Emergency Services Funding Act 1998 (SA)

South Australia Emergency Services Funding Act 1998 An Act to impose a levy for the provision of emergency services; to establish the Community Emergency Services Fund; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of non-reviewable in relation to certain decisions Part 3—The emergency services levy Division 1—Levy in respect of land Subdivision 1—Imposition of levy 5 Land that is subject to levy 5A Application for aggregation of non contiguous land 6 Basis of levy 7 Emergency services areas 8 Land uses 9 Objection to attribution of use to land 10 Declaring the levy and the area and land use factors 12 Commissioner to keep assessment book 13 Alterations to assessment book 14 Inspection of assessment book 15 Liability for levy 16 Notice of levy 17 Refund resulting from assessment 17A Cancellation of assessment 17B Payment of levy into Fund Subdivision 2—Refunds 17C Right to apply for refund 17D Form of application for refund 17E Commissioner may refuse to determine application until information etc provided 17F Offset of refund against other liability 17G Windfalls—refusal of refund Subdivision 3—Interest and penalty levy 17H Definition for Subdivision 17I Defaults to which Subdivision applies 17J Interest 17K Penalty levy 17L Amount of penalty levy 17M Notification of penalty levy and interest and time for payment Subdivision 4—Collection of levy 17N Definition for Subdivision 17O Recovery of levy as debt 17P Joint and several liability 17Q Collection of levy from third parties 17R Duties of agents, trustees etc 18 Levy first charge on land 20 Sale of land for non-payment of levy 21 Recovery of levy not affected by objection or review 22 Arrangements for payment of levy 22A Decisions non-reviewable 22B No statute of limitation to apply Subdivision 5—Investigation 22C Power to require information, instruments or records or attendance for examination 22D Powers of entry and inspection 22E Use and inspection of instruments or records produced or seized 22F Self‑incrimination 22G Hindering or obstructing authorised officers etc Subdivision 6—Secrecy 22H Relevant persons 22I Prohibition of certain disclosures by relevant persons 22J Permitted disclosure in particular circumstances or to particular persons 22K Permitted disclosures of general nature 22L Prohibition of disclosures by other persons 22M Restriction on power of courts to require disclosure Division 2—Levy in respect of vehicles and vessels 23 Liability for levy 24 Declaring the amount of the levy 25 Exemption by Minister 26 Objection to classification of vehicle 27 Payment of levy into Fund Part 4—The Community Emergency Services Fund 28 The Community Emergency Services Fund 29 Investment of the Fund 30 Accounts Part 5—Miscellaneous 31 Delegation 31A Evidence 32 Service of notices 33 Remission of levies by regulation 33A Recouping money lost on aggregation of non contiguous land 34 Regulations Schedule 1—Emergency services areas 1 Greater Adelaide 2 Regional Area 1 Schedule 2—Transitional provisions 4 Reimbursement by insurers to policy holders 4A Report on changes to insurance premiums 5 The Emergency Services Funding Transitional Advisory Committee 6 Crown to be taken to be owner of certain land Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Emergency Services Funding Act 1998. 3—Interpretation (1) In this Act, unless the contrary intention appears— the area factor means the factor for each of the emergency services areas declared by notice under section 10; authorised officer means a person who is an authorised officer for the purposes of the taxation laws under the Taxation Administration Act 1996; Commissioner means the person appointed or acting as the Commissioner of State Taxation, and includes a person appointed or acting as a Deputy Commissioner of State Taxation (see Part 9 of the Taxation Administration Act 1996); contiguous land—see subsections (2) and (3); CTP Regulator means the CTP Regulator established under the Compulsory Third Party Insurance Regulation Act 2016; emergency service means— (a) a service of the kind provided by— (i) the South Australian Country Fire Service; (ii) the South Australian Metropolitan Fire Service; (iii) the South Australian State Emergency Service; (iv) Surf Life Saving South Australia Inc.; (v) a body or organisation accredited as a Volunteer Marine Rescue organisation by the State Marine Rescue Committee; or (b) a service provided by the South Australian Police Department— (i) of a kind referred to in paragraph (a); or (ii) to assist a body or organisation referred to in paragraph (a) in providing such a service; or (c) a service or other activity incidental or related to a service of a kind referred to in paragraphs (a) or (b); emergency services area means an area prescribed by or under section 7; the Fund means the Community Emergency Services Fund established by this Act; the land use factor means the factor for each of the land uses referred to in section 8(1) declared by notice under section 10; motor vehicle means a motor vehicle that is