The latest developments in law reform & advocacy: September 2021

Property Tax – Progress Paper

The Law Society members of the Revenue NSW/Law Society Liaison, Business Law and Property Law Committees contributed to a submission to the Tax Reform Taskforce, NSW Treasury, responding to the Progress Paper issued in June 2021. We noted the consultation to date on policy design but highlighted the significant level of detail that is yet to be resolved, and hence the need for public consultation on the draft legislation to identify potential gaps, unintended consequences or areas requiring clarification. We also submitted that a significant period of lead time should be provided between the passage of the legislation and its commencement, to assist industry and advisors prepare for the changes, including revising standard documentation, systems and processes.

We sought clarification on whether the property tax is intended to replace all duties imposed in connection with land in NSW, or purely purchases of direct interests in land. If the property tax is to apply more widely, and include transactions such as declarations of trust, put and call options and surrenders of interests, many technical questions will arise. We suggested a number of matters that need further attention, including:

• detailed consideration of every current exemption or concession under the respective legislation, and whether they would continue or be replicated in the property tax framework;
• further detail on the proposed surcharge property tax being an additional 0.3% ad valorem rate on aggregate landholdings above $1.5 million of unimproved land value (excluding principal place of residence and farmland); and
• whether unpaid land tax would form a charge on the land, similar to land tax, and if so, the impact on conveyancing practice.

Motor Accident Injuries Act 2017: statutory review

The Injury Compensation Committee contributed to a submission to SIRA reviewing the new scheme of compulsory third-party (‘CTP’) insurance relating to the death of or
injury to persons in motor accidents in NSW (‘Scheme’). The 2017 Scheme provides defined statutory benefits to all injured persons for a limited period, while retaining some common law rights to claim lump sum compensation.

On 5 July 2021, Deloitte and Clayton Utz (who were commissioned by SIRA to conduct the statutory review) released a Discussion Paper seeking stakeholder feedback. Our submission reiterated previous submissions that the Law Society made to three reviews by SIRA and the Standing Committee on Law and Justice in 2019 and 2020.

The Committee’s key concerns continue to be: (a) the statutory definition of ‘minor injury’; (b) delays in the Personal Injury Commission; (c) burdensome deadlines for claims with harsh consequences if unmet; (d) access to legal representation and legal costs; and (e) the proliferation of disputes under the Scheme.

Tim Concannon, Chair of the Committee, contributed to a virtual stakeholder consultation on 10 August 2021.

Review of sentencing for historical offences

The Law Society’s Criminal Law Committee contributed to a submission responding to the Department of Communities and Justice discussion paper ‘Review of sentencing practices for historical offences’.

In 2018, legislation was passed requiring courts to sentence offenders for child sexual offences in accordance with the sentencing patterns and practices that exist at the time of sentencing, not at the time of the offence (Crimes (Sentencing Procedure) Act 1999, s 25AA). The review is considering whether this reform should be extended to all offences.

We noted that s 25AA was introduced in response to Recommendation 76 of the Royal Commission into Institutional Responses to Child Sexual Abuse. Sentencing practices contemporary to the offence for child sexual offences were found to be erroneous, and sentences imposed were often considered too low and did not reflect community expectations. There was a strong public policy argument for the introduction of s 25AA for child sexual offences, which, in our view, does not apply to all other offences.  We suggested a more nuanced approach than either requiring the application of the sentencing patterns and practices at the time of the offence, or excluding historical sentencing considerations altogether. As such, the submission supported the Victorian model, which allows both current and past sentencing patterns and practices to be taken into account. This approach is in accordance with the Law Society’s long-held policy position in support of judicial discretion.

Interoperability in e-conveyancing

The Property Law Committee contributed to a submission to the Law Council of Australia on the draft Model Operating Requirements (‘MORs’) version 7, issued by the Australian Registrars’ National Electronic Conveyancing Council for public consultation. This version of the MORs is focused on new regulatory requirements for the Electronic Lodgment Network Operators (‘ELNOs’) to support interoperability in electronic conveyancing.

Our submission raised concerns that too many important issues are being left to be determined in an Interoperability Agreement between the ELNOs, such as claims management, with insufficient detail prescribed in the MORs. It is preferable to minimise the content of the Interoperability Agreement and wherever possible locate provisions in the MORs, providing transparency and confidence for all stakeholders. We submitted that if claims management and liability are left to be matters for commercial negotiation between the ELNOs, any agreed arrangement may not sufficiently protect consumers and subscribers and will only focus on rights as between ELNOs.

We also suggested that the MORs should define the rules for the determination of the Responsible ELNO, being the ELNO responsible for lodgment and financial settlement in an interoperable transaction. We also made detailed comments on the drafting for further consideration.

Draft Conveyancers Licensing Regulation 2021

The Property Law Committee contributed to a submission to the Department of Customer Service which broadly supported the remake of the Regulation as drafted. However, we raised concerns with the proposed introduction of penalty notices for breaches of the Rules of Conduct under the Regulation. In our view, the current process of investigations and sanctions provides an appropriately rigorous response. Issuing penalty notices may be perceived as being less of an administrative burden, but such notices may have the unintended consequence of diluting the impact of the existing, more formal, sanctions.

