DARWIN RATES AMENDMENT BILL 2014

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR LOCAL GOVERNMENT AND REGIONS

Serial No. 72 

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Darwin Rates Act (the Act) and the Darwin Rates Regulations (the Regulations). 

The main purpose of the Bill is to modernise the Act and allow for maximum flexibility into the future. It introduces differential rating, allows the Minister to set the interest rate for overdue rates, allows for more than one area to be prescribed, aligns certain sections with the Local Government Act and modernises some of the wording in the Act.

It will allow different unincorporated parts of the Territory to be rated in different ways and by different amounts provided the relevant area is prescribed in the Regulations.

NOTES ON CLAUSES

Part 1		Preliminary matters

Clause 1	 Short title

This is a formal clause which provides for the citation of the Bill. The Bill, when assented to, will be cited as the Darwin Rates Amendment Act 2014 (the Amendment Act).

Clause 2	Commencement

The Amendment Act will commence on 1 July 2014.

Part 2		Amendment of Darwin Rates Act

Clause 3 	Act amended

This clause advises that this Part of the Bill amends the Darwin Rates Act.

Clause 4	Section 1 amended

This clause amends the name of the Act. It changes the way it is to be referred to by replacing the word “Darwin” with “Northern Territory”. The Act will be cited as the Northern Territory Rates Act.

Clause 5	Section 4 replaced
	
This clause repeals the current definitions section and inserts a new set of definitions. The defined words are: Aboriginal community living area, Aboriginal community living area association, allotment, assessed value of an allotment, interest in rateable land, Land Trust, mining tenement, occupier, prescribed area, rate book, rate notice, rateable land, ratepayer and valuation-based charge.

This clause also adds new section 4A which provides that Part IIAA of the Criminal Code applies to an offence against this Act. A note explains that Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Clause 6	Part II Division 1 heading replaced

This clause replaces the heading of Part II, Division 1 of the Act so that the heading is now: 
“Division 1	Rates under this Act”

Clause 7	Sections 5 to 7 replaced

This clause replaces sections 5, 6 and 7 of the Act with new sections. New section 5 provides that a ratepayer for an allotment in a prescribed area must pay the rate which is levied for that allotment in accordance with the Act.

New section 6 requires the Minister to maintain a rate book. The rate book must include the description of each allotment within each prescribed area, the ratepayer’s name for each allotment, the assessed value of each allotment if it is relevant and any other information the Minister sees fit or as prescribed by regulation.

New section 7 provides that the Minister must enter a person’s name in the rate book as the ratepayer for an allotment if the Minister receives a request to do so from the person claiming to be the ratepayer or if the Minister is satisfied that the person is the ratepayer for the allotment. The Minister must remove a person’s name from the rate book as the ratepayer for an allotment if the person requests the Minister to do so, the person has paid all the rates for which they are liable and the Minister has received notice of the name and address of the new ratepayer.

Clause 8	Sections 9 to 15 replaced

This clause replaces sections 9 to 15 of the Act with new sections.

New section 9 provides that where the rate book is altered after the Minister becomes aware of an error or omission under section 8 of the Act, the Minister must serve notice of this fact (a notice of alteration) on the person who is recorded as the ratepayer for the relevant allotment.

New section 10 provides that the Minister must, within 21 days of declaring a rate, enter the amount due in relation to each allotment and the amount owing by the ratepayer in the rate book. The Minister must also give public notice of the place at which, and the times when, the rate book may be inspected.

New section 11 provides that a person who wants to inspect entries in the rate book relating to an allotment must pay the fee as determined by the Minister. However, a person does not have to pay the fee if they are the ratepayer for the allotment or an adjoining allotment, or an agent with written authorisation from the ratepayer for the allotment or an adjoining allotment.

New section 12 provides that the Minister may divide a parcel of rateable land into more than one allotment if different parts of the parcel are occupied by different persons, the allotments fall within different zones or there is some other good reason for disaggregating the parcel into separate allotments. “Zone” means a zone constituted under the Planning Act. Section 12 goes on to define “allotment” as each part of a parcel of land that the Minister has divided into allotments or, if the Minister has not divided the parcel, a parcel of land. An allotment may be a unit or lot created by registration of a plan under the Real Property (Unit Titles) Act or the Unit Titles Act. An allotment may also be a unit created by the registration of a unit title scheme under the Unit Title Schemes Act. This section has similarities to section 147 of the Local Government Act.

