes off
rates or charges or accrued interest on rates or charges payable by the person
in the same proportion.
114Collection of levy from
occupier
Section 569 of the Local
Government Act 1993 applies in respect of the levy in the
same way as it applies in respect of a rate or charge under that
Act.
115Transfer of land to pay
levy
(1)
Section 570 of the Local
Government Act 1993 applies in relation to the levy in the
same way as it applies in relation to rates or charges under that
Act.
(2)
If a council accepts land in payment of any rates
or charges, or levies, or accrued interest, the council is taken to have
received the full amount of any assessed rates or charges, or assessed levies,
payable in respect of that land.
116Transfer of
land
Section 571 of the Local
Government Act 1993 applies in relation to the levy in the
same way as it applies in relation to rates or charges under that
Act.
117Subdivision of
land
Section 573 of the Local
Government Act 1993 applies in relation to the levy in the
same way as it applies in relation to rates or charges under that
Act.
118Definition of “eligible
pensioner”
Sections 577–579 of the Local Government Act 1993 apply for the
purposes of this Act in the same way as they apply for the purposes of
Division 1 of Part 8 of Chapter 15 of that Act.
119Waiving payment of
levy
(1)
Section 582 of the Local
Government Act 1993 applies to the levy in the same way as
it applies to rates or charges under that Act.
(2)
However, a council is not to waive or reduce the
levy payable by a person under that section, as it applies to the levy, unless
it waives or reduces the rates or charges payable by the person for the same
period in the same proportion.
(3)
Section 583 of the Local
Government Act 1993 applies to amounts of the levy that
are waived or reduced under this section in the same way as it applies to
rates or charges under that Act.
(4)
In this section:
levy includes any interest payable
on a levy.
rates or
charges includes any interest payable on any rates or
charges.
120Certificate as to
levy
A reference in section 603 of the Local Government Act 1993 to rates,
charges or other amounts includes a reference to the
levy.
121Notice of transfer of
land
(1)
Section 604 of the Local
Government Act 1993 applies to leviable land in the same
way as it applies to rateable land.
(2)
A person who gives notice as required by section
604 of that Act in relation to rateable land that is also leviable land is
taken to have complied with section 604 as it applies to leviable
land.
122Notices
(1)
Sections 699 and 708–711 of the Local Government Act 1993 apply to
notices served by a council under this Act in the same way as they apply to
the notices served by a council under that Act.
(2)
In this section, serve includes give or
send.
123Proof of
ownership
Section 700 of the Local
Government Act 1993 applies to the levy, and to
proceedings under this Act, in the same way as it applies to rates and
charges, and to proceedings under that Act.
124Recovery of
levy
(1)
Section 712 of the Local
Government Act 1993 applies to the levy in the same way as
it applies to rates and charges under that Act.
(2)
For that purpose:
(a)
a reference in that section to a rate or charge
includes a reference to the levy, and
(b)
a reference in that section to a rates and
charges notice includes a reference to a levy
notice.
125Sale of land to recover
levy
(1)
Division 5 of Part 2 of Chapter 17 of the Local Government Act 1993 applies to the
levy in the same way as it applies to a rate or charge.
(2)
To avoid doubt, a reference to vacant land in
those provisions is a reference to vacant land within the meaning of that
Act.
126Regulations relating to rates
and charges
(1)
Any provision of a regulation under the Local Government Act 1993 applies to the
levy in the same way as it applies to a rate or charge if the regulation is
made under, or ancillary to, a provision of that Act that applies to the
levy.
(2)
This section is subject to the regulations under
this Act.
127Application of strata
provisions
(1)
Section 192 of the Strata
Schemes Development Act 2015 applies to the charging of
the levy under this Act in the same way as it applies to the levying of a rate
under the Local Government Act
1993.
(2)
For the purposes of the levy, a reference in
section 192 of the Strata Schemes Development Act
2015:
(a)
to a lot that is rateable is a reference to a lot
for which the levy is payable, and
(b)
to a rateable parcel or a rateable part of a
parcel is a reference to a parcel or part of a parcel in respect of which the
levy is payable or would be payable but for any exemption or discount
applicable to any portion of that parcel or part.
128Power to modify and apply
further legislative provisions
(1)
The regulations may modify the application of, or
disapply, any provision of the Local Government
Act 1993, a regulation under that Act or the Strata Schemes Development Act 2015 that
applies in relation to the levy under this Act.
(2)
The regulations may apply, with or without
modification, to or in respect of the levy any other provisions of the Local Government Act 1993, the
regulations under that Act or the Strata Schemes
Development Act 2015 that relate to rates or charges under
the Local Government Act
1993.
129References to council extend
to Lord Howe Island Board
(1)
To avoid doubt, a reference to a council in a
provision of the Local Government Act
1993, or the regulations under that Act, that applies to
the levy under this Act is taken to include a reference to the Lord Howe
Island Board.
(2)
This section is subject to the regulations under
this Act.
Part 9Compliance and
enforcement
Division 1Preliminary
130Definitions
(1)
In this Part:
breach of
this Act means:
(a)
a contravention of or failure to comply with this
Act, or
(b)
a threatened or an apprehended contravention of
or a threatened or apprehended failure to comply with this
Act.
classification obligation means any
function conferred or imposed on a council by Part 4 or 5.
financial
obligation means any of the following functions of the
council:
(a)
a function conferred or imposed by Part 3, 6 or
7,
(b)
a function under Part 8 that relates to the
charging and collection of the levy.
(2)
In this Part, to comply with an obligation
includes to properly exercise a function.
(3)
In this Part, a reference to this Act or to a
part of this Act includes a reference to any regulations, rules or other
instruments made under this Act or part, as the case
requires.
Division 2Monitoring role of
Valuer-General
131Monitoring of council
compliance with classification obligations
The Valuer-General is to monitor whether councils
are complying with their classification obligations.
132Reviews by
Valuer-General
(1)
The Valuer-General may, at the
Valuer-General’s expense, conduct a review of any of the
following:
(a)
the compliance by a council with its
classification obligations,
(b)
the accuracy and completeness of information
provided by a council to the Valuer-General under this
Act.
(2)
A council must co-operate with a review under
this section, including by providing the Valuer-General, or a person
authorised by the Valuer-General, with access to council facilities and
records during regular business hours.
133Valuer-General may issue
compliance certificate
(1)
The Valuer-General may, at the request of the
Treasurer or on his or her own initiative, give to the Treasurer a
certificate, in writing, about the Valuer-General’s assessment of a
council’s compliance with any of its classification obligations (a
compliance
certificate).
(2)
The Valuer-General may, in a compliance
certificate, give an opinion as to whether or not the council is complying
with any of its classification obligations.
(3)
If the Valuer-General considers that he or she
does not have sufficient information or evidence to be satisfied that the
council is complying with any of its classification obligations, the
Valuer-General may state in the certificate that he or she is unable to give
an opinion on the matter, for that reason.
(4)
The compliance certificate is to specify any
compliance issues identified by the Valuer-General.
(5)
A compliance issue is any fact or circumstance
that:
(a)
forms the basis of the Valuer-General’s
opinion that the council is not complying with any of its classification
obligations, or
(b)
because of which, the Valuer-General considers
that he or she does not have sufficient information or evidence to be
satisfied that the council is complying with any of its classification
obligations.
(6)
Before issuing a compliance certificate that
specifies compliance issues, the Valuer-General must:
(a)
give the council an opportunity to make
submissions in relation to the compliance issues within a period (of not less
than 30 days) specified by the Valuer-General, and
(b)
take into consideration any submissions made by
the council during that period.
(7)
The Valuer-General is to provide a copy of a
compliance certificate issued by the Valuer-General to the council to which it
relates.
(8)
A compliance certificate is admissible in any
legal proceedings and is evidence of any compliance issues specified in the
certificate.
Division 3Monitoring role of Chief
Commissioner
134Monitoring of council
compliance with financial obligations
The Chief Commissioner is to monitor whether
councils are complying with their financial
obligations.
135Audits by Chief
Commissioner
(1)
The Chief Commissioner may, at the Chief
Commissioner’s expense, carry out an audit of any of the
following:
(a)
the compliance by a council with its financial
obligations,
(b)
the accuracy and completeness of information
provided by a council to the Chief Commissioner under this
Act.
(2)
A council must co-operate with an audit under
this section, including by providing the Chief Commissioner, or a person
authorised by the Chief Commissioner, with access to council facilities and
records during regular business hours.
136Chief Commissioner may issue
compliance certificate
(1)
The Chief Commissioner may, at the request of the
Treasurer or on his or her own initiative, give to the Treasurer a
certificate, in writing, about the Chief Commissioner’s assessment of a
council’s compliance with any of its financial obligations (a compliance
certificate).
(2)
The Chief Commissioner may, in a compliance
certificate, give an opinion as to whether or not the council is complying
with any of its financial obligations.
(3)
If the Chief Commissioner considers that he or
she does not have sufficient information or evidence to be satisfied that the
council is complying with any of its financial obligations, the Chief
Commissioner may state in the certificate that he or she is unable to give an
opinion on the matter, for that reason.
(4)
The compliance certificate is to specify any
compliance issues identified by the Chief Commissioner.
(5)
A compliance issue is any fact or circumstance
that:
(a)
forms the basis of the Chief Commissioner’s
opinion that the council is not complying with any of its financial
obligations, or
(b)
because of which, the Chief Commissioner
considers that he or she does not have sufficient information or evidence to
be satisfied that the council is complying with any of its financial
obligations.
(6)
Before issuing a compliance certificate that
specifies compliance issues, the Chief Commissioner must:
(a)
give the council an opportunity to make
submissions in relation to the compliance issues within a period (of not less
than 30 days) specified by the Chief Commissioner, and
(b)
take into consideration any submissions made by
the council during that period.
(7)
The Chief Commissioner is to provide a copy of a
compliance certificate issued by the Chief Commissioner to the council to
which it relates.
(8)
A compliance certificate is admissible in any
legal proceedings and is evidence of any compliance issues specified in the
certificate.
Division 4Treasurer’s enforcement
powers
137Order by
Treasurer
(1)
The Treasurer may, by order in writing served on
a council, require the council to take any action that, in the opinion of the
Treasurer, is necessary to remedy or restrain a breach of this Act by the
council.
(2)
An action includes refraining from doing
something.
(3)
Without limiting subsection (1), the Treasurer
may make an order under this section if the Treasurer receives a compliance
certificate about the council and the certificate specifies compliance
issues.
(4)
A compliance certificate is sufficient evidence
to justify making an order under this section in relation to any compliance
issues specified in the certificate.
(5)
The Treasurer may, but is not required to, give
the council prior notice of the Treasurer’s intention to make an order
under this section.
(6)
A council must not fail to comply with an order
under this section.
(7)
The Treasurer is to advise the Minister
administering the Local Government Act
1993 of any order that the Treasurer makes under this
section.
Note—
The Minister administering the Local Government Act 1993 has power
under Part 6 of Chapter 13 of that Act to take various actions to redress a
failure by a council to meet its legislative
responsibilities.
138Withholding collection
payments
(1)
The Treasurer may withhold any collection payment
that would otherwise be paid or payable to a council if the Treasurer is
satisfied that a breach of this Act has been or will be committed by the
council.
(2)
Payments may be withheld until the breach is
remedied or restrained to the satisfaction of the
Treasurer.
(3)
Without limiting subsection (1), the Treasurer
may withhold payments under this section if the Treasurer receives a
compliance certificate about the council and the certificate specifies
compliance issues.
(4)
A compliance certificate that specifies
compliance issues is sufficient evidence to justify withholding payments under
this section.
(5)
The Treasurer may, but is not required to, give
the council prior notice of the Treasurer’s intention to withhold
payments under this section.
Part 10Miscellaneous
139Notice relating to fire and
emergency services levy
(1)
The Treasurer may, by order published in the
Gazette, require a council to give an approved notice to liable persons for
land in the council’s area.
(2)
An approved
notice is a notice in a form approved by the
Treasurer.
(3)
An approved notice may contain such information
as the Treasurer considers appropriate to inform the public about the levy and
the operation of this Act.
(4)
The order may specify the way in which councils
are to give the approved notice to liable persons.
(5)
Without limiting subsection (4), the order may
specify that the approved notice is to be included in:
(a)
a notice of classification or sub-classification
of land given by the council, or
(b)
a levy notice, or
(c)
a notice that levies a rate or charge under
Chapter 15 of the Local Government Act
1993.
(6)
A council must not fail to comply with a
requirement made under this section.
140Sharing of information between
councils and agencies
(1)
A council may disclose to the Valuer-General or
the Chief Commissioner information held by the council:
(a)
in accordance with a requirement imposed on the
council by or under this Act, or
(b)
otherwise for the purposes of the administration
or execution of this Act.
(2)
The Valuer-General may disclose to the Chief
Commissioner or a council information held by the Valuer-General for the
purposes of the administration or execution of this Act.
(3)
The Chief Commissioner may disclose to the
Valuer-General information held by the Chief Commissioner for the purposes of
the administration or execution of this Act.
(4)
The Chief Commissioner may disclose to a council
information obtained by the Chief Commissioner in the exercise of functions
under this Act for the purposes of the administration or execution of this
Act.
(5)
The Valuer-General may collect information held
by a council or the Chief Commissioner, and use that information, for the
purposes of the administration or execution of this Act.