required to be registered under the Motor Vehicles Act 1959; non-reviewable decision—see section 4; owner of land means— (a) where the land has been granted in fee simple— (i) in the case of land that is subject to a life estate—the holder of the life estate; (ii) in any other case—the holder of the estate in fee simple in the land; (b) in relation to dedicated land within the meaning of the Crown Lands Act 1929 that has not been granted in fee simple but which is under the care, control and management of a Minister, body or other person—the Minister, body or other person; (c) in relation to land dedicated by or under any other Act being land that has not been granted in fee simple but which is under the care, control and management of a Minister, body or other person—the Minister, body or other person; (d) where the land is unalienated land of the Crown—the Crown; (e) where the land is held from the Crown under lease, licence or agreement to purchase— (i) if the lease, licence or agreement confers a right to occupy the land—the person entitled to the right of occupation; (ii) in any other case—the Crown; (f) where the land is held under a shack lease—the person entitled to the right of occupation, and includes any person who has arrogated to himself or herself (whether lawfully or unlawfully) the rights of an owner of the land; shack lease means a lease for the occupation of land for holiday, recreational or residential purposes where the land is situated on or adjacent to the banks of the River Murray, a tributary of the River Murray, or a lake or lagoon connected with the River Murray or a tributary of the River Murray; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; vessel means a vessel that is required to be registered under the Harbors and Navigation Act 1993. (1a) Where unalienated land of the Crown is held from the Crown under a licence, the ownership of the land for the purposes of this Act will be determined in accordance with paragraph (e) of the definition of owner in subsection (1) and not in accordance with paragraph (d) of that definition. (2) For the purposes of this Act, pieces of land will be taken to be contiguous if they abut one another at any point or if they are separated only by— (a) a street, road, lane, footway, court, railway, thoroughfare or travelling stock route; or (b) a reserve or other similar open space dedicated for public purposes. (3) For the purposes of subsection (2) pieces of land will be taken to be separated by intervening land if a line projected at right angles from any point on the boundary of one of them with the intervening land would intersect a boundary of the other with the intervening land. (4) A reference in this Act to the use of land is a reference to the predominant use of the land. 4—Meaning of non-reviewable in relation to certain decisions If a provision of this Act provides that a decision is a non‑reviewable decision, no court or administrative review body has the jurisdiction or power to entertain any question as to the validity or correctness of the decision. Part 3—The emergency services levy Division 1—Levy in respect of land Subdivision 1—Imposition of levy 5—Land that is subject to levy (1) Subject to this Division, an emergency services levy may be assessed by the Commissioner against all land in the State in respect of each financial year. (2) The levy may be assessed against— (a) any piece or section of land subject to separate ownership or occupation; or (b) any aggregation of contiguous land subject to the same ownership or occupation; or (c) any aggregation of land pursuant to subsection (2a). (2a) Where two or more pieces or sections of land or aggregations of contiguous land are not contiguous they may be aggregated for the purposes of subsection (2)(c) if— (a) the owner or occupier of all of the land concerned is the same person; and (b) all of the land is used to carry on the business of primary production and is managed as a single unit for that purpose; and (c) all of the land is either situated in the area of the same council under the Local Government Act 1999 or is situated in a part of the State that is not in the area of a council. (3) Where land that is subject to separate assessment in accordance with subsection (2) is situated partly in one emergency services area and partly in another, the levy may be separately assessed against the parts of the land situated in different areas. (4) Where different parts of land that is subject to separate assessment in accordance with subsection (2) are used for different purposes referred to in section 8, the levy may be separately assessed against each of those parts. (5) Where land is divided by a strata plan under the Strata Titles Act 1988— (a) the levy will be assessed against the units but not against the common property; but (b) the equitable interest in the common property that attaches to each unit will be regarded, for the purpose of valuation, as part of the unit. (6) Where land is divided by a primary, secondary or tertiary plan of community division under the Community