New section 13 provides that before 21 October each year, the Minister must declare a rate payable in respect of each allotment. 

The Minister may declare a rate as a fixed charge or a valuation-based charge, which is calculated as a proportion of the assessed value of the allotment. Further, the rate can be a combination of fixed charges or one or more fixed charges and a valuation-based charge. The rate can differ from other rates in the prescribed area depending on where the allotment is located in the prescribed area or the class of the allotment. An example explains that If land is divided into small allotments (such as self-storage units or marina berths) because of a subdivision under the Unit Titles Act or Unit Title Schemes Act, and the Minister considers it inequitable to apply the minimum charge that would otherwise be levied, the Minister may declare a different and lesser minimum charge for the small allotments.

The Minister may declare a minimum charge for each allotment if the rate is a valuation-based charge.

If an allotment is divided into parts or units which are adapted for separate occupation or use, a minimum charge may consist of a fixed amount to be multiplied by the number of separate parts or units. There is an example provided which explains that If an allotment consists of a block of flats in separate occupation, the minimum charge could consist of a fixed amount to be multiplied by the number of flats in the complex.

This section has similarities to section 148 of the Local Government Act.

New section 14 provides that if the rate declared in respect of an allotment in a prescribed area is a valuation-based charge, the Minister must also declare whether the basis on which the assessed value is to be calculated is the unimproved capital value, the improved capital value or the annual value, appearing on the valuation roll. 

“Annual value” has the same meaning as at section 8A of the Valuation of Land Act. “Assessed value” means 20 times the annual rental payable under a mining tenement, or if the allotment is not a mining tenement, the value calculated according to the basis declared by the Minister. “Improved capital value” and “unimproved capital value” have the same meaning as at sections 8 and 9 respectively of the Valuation of Land Act. ”Valuation roll” has the same meaning as at section 4(1) of the Valuation of Land Act.

New section 15 provides for the way in which a ratepayer is informed of the amount to be paid. Not later than 2 months after declaring the rate under section 13, the Minister must serve a notice requiring payment on the ratepayer for the allotment. The rate notice must include the name of the ratepayer, a description of the allotment, how much is payable including interest (if any), the basis of the rate calculation including the assessed value if it is relevant, the ways that payment can be made, the due date for payment and the consequences of failing to pay by the due date.

The rate notice must be served at least 30 days before the due date for payment, but if, for some reason, it is not, that fact does not affect the validity of the rate notice.

Clause 9	Section 16 amended

This clause amends section 16 of the Act by replacing the words “as owner or occupier” with “as the ratepayer for an allotment” and by replacing sections 16(b) and (c) with new wording. Section 16 of the Act will now mean that a person whose name is entered in the rate book as the ratepayer for an allotment may appeal against an entry in the rate book on the ground that the person is not the ratepayer or that the allotment is not rateable land.

Clause 10	Section 17 amended

This clause replaces the words “he is the owner or occupier of the whole or a part of land which is ratable” with “the person is the ratepayer for an allotment” in section 17 of the Act. The section will now provide that a person whose name is not in the rate book may appeal against that fact on the ground that they are the ratepayer for an allotment of rateable land.

Clause 11	Section 18 amended

This clause omits the words “in the prescribed form” from section 18 of the Act as there are no longer going to be forms prescribed in the Regulations. The section will now provide that an appeal under section 16 (an appeal regarding an entry in the rate book) or 17 (an appeal against an omission from the rate book) of the Act may be instituted by serving notice on the Minister. 

Clause 12	Part III Division 1 heading replaced

This clause replaces the heading at Part III Division 1 with:
“Division 1 	Rateable land” 

This change reflects that the provisions contained in the division now describe what land is rateable.

Clause 13	Sections 24 to 35 replaced

This clause replaces sections 24 to 35 of the Act with new sections 24, 27, 28, 29, and 30.

New section 24 provides that, apart from as provided in the section, all land in a prescribed area is rateable. The section goes on to provide for land which is not rateable. 