(6)
The Chief Commissioner may collect information
held by a council or the Valuer-General, and use that information, for the
purposes of the administration or execution of this Act.
(7)
This section applies despite section 11 of the
Valuation of Land Act
1916.
(8)
This section does not limit section 82 of the
Taxation Administration Act
1996.
(9)
In this section:
Chief
Commissioner includes a person authorised by the Chief
Commissioner.
council includes a person authorised
by a council.
information includes personal
information within the meaning of the Privacy and
Personal Information Protection Act 1998.
Valuer-General includes a person
authorised by the Valuer-General.
141Disclosure of information to
Treasurer
(1)
The Valuer-General may disclose to the Treasurer
any information held by the Valuer-General for the purposes of the
administration or execution of this Act.
(2)
This section applies despite section 11 of the
Valuation of Land Act
1916.
(3)
This section does not authorise the disclosure of
personal information (within the meaning of the Privacy and Personal Information Protection Act
1998).
(4)
In this section:
Treasurer includes a person
authorised by the Treasurer.
Valuer-General includes a person
authorised by the Valuer-General.
142Notices to be in
writing
A notice under this Act must be by instrument in
writing, except where this Act or the regulations expressly authorises another
means of giving the notice.
143Act binds the
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Legislature of New South
Wales exists, the Crown in all its other capacities.
144Delegation of
functions
(1)
The Treasurer may delegate to the Secretary of
the Treasury or any person employed in the Public Service any function of the
Treasurer under this Act, other than a function under Part 4 or this power of
delegation.
(2)
A delegate may sub-delegate any function
delegated by the Treasurer to any person employed in the Public Service, if
authorised in writing to do so by the Treasurer.
(3)
The Chief Commissioner may delegate to any person
employed in the Public Service any function of the Chief Commissioner under
this Act, other than this power of delegation.
145Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on any person may be served by any of the
following methods:
(a)
in the case of an individual—by personal
delivery to the person,
(b)
by post to the address specified by the person
for the service of documents of that kind,
(c)
in the case of an individual who has not
specified such an address—by post to the residential or business address
of the person last known to the person serving the
document,
(d)
in the case of a corporation—by post to the
registered office or any other office of the corporation or by leaving it at
any such office with a person apparently over the age of 16
years,
(e)
by email to an email address specified by the
person for the service of documents of that kind,
(f)
by any other method authorised by the regulations
for the service of documents of that kind.
(2)
Nothing in this section affects the operation of
any provision of any other Act or law or of the rules of a court authorising a
document to be served on a person by any other method.
(3)
In this section, serve includes give or
send.
146Application of Recovery of Imposts Act
1963
(1)
The Recovery of
Imposts Act 1963 applies to the levy as if it were a tax
payable to the Crown.
(2)
Section 2 of that Act extends to proceedings for
the recovery of the levy from a council.
(3)
For the purposes of that Act, the validity or
invalidity of taxation legislation includes the validity or invalidity of a
decision of the Treasurer under Part 4.
147General tax exemption for
council does not apply
This Act has effect despite section 741 of the
Local Government Act
1993.
Note—
Land owned by a council is exempt from the levy
only if it is government land.
148Nature of proceedings for
offences
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before the Local
Court.
149Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may create an offence punishable by
a penalty not exceeding 100 penalty units.
(3)
Section 5 of the Subordinate
Legislation Act 1989 does not apply to the first principal
statutory rule that is made under this Act.
150Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Public benefit
land
(Section 43)
1
Animal shelter, being premises used by a
community group for the treatment or adoption of
animals.
2
Approved education and care service (within the
meaning of the Children (Education and Care Services)
National Law (NSW)) or a State regulated education and
care service (within the meaning of the Children
(Education and Care Services) Supplementary Provisions Act
2011).
3
Boat shed, ramp or jetty.
4
Cemetery or crematorium, but only if the land is
included on the Cemeteries and Crematoria Register under the Cemeteries and Crematoria Act
2013.
5
Community centre, being a facility used for the
physical, social, cultural or intellectual development or welfare of the
community.
6
Cultural site, being an aquarium, art gallery,
botanic garden, concert hall, library or archive, monument, memorial, museum,
observatory, theatre or zoo.
7
Emergency services, being any of the
following:
(a)
a fire station, an ambulance station or a police
station,
(b)
land used by an emergency service for training
purposes,
(c)
land used by the State Emergency Service (within
the meaning of the State Emergency Service Act
1989).
8
Higher education provider (within the meaning of
Division 16 of Part 2-1 of the Higher Education Support Act
2003 of the Commonwealth).
9
Hospital (within the meaning of the Public Health Act 2010) or
rehabilitation clinic.
10
Nature, being any of the following:
(a)
a bicycle track, park, or walking
trail,
(b)
a flora reserve or State forest (within the
meaning of the Forestry Act
2012),
(c)
a marine park (within the meaning of the Marine Estate Management Act
2014),
(d)
a conservation area or state conservation area
(within the meaning of the National Parks
and Wildlife Act 1974),
(e)
land that is the subject of a conservation
agreement under the Biodiversity Conservation Act
2016,
(f)
a wilderness area (within the meaning of the
Wilderness Act
1987),
(g)
a World Heritage site.
11
A non-government school (within the meaning of
the Education Act
1990).
12
Place of worship.
13
Public toilet or amenities
block.
14
Sporting complex, including sports club
facilities.
15
TAFE establishment (within the meaning of the
Technical and Further Education Commission Act
1990).
Schedule 2Industrial
land
(Section 46)
1
Manufacturing, including:
(a)
a general purpose factory, being a building or
place used for manufacturing, assembly or repairs (for example, a factory,
motor vehicle repair facility, or workshop), and
(b)
a food processing factory, being a purpose-built
food processing facility (for example, a cannery, milk production plant, dairy
or processing plant), and
(c)
a major industrial complex with special purpose
improvements for large-scale industrial use (for example, a car plant or paper
mill).
2
Warehousing, distribution or storage,
including:
(a)
a general purpose warehouse used for the storage
of goods, and
(b)
open-area storage, with extensive hardstand area
used for the storage of goods and equipment (for example, a wrecking yard,
concrete batching yard, or container storage).
3
Bulk grain storage, a silo or other structure
used for the storage of grain, or bunkers used for the storage of
grain.
4
Bulk liquid storage fuel depot, being a building
or place with tanks for the storage and distribution of bulk liquids (for
example, a fuel depot or oil terminal) but excluding retail fuel outlets and
service stations.
5
Coolstore or coldstore, being a purpose-built
structure used for the cold storage of perishable
products.
6
Works depot, being a building or place used as a
works depot in conjunction with infrastructure maintenance (for example, a
municipal depot).
7
Tannery or skins drying depot, being a building
or place used for the tanning of skins and hides.
8
Abattoir, being a purpose-built structure used
for the holding and slaughter of stock and the preparation of meat for the
wholesale market.
9
Stock sales yard, being a purpose-built structure
used for the yarding and selling of stock.
10
Rendering plant, being a purpose-built structure
used for the extraction of lard, tallow and oil from animal
parts.
11
Oil refinery, being a purpose-built structure
used in the refinement and storage of petroleum
products.
12
Petro-chemical manufacturing, being a
purpose-built structure used in the production of chemical-based products from
petroleum.
13
Sawmill, being a purpose-built structure used for
the milling and curing of timber.
14
Mining, being land that is classified as mining
for the purposes of the Local Government Act
1993.
15
Other extractive industries, including the
extraction of sand, gravel, stone, clay, limestone, dolomite, gypsum, soil,
precious metals, uranium, bauxite, gold, other metals, precious stones, and
other minerals and ore, and the extraction of non-metals by a licensed
operator, from deep underground, by way of an inclined or vertical passageway
or shaft equipped with lifting machinery.
16
Tailings dump, being the storage or treatment of
minerals or non-minerals in tailing dumps or dams.
17
Oil well or bore.
18
Water well, being a narrow hole drilled or dug
into the earth for the production of water, including mineral water, water for
stock or domestic purposes, and water for use in
irrigation.
19
Evaporative salt pan.
20
Salt extraction basin, being the extraction of
salt from a lake or man-made evaporative basin.
21
Dredging operations, being activities involving
dredging for the extraction, treatment and restoration of submerged
materials.
22
Gas or fuel well, being specialist infrastructure
used as a gas or fuel well.
23
Gas or fuel refinery.
24
Gas or fuel storage excluding retail fuel outlets
and service stations.
25
Electricity power generators, including thermal
power plants, hydroelectric generators, wind farms, and solar electric
generation.
26
Refuse incinerator.
27
Refuse transfer station.
28
Sanitary landfill, being the disposal of
household, commercial, industrial and public waste.
29
Refuse recycling.
30
Hazardous materials or toxic storage
centre.
31
Toxic by-product storage or decontamination site
for the storage of mining waste.
32
Sewerage or stormwater treatment
plant.
33
Sewerage or stormwater pump
station.
34
Water treatment plant, including a desalination
plant.
35
Water storage tank, pressure control tower or
pumping station.
36
Weighbridge.
37
Railway switching and marshalling
yards.
38
Railway maintenance
facility.
39
Railway passenger terminal, including a
station.
40
Railway freight terminal
facility.
41
Tramway maintenance and terminal
facility.
42
Tram stop, including a shelter or a
platform.
43
Airport hangar.
44
Heliport.
45
Port dock or berth, including the seabed
adjoining a wharf with infrastructure used for the berthing of
ships.
46
Cargo port wharf or pier and apron, being
specialist infrastructure to facilitate the movement of containers and cargo
to and from ships.
47
Wharf storage sheds, being enclosed storage
facilities within a wharf.
48
Piers, storages and slipways used for maintenance
and launching of boats.
49
Lighthouse and navigation aids, being specialist
infrastructure used to assist in sea navigation.
50
Postal exchange and mail and package sorting
centre.
51
Telecommunications buildings and maintenance
depots.
52
Telecommunications towers and
aerials.
53
Printing works and printing press, being
specialist infrastructure used for printing works (for example, newspaper
print and magazines).
54
Purpose-built telephone
exchange.
Schedule 3Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
A regulation made for the purposes of this clause
may make separate savings and transitional provisions or amend this Schedule
to consolidate savings and transitional provisions.
Part 2Provisions consequent on
enactment of this Act
Division 1Preliminary
2Definition
In this Part:
initial
land classification means a first classification of land
under this Act.
Division 2Introduction of
levy
3First
levy
The first levy is payable for the financial year
commencing on 1 July 2017.
4Validation of things done in
anticipation of commencement
Anything done by a council, or by a person who
has functions under this Act, in anticipation of the enactment and
commencement of this Act, that would have been validly done under this Act if
this Act had been in force at the time that it was done, is taken to have been
validly done under this Act.
5References to 30
April
If this Act, or an amendment to another Act that
is made by this Act, requires something to be done by 30 April and this Act
commences on or after 23 April 2017, the thing is taken to be validly done by
30 April 2017 if it is done by the date that is 7 days after the commencement
of this Act or by a later date prescribed by the
regulations.
6Matters that may be dealt with
by regulation
(1)
This clause has effect pending the making of
regulations under this Act, and ceases to have effect when there is a
regulation in force under this Act.
(2)
Land that is exempt from all rates under section
555 (1) (g) or (h) of the Local Government Act
1993 is taken to be unvalued land under section
19.
(3)
The land referred to in subclause (2) is taken to
have a land value of zero (as if a zero land value were specified by the
regulations under this Act).
(4)
The land value of land on Lord Howe Island is to
be calculated at a rate of $70 per square metre or part of a square metre (as
if that rate were specified by the regulations under this
Act).
(5)
For the purposes of section 42 (1) (b) (i) of
this Act, each of the following State owned corporations, and any subsidiary
of those corporations, is taken to have been declared by the regulations to be
a liable State owned corporation (accordingly, land owned by the State owned
corporation or subsidiary is not government land):
(a)
Essential Energy,
(b)
Ausgrid,
(c)
Endeavour Energy.
(6)
For the purposes of section 42 (1) (g) of this
Act, the following land is taken to have been declared by the regulations to
be government land:
(a)
land owned by WCX M4 Pty Limited (ACN 602 963
806),
(b)
land owned by the Crown or by a council that is
the subject of a lease to the Crown (within the meaning of this Act) or a
council, if the dominant use of the land is for the purposes of the
lease,
(c)
land that is the subject of a lease and is used
for the purpose of a government school (within the meaning of the Education Act 1990), if that use is the
dominant use of the land,
(d)
Schedule 14 lands, or ALR Act lands, within the
meaning of Part 4A of the National Parks and Wildlife Act
1974, that are leased to the Minister under that
Part.
7Classification
deadline
(1)
For the purpose of enabling the levy to be
charged on and from 1 July 2017, a council must classify all parcels of land
within its area by the date that is 7 days after the commencement of this Act
or by a later date prescribed by the regulations.
(2)
A failure by a council to classify any land in
its area by that date does not affect the validity of any classification
(whether done before or after that date).
(3)
A council may sub-classify land as vacant land as
part of an initial land classification, but is not required to do
so.
8Notice of initial land
classification
(1)
A council is not required to give notice to a
liable person of an initial land classification within 30 days of the
classification if the classification is done before 1 April 2017, or the date
that is 7 days after the commencement of this Act, whichever is
later.
(2)
However, a council must, by 30 April 2017, give
notice to a liable person of an initial land classification and the effective
date for the classification, in accordance with Part 5 of this
Act.