Titles Act 1996— (a) in the case of the division of land by a primary plan—the levy will be assessed against the primary lots that are not divided by a secondary plan and against the development lot or lots (if any); (b) in the case of the division of land by a secondary plan—the levy will be assessed against the secondary lots that are not divided by a tertiary plan and against the development lot or lots (if any); (c) in the case of the division of land by a tertiary plan—the levy will be assessed against the tertiary lots and the development lot or lots (if any). (7) Where land is divided by a primary, secondary or tertiary plan of community division under the Community Titles Act 1996— (a) in the case of the division of land by a primary plan—where the use of the common property or part of it is, in the opinion of the Valuer-General, reasonably incidental to the use of one or more of the primary lots, the levy will not be assessed against the common property, or that part of it, but the interest in the common property, or that part of it, that attaches to each primary lot will be regarded for the purposes of valuation as part of the lot; (b) in the case of the division of land by a secondary plan—where the use of the common property or part of it is, in the opinion of the Valuer-General, reasonably incidental to the use of one or more of the secondary lots, the levy will not be assessed against the common property, or that part of it, but the interest in the common property, or that part of it, (and in the common property of the primary scheme referred to in paragraph (a) (if any)) that attaches to each secondary lot will be regarded for the purposes of valuation as part of the lot; (c) in the case of the division of land by a tertiary plan—where the use of the common property or part of it is, in the opinion of the Valuer-General reasonably incidental to the use of one or more of the tertiary lots, the levy will not be assessed against the common property, or that part of it, but the interest in the common property, or that part of it, (and in the common property of the primary and secondary schemes referred to in paragraphs (a) and (b) (if any)) that attaches to each tertiary lot will be regarded for the purposes of valuation as part of the lot. (8) Where land is divided by a primary, secondary or tertiary plan of community division under the Community Titles Act 1996 and the use of common property or any part of it is not, in the opinion of the Valuer-General, reasonably incidental to the use of any of the community lots, the levy will be assessed against the common property or that part of it and the relevant community corporation is liable for the levy as though it were the owner of the common property. (9) If a valuation of land subject to separate assessment under this Act has not been made or adopted by the Valuer-General under the Valuation of Land Act 1971, the Valuer-General must make or adopt a valuation of that land under that Act. (10) Residential land held from the South Australian Housing Trust under a lease, licence or agreement to purchase is exempt from the imposition of a levy under this Division. 5A—Application for aggregation of non contiguous land (1) The owner or occupier of land may apply to the Commissioner for the aggregation of non contiguous land for the purposes of section 5(2)(c). (2) The application must— (a) be in writing; and (b) be received by the Commissioner on or before 31 March immediately preceding the first financial year to which the aggregation of the land will relate. (3) The applicant must provide the Commissioner with such information and evidence as the Commissioner reasonably requires to consider the application. (4) The Commissioner must serve notice of his or her decision on the applicant and, if the application is refused, the notice must include the Commissioner's reasons for refusing the application. (5) The applicant may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of a decision of the Commissioner to refuse an application under this section. (6) An application for review must be made within 28 days after the notice is served on the applicant under subsection (4). (7) If the basis on which land is aggregated for assessment purposes under section 5(2)(c) ceases to exist, the owner of the land must immediately inform the Commissioner of that fact. Maximum penalty: $2 500. 6—Basis of levy (1) A levy may consist of— (a) an amount payable in respect of each dollar of the value of land subject to assessment under this Act; or (b) a fixed charge; or (c) two separate components, one being the amount referred to in paragraph (a) and the other a fixed charge under paragraph (b). (2) The value of the land for the purposes of subsection (1) is determined by multiplying its capital value by the area factor and the land use factor for the land. (3) The capital value of land for the purposes of subsection (2) is the capital value of the land as at 1 July in the financial year to which the levy relates determined or adopted by the Valuer-General under the Valuation of Land Act 1971. 