Crown land in a prescribed area is not rateable unless it is leased or otherwise lawfully occupied by a person other than the Crown. In addition, Crown land is rateable if a person has obtained the right to a lease of the allotment at auction but has not yet been granted a lease of the allotment. Further, if a person was a lessee of Crown land that included the allotment and surrendered the lease of all or part of the land included in the lease and is entitled to, but has not yet been granted a new lease, the land is rateable. Also, where a person who has applied for the grant of a lease from the Crown of Crown land that includes the allotment but has not yet been granted the lease, yet he or she has been informed in writing that the Minister has approved the grant of the lease and has accepted an offer made on behalf of the Crown to be granted the lease, that land is rateable.

Land is not rateable if it is exempt under another Act. Land of the Commonwealth is not rateable unless the Commonwealth agrees and if the Commonwealth does agree, it is rateable on the conditions agreed to by the Commonwealth.

Land which is not rateable includes a public place which is a park, garden or reserve, a playground or sports ground, a cemetery or a road. Further, land belonging to a religious body which consists of a church or other place of public worship, a place of residence for a minister of religion associated with a church or other place of public worship, a place of residence for the official head in the Territory of the religious body or an institution for religious teaching or training is not rateable. Other lands which are not rateable are a public hospital, land used for a non-commercial purpose by a public benevolent institution or a public charity, a kindergarten, Government school as defined in section 4(1) of the Education Act, non-Government school registered under the Education Act, or a university or other tertiary educational institution, land recognised by the Minister as a youth centre, a public library or public museum. The common property in a units plan or building development plan registered under the Real Property (Unit Titles) Act or of a scheme formed under the Unit Title Schemes Act is also not rateable.

Land owned by a Land Trust or an Aboriginal community living area association is not rateable except if it is land prescribed as rateable in the regulations, land subject to a lease or a licence conferring a right of occupancy or land used for a commercial purpose. If it is land used for a commercial purpose it is only rateable if the person using it is someone other than the Land Trust or Aboriginal community living area association.

This section has similarities to section 144 of the Local Government Act.

After section 24 a new heading is inserted before new section 27 titled:
“Division 1A	    Liability for Rates”

New section 27 explains that apart from what is provided in this Division, the ratepayer for an allotment is the registered owner of the allotment. 

New section 28 makes provision for rates payable by certain persons in certain circumstances. It provides that, for a rateable allotment of Crown land, the ratepayer is, if there is a lease, the lessee. If there is no lease, then it is the lawful occupier of the allotment, a person mentioned in new section 24(6) which covers people with a certain expectation or entitlement to a lease, or a person to whom the person’s rights under new section 24(6) has been transferred.

In relation to an allotment of rateable land that is owned by a local government council, the lessee is the ratepayer and a person who carries out an industrial or commercial undertaking by or on behalf of the Territory, is the ratepayer for the allotment of rateable land on which the undertaking is carried out.

In addition, the section provides that where an allotment would not otherwise be rateable but is rateable because of another Act, if that Act specifies who is liable to pay the rate then that person is the ratepayer. Otherwise, the lessee of the allotment is the ratepayer.

Where land of a Land Trust or an Aboriginal community living area association is rateable under new section 24(5)(i), if it is land designated in the regulations as rateable, the ratepayer is the person specified in the regulations. If it is land subject to a lease or a licence conferring a right of occupancy, the ratepayer is the lessee or licensee. If it is land used for a commercial purpose, the ratepayer is the person using the allotment for the commercial purpose.

Finally, the section provides that if an allotment of rateable land is subject to a mining tenement, the holder of the tenement is the ratepayer.

New section 29 provides that if a person is a ratepayer for an allotment of Crown land but is not the ratepayer for the whole of the financial year, the Minister must adjust the amount of the rate to be paid by the person accordingly.

New section 30 makes provision for land held jointly or in common. If there is more than one ratepayer for an allotment, the ratepayers are jointly and severally liable for payment of the rate. The ratepayer who pays the rate in respect of the allotment may sue for contribution from the other ratepayers for the allotment unless there is an agreement between the ratepayers which provides otherwise.
 
Clause 14	Section 36 amended

This clause replaces the word “ratable” with “an allotment of rateable” and the words “is deemed to accrue” with “accrues”. Section 36 of the Act now provides that where a person disposes of an estate or interest in a rateable allotment to another person, a current rate accrues from day to day and unless there is an agreement between them to the contrary, the rate is apportionable to, and including the date of settlement of the transaction.