(3)
If notice is given by post, a requirement to give
notice by a particular date is satisfied if the notice is posted by that
date.
9Extended time for initial
appeals and reviews
(1)
Despite anything to the contrary in Part 5 of
this Act, an application for a review of a classification of land under this
Act may be made to a council on or before 31 August 2017, even if that date
occurs later than 30 days after notice of the classification is given to the
liable person.
(2)
An appeal may be made on or before 31 August 2017
to the Land and Environment Court against the following, even if that date
occurs later than the date by which, but for this clause, it is required to be
made under Part 5 of this Act:
(a)
an initial land
classification,
(b)
the effective date for an initial land
classification,
(c)
a refusal by a council to sub-classify land as
vacant land,
(d)
the effective date for a sub-classification of
land as vacant land.
(3)
This clause does not limit the period during
which an application for review of appeal may be made under Part 5 of this
Act.
10Estimates under Part
4—adjustments for 2017
(1)
The first year in which the Valuer-General is
required to provide estimates under sections 31–33 is
2017.
(2)
In 2017, the estimates must be given to the
Treasurer in accordance with sections 31–33 by a date approved by the
Treasurer (the reference to 15 March is to be
disregarded).
(3)
The first year in which a council is required to
provide the levy estimate information under section 34 is
2017.
(4)
In 2017, the levy estimate information must be
provided to the Valuer-General in accordance with section 34 by the date
prescribed by the regulations or, if no date is prescribed, by the date that
is 7 days after the commencement of this Act (the reference to 15 February is
to be disregarded).
(5)
For 2017 only, section 34 applies as if a
reference to 31 December in the year before the return is required to be
provided were a reference to a date prescribed by the regulations or, if no
date is prescribed, the date the information is provided to the
Valuer-General.
(6)
The Valuer-General may treat any information
provided by a council in anticipation of the enactment and commencement of
this Act as levy estimate information and, accordingly, may use that
information to make the estimates required to be made in 2017 under Part 4 of
this Act (even if a return has not been provided by a council under section 34
at the time that the estimate is made).
11Allowance for Monitor budget
in first 2 years
(1)
In the 2017/2018 financial year and the 2018/2019
financial year, the Monitor budget is to be added into the calculation of the
FESL revenue target under Division 2 of Part 4 of this Act (so that the FESL
revenue target includes the Monitor budget for the financial
year).
(2)
The Treasurer must, before the date of 30 April
that occurs before the commencement of the 2017/2018 financial year and the
2018/2019 financial year, prepare and adopt an estimate of the total of the
expenditure that will be incurred in the exercise of the Monitor’s
functions for that financial year. That estimate is the Monitor
budget for the financial year for which it is
made.
12Allowance for start-up costs
in initial period
(1)
The Treasurer may add into the calculation of the
FESL revenue target under Division 2 of Part 4 of this Act for a financial
year any amount that the Treasurer certifies is a start-up cost for the levy
(so that the FESL revenue target includes the certified start-up cost or
costs).
(2)
Each of the following is a start-up cost for the levy:
(a)
any amount paid by the Treasurer to a council to
reimburse the costs of the initial implementation of the
levy,
(b)
any cost incurred by or on behalf of the Crown in
the initial implementation of the levy.
(3)
The Treasurer is not to certify an amount as a
start-up cost for the levy if the amount has already been included in the
calculation of the collection cost for the levy under Division 2 of Part 4 of
this Act.
(4)
To avoid doubt, this clause extends to start-up
costs incurred before the commencement of this Act.
(5)
The fact that the Treasurer does not include a
start-up cost, or part of a start-up cost, in the calculation of the FESL
revenue target for the financial year after which it is incurred does not
prevent the Treasurer from including that start-up cost, or part, in the
calculation of the FESL revenue target for a subsequent financial
year.
Note—
This subclause permits initial start-up costs to
be spread over the first 5 years of the scheme.
(6)
However, the Treasurer may add a start-up cost,
or part of a start-up cost, to the FESL revenue target in a financial year
only if the amount has not been included in the calculation of the FESL
revenue target for a previous financial year.
(7)
This clause permits a start-up cost to be added
to the FESL revenue target for a financial year only in the financial years
from the 2017/2018 financial year to 2022/2023 financial year
inclusive.
13Returns under section
107
The first return that is required under section
107 is a return for the 2017/2018 financial year.
Schedule 4Amendment of other
legislation
4.1Emergency Services Levy Insurance Monitor Act
2016 No 23
[1]Section 3
Definitions
Insert in alphabetical order:
Chief
Commissioner means the Chief Commissioner of State Revenue
under the Taxation Administration Act
1996.
emergency
services contribution means a contribution by an insurance
company under the emergency services funding scheme.
emergency
services levy winding up arrangements means the arrangements
relating to emergency services levy reform, including the matters provided for
by or under:
(a)
the Fire and
Emergency Services Levy Act 2017, or
(b)
Schedule 4 to the Fire Brigades Act
1989, or
(c)
Schedule 3 to the Rural Fires Act
1997, or
(d)
Schedule 1 to the State Emergency
Service Act 1989.
[2]Section 3, definition of
“emergency services funding scheme”
Omit “means the scheme for funding certain
fire and emergency services from contributions required to be paid by
insurance companies under”.
Insert instead “or scheme means the scheme for funding
certain fire and emergency services from contributions required to be paid by
insurance companies under the following provisions, as in force before the
enactment of the Fire and Emergency Services Levy Act
2017”.
[3]Section 3, definition of
“emergency services levy reform”
Omit the definition. Insert instead:
emergency
services levy reform means:
(a)
the abolition, by the Fire
and Emergency Services Levy Act 2017, of the emergency
services funding scheme, and
(b)
the establishment of a fire and emergency
services levy by that Act.
[4]Section 3
(2)
Insert at the end of the section:
(2)
Notes included in this Act do not form part of
this Act.
[5]Section 14 Price
exploitation
Omit section 14 (1) (b) (ii). Insert
instead:
(ii)
the contributions required to be paid by the
insurance company under the emergency services funding scheme,
and
[6]Section 30 Information
relating to emergency services levy reform
Omit section 30 (1). Insert instead:
(1)
The Monitor may, by order published in the
Gazette:
(a)
require any insurance company or class of
insurance companies to provide information about emergency services levy
reform or the functions of the Monitor under this Act (or both), including
about the impact of emergency services levy reform on the price payable for
the issue of a regulated contract of insurance, and
(b)
specify the way in which the impact of emergency
services levy reform is to be calculated, and
(c)
specify the way in which the information is to be
provided (including by requiring it to be contained in an invoice or other
statement as to the price payable for the issue of a regulated contract of
insurance).
[7]Section 30
(2)
Omit “that the statement includes the
information contained in the notice published under subsection
(1)”.
Insert instead “that any information
required to be provided by an order under subsection (1) is provided in
accordance with the requirements of the order”.
[8]Section 30
(3)
Omit “subsection (2)”. Insert instead
“this section”.
[9]Part 3A
Insert after Part 3:
Part 3AInvestigation of overcharging
under scheme
31ADefinitions
In this Part:
debt
recovery order—see section 31J.
final 2
years of the scheme means the financial years commencing on
1 July 2015 and 1 July 2016.
over-collection amount—see
section 31C.
refund
undertaking—see section 31H.
relevant
policy holder—see section
31B.
31BMonitor to investigate
over-collection amounts
(1)
The Monitor must:
(a)
investigate and assess whether insurance
companies are liable for over-collection amounts under the scheme,
and
(b)
endeavour to ensure that any insurance company
that is liable for an over-collection amount:
(i)
refunds the over-collection amount to relevant
policy holders of the insurance company, if that is practicable,
or
(ii)
if that is not practicable—pays the
over-collection amount to the Chief Commissioner for payment into the
Consolidated Fund.
(2)
A policy holder is a relevant
policy holder of an insurance company if the policy holder
was insured under a regulated contract of insurance with the insurance company
in the final 2 years of the scheme.
31CLiability for an
over-collection amount
(1)
An insurance company is liable for an
over-collection amount under the scheme if the total amount collected by the
insurance company exceeds the total amount contributed by the insurance
company.
(2)
The total amount collected by an insurance
company is the total amount that, in the opinion of the Monitor, was collected
by the insurance company from relevant policy holders for, or purportedly for,
the payment of emergency service contributions in the final 2 years of the
scheme.
(3)
If the Monitor has insufficient information to
decide exactly the total amount collected by an insurance company, the Monitor
may estimate that amount.
(4)
The total amount contributed by an insurance
company is the total of the following amounts:
(a)
the final 2-year assessment of the insurance
company given to the Monitor under clause 37 of Schedule 4 to the Fire Brigades Act
1989,
(b)
the final 2-year assessment of the insurance
company given to the Monitor under clause 35 of Schedule 3 to the Rural Fires Act
1997,
(c)
the final 2-year assessment of the insurance
company given to the Monitor under clause 19 of Schedule 1 to the State Emergency Service Act
1989.
(5)
The over-collection amount is the amount
by which the total amount collected by the insurance company exceeds the total
amount contributed by the insurance company.
31DMonitor to assess
over-collection amount
(1)
If the Monitor is satisfied that an insurance
company is liable for an over-collection amount, the Monitor must issue an
assessment for that over-collection amount.
(2)
The Monitor may, at any time, reassess the
over-collection amount of an insurance company by issuing a further
assessment.
(3)
The Monitor is not required to issue an
assessment for an over-collection amount if the Monitor:
(a)
comes to an agreement with an insurance company
about its liability for an over-collection amount, and
(b)
accepts a refund undertaking from the insurance
company for the over-collection amount.
31ENotice of assessment to be
given to insurance company
(1)
If the Monitor issues an assessment for an
over-collection amount, the Monitor must serve notice of the assessment on the
insurance company that is liable for the over-collection
amount.
(2)
The notice must specify the over-collection
amount.
(3)
The notice must:
(a)
advise the insurance company that, if the
insurance company fails to give a refund undertaking to the Monitor in
relation to the over-collection amount, in terms acceptable to the Monitor,
the amount can be referred to the Chief Commissioner for debt recovery action,
and
(b)
specify the deadline for giving the refund
undertaking to the Monitor.
(4)
The notice must advise the insurance company
about how to object to the assessment, unless the assessment is of a kind that
is not open to objection by the insurance company.
(5)
The deadline for giving the refund undertaking
must not be less than 30 days after the notice is given to the insurance
company.
(6)
The Monitor may extend the deadline for giving
the refund undertaking.
31FObjections to
assessments
(1)
An insurance company may object to an assessment
of an over-collection amount within 21 days after notice of the assessment is
given to the insurance company or within such further period as the Monitor
allows.
(2)
An objection must be made in writing to the
Monitor and must specify the grounds of the objection.
(3)
Only one objection can be made by an insurance
company to an assessment.
(4)
The insurance company has the onus of
establishing the grounds of the objection.
(5)
An objection is not duly made unless it is made
in accordance with this section.
31GMonitor to decide
objection
(1)
The Monitor must consider an objection to an
assessment, if the objection is duly made by the insurance company, and either
allow the objection in whole or in part or disallow the
objection.
(2)
If the Monitor delegates the functions conferred
by this section, the delegate who considers the objection must be a different
person from, and not subordinate to, the person who made the decision against
which the objection is lodged.
(3)
The Monitor must give notice in writing to the
insurance company of its decision on the objection.
(4)
The Monitor may issue a reassessment for the
purpose of giving effect to a decision to allow an objection in whole or in
part.
(5)
A reassessment is not open to objection by an
insurance company if it is made for the purpose of giving effect to a decision
to allow an objection in whole or in part.
(6)
If an objection to an assessment is duly made to
the Monitor, the Monitor is not to refer the over-collection amount to the
Chief Commissioner for debt recovery action:
(a)
while the objection is pending before the
Monitor, or
(b)
before the period of 7 days has elapsed from the
time that notice of the Monitor’s decision on the objection is given to
the insurance company.
31HRefund undertakings by
insurance companies
(1)
If an insurance company is liable for an
over-collection amount, the Monitor may accept a refund undertaking from the
insurance company in relation to the over-collection
amount.
(2)
A refund
undertaking is an undertaking under Division 2 of Part 4
under which an insurance company that is liable for an over-collection amount
agrees to refund the whole or part of the over-collection amount to relevant
policy holders or to pay the over-collection amount or part of it to the Chief
Commissioner.
(3)
The Monitor is not to accept a refund undertaking
that provides for the payment of an over-collection amount or part of an
over-collection amount to the Chief Commissioner unless the Monitor is
satisfied it is impracticable for the insurance company to refund the
over-collection amount or part to relevant policy
holders.
(4)
The Monitor is to advise the Chief Commissioner
of any refund undertaking that provides for the payment of an amount to the
Chief Commissioner.
Note—
A refund undertaking is enforceable by
proceedings in the Supreme Court.
31IReferral of amount to Chief
Commissioner for debt recovery actions
(1)
The Monitor may refer an over-collection amount
to the Chief Commissioner for debt recovery action if the insurance company
liable for the over-collection amount fails to give the Monitor a refund
undertaking in relation to the amount, in terms that are acceptable to the
Monitor, by the deadline for giving the refund
undertaking.
(2)
The referral is to be made by notice in writing
to the Chief Commissioner in a form approved by the Chief
Commissioner.
(3)
The notice must specify the over-collection
amount.