7—Emergency services areas (1) The State is divided into the following emergency services areas for the purpose of determining the area factor: (a) "Greater Adelaide" being the combined areas of the councils listed in Schedule 1 comprising Metropolitan Adelaide and the Adelaide hills; (b) "Regional area 1" being the areas of the cities and towns listed in Schedule 1; (c) "Regional area 2" being that part of the State that is within the area of a council but is not part of Greater Adelaide or Regional area 1; (d) "Regional area 3" being that part of the State that is not within the area of a council. (2) The Governor may, by proclamation— (a) revoke one or more of the areas into which the State is divided by this section (or by a proclamation under this subsection) and reconstitute the part of the State affected as one or more emergency services areas for the purposes of this Act; or (b) vary the boundaries of two or more emergency services areas. (3) For the purposes of determining the amount of the levy payable in respect of land, the land will be taken to be situated in the emergency services area in which it was situated on 1 July in the financial year to which the levy relates. 8—Land uses (1) The following land uses are prescribed for the purposes of determining the land use factor: (a) commercial; (b) industrial; (c) residential; (d) rural; (e) all uses other than those referred to in paragraphs (a), (b), (c) or (d). (2) Land will be taken to be used for one of the purposes referred to in subsection (1) if, in the opinion of the Valuer-General, it is being predominantly used for that purpose on the relevant day. (3) Land (except vacant land) that was not being used on the relevant day will be taken to be used for the purpose for which it was last used on a continuing basis. (4) Vacant land that is not used for any purpose and that would not, but for this subsection, fall within paragraph (d) of subsection (1) will be taken to fall within that paragraph whether it is situated in a rural area or in any other part of the State. (5) In this section— commercial use of land means a use of land defined by the Local Government Regulations as commercial shop, commercial office or commercial other; industrial use of land means a use of land defined by the Local Government Regulations as industry light or industry other; Local Government Regulations means the Local Government (General) Regulations 1999; the relevant day in respect of a financial year specified in a notice under section 10(1) means the day (whether occurring on, before or after the day on which the notice is published in the Gazette) specified in the notice as the relevant day in respect of that year; residential use of land means a use of land defined by the Local Government Regulations as residential; rural use of land means a use of land defined by the Local Government Regulations as primary production. 9—Objection to attribution of use to land (1) The owner of land may object to the attribution of a particular use to the land by the Valuer-General. (2) The objection must be made to the Minister and must— (a) be in writing; and (b) set out— (i) the grounds of the objection; and (ii) the land use that should, in the objector's opinion, be attributed to the land; and (c) be served on the Minister within 60 days after the objector receives notice under section 16 of the levy payable by him or her. (3) The Minister may decide any such objection as he or she thinks fit and must notify the objector in writing of his or her decision and the reasons for it. (4) An objector who is dissatisfied with the Minister's decision may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the Minister's decision. (4a) An application for review must be made within 21 days after notification of the Minister's decision to the objector. (5) Except as provided by this section, the attribution of a particular land use to land under this Division cannot be challenged. (6) The determination of an objection under this section only affects the attribution of a use to land for the purposes of this Act. 10—Declaring the levy and the area and land use factors (1) The Governor may, by notice published in the Gazette on the recommendation of the Minister, declare— (a) the levy; and (b) where the levy, or a component of the levy, is an amount payable in respect of each dollar of the value of land— (i) the area factor for each of the emergency services areas; and (ii) the land use factor for each of the land uses referred to in section 8(1); and (iii) the relevant day for the purposes of section 8, for the financial year specified in the notice. (2) Where the levy, or a component of the levy, is a fixed charge, the amount of the charge must be the same for each piece, section or aggregation of contiguous land subject to separate assessment that is situated in the same emergency services area. (3) The notice must be published before the commencement of the financial year to which it relates. (4) The Minister must, before making a recommendation