The Regulatory Impact Statement for the Regulation flagged the possibility of expanding the scope of conveyancing work by seeking comment on the current definition of ‘conveyancing work’ under s 4 of the Conveyancers Licensing Act 2003. We submitted that the current definition appropriately describes the scope of conveyancing work. Noting that no specific proposals had been suggested in the Regulatory Impact Statement, we sought to be consulted if any specific proposals were being considered as a result of the consultation.

Draft Community Land Management and Land Development Regulations

The Property Law Committee contributed to a submission to the Department of Customer Service regarding the Draft Regulations. The Community Land Management Regulation 2021 will support the new Community Land Management Act 2021, which is proposed to commence on 1 December 2021. The Draft Community Land Development Regulation 2021 will support the Community Land Development Act 2021 and similarly is proposed to commence on 1 December 2021.

We broadly supported the proposed Regulations as drafted but raised a number of matters for further consideration, including practical difficulties with the proposal to require amendments to a management statement to be lodged for registration in consolidated form. We also noted practical difficulties with monitoring the expiry of the initial period in certain circumstances and issues with the notification of a designated email address for service on an association.

Acquisition of land relating to major transport projects

The Environmental Planning and Development Committee contributed to a submission to the Portfolio Committee No 6 – Transport and Customer Services in response to its inquiry into the acquisition of land by Transport for NSW and related agencies in relation to major transport projects.

The Terms of Reference for the inquiry focus mainly on the conduct of, and processes implemented by, agencies in the acquisition of land for major transport projects. The Law Society suggested, however, that there is an over-riding need for a comprehensive review of the Land Acquisition (Just Terms Compensation) Act 1991 (‘Act’). The last formal review of the Act took place in 2014 and it was a limited review that did not include consideration of the level of compensation payable for the acquisition of land. There have been several process-focused inquiries since then, but issues remain with both the provisions of the Act and the processes under it as implemented by the relevant government agencies. The Law Society submitted that these issues can only be addressed by a comprehensive review of the Act.

The submission also commented on recommendations made by the earlier Russell and Pratt reviews; how government agencies conduct direct negotiations with landholders in relation to purchasing land/properties prior to, or in parallel with, the compulsory acquisition process and the extent to which such process is fair, unbiased and equitable; and on the identification of land for acquisition and the capture of any uplift in land value as a result of the transport project.

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National Framework for Protecting Australia’s Children 2009-2020: Consultation Paper on Implementing the Successor Plan

The Children’s Legal Issues Committee contributed to a submission to the Law Council in relation to the Department of Social Services consultation paper on the Successor Plan to the National Framework for Protecting Australia’s Children 2009-2020 (‘successor plan’). The consultation paper details how the successor plan is being developed and outlines the vision, goal, priorities and priority groups for the plan.

The Law Society’s submission identified a gap in the consultation paper – the lack of consideration of In-Home Care (‘IHC’) – and detailed how provision of IHC can support the achievement of the goals of the consultation paper. The submission noted that the target users of IHC services include children with disabilities, Aboriginal and Torres Strait Islander children living in rural, regional or remote areas or who have difficulty in traditional care institutions, and other children exposed to multiple vulnerabilities and risk factors. These children and their families were identified by the consultation paper as priority groups.

Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021

The Employment Law, Human Rights, and Diversity and Inclusion Committees contributed to a submission to the Law Council on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (‘the Bill’). The purpose of the Bill, as set out in the Explanatory Memorandum, is to implement Respect@Work Recommendations 16, 20, 21, 22, 29, and 30, and to amend the Fair Work Act 2009 (Cth) to include miscarriage as a permissible occasion for up to two days’ compassionate leave.

The submission indicated the Law Society’s support for these recommendations along with the misacarriage leave. The submission provided technical comments as to whether specific provisions of the Bill were drafted appropriately to achieve the objectives of the relevant recommendations in Respect@Work.

The submission also noted the Law Society’s concern at the brief consultation period and suggested the Law Council take the opportunity of this inquiry to voice its support for Recommendation 17 in Respect@Work, which proposes introducing a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

Draft National Plan to Prevent Violence Against Women and their Children

The Family Law Committee, Criminal Law, Children’s Legal Issues and Indigenous Issues Committees contributed to a submission to the Law Council of Australia on a draft Department of Social Security National Plan to Prevent Violence Against Women and their Children which proposes a multi-disciplinary and multi-faceted approach to preventing family, domestic and sexual violence (‘FDSV’).

Our submission discussed the need to:

• improve management of the divide between the family law jurisdiction in the federal courts and the family violence and child protection jurisdictions in the state and territory courts;
• improve the sharing of FDSV information between federal, state and territory jurisdictions;
• consider law reform aimed at protecting against coercive control;
• consider the development of a statutory tort of family violence;
• abolish consideration of equal time with each parent in parenting proceedings;
• support family court initiatives that assist FDSV victims;
• develop accessible legal services that are joined up with social and financial services;
• develop community-led models of legal assistance which are local and culturally-based; and
• encourage the legal profession to undertake education to develop trauma-informed FDSV competency.