(4)
The Monitor is to give the Chief
Commissioner:
(a)
a copy of the notice of assessment in relation to
the insurance company, and
(b)
any other information in relation to the referral
that the Chief Commissioner reasonably requires to exercise his or her
functions under this Part.
31JIssue of debt recovery order
by Chief Commissioner
(1)
The Chief Commissioner may make an order (a
debt
recovery order) in relation to any over-collection amount
referred to the Chief Commissioner by the Monitor under this
Part.
(2)
A debt recovery order is an order for the
recovery of the over-collection amount from the insurance company that is
liable for the over-collection amount.
(3)
The debt recovery order must specify:
(a)
the over-collection amount payable by the
insurance company, and
(b)
the date for payment.
(4)
A copy of the debt recovery order must be given
to the insurance company.
(5)
The date for payment must be not less than 30
days after a copy of the order is given to the insurance
company.
31KInsurance company must pay
over-collection amount
(1)
An insurance company that is required by a debt
recovery order to pay an over-collection amount must pay that amount to the
Chief Commissioner by the date for payment specified in the debt recovery
order or within any further time allowed by the Chief
Commissioner.
(2)
If an insurance company fails to pay the
over-collection amount within 30 days of it being payable, the insurance
company is guilty of an offence.
Maximum penalty: 50 penalty
units.
(3)
The over-collection amount specified in the debt
recovery order is recoverable by the Chief Commissioner from the insurance
company as a debt in a court of competent jurisdiction and is payable into the
Consolidated Fund.
Note—
Recovered over-collection amounts are deducted
from the FESL revenue target under the Fire and
Emergency Services Levy Act 2017 and, accordingly, reduce
the levy payable under that Act.
[10]Section 53 Purposes for which
powers under Part may be exercised
Omit “this Act or the regulations”
from section 53 (a).
Insert instead “this Act, the regulations
or the emergency services levy winding up
arrangements”.
[11]Section 53
(b)
Insert “or the emergency services levy
winding up arrangements” after “this
Act”.
[12]Section 53
(d)
Insert “or the emergency services levy
winding up arrangements” after “this
Act”.
[13]Section 75 Exchange of
information
Omit paragraph (b) of the definition of relevant agency in section 75 (6).
Insert instead:
(b)
the Chief Commissioner, or
(b1)
the Commissioner of Fire and Rescue NSW,
or
(b2)
the Commissioner of the NSW Rural Fire Service,
or
(b3)
the Commissioner of the State Emergency Service,
or
4.2Fires Brigades Act
1989 No 192
[1]Section 44
Definitions
Omit the definitions of assessment notice, capital
account, contributors, estimated
expenditure, fire
brigade contribution instalments, insurance
company, recurrent
expenditure account and relevant
insurance.
Insert in alphabetical order:
assessment notice means an
assessment notice given to a local council under section 54.
fire
brigade contribution instalment—see section
51A.
fire
brigades funding amount—see section 49.
fire
brigades funding target—see section 45.
State
Revenue Commissioner—means the Chief Commissioner of
State Revenue under the Taxation Administration Act
1996.
[2]Section 44, definition of
“fire brigade contribution”
Omit “contributor”. Insert instead
“local council”.
[3]Section 44, definition of
“fire brigades expenditure”
Omit “recurrent” wherever
occurring.
[4]Section 44, definition of
“fire brigades expenditure”
Omit paragraph (b).
[5]Part 5, Divisions 2, 3 and
4
Omit the Divisions. Insert instead:
Division 2Fire brigades funding
target
45Fire brigades funding
target
(1)
Before 31 March in each year or a later date
agreed to by the Treasurer, the Minister must:
(a)
prepare and, subject to the Treasurer’s
agreement, adopt a funding target for Fire and Rescue NSW for the next
financial year (the fire
brigades funding target), and
(b)
prepare and adopt an estimate of the amount of
the fire brigades funding target for each fire district for the next financial
year.
(2)
The Minister is to calculate the fire brigades
funding target for the financial year using the following formula:
where:
FTt is the fire brigades
funding target for the financial year (represented by
“t”).
EEt is the estimated fire
brigades expenditure for the financial year.
AEt-2 is the actual fire
brigades expenditure for the financial year that commenced 2 years before the
period “t” (represented as “t-2”).
EEt-2 is the estimated
fire brigades expenditure for the financial year that commenced 2 years before
the period “t” (represented as
“t-2”).
(3)
To avoid doubt, if
AEt-2−EEt-2 is a negative amount, that amount is
subtracted from EEt.
(4)
The estimate of fire brigades expenditure for a
financial year is to be reduced, as necessary, by the amount it is estimated
will be paid to the Fund for the financial year (other than from contributions
made by the Treasurer).
(5)
The actual fire brigades expenditure for a
financial year is to be reduced, as necessary, by the amount paid to the Fund
for the financial year (other than from contributions made by the
Treasurer).
(6)
Without limiting subsections (4) and (5), the
Minister may, with the Treasurer’s agreement, decide that adjustments
are not to be made to the fire brigades funding target in respect of:
(a)
certain money paid into the Fund,
or
(b)
certain amounts it is estimated will be paid to
Fire and Rescue NSW for the financial year.
(7)
In determining the amount of the fire brigades
funding target for each fire district, the Minister may apportion the total
estimated expenditure between fire districts in the way the Minister thinks
fit.
46Commissioner to
assist
(1)
To assist the Minister in preparing and adopting
the fire brigades funding target for a financial year, the Commissioner must
prepare and give to the Minister a written report and recommendations about
fire brigades expenditure for the year and the estimated expenditure for each
fire district and each local council.
(2)
The Minister must consider the
Commissioner’s report and recommendations in preparing the
estimates.
Division 3Treasurer to contribute to
Fund
47Treasurer to pay
contributions
(1)
The Treasurer is to pay an annual contribution to
the Fund for each financial year.
(2)
The annual contribution payable is the fire
brigades funding amount.
(3)
The Treasurer may direct the payment of
additional contributions to the Fund, subject to any terms and conditions
approved by the Treasurer.
(4)
The annual contribution, and any additional
contributions, are to be paid out of money provided by
Parliament.
48Contribution payable in
instalments
The annual contribution is to be paid by the
Treasurer in instalments on or before the following dates:
(a)
1 August,
(b)
1 October,
(c)
1 January,
(d)
1 April.
49Fire brigades funding
amount
(1)
As soon as practicable after the commencement of
each financial year, the Minister must prepare and, subject to the
Treasurer’s agreement, adopt an update of fire brigades funding for the
financial year (the fire
brigades funding amount).
(2)
The fire brigades funding amount is the estimated
fire brigades expenditure for the financial year (that is, EEt in
the fire brigades funding target for the financial year), adjusted and updated
in accordance with this section.
(3)
Estimated fire brigades expenditure is to be
adjusted for the purposes of the fire brigades funding amount so that the
estimate:
(a)
is reduced or increased, as appropriate, for any
difference between the estimate of fire brigades expenditure for the financial
year, as adopted in the fire brigades funding target, and an updated estimate
of that amount, and
(b)
is reduced or increased, as appropriate, for any
difference between the fire brigades funding amount for the previous financial
year and the actual amount of fire brigades expenditure for that financial
year.
(4)
Without limiting subsection (3), the Minister
may, with the Treasurer’s agreement, decide that adjustments are not to
be made to the fire brigades funding amount in respect of:
(a)
any surplus in the Fund at the end of the
previous financial year, or
(b)
certain money paid into the Fund,
or
(c)
certain amounts it is estimated will be paid to
Fire and Rescue NSW for the financial year.
(5)
An adjustment to the estimated fire brigades
expenditure that is made under this section has no effect on, and is not to be
used in the calculation of, the fire brigades funding target for a financial
year.
Division 4Councils to pay fire brigade
contributions
50Council to pay fire brigade
contribution
A local council is to pay to the State Revenue
Commissioner a fire brigade contribution for each financial
year.
51Amount of
contribution
(1)
The amount of the fire brigade contribution is
the amount determined by the Minister for each local
council.
(2)
The Minister is to determine the contribution
payable by a local council on the basis of the fire brigades funding target
for each fire district.
(3)
The contribution payable by local councils for
each fire district is 11.7% of the fire brigades funding target applicable to
the fire district.
(4)
The contribution to be paid for a fire district
is to be paid by the local council or councils of a local government area the
whole or part of which is included in the fire district.
(5)
However, if a fire district comprises a reserved
area (within the meaning of section 5) and no other area:
(a)
a local council of an area within the fire
district is not required to pay a fire brigade contribution for the fire
district, and
(b)
the fire brigade contribution for the fire
district is to be paid from the National Parks and Wildlife Fund established
under the National Parks and Wildlife Act
1974.
(6)
If a fire district comprises more than one local
government area, the amount of the fire brigade contribution payable by the
local council of each local government area in the fire district is to be
apportioned according to the current 5-year average of the total land values
of all rateable land in the local government area or in the part of it in the
fire district.
(7)
A local council or an officer of a local council
must, if asked by the Minister, give the Minister any document or information
required by the Minister to determine the council’s fire brigade
contribution.
(8)
In this section:
current
5-year average, in relation to the total land values of
land, means the arithmetic mean of the total land values of the land
(estimated in accordance with section 67 of the Valuation of Land Act 1916) as at 1 July
in each of the 5 financial years before the date on which the average is being
calculated.
51AContribution payable in
instalments
A fire brigade contribution payable by a local
council for a financial year is payable in 4 instalments (each of which is a
fire
brigade contribution instalment).
51BMinister to advise State
Revenue Commissioner
The Minister is to advise the State Revenue
Commissioner, by the date of 15 April that occurs immediately before the
commencement of a financial year, of:
(a)
the amount of the fire brigade contribution
payable by each local council for the financial year, and
(b)
the amount of the fire brigade contribution
instalments payable by each local council.
[6]Part 5, Division 5,
heading
Omit the heading. Insert instead:
Division 5Payment of contributions by
local councils
[7]Section
52
Omit sections 52 and 53. Insert instead:
52When instalments are to be
paid
A local council must, in accordance with an
instalment notice given to the council by the State Revenue Commissioner, pay
to the State Revenue Commissioner a fire brigade contribution instalment on or
before each of the following days in a financial year:
(a)
30 September,
(b)
31 December,
(c)
31 March,
(d)
30 June.
[8]Sections
54–55A
Omit sections 54 and 55. Insert instead:
54Annual assessment
notice
(1)
The State Revenue Commissioner must give to each
local council that is required to pay a fire brigade contribution for a
financial year an assessment notice that sets out the amount of the fire
brigade contribution payable by the local council for that
year.
(2)
The assessment notice must be given to the local
council by 30 April in the year before the financial year for which the fire
brigade contribution is payable.
55Instalment
notices
The State Revenue Commissioner must give to each
local council that is required to pay a fire brigade contribution instalment a
written notice (an instalment notice) that
specifies:
(a)
the amount of the fire brigade contribution
instalment payable under the instalment notice, and
(b)
the date by which the fire brigade contribution
instalment is payable.
55AFire brigade contribution is
debt payable to State Revenue Commissioner
(1)
If the whole or part of a fire brigade
contribution payable by a local council is not paid to the State Revenue
Commissioner as required, the unpaid amount is recoverable by the State
Revenue Commissioner as a debt in a court of competent
jurisdiction.
(2)
The applied provisions of the Taxation Administration Act 1996 apply
in relation to the fire brigade contribution payable by a local council under
this Act as if Part 5 of this Act were a taxation law and the contribution
were a tax payable by a council under a taxation law.
(3)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(c)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(d)
sections 114, 115, 116, 118, 119 and
120,
(e)
any provisions that are relevant to the
interpretation of the above provisions.
(4)
The applied provisions apply to an assessment
made by the State Revenue Commissioner under this Act in the same way as they
apply to an assessment under that Act.
(5)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a fire brigade contribution or to the exercise of any of the
State Revenue Commissioner’s functions in respect of fire brigade
contributions (including under the applied provisions of the Taxation Administration Act
1996).
[9]Section 56 How contribution is
to be funded
Insert at the end of the section:
(2)
Funds of a local council derived from donations
and other voluntary contributions made for the purposes of this Act may not be
used towards the payment of fire brigade contributions by the local council
unless approved by the Minister.
[10]Part 5, Division 6
Contributions by insurance companies
Omit the Division.
[11]Part 5, Division 7,
heading
Omit the heading. Insert instead:
Division 7Miscellaneous
[12]Section 64A New South Wales
Fire Brigades Fund
Omit section 64A (2), (3) and (4). Insert
instead:
(2)
There is to be paid into the Fund:
(a)
all contributions payable by the Treasurer under
this Part, and
(b)
any other money appropriated by Parliament for
payment into the Fund, and
(c)
the proceeds of investment of money in the Fund,
and
(d)
any other money required by law to be paid into
the Fund.
[13]Section 64A
(5)
Omit “recurrent expenditure account”.
Insert instead “Fund”.
[14]Section 64A
(6)
Omit “capital account”. Insert
instead “Fund”.
[15]Section
64B
Omit the section. Insert instead:
64BCertificate
evidence
A certificate signed by the Minister that states
any of the following matters is admissible in proceedings and, in the absence
of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the fire brigades funding target, as adopted by
the Minister under this Part,
(b)
the fire brigades funding target applicable to a
fire district, as adopted by the Minister under this Part,
(c)
the amount of the fire brigade contribution
determined by the Minister for a specified local council for the financial
year.