to the Governor under subsection (1), determine— (a) the amount that, in the Minister's opinion, needs to be raised by means of the levy under this Division to fund emergency services in the relevant financial year; and (b) the amounts to be expended in that financial year for various kinds of emergency services and the other purposes referred to in section 28(4); and (c) as far as practicable, the extent to which the various parts of the State will benefit from the application of that amount. (5) Before making a recommendation to the Governor under subsection (1) as to the amount of the levy and the values of the area factors and the land use factors to be included in the notice published under that subsection and before making the determinations under subsection (4), the Minister must refer to the Economic and Finance Committee of Parliament a written statement setting out the determinations that the Minister proposes making under subsection (4) in respect of the relevant financial year and must not make recommendations to the Governor under subsection (1) or determinations under subsection (4) until the Committee has reported to Parliament or has failed to report within the time required by subsection (5a). (5a) It is a function of the Economic and Finance Committee of Parliament to enquire into, consider and report on the Minister's statement within 21 days after it is referred to the Committee under subsection (5). (6) A notice published under subsection (1) must— (a) include a statement of the amount determined by the Minister under subsection (4)(a); and (b) include a description of the method used in determining that amount; (7) The Minister must, as soon as practicable after the publication of a notice under subsection (1), cause a copy of the notice to be laid before both Houses of Parliament. (8) After the first notice declaring a levy under subsection (1) has been published in the Gazette, the Governor must not declare a further levy under that subsection in respect of a subsequent year unless— (a) the amount of the levy is the same as, or less than, the amount of the levy declared by the first notice; or (b) the notice declaring the levy has been authorised by a resolution passed by both Houses of Parliament. (9) No proceedings for judicial review or for a declaration, injunction, writ, order or other remedy may be brought before a court, tribunal or other person or body to challenge or question the amount of the levy or the value of the area factor or the land use factor declared in a notice under subsection (1). 12—Commissioner to keep assessment book (1) The Commissioner must ensure that a record (the assessment book) is kept in which is entered— (a) — (i) a brief description of each separate piece or section of land or aggregation of contiguous land that is subject to separate assessment for the emergency services levy under this Act; and (ii) the capital value for the time being determined or adopted by the Valuer-General of that land; and (b) the name and address of the owner of the land; and (c) the land use of the land; and (d) such other information as may be prescribed by regulation. (2) Notwithstanding subsection (1), where the Commissioner is satisfied that the inclusion in the assessment book of the name or address of any person would place at risk the personal safety of that person, a member of that person's family or any other person, the Commissioner may suppress the name or address from the assessment book. (3) Where the Commissioner is satisfied that a person's address is suppressed from the roll under the Electoral Act 1985, the Commissioner may— (a) where the person's residential address is included in respect of land that the person owns but does not occupy—suppress the person's residential address from the assessment book; (b) where the person's residential address is land described in the assessment book—suppress the person's name from the assessment book in relation to that land. (4) The assessment book may— (a) be kept in any form (whether in the form of a book or not) that allows for the accurate recording of information and easy access to that information; (b) be kept in different parts at different places; (c) where the Commissioner delegates the duty to keep the assessment book—be kept in different parts by different persons. (5) The Commissioner may make any alteration to the assessment book that may be necessary to keep the book in a correct and up to date form. (6) The Commissioner may require a council or any other person who has information that is necessary or useful for— (a) the purpose of compiling the assessment book and keeping it in an up to date form; or (b) any other purpose related to the administration of this Act, to provide that information to the Commissioner (or to any other person nominated by the Commissioner) in the form specified by the Commissioner. 