Clause 15	Sections 37 to 43 replaced

This clause repeals sections 37 to 43 and replaces them with new sections 37, 38, 39 and 40.

New section 37 concerns who is liable for outstanding rates when an interest in an allotment of rateable land is acquired. The general rule is that a person who acquires the interest is the ratepayer for both current rates and arrears, and all interest owing on the arrears. However, a person who purchases an allotment in good faith and for value is not the ratepayer in respect of arrears and interest on those arrears if they received a written certificate which was issued, not more than seven days before the date of the agreement to purchase, from a person authorised by the Minister that stated no rates were, on the date the certificate was issued, owing on the allotment. 

New section 38 provides that where an allotment becomes rateable or ceases to be rateable during the relevant financial year, the Minister must adjust the rate accordingly.

Before new section 39, a heading is inserted: 
“Division 2 	Time for payment of rates”

New section 39 provides that if a ratepayer does not pay the rate by the due date set out in a rate notice, interest accrues at the rate fixed by the Minister. Interest is calculated on a daily basis on the amount in default (exclusive of interest) from the due date until the date of payment.

New section 40 provides that where there are exceptional circumstances to justify a remission of interest, the Minister may remit all or part of the interest.

Clause 16	Part III, Division 3 replaced

This clause replaces Part III, Division 3, providing new sections 43, 44, 45 and 46. 

New section 43 extends the meaning of “rate” for the purposes of the Division. If a rate is payable and overdue, the word “rate” in the Division includes accrued interest on the rate and costs reasonably incurred in recovering, or attempting to recover, the rate.

New section 44 provides that the Minister may sue the ratepayer for the recovery of a rate that is due and unpaid by action in a court of competent jurisdiction.

New section 45 applies if a rate in respect of an allotment is due and unpaid and a person is in lawful occupation of the allotment and the person pays rent in relation to the allotment. In these circumstances, the Minister may serve a written notice on the lawful occupier requiring them to pay rent in payment of the rate that is due and unpaid if the ratepayer for the allotment resides outside the Territory, is not known, has not been served with any process in legal proceedings for the recovery of the rate after reasonable efforts have been made to that end, has become bankrupt, has applied to take the benefit of a law for the relief of bankrupt or insolvent debtors, has compounded with creditors or made an assignment of the ratepayer's remuneration for their benefit, has died or has had a verdict or judgment given against him or her by a court of competent jurisdiction for the amount of the rate and for 14 days has failed to pay the amount of that verdict or judgment..

The notice must state the amount of the rent to be paid to the Territory and payment in accordance with the notice is a valid discharge to the occupier against any person claiming against the occupier for that rent.

New section 46 provides that if the lawful occupier who has been served with a notice under new section 45 fails to pay the rent in accordance with the notice, the Territory may recover the amount stated in the notice, or the part of it that remains unpaid, as a debt due to the Territory by the occupier. However, this section does not apply to a person who is in lawful occupation of an allotment for or on behalf of or as a servant of the Territory, or a local government council.

Clause 17	Sections 48 to 50 replaced

This clause repeals sections 48 to 50 of the Act and replaces them with new sections.

New section 48 provides that section 47 of the Act (which provides that an unpaid rate is an overriding statutory charge) does not apply where a person purchased the allotment in good faith and for value and received a written certificate from a person authorised by the Minister stating that no rates were, at that date, owing in respect of the allotment. The certificate must have been issued no more than seven days before the date on which the ratepayer purchased or entered into an agreement to purchase the allotment. 

The new section also provides that section 47 of the Act does not apply to an allotment if it is owned by a Land Trust or an Aboriginal community living area association. 

New section 49 provides that the Minister must apply money received in payment for rates in the order in which the rates become due regardless of any request to do otherwise by the person paying the money.

New section 50 stipulates that unless it is otherwise expressly provided, the Act does not affect any agreement or rule of law or equity regarding the liabilities of persons among themselves for any rate charged or levied under the Act. Further, as between a tenant for life of rateable land and a person entitled to the land in remainder or reversion, a rate charged under this Act accrues from day to day and must be apportioned between them accordingly.

Clause 18	Section 51 amended

This clause amends section 51 of the Act firstly by replacing the word “ratable” in the heading with the word “rateable”. Subsections 51(1) to (2A) are replaced. 