[16]Part 5, Division 8
Miscellaneous
Omit the Division.
[17]Section 80 Information to
policy holders
Omit the section.
[18]Schedule 1 Proportion of
premiums subject to contribution
Omit the Schedule.
[19]Schedule 4 Savings and
transitional provisions
Insert after Part 9:
Part 10Provisions relating to the
Fire and Emergency Services Levy Act
2017
31Definitions
In this Part:
amending
Act means the Fire and
Emergency Services Levy Act 2017.
final
contribution—see clause 34.
final
return—see clause 33.
final
year of the scheme means the financial year commencing on 1
July 2016.
insurance
company means any body corporate, partnership, association,
underwriter or person that or who:
(a)
issues or undertakes liability under policies of
insurance against loss of or damage to any property situated in New South
Wales, or
(b)
receives premiums in respect of such policies of
insurance on behalf of or for transmission to any body corporate, partnership,
association, underwriter or person outside New South
Wales.
insurer
loading—see clause 34.
Monitor means the Emergency Services
Levy Insurance Monitor appointed under the Emergency
Services Levy Insurance Monitor Act 2016.
relevant
insurance means insurance against loss of or damage to
property in the State under the classes of policies specified in Schedule 1,
as in force immediately before its repeal by the Fire
and Emergency Services Levy Act 2017.
total
amount, in relation to premiums, includes any brokerage or
commission paid or due to be paid or allowed to be paid on:
(a)
the premiums, or
(b)
bonuses or return premiums allowed in respect of
policies of insurance the subject of the premiums, or
(c)
such part of the premiums received by or due to
the company as is paid or due to be paid by way of reinsurance by the company
to another insurance company in the State,
but does not include duty payable under the Duties Act 1997 in respect of policies
of insurance the subject of the premiums.
32Amendments do not affect pre-1
July 2017 liability
(1)
The amendments to Part 5 of this Act made by the
amending Act apply in respect of the financial year commencing on 1 July 2017
and subsequent financial years.
(2)
Subject to this Part, the amendments do not
affect any liability for a fire brigade contribution for a financial year
commencing before 1 July 2017 and Part 5, section 80 and Schedule 1, as in
force immediately before the amendments made to this Act by the amending Act,
continue to apply in respect of any such financial year as if the amendments
had not been made.
33Final returns to be provided
by insurance companies
(1)
An insurance company must, by 30 September 2017
or another date specified by the Commissioner by notice published in the
Gazette, give to the Commissioner:
(a)
a return in the form approved by the Commissioner
showing the total amount of premiums received by or due to the company for the
previous financial year for relevant insurance (a final
return), and
(b)
a certificate from an auditor that relates to the
return and complies with subclause (2).
(2)
The certificate from the auditor must:
(a)
be in the form approved by the Commissioner,
and
(b)
be from an auditor who is:
(i)
a registered company auditor within the meaning
of the Corporations Act 2001 of the
Commonwealth, or
(ii)
a person not resident in the State who has
qualifications that, in the Commissioner’s opinion, are appropriate for
the giving of the certificate.
(3)
An insurance company is guilty of an offence if
it:
(a)
fails to give the Commissioner a return and
certificate as required by this clause, or
(b)
gives the Commissioner a return that is false or
misleading in a material particular.
Maximum penalty: 20 penalty
units.
34Calculation of final
contribution
(1)
The Commissioner must, by the end of 30 November
2017, calculate a final contribution for each liable insurance
company.
(2)
A final
contribution is the total fire brigade contribution that
would have been payable by the insurance company for the final year of the
scheme if the contribution had been calculated on the basis of:
(a)
the premium total provided by the insurance
company in its final return, and
(b)
the premium totals provided by all insurance
companies in their final returns.
(3)
If an insurance company fails to provide a final
return to the Commissioner within the time required under clause 33, or any
further time (not exceeding 30 days) allowed by the Commissioner:
(a)
the Commissioner may estimate the premium total
for that insurance company using any information available to the Commissioner
(including information from previous returns, if any), and
(b)
that estimate is taken to be the premium total
provided by the insurance company in its final
return.
(4)
If the Commissioner estimates the premium total
for an insurance company under subclause (3), the final contribution payable
by that insurance company is that estimate plus an insurer loading of 50% of
that estimate.
(5)
In this clause:
liable
insurance company means an insurance company liable for a
fire brigade contribution in the final year of the scheme.
premium
total means the total amount of premiums of an insurance
company that are subject to a fire brigade
contribution.
35Final
assessment
(1)
The Commissioner must give to each insurance
company that made or is required to make a fire brigade contribution for the
final year of the scheme a final assessment notice for that
year.
(2)
The final assessment notice must state the
following:
(a)
the final contribution payable by the insurance
company for the final year of the scheme,
(b)
the amount of any fire brigade contribution
already paid by the insurance company for that financial year including, if
paid in instalments, the total of all instalments already paid (the total
contribution already paid),
(c)
if the final contribution payable by the
insurance company exceeds the total contribution already paid:
(i)
the difference between those amounts (a contribution deficit),
and
(ii)
the date by which the contribution deficit must
be paid to the Commissioner (being a date that is no earlier than 30 days
after the assessment notice is given to the insurance
company),
(d)
if the total contribution already paid exceeds
the final contribution payable by the insurance company—the difference
between those amounts (a contribution
surplus).
(3)
If the assessment notice specifies a contribution
deficit, the insurance company must pay the contribution deficit to the
Commissioner.
(4)
The contribution deficit is payable to the
Commissioner by the date for payment specified in the assessment notice or any
later date permitted by the Commissioner.
(5)
If an insurance company fails to pay a
contribution deficit in full by the date on which it is payable to the
Commissioner, the applied provisions of the Taxation
Administration Act 1996 apply to the unpaid amount as if
the unpaid amount were a tax and this Act were a taxation
law.
(6)
The applied provisions of the Taxation Administration Act 1996 are the
following provisions of that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
Division 2 (Penalty tax) of Part 5 (except
sections 28–30),
(c)
any provisions that are relevant to the
interpretation of the above provisions.
(7)
For the purpose of the applied provisions of the
Taxation Administration Act 1996:
(a)
a tax default is taken to occur if the
contribution deficit is not paid in full by the date on which it is payable,
and
(b)
a reference to the Chief Commissioner is to be
read as a reference to the Commissioner under this
Act.
(8)
If a contribution deficit, or any part of a
contribution deficit, is not paid in full by an insurance company to the
Commissioner by the date on which it is payable, the unpaid amount and any
interest and penalty tax payable on the unpaid amount:
(a)
constitutes a debt due and payable to the
Commissioner, and
(b)
may be recovered in a court of competent
jurisdiction by the Commissioner.
(9)
A contribution deficit is to be paid into the
Fund.
(10)
If the assessment notice specifies a contribution
surplus, the Commissioner is to refund the amount of the contribution surplus
to the insurance company no later than 30 June 2018.
(11)
A refund is to be paid from the
Fund.
36Liability of owner where
foreign insurer involved
(1)
The Commissioner may notify a relevant owner that
the owner is responsible for an appropriate proportion of any contribution
deficit that is required to be paid by a foreign insurance company that holds
a risk in respect of the owner’s property.
(2)
The appropriate proportion is the proportion that
the premiums paid by the relevant owner for the final year of the scheme bears
to the premium total provided (or taken under this Part to have been provided)
by the insurance company in its final return.
(3)
Any insurer loading is not to be included in the
calculation of the contribution deficit under this
clause.
(4)
If the relevant owner fails to pay the
appropriate proportion of the final contribution within 30 days after it is
due, the owner is guilty of an offence.
Maximum penalty: 10 penalty
units.
(5)
An amount paid by a person under this clause may
be deducted from any premium recoverable in the State by or on behalf of the
foreign insurance company on the issue or renewal of an insurance policy on
the property or may be recovered from the foreign insurance company as a debt
by the person making the payment.
(6)
This clause applies whether the premium concerned
was received in or outside the State.
(7)
In this clause:
relevant
owner means a person who is the owner of property in respect
of which a foreign insurance company has received a premium subject to a fire
brigade contribution.
37Commissioner to make final
2-year assessment
(1)
The Commissioner must make an assessment, in
relation to each insurance company that was required to make fire brigade
contributions in the final year of the scheme or the previous financial year,
of the total amount of fire brigade contributions payable by the insurance
company for the final 2 years of the scheme (a final
2-year assessment).
(2)
The final 2-year assessment is to consist of the
total of the following amounts, as assessed by the Commissioner:
(a)
the final contribution payable by the insurance
company for the final year of the scheme (excluding any insurer loading
payable by the insurance company),
(b)
the total of fire brigade contributions payable
by the insurance company for the financial year commencing on 1 July
2015.
(3)
The Commissioner is to give the final 2-year
assessment to the Monitor.
(4)
The Commissioner must give to the Monitor a final
2-year assessment in relation to an insurance company within 30 days after
making an assessment of the final contribution payable by the insurance
company for the final year of the scheme.
38Certificate
evidence
A certificate signed by the Commissioner that
states any of the following matters is admissible in proceedings and, in the
absence of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the final contribution payable by an insurance
company,
(b)
the final 2-year assessment for an insurance
company,
(c)
the amount of any contribution
deficit,
(d)
the amount of any contribution
surplus.
39Transitional provision for
adjusted estimates by Minister
A reference in Part 5 of this Act, as amended by
the amending Act, to contributions made to the New South Wales Fire Brigades
Fund by the Treasurer includes a reference to fire brigade contributions made
for the financial year commencing on 1 July 2016 or a previous financial
year.
4.3Land
and Environment Court Act 1979 No
204
[1]Section 19 Class 3—land
tenure, valuation, rating and compensation matters
Insert after section 19 (d):
(d1)
appeals under section 64 of the Fire and Emergency Services Levy Act
2017,
[2]Section 20 Class
4—environmental planning and protection, development contract and strata
renewal plan civil enforcement
Insert in alphabetical order in section 20 (3)
(a):
Fire and
Emergency Services Levy Act
2017,
4.4Local
Government Act 1993 No 30
[1]Section 377 General power of
the council to delegate
Insert “under this or any other Act”
after “functions of the council” in section 377
(1).
[2]Section 409 The consolidated
fund
Insert after section 409 (8):
(9)
This section does not affect the requirements of
the Fire and Emergency Services Levy Act
2017 with respect to the payment of collection instalments
to the Treasurer.
[3]Section 511A Catching up of
income lost due to reductions in valuation
Omit “on objection under Part 3, or appeal
under Part 4, of the Valuation of Land Act
1916” from section 511A (1).
Insert instead “(whether because of an
objection under the Valuation of Land Act
1916, an appeal under that Act or for any other
reason)”.
[4]Section 687 Appearance in
Local Court
Insert “or any other” after
“under this” in section 687 (b).
4.5Local Government (General) Regulation
2005
Clause 127 Rates and charges
notices
Insert at the end of the clause:
(2)
If the notice includes particulars of a fire and
emergency services levy that is payable, the notice may show the total amount
payable for instalments for rates or charges and the fire and emergency
services levy (instead of showing separately the instalments payable for rates
or charges and the instalments payable for the levy).
(3)
In this clause:
fire and
emergency services levy means the levy under the Fire and Emergency Services Levy Act
2017.
4.6Rural
Fires Act 1997 No 65
[1]Part 5,
note
Omit the note.
[2]Section 101
Definitions
Omit the definitions of assessment notice, contributors, estimated
expenditure, insurance
company, relevant
insurance and rural
fire brigade contribution instalments.
Insert in alphabetical order:
assessment notice means an
assessment notice given to a relevant council under section
112.
rural
fire brigade contribution instalment—see section
110A.
rural
fire brigade funding amount—see section
108.
rural
fire brigade funding target—see section
103.
State
Revenue Commissioner—means the Chief Commissioner of
State Revenue under the Taxation Administration Act
1996.
[3]Section 101, definition of
“rural fire brigade contribution”
Omit “contributor”. Insert instead
“relevant council”.
[4]Section 101, definition of
“rural fire brigade expenditure”
Omit “recurrent” wherever
occurring.
[5]Section 101, definition of
“rural fire brigade expenditure”
Omit paragraph (c).
[6]Section 102 New South Wales
Rural Fire Fighting Fund
Omit “into which are to be paid all
contributions and other money received under this Part” from section 102
(1).
[7]Section 102
(1A)
Insert after section 102 (1):
(1A)
There is to be paid into the Fund:
(a)
all contributions payable by the Treasurer to the
Fund under this Part, and
(b)
any other money appropriated by Parliament for
payment into the Fund, and
(c)
the proceeds of investment of money in the Fund,
and
(d)
any other money required by law to be paid into
the Fund.
[8]Section
103
Omit the section. Insert instead:
103Rural fire brigade funding
target
(1)
Before 31 March in each year or a later date
agreed to by the Treasurer, the Minister must:
(a)
prepare and, subject to the Treasurer’s
agreement, adopt a funding target for the NSW Rural Fire Service for the next
financial year (the rural
fire brigade funding target), and
(b)
prepare and adopt an estimate of the amount of
the rural fire brigade funding target for each rural fire district for the
next financial year.
(2)
The Minister is to calculate the rural fire
brigade funding target for the financial year using the following
formula:
where:
FTt is the rural fire
brigade funding target for the financial year (represented by
“t”).
EEt is the estimated
rural fire brigade expenditure for the financial year.
AEt-2 is the actual rural
fire brigade expenditure for the financial year that commenced 2 years before
the period “t” (represented as “t-2”).
EEt-2 is the estimated
rural fire brigade expenditure for the financial year that commenced 2 years
before the period “t” (represented as
“t-2”).
(3)
To avoid doubt, if
AEt-2−EEt-2 is a negative amount, that amount is
subtracted from EEt.
(4)
The estimate of rural fire brigade expenditure
for a financial year is to be reduced, as necessary, by the amount it is
estimated will be paid to the Fund for the financial year (other than from
contributions made by the Treasurer).
(5)
The actual rural fire brigade expenditure for a
financial year is to be reduced, as necessary, by the amount paid to the Fund
for the financial year (other than from contributions made by the
Treasurer).
(6)
Without limiting subsections (4) and (5), the
Minister may, with the Treasurer’s agreement, decide that adjustments
are not to be made to the rural fire brigade funding target in respect
of:
(a)
certain money paid into the Fund,
or
(b)
certain amounts it is estimated will be paid to
the NSW Rural Fire Service for the financial year.
(7)
In determining the amount of the rural fire
brigade funding target for each rural fire district, the Minister may
apportion the total estimated expenditure between rural fire districts in the
way the Minister thinks fit.
[9]Section 104 Relevant councils
to give information to Minister
Omit “estimated expenditure”. Insert
instead “rural fire brigade funding
target”.
[10]Section
105
Omit the section. Insert instead:
105Commissioner to
assist
(1)
To assist the Minister in preparing and adopting
the rural fire brigade funding target for a financial year, the Commissioner
must prepare and give to the Minister a written report and recommendations
about rural fire brigade expenditure for the year and the estimated
expenditure for each rural fire district and each relevant
council.
(2)
The Minister must consider the
Commissioner’s report and recommendations in preparing the
estimates.
[11]Part 5, Divisions 4 and
5
Omit the Divisions. Insert instead:
Division 4Treasurer to contribute to
Fund
106Treasurer to pay
contributions
(1)
The Treasurer is to pay an annual contribution to
the Fund for each financial year.
(2)
The annual contribution payable is the rural fire
brigade funding amount.
(3)
The Treasurer may direct the payment of
additional contributions to the Fund, subject to any terms and conditions
approved by the Treasurer.
(4)
The annual contribution, and any additional
contributions, are to be paid out of money provided by
Parliament.
107Contribution payable in
instalments
The annual contribution is to be paid by the
Treasurer in instalments on or before the following dates:
(a)
1 August,
(b)
1 October,
(c)
1 January,
(d)
1 April.
108Rural fire brigade funding
amount
(1)
As soon as practicable after the commencement of
each financial year, the Minister must prepare and, subject to the
Treasurer’s agreement, adopt an update of rural fire brigade funding for
the financial year (the rural
fire brigade funding amount).
(2)
The rural fire brigade funding amount is the
estimated rural fire brigade expenditure for the financial year (that is,
EEt in the rural fire brigade funding target for the financial
year), adjusted and updated in accordance with this
section.
(3)
Estimated rural fire brigade expenditure is to be
adjusted for the purposes of the rural fire brigade funding amount so that the
estimate:
(a)
is reduced or increased, as appropriate, for any
difference between the estimate of rural fire brigade expenditure for the
financial year, as adopted in the rural fire brigade funding target, and an
updated estimate of that amount, and
(b)
is reduced or increased, as appropriate, for any
difference between the rural fire brigade funding amount for the previous
financial year and the actual amount of rural fire brigade expenditure for
that financial year.
(4)
Without limiting subsection (3), the Minister
may, with the Treasurer’s agreement, decide that adjustments are not to
be made to the rural fire brigade funding amount in respect of:
(a)
any surplus in the Fund at the end of the
previous financial year, or
(b)
certain money paid into the Fund,
or
(c)
certain amounts it is estimated will be paid to
the NSW Rural Fire Service for the financial year.
(5)
An adjustment to the estimated rural fire brigade
expenditure that is made under this section has no effect on, and is not to be
used in the calculation of, the rural fire brigade funding target for a
financial year.
Division 5Councils to pay rural fire
brigade contribution
109Council to pay rural fire
brigade contribution
A relevant council is to pay to the State Revenue
Commissioner a rural fire brigade contribution for each financial
year.
110Amount of
contribution
(1)
The amount of the rural fire brigade contribution
is the amount determined by the Minister for each relevant
council.
(2)
The Minister is to determine the contribution
payable by a relevant council on the basis of the rural fire brigade funding
target for each rural fire district.
(3)
The contribution payable by relevant councils for
each rural fire district is 11.7% of the rural fire brigade funding target
applicable to the rural fire district.
(4)
The contribution to be paid for a rural fire
district is to be paid by the relevant council or councils of an area the
whole or part of which is included in the rural fire
district.
(5)
In determining the contribution payable by a
relevant council, the Minister may apportion the rural fire brigade funding
target for rural fire districts between councils of an area, the whole or part
of which are included in that district, in the way the Minister thinks
fit.
(6)
A relevant council or an officer of a relevant
council must, if asked by the Minister, give the Minister any document or
information required by the Minister to determine the council’s rural
fire brigade contribution.
110AContribution payable in
instalments
A rural fire brigade contribution payable by a
relevant council for a financial year is payable in 4 instalments (each of
which is a rural
fire brigade contribution
instalment).
110BMinister to advise State
Revenue Commissioner
The Minister is to advise the State Revenue
Commissioner, by the date of 15 April that occurs immediately before the
commencement of a financial year, of:
(a)
the amount of the rural fire brigade contribution
payable by each relevant council for the financial year,
and
(b)
the amount of the rural fire brigade contribution
instalments payable by each relevant council.
[12]Part 5, Division 6,
heading
Omit the heading. Insert instead:
Division 6Payment of contributions by
relevant councils
[13]Section
111
Omit the section. Insert instead:
111When instalments are to be
paid
A relevant council must, in accordance with an
instalment notice given to the council by the State Revenue Commissioner, pay
to the State Revenue Commissioner a rural fire brigade contribution instalment
on or before each of the following days in a financial year:
(a)
30 September,
(b)
31 December,
(c)
31 March,
(d)
30 June.
[14]Sections
112–113A
Omit sections 112 and 113. Insert instead:
112Annual assessment
notice
(1)
The State Revenue Commissioner must give to each
relevant council that is required to pay a rural fire brigade contribution for
a financial year an assessment notice that sets out the amount of the rural
fire brigade contribution payable by the relevant council for that
year.
(2)
The assessment notice must be given to the
relevant council by 30 April in the year before the financial year for which
the rural fire brigade contribution is payable.
113Instalment
notices
The State Revenue Commissioner must give to each
relevant council that is required to pay a rural fire brigade contribution
instalment a written notice (an instalment notice) that
specifies:
(a)
the amount of the rural fire brigade contribution
instalment payable under the instalment notice, and
(b)
the date by which the rural fire brigade
contribution instalment is payable.
113ARural fire brigade
contribution is debt payable to State Revenue
Commissioner
(1)
If the whole or part of a rural fire brigade
contribution payable by a relevant council is not paid to the State Revenue
Commissioner as required, the unpaid amount is recoverable by the State
Revenue Commissioner as a debt in a court of competent
jurisdiction.
(2)
The applied provisions of the Taxation Administration Act 1996 apply
in relation to the contribution payable by a relevant council under this Act
as if Part 5 of this Act were a taxation law and the contribution were a tax
payable by a council under a taxation law.
(3)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(c)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(d)
sections 114, 115, 116, 118, 119 and
120,
(e)
any provisions that are relevant to the
interpretation of the above provisions.
(4)
The applied provisions apply to an assessment
made by the State Revenue Commissioner under this Act in the same way as they
apply to an assessment under that Act.
(5)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a rural fire brigade contribution or to the exercise of any of
the State Revenue Commissioner’s functions in respect of rural fire
brigade contributions (including under the applied provisions of the Taxation Administration Act
1996).
[15]Section 114 How contribution
is to be funded
Insert at the end of the section:
(2)
Funds of a relevant council derived from
donations and other voluntary contributions made for the purposes of this Act
may not be used towards the payment of rural fire brigade contributions by the
relevant council unless approved by the Minister.
[16]Sections 114A and
114B
Insert after section 114:
114AExemptions
(1)
The Governor may, on the recommendation of the
Minister, exempt a relevant council from making a rural fire brigade
contribution if the Governor is satisfied the danger from bush fires in the
council’s area is negligible.
(2)
If a relevant council has been exempted under
this section from making rural fire brigade contributions, no payment is to be
made in or towards the purpose specified in section 118 for the benefit of the
council’s area.
114BCertificate
evidence
A certificate signed by the Minister that states
any of the following matters is admissible in proceedings and, in the absence
of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the rural fire brigade funding target, as adopted
by the Minister under this Part,
(b)
the rural fire brigade funding target applicable
to a rural fire district, as adopted by the Minister under this
Part,
(c)
the amount of the rural fire brigade contribution
determined by the Minister for a specified council for the financial
year.
[17]Part 5, Division 6A
Contributions by insurance companies
Omit the Division.
[18]Section 121 Amendment of
Schedule 2
Omit the section.
[19]Schedule 2 Contributions of
insurance companies
Omit the Schedule.
[20]Schedule 3, Savings,
transitional and other provisions
Insert after Part 7:
Part 8Provisions consequent on
enactment of Fire and Emergency Services Levy Act
2017
29Definitions
In this Part:
amending
Act means the Fire and
Emergency Services Levy Act 2017.
final
contribution—see clause 32.
final
return—see clause 31.
final
year of the scheme means the financial year commencing on 1
July 2016.
insurance
company means any body corporate, partnership, association,
underwriter or person that or who:
(a)
issues or undertakes liability under policies of
insurance against loss of or damage to any property situated in New South
Wales, or
(b)
receives premiums in respect of such policies of
insurance on behalf of or for transmission to any body corporate, partnership,
association, underwriter or person outside New South
Wales.
insurer
loading—see clause 32.
Monitor means the Emergency Services
Levy Insurance Monitor appointed under the Emergency
Services Levy Insurance Monitor Act 2016.
relevant
insurance means insurance against loss of or damage to
property in the State under the classes of policies specified in Schedule 2,
as in force immediately before its repeal by the Fire
and Emergency Services Levy Act 2017.
total
amount, in relation to premiums, includes any brokerage or
commission paid or due to be paid or allowed to be paid on:
(a)
the premiums, or
(b)
bonuses or return premiums allowed in respect of
policies of insurance the subject of the premiums, or
(c)
such part of the premiums received by or due to
the company as is paid or due to be paid by way of reinsurance by the company
to another insurance company in the State,
but does not include duty payable under the Duties Act 1997 in respect of policies
of insurance the subject of the premiums.
30Amendments have effect from 1
July 2017
(1)
The amendments to Part 5 of this Act made by the
amending Act apply in respect of the financial year commencing on 1 July 2017
and subsequent financial years.
(2)
Subject to this Part, the amendments do not
affect any liability for a rural fire brigade contribution for a financial
year commencing before 1 July 2017 and Part 5, and Schedule 2, as in force
immediately before the amendments made to this Act by the amending Act,
continue to apply in respect of any such financial year as if the amendments
had not been made.
31Final returns to be provided
by insurance companies
(1)
An insurance company must, by 30 September 2017
or another date specified by the Commissioner by notice published in the
Gazette, give to the Commissioner:
(a)
a return in the form approved by the Commissioner
showing the total amount of premiums received by or due to the company for the
previous financial year for relevant insurance (a final
return), and
(b)
a certificate from an auditor that relates to the
return and complies with subclause (2).
(2)
The certificate from the auditor must:
(a)
be in the form approved by the Commissioner,
and
(b)
be from an auditor who is:
(i)
a registered company auditor within the meaning
of the Corporations Act 2001 of the
Commonwealth, or
(ii)
a person not resident in the State who has
qualifications that, in the Commissioner’s opinion, are appropriate for
the giving of the certificate.
(3)
An insurance company is guilty of an offence if
it:
(a)
fails to give the Commissioner a return and
certificate as required by this clause, or
(b)
gives the Commissioner a return that is false or
misleading in a material particular.
Maximum penalty: 20 penalty
units.
32Calculation of final
contribution
(1)
The Commissioner must, by the end of 30 November
2017, calculate a final contribution for each liable insurance
company.
(2)
A final
contribution is the total rural fire brigade contribution
that would have been payable by the insurance company for the final year of
the scheme if the contribution had been calculated on the basis of:
(a)
the premium total provided by the insurance
company in its final return, and
(b)
the premium totals provided by all insurance
companies in their final returns.
(3)
If an insurance company fails to provide a final
return to the Commissioner within the time required under clause 31, or any
further time (not exceeding 30 days) allowed by the Commissioner:
(a)
the Commissioner may estimate the premium total
for that insurance company using any information available to the Commissioner
(including information from previous returns, if any), and
(b)
that estimate is taken to be the premium total
provided by the insurance company in its final
return.
(4)
If the Commissioner estimates the premium total
for an insurance company under subclause (3), the final contribution payable
by that insurance company is that estimate plus an insurer loading of 50% of
that estimate.
(5)
In this clause:
liable
insurance company means an insurance company liable for a
rural fire brigade contribution in the final year of the
scheme.
premium
total means the total amount of premiums of an insurance
company that are subject to a rural fire brigade
contribution.