New subsection 51(1) provides that a person commits an offence if they dispose of an estate or interest in an allotment of rateable land and fails to give notice in writing to the Minister within 1 month of the disposition. The notice must set out a description of the allotment and the name and address of the person who acquired the estate or interest.  The maximum penalty for this offence is 20 penalty units.

New subsection 51(2) provides that a person commits an offence if they acquire an estate or interest in an allotment and fail to give the Minister a written notice within 1 month of the acquisition. The notice must set out a description of the allotment and the name and address of the person from whom the estate or interest was acquired.  The maximum penalty for this offence is 20 penalty units.

Strict liability applies to the element of giving the notice in the offences in the new subsections. 

Clause 19	Section 52 replaced

This clause replaces section 52 of the Act with a new section. New section 52 provides that a person commits an offence if they give a notice under this Act or make a request to the Minister under section 7 of the Act and they know the notice or request contains misleading information. The maximum penalty for this offence is 200 penalty units.

The above paragraph does not apply if the person draws the misleading aspect of the notice or request to the attention of the person they give it to and, as far as they reasonably can, gives the information necessary to remedy the misleading aspect of the notice or request.

In this section “misleading information” means information that is misleading in a material particular or because of the omission of a material particular.

Clause 20	Section 55 to 57 replaced

This clause replaces sections 55 to 57 of the Act with new section 55.

New section 55 provides that a notice, which is served on a ratepayer for an allotment under the Act, is binding on any person claiming through, under, in trust for or in succession to that ratepayer, as though the notice had been served on that person

Clause 21	Section 59 replaced

This clause replaces section 59 of the Act with a new section 59.

New section 59 provides that in proceedings under the Act, unless there is evidence to the contrary, a certificate signed and sealed by the Registrar-General certifying that a person is a registered owner or lessee of an allotment is proof of that fact.

Clause 22	Section 61 replaced

This clause replaces section 61 of the Act with a new section 61.

New section 61 provides that in proceedings for the recovery of a rate in respect of an allotment, unless there is evidence to the contrary regarding the amount owing or the proper compliance with the Act in relation to the declaration and levying of the rate, a copy of an entry in the rate book, that is certified by a person authorised by the Minister to do so, showing the amount owing for rates levied in respect of the allotment is proof of both of those facts.

Clause 23	Section 62 amended

This clause replaces the words “shall not be” with “is not” in section 62 of the Act. It also replaces “the prescribed” with “a prescribed” in section 62(a) of the Act. In section 62(c) of the Act the words “the owner or occupier of any land in question” are replaced with “a ratepayer for an allotment”. 

Section 62 of the Act generally provides that in a prosecution or legal proceedings under the Act, proof is not required, unless evidence is given to the contrary, that a particular place is within a prescribed area, or that a person is authorised by the Minister as the proper person to do any act, or for any purpose under the Act, or that the defendant is, or at any relevant time was, a ratepayer for an allotment.

Clause 24	Section 63 amended

This clause replaces the words “regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to” with the words “"regulations under" at section 63 of the Act. The section will now read: 
“The Administrator may make regulations under this Act”.

Part 3 	Amendment of Darwin Rates Regulations

Clause 25	Regulations amended

This clause specifies that this Part of the Bill amends the Darwin Rates Regulations.

Clause 26	Regulation 1 amended

This clause changes the name of the Regulations to the Northern Territory Rates Regulations. This is in line with the change to the name of the principal Act.

Clause 27	Regulations 2 to 10 replaced

This clause replaces regulations 2 to 10 with Regulation 2, which provides that the Schedule describes the areas that are prescribed areas for the purposes of the Act.

Clause 28	Schedules 1 and 2 replaced

This clause replaces schedule 1 and 2 with a new schedule. 

Part 4 	Consequential amendments

Clause 29	Other laws amended

This clause provides that the schedule amends the laws mentioned in it.

Part 5	Expiry of Act

Clause 30	Expiry of Act

This clause provides that the Act expires on the day after it commences. Once the amendments are made, there is no need for the Amendment Act to stay on the Statute Books.

Schedule	Other laws amended

The schedule makes consequential amendments to the First Home Owner Grant Act, Real Property (Unit Titles) Regulations, Unit Title Schemes Act and Unit Titles Act.