33Final
assessment
(1)
The Commissioner must give to each insurance
company that made or is required to make a rural fire brigade contribution for
the final year of the scheme a final assessment notice for that
year.
(2)
The final assessment notice must state the
following:
(a)
the final contribution payable by the insurance
company for the final year of the scheme,
(b)
the amount of any rural fire brigade contribution
already paid by the insurance company for that financial year including, if
paid in instalments, the total of all instalments already paid (the total
contribution already paid),
(c)
if the final contribution payable by the
insurance company exceeds the total contribution already paid:
(i)
the difference between those amounts (a contribution deficit),
and
(ii)
the date by which the contribution deficit must
be paid to the Commissioner (being a date that is no earlier than 30 days
after the assessment notice is given to the insurance
company),
(d)
if the total contribution already paid exceeds
the final contribution payable by the insurance company—the difference
between those amounts (a contribution
surplus).
(3)
If the assessment notice specifies a contribution
deficit, the insurance company must pay the contribution deficit to the
Commissioner.
(4)
The contribution deficit is payable to the
Commissioner by the date for payment specified in the assessment notice or any
later date permitted by the Commissioner.
(5)
If an insurance company fails to pay a
contribution deficit in full by the date on which it is payable to the
Commissioner, the applied provisions of the Taxation
Administration Act 1996 apply to the unpaid amount as if
the unpaid amount were a tax and this Act were a taxation
law.
(6)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
Division 2 (Penalty tax) of Part 5 (except
sections 28–30),
(c)
any provisions that are relevant to the
interpretation of the above provisions.
(7)
For the purpose of the applied provisions of the
Taxation Administration Act 1996:
(a)
a tax default is taken to occur if the
contribution deficit is not paid in full by the date on which it is payable,
and
(b)
a reference to the Chief Commissioner is to be
read as a reference to the Commissioner under this
Act.
(8)
If a contribution deficit, or any part of a
contribution deficit, is not paid in full by an insurance company to the
Commissioner by the date on which it is payable, the unpaid amount and any
interest and penalty tax payable on the unpaid amount:
(a)
constitutes a debt due and payable to the
Commissioner, and
(b)
may be recovered in a court of competent
jurisdiction by the Commissioner.
(9)
A contribution deficit is to be paid into the
Fund.
(10)
If the assessment notice specifies a contribution
surplus, the Commissioner is to refund the amount of the contribution surplus
to the insurance company no later than 30 June 2018.
(11)
A refund is to be paid from the
Fund.
34Liability of owner where
foreign insurer involved
(1)
The Commissioner may notify a relevant owner that
the owner is responsible for an appropriate proportion of any contribution
deficit that is required to be paid by a foreign insurance company that holds
a risk in respect of the owner’s property.
(2)
The appropriate proportion is the proportion that
the premiums paid by the relevant owner for the final year of the scheme bears
to the premium total provided (or taken under this Part to have been provided)
by the insurance company in its final return.
(3)
Any insurer loading is not to be included in the
calculation of the contribution deficit under this
clause.
(4)
If the relevant owner fails to pay the
appropriate proportion of the final contribution within 30 days after it is
due, the owner is guilty of an offence.
Maximum penalty: 10 penalty
units.
(5)
An amount paid by a person under this clause may
be deducted from any premium recoverable in the State by or on behalf of the
foreign insurance company on the issue or renewal of an insurance policy on
the property or may be recovered from the foreign insurance company as a debt
by the person making the payment.
(6)
This clause applies whether the premium concerned
was received in or outside the State.
(7)
In this clause:
relevant
owner means a person who is the owner of property in respect
of which a foreign insurance company has received a premium subject to a rural
fire brigade contribution.
35Commissioner to make final
2-year assessment
(1)
The Commissioner must make an assessment, in
relation to each insurance company that was required to make rural fire
brigade contributions in the final year of the scheme or the previous
financial year, of the total amount of rural fire brigade contributions
payable by the insurance company for the final 2 years of the scheme (a
final
2-year assessment).
(2)
The final 2-year assessment is to consist of the
total of the following amounts, as assessed by the Commissioner:
(a)
the final contribution payable by the insurance
company for the final year of the scheme (excluding any insurer loading
payable by the insurance company),
(b)
the total of rural fire brigade contributions
payable by the insurance company for the financial year commencing on 1 July
2015.
(3)
The Commissioner is to give the final 2-year
assessment to the Monitor.
(4)
The Commissioner must give to the Monitor a final
2-year assessment in relation to an insurance company within 30 days after
making an assessment of the final contribution payable by the insurance
company for the final year of the scheme.
36Certificate
evidence
A certificate signed by the Commissioner that
states any of the following matters is admissible in proceedings and, in the
absence of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the final contribution payable by an insurance
company,
(b)
the final 2-year assessment for an insurance
company,
(c)
the amount of any contribution
deficit,
(d)
the amount of any contribution
surplus.
37Transitional provision for
adjusted estimates by Minister
A reference in Part 5 of this Act, as amended by
the amending Act, to contributions made to the New South Wales Rural Fire
Fighting Fund by the Treasurer includes a reference to rural fire brigade
contributions made for the financial year commencing on 1 July 2016 or a
previous financial year.
4.7State
Emergency Service Act 1989 No 164
[1]Section 24A
Definitions
Omit the definitions of assessment notice, capital
account, contributors, estimated
expenditure, insurance
company, recurrent
expenditure account, relevant
insurance and SES
contribution instalments.
Insert in alphabetical order:
assessment notice means an
assessment notice given to a local council under section 24K.
SES
contribution instalment—see section
24IA.
SES
funding amount—see section 24G.
SES
funding target—see section 24B.
State
Revenue Commissioner—means the Chief Commissioner of
State Revenue under the Taxation Administration Act
1996.
[2]Section 24A, definition of
“SES contribution”
Omit “contributor”. Insert instead
“local council”.
[3]Section 24A, definition of
“SES expenditure”
Omit “recurrent” wherever
occurring.
[4]Section 24A, definition of
“SES expenditure”
Omit paragraph (b).
[5]Part 5A, Division 2,
heading
Omit the heading. Insert instead:
Division 2SES funding
target
[6]Section
24B
Omit the section. Insert instead:
24BSES funding
target
(1)
Before 31 March in each year or a later date
agreed to by the Treasurer, the Minister must:
(a)
prepare and, subject to the Treasurer’s
agreement, adopt a funding target for the State Emergency Service for the next
financial year (the SES
funding target), and
(b)
prepare and adopt an estimate of the amount of
the SES funding target applicable to the area of each local council for the
next financial year.
(2)
The Minister is to calculate the SES funding
target for the financial year using the following formula:
where:
FTt is the SES funding
target for the financial year (represented by “t”).
EEt is the estimated SES
expenditure for the financial year.
AEt-2 is the actual SES
expenditure for the financial year that commenced 2 years before the period
“t” (represented as “t-2”).
EEt-2 is the estimated
SES expenditure for the financial year that commenced 2 years before the
period “t” (represented as
“t-2”).
(3)
To avoid doubt, if
AEt-2−EEt-2 is a negative amount, that amount is
subtracted from EEt.
(4)
The estimate of SES expenditure for a financial
year is to be reduced, as necessary, by the amount it is estimated will be
paid to the Fund for the financial year (other than from contributions made by
the Treasurer).
(5)
The actual SES expenditure for a financial year
is to be reduced, as necessary, by the amount paid to the Fund for the
financial year (other than from contributions made by the
Treasurer).
(6)
Without limiting subsections (4) and (5), the
Minister may, with the Treasurer’s agreement, decide that adjustments
are not to be made to the SES funding target in respect of:
(a)
certain money paid into the Fund,
or
(b)
certain amounts it is estimated will be paid to
the State Emergency Service for the financial year.
(7)
In determining the amount of the SES funding
target for each local council area, the Minister may apportion the total
estimated expenditure between local council areas in the way the Minister
thinks fit.
[7]Section 24C Local councils to
give information to Commissioner
Omit “estimated expenditure”. Insert
instead “SES funding target”.
[8]Section
24D
Omit the section. Insert instead:
24DCommissioner to
assist
(1)
To assist the Minister in preparing and adopting
the SES funding target for a financial year, the Commissioner must prepare and
give to the Minister a written report and recommendations about SES
expenditure for the year.
(2)
The Minister must consider the
Commissioner’s report and recommendations in preparing the
estimates.
[9]Part 5A, Divisions 3 and
4
Omit the Divisions. Insert instead:
Division 3Treasurer to contribute to
Fund
24ETreasurer to pay
contributions
(1)
The Treasurer is to pay an annual contribution to
the Fund for each financial year.
(2)
The annual contribution payable is the SES
funding amount.
(3)
The Treasurer may direct the payment of
additional contributions to the Fund, subject to any terms and conditions
approved by the Treasurer.
(4)
The annual contribution, and any additional
contributions, are to be paid out of money provided by
Parliament.
24FContribution payable in
instalments
The annual contribution is to be paid by the
Treasurer in instalments on or before the following dates:
(a)
1 August,
(b)
1 October,
(c)
1 January,
(d)
1 April.
24GSES funding
amount
(1)
As soon as practicable after the commencement of
each financial year, the Minister must prepare and, subject to the
Treasurer’s agreement, adopt an update of SES funding for the financial
year (the SES
funding amount).
(2)
The SES funding amount is the estimated SES
expenditure for the financial year (that is, EEt in the SES funding
target for the financial year), adjusted and updated in accordance with this
section.
(3)
Estimated SES expenditure is to be adjusted for
the purposes of the SES funding amount so that the estimate:
(a)
is reduced or increased, as appropriate, for any
difference between the estimate of SES expenditure for the financial year, as
adopted in the SES funding target, and an updated estimate of that amount,
and
(b)
is reduced or increased, as appropriate, for any
difference between the SES funding amount for the previous financial year and
the actual amount of SES expenditure for that financial
year.
(4)
Without limiting subsection (3), the Minister
may, with the Treasurer’s agreement, decide that adjustments are not to
be made to the SES funding amount in respect of:
(a)
any surplus in the Fund at the end of the
previous financial year, or
(b)
certain money paid into the Fund,
or
(c)
certain amounts it is estimated will be paid to
the State Emergency Service for the financial year.
(5)
An adjustment to the estimated SES expenditure
that is made under this section has no effect on, and is not to be used in the
calculation of, the SES funding target for a financial
year.
Division 4Local councils to pay SES
contribution
24HCouncil to pay SES
contribution
A local council is to pay to the State Revenue
Commissioner a SES contribution for each financial
year.
24IAmount of
contribution
(1)
The amount of the SES contribution is the amount
determined by the Minister for each local council.
(2)
The Minister is to determine the contribution
payable by a local council on the basis of the SES funding target for each
local council area.
(3)
The contribution payable by local councils for
each local council area is 11.7% of the SES funding target applicable to the
area.
(4)
A local council or an officer of a local council
must, if asked by the Minister, give the Minister any document or information
required by the Minister to determine the local council’s SES
contribution.
24IAContribution payable in
instalments
A SES contribution payable by a local council for
a financial year is payable in 4 instalments (each of which is a SES
contribution instalment).
24IBMinister to advise State
Revenue Commissioner
The Minister is to advise the State Revenue
Commissioner, by the date of 15 April that occurs immediately before the
commencement of a financial year, of:
(a)
the amount of the SES contribution payable by
each local council for the financial year, and
(b)
the amount of the SES contribution instalments
payable by each local council.
[10]Part 5A, Division 5,
heading
Omit the heading. Insert instead:
Division 5Payment of contributions by
local councils
[11]Section
24J
Omit the section. Insert instead:
24JWhen instalments are to be
paid
A local council must, in accordance with an
instalment notice given to the council by the State Revenue Commissioner, pay
to the State Revenue Commissioner a SES contribution instalment on or before
each of the following days in a financial year:
(a)
30 September,
(b)
31 December,
(c)
31 March,
(d)
30 June.
[12]Sections
24K–24LA
Omit sections 24K and 24L. Insert instead:
24KAnnual assessment
notice
(1)
The State Revenue Commissioner must give to each
local council that is required to pay a SES contribution for a financial year
an assessment notice that sets out the amount of the SES contribution payable
by the local council for that year.
(2)
The assessment notice must be given to the local
council by 30 April in the year before the financial year for which the SES
contribution is payable.
24LInstalment
notices
The State Revenue Commissioner must give to each
local council that is required to pay a SES contribution instalment a written
notice (an instalment notice) that
specifies:
(a)
the amount of the SES contribution instalment
payable under the instalment notice, and
(b)
the date by which the SES contribution instalment
is payable.
24LASES contribution is debt
payable to State Revenue Commissioner
(1)
If the whole or part of a SES contribution
payable by a local council is not paid to the State Revenue Commissioner as
required, the unpaid amount is recoverable by the State Revenue Commissioner
as a debt in a court of competent jurisdiction.
(2)
The applied provisions of the Taxation Administration Act 1996 apply
in relation to the SES contribution payable by a local council under this Act
as if Part 5A of this Act were a taxation law and the contribution were a tax
payable by a council under a taxation law.
(3)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
sections 50 and 55 (which prohibit the giving of
false and misleading information),
(c)
Division 1 (Tax officers), Division 2
(Investigation) and Division 3 (Secrecy) of Part 9,
(d)
sections 114, 115, 116, 118, 119 and
120,
(e)
any provisions that are relevant to the
interpretation of the above provisions.
(4)
The applied provisions apply to an assessment
made by the State Revenue Commissioner under this Act in the same way as they
apply to an assessment under that Act.
(5)
To avoid doubt, Part 10 of the Taxation Administration Act 1996 does
not apply to a SES contribution or to the exercise of any of the State Revenue
Commissioner’s functions in respect of SES contributions (including
under the applied provisions of the Taxation
Administration Act 1996).
[13]Section 24M How contribution
is to be funded
Insert at the end of the section:
(2)
Funds of a local council derived from donations
and other voluntary contributions made for the purposes of this Act may not be
used towards the payment of SES contributions by the local council unless
approved by the Minister.
[14]Part 5A, Division 6
Contributions by insurance companies
Omit the Division.
[15]Section 24V New South Wales
State Emergency Service Fund
Omit section 24V (2), (3) and (4). Insert
instead:
(3)
There is to be paid into the Fund:
(a)
all contributions payable by the Treasurer under
this Part, and
(b)
any other money appropriated by Parliament for
payment into the Fund, and
(c)
the proceeds of investment of money in the Fund,
and
(d)
any other money required by law to be paid into
the Fund.
[16]Section 24V
(5)
Omit “recurrent expenditure account”.
Insert instead “Fund”.
[17]Section 24V
(6)
Omit “capital account”. Insert
instead “Fund”.
[18]Section 24W Management of
unspent funds
Omit the section.
[19]Section
24Y
Omit the section. Insert instead:
24YCertificate
evidence
A certificate signed by the Minister that states
any of the following matters is admissible in proceedings and, in the absence
of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the SES funding target, as adopted by the
Minister under this Part,
(b)
the SES funding target applicable to a local
council area, as adopted by the Minister under this Part,
(c)
the amount of the SES contribution determined by
the Minister for a specified local council for the financial
year.
[20]Schedule 1 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
any other Act that amends this
Act
[21]Schedule 1, Part
6
Insert after Part 5:
Part 6Provisions consequent on
enactment of Fire and Emergency Services Levy Act
2017
13Definitions
In this Part:
amending
Act means the Fire and
Emergency Services Levy Act 2017.
final
contribution—see clause 16.
final
return—see clause 15.
final
year of the scheme means the financial year commencing on 1
July 2016.
insurance
company means any body corporate, partnership, association,
underwriter or person that or who:
(a)
issues or undertakes liability under policies of
insurance against loss of or damage to any property situated in New South
Wales, or
(b)
receives premiums in respect of such policies of
insurance on behalf of or for transmission to any body corporate, partnership,
association, underwriter or person outside New South
Wales.
insurer
loading—see clause 16.
Monitor means the Emergency Services
Levy Insurance Monitor appointed under the Emergency
Services Levy Insurance Monitor Act 2016.
relevant
insurance means insurance against loss of or damage to
property in the State under the classes of policies specified in Schedule 2,
as in force immediately before its repeal by the Fire
and Emergency Services Levy Act 2017.
total
amount, in relation to premiums, includes any brokerage or
commission paid or due to be paid or allowed to be paid on:
(a)
the premiums, or
(b)
bonuses or return premiums allowed in respect of
policies of insurance the subject of the premiums, or
(c)
such part of the premiums received by or due to
the company as is paid or due to be paid by way of reinsurance by the company
to another insurance company in the State,
but does not include duty payable under the Duties Act 1997 in respect of policies
of insurance the subject of the premiums.
14Amendments have effect from 1
July 2017
(1)
The amendments to Part 5A of this Act made by the
amending Act apply in respect of the financial year commencing on 1 July 2017
and subsequent financial years.
(2)
Subject to this Part, the amendments do not
affect any liability for a SES contribution for a financial year commencing
before 1 July 2017 and Part 5A, and Schedule 2, as in force immediately before
the amendments made to this Act by the amending Act, continue to apply in
respect of any such financial year as if the amendments had not been
made.
15Final returns to be provided
by insurance companies
(1)
An insurance company must, by 30 September 2017
or another date specified by the Commissioner by notice published in the
Gazette, give to the Commissioner:
(a)
a return in the form approved by the Commissioner
showing the total amount of premiums received by or due to the company for the
previous financial year for relevant insurance (a final
return), and
(b)
a certificate from an auditor that relates to the
return and complies with subclause (2).
(2)
The certificate from the auditor must:
(a)
be in the form approved by the Commissioner,
and
(b)
be from an auditor who is:
(i)
a registered company auditor within the meaning
of the Corporations Act 2001 of the
Commonwealth, or
(ii)
a person not resident in the State who has
qualifications that, in the Commissioner’s opinion, are appropriate for
the giving of the certificate.
(3)
An insurance company is guilty of an offence if
it:
(a)
fails to give the Commissioner a return and
certificate as required by this clause, or
(b)
gives the Commissioner a return that is false or
misleading in a material particular.
Maximum penalty: 20 penalty
units.
16Calculation of final
contribution
(1)
The Commissioner must, by the end of 30 November
2017, calculate a final contribution for each liable insurance
company.
(2)
A final
contribution is the total SES contribution that would have
been payable by the insurance company for the final year of the scheme if the
contribution had been calculated on the basis of:
(a)
the premium total provided by the insurance
company in its final return, and
(b)
the premium totals provided by all insurance
companies in their final returns.
(3)
If an insurance company fails to provide a final
return to the Commissioner within the time required under clause 15, or any
further time (not exceeding 30 days) allowed by the Commissioner:
(a)
the Commissioner may estimate the premium total
for that insurance company using any information available to the Commissioner
(including information from previous returns, if any), and
(b)
that estimate is taken to be the premium total
provided by the insurance company in its final
return.
(4)
If the Commissioner estimates the premium total
for an insurance company under subclause (3), the final contribution payable
by that insurance company is that estimate plus an insurer loading of 50% of
that estimate.
(5)
In this clause:
liable
insurance company means an insurance company liable for a
SES contribution in the final year of the scheme.
premium
total means the total amount of premiums of an insurance
company that are subject to an SES contribution.
17Final
assessment
(1)
The Commissioner must give to each insurance
company that made or is required to make a SES contribution for the final year
of the scheme a final assessment notice for that year.
(2)
The final assessment notice must state the
following:
(a)
the final contribution payable by the insurance
company for the final year of the scheme,
(b)
the amount of any SES contribution already paid
by the insurance company for that financial year including, if paid in
instalments, the total of all instalments already paid (the total
contribution already paid),
(c)
if the final contribution payable by the
insurance company exceeds the total contribution already paid:
(i)
the difference between those amounts (a contribution deficit),
and
(ii)
the date by which the contribution deficit must
be paid to the Commissioner (being a date that is no earlier than 30 days
after the assessment notice is given to the insurance
company),
(d)
if the total contribution already paid exceeds
the final contribution payable by the insurance company, the difference
between those amounts (a contribution
surplus).
(3)
If the assessment notice specifies a contribution
deficit, the insurance company must pay the contribution deficit to the
Commissioner.
(4)
The contribution deficit is payable to the
Commissioner by the date for payment specified in the assessment notice or any
later date permitted by the Commissioner.
(5)
If an insurance company fails to pay a
contribution deficit in full by the date on which it is payable to the
Commissioner, the applied provisions of the Taxation
Administration Act 1996 apply to the unpaid amount as if
the unpaid amount were a tax and this Act were a taxation
law.
(6)
The applied
provisions of the Taxation
Administration Act 1996 are the following provisions of
that Act:
(a)
Division 1 (Interest) of Part
5,
(b)
Division 2 (Penalty tax) of Part 5 (except
sections 28–30),
(c)
any provisions that are relevant to the
interpretation of the above provisions.
(7)
For the purpose of the applied provisions of the
Taxation Administration Act 1996:
(a)
a tax default is taken to occur if the
contribution deficit is not paid in full by the date on which it is payable,
and
(b)
a reference to the Chief Commissioner is to be
read as a reference to the Commissioner under this
Act.
(8)
If a contribution deficit, or any part of a
contribution deficit, is not paid in full by an insurance company to the
Commissioner by the date on which it is payable, the unpaid amount and any
interest and penalty tax payable on the unpaid amount:
(a)
constitutes a debt due and payable to the
Commissioner, and
(b)
may be recovered in a court of competent
jurisdiction by the Commissioner.
(9)
A contribution deficit is to be paid into the
Fund.
(10)
If the assessment notice specifies a contribution
surplus, the Commissioner is to refund the amount of the contribution surplus
to the insurance company no later than 30 June 2018.
(11)
A refund is to be paid from the
Fund.
18Liability of owner where
foreign insurer involved
(1)
The Commissioner may notify a relevant owner that
the owner is responsible for an appropriate proportion of any contribution
deficit that is required to be paid by a foreign insurance company that holds
a risk in respect of the owner’s property.
(2)
The appropriate proportion is the proportion that
the premiums paid by the relevant owner for the final year of the scheme bears
to the premium total provided (or taken under this Part to have been provided)
by the insurance company in its final return.
(3)
Any insurer loading is not to be included in the
calculation of the contribution deficit under this
clause.
(4)
If the relevant owner fails to pay the
appropriate proportion of the final contribution within 30 days after it is
due, the owner is guilty of an offence.
Maximum penalty: 10 penalty
units.
(5)
An amount paid by a person under this clause may
be deducted from any premium recoverable in the State by or on behalf of the
foreign insurance company on the issue or renewal of an insurance policy on
the property or may be recovered from the foreign insurance company as a debt
by the person making the payment.
(6)
This clause applies whether the premium concerned
was received in or outside the State.
(7)
In this clause:
relevant
owner means a person who is the owner of property in respect
of which a foreign insurance company has received a premium subject to a SES
contribution.
19Commissioner to make final
2-year assessment
(1)
The Commissioner must make an assessment, in
relation to each insurance company that was required to make SES contributions
in the final year of the scheme or the previous financial year, of the total
amount of SES contributions payable by the insurance company for the final 2
years of the scheme (a final
2-year assessment).
(2)
The final 2-year assessment is to consist of the
total of the following amounts, as assessed by the Commissioner:
(a)
the final contribution payable by the insurance
company for the final year of the scheme (excluding any insurer loading
payable by the insurance company),
(b)
the total of SES contributions payable by the
insurance company for the financial year commencing on 1 July
2015.
(3)
The Commissioner is to give the final 2-year
assessment to the Monitor.
(4)
The Commissioner must give to the Monitor a final
2-year assessment in relation to an insurance company within 30 days after
making an assessment of the final contribution payable by the insurance
company for the final year of the scheme.
20Certificate
evidence
A certificate signed by the Commissioner that
states any of the following matters is admissible in proceedings and, in the
absence of evidence to the contrary, is proof of the matters stated in the
certificate:
(a)
the final contribution payable by an insurance
company,
(b)
the final 2-year assessment of an insurance
company,
(c)
the amount of any contribution
deficit,
(d)
the amount of any contribution
surplus.
21Transitional provision for
adjusted estimates by Minister
A reference in Part 5A of this Act, as amended by
the amending Act, to contributions made to the New South Wales State Emergency
Service Fund by the Treasurer includes a reference to SES contributions made
for the financial year commencing on 1 July 2016 or a previous financial
year.
[22]Schedule 2 Contributions of
insurance companies
Omit the Schedule.
4.8Taxation Administration Act 1996 No
97
Section 4 Meaning of
“taxation laws”
Insert at the end of the section:
Note—
The Fire and
Emergency Services Levy Act 2017 applies parts of this Act
to the levy payable under that Act if the responsibility for levy recovery is
transferred to the Chief Commissioner or if the Chief Commissioner requires a
waived amount of the levy to be repaid.
The Fire and
Emergency Services Levy Act 2017 also applies parts of
this Act to the collection instalments payable by a council under that Act as
if those instalments were a tax.
In addition, some of the provisions of this Act
apply to the contributions payable by councils under the following:
(a)
Part 5 of the Fire Brigades Act
1989,
(b)
Part 5 of the Rural Fires Act
1997,
(c)
Part 5A of the State Emergency
Service Act 1989.
4.9Valuation of Land Act 1916 No
2
[1]Section
4A
Insert after section 4:
4AApplication of Act to fire and
emergency services levy
(1)
In this Act:
(a)
a reference to a rate or tax includes a reference
to the fire and emergency services levy under the Fire
and Emergency Services Levy Act 2017,
and
(b)
a reference to the levying of a rate or tax by a
council includes a reference to the charging of that fire and emergency
services levy by a council.
(2)
However, the application of this Act to the fire
and emergency services levy is subject to provisions of the Fire and Emergency Services Levy Act
2017.
Note—
The Fire and
Emergency Services Levy Act 2017 enables certain unvalued
land (for example land on Lord Howe Island) to be valued for the purposes of
the levy as provided for by the regulations under that Act. The valuation
method is different from the method by which a general valuation for land is
ascertained under Part 1B.
[2]Section 48 Furnishing
valuation lists to authorities
Omit “4 years” from section 48 (2)
(b). Insert instead “3 years”.
[3]Section 48
(3)
Omit the subsection.
[4]Section 67 Valuation for the
purposes of the Fire Brigades Act
1989
Omit “section 53” from section 67 (3)
(h). Insert instead “section 51”.
Historical
notes
Table of amending
instruments
Fire and
Emergency Services Levy Act 2017 No 9. Assented to
4.4.2017. Date of commencement, assent, sec 2.