13—Alterations to assessment book (1) Application may be made to the Commissioner for an alteration of the assessment book by an owner of land on the ground that particular information entered in the assessment book is incorrect or has not been recorded in accordance with this Act. (2) An application under subsection (1) must be made in a manner and form approved by the Commissioner. (3) The Commissioner must notify the applicant in writing of the Commissioner's decision, and if the application is refused, the notice must include the Commissioner's reasons for refusing the application. (4) An applicant who is dissatisfied with the decision of the Commissioner on the application may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the Commissioner's decision. (5) An application for review must be made within 21 days after notification of the Commissioner's decision under subsection (3). 14—Inspection of assessment book A person is entitled, on payment of a fee fixed by the Minister— (a) to inspect the assessment book during ordinary office hours; or (b) to a copy of an entry made in the assessment book. 15—Liability for levy (1) The person who is the owner of land at 12.01 a.m. on 1 July in the financial year for which a levy has been declared is liable to pay the levy to the Commissioner. (2) Two or more persons who own the same land are jointly and severally liable for the levy in respect of that land and are entitled to contribution between each other in proportion to the value of their respective interests in the land. (3) A subsequent owner of land is liable for a levy, or a part of a levy, in respect of that land that has not been paid by the person or persons primarily liable under subsection (1) or (2). (4) A subsequent owner who has paid the whole or part of a levy is entitled to recover— (a) the amount paid from the person primarily liable or, if there are two or more such persons, from any one or more of them; (b) a part of the amount paid from his or her co-owner (if any) that is in proportion to the value of their respective interests in the land. (5) A subsequent owner who has paid an amount to his or her co-owner under subsection (4)(b) is entitled to recover that amount from the person primarily liable or, if there are two or more such persons, from any one or more of them. (6) In this section— subsequent owner of land includes a person who has ceased to be an owner of the land. 16—Notice of levy (1) The Commissioner must serve notice of the amount of the levy that is payable in respect of land for a financial year on the person who was the owner of the land at 12.01 a.m. on 1 July in that year. (2) The notice must state— (a) the amount of the levy; and (b) the area factor and the land use factor applicable to the land; and (c) the capital value of the land; and (d) the date (being at least 28 days after the notice is served) by which the levy must be paid; and (da) if the person liable to pay the levy is also liable to pay interest or a penalty levy under Subdivision 3—the amount of the interest or penalty levy; and (e) such other information as is required by regulation. (3) Where there are two or more owners of land, service of the notice on one of them will be taken to be service on both or all of them. (4) The notice required to be served under this section may be served as a separate notice or, with the approval of the Commissioner, as part of any other notice served by a public authority or other person. (5) Where the same person owns two or more pieces, sections or aggregations of contiguous land subject to separate assessment, separate notices or one combined notice may be served on the owner. 17—Refund resulting from assessment If the result of an assessment of a person's liability to pay a levy or other amount under this Division is that the person has made an overpayment, the Commissioner must, subject to Subdivision 2, refund the amount overpaid. 17A—Cancellation of assessment If the Commissioner is satisfied that— (a) an assessment of a person's liability to pay a levy or other amount under this Division has been made in error; and (b) no amount has been paid as required under the assessment, the Commissioner may cancel the assessment. 17B—Payment of levy into Fund (1) Subject to subsection (2), the Commissioner must pay money received in payment of the levy, a penalty levy or interest under this Division into the Fund. (2) Money received in payment of the levy, a penalty levy or interest may, instead of being paid into the Fund, be applied towards payment of any refund required to be paid under this Division. Subdivision 2—Refunds 17C—Right to apply for refund (1) A person may make application for a refund of an amount that has been overpaid by the person under this Division. (2) An application for a refund cannot be made under this section more than 5 years after the person made the payment to the Commissioner in respect of which the refund is sought. (3) A determination under this section as to whether there has been an overpayment, or as to the amount of an overpayment, is to be made in accordance with the legal interpretations and assessment practices generally applied by the Commissioner in relation to matters of the kind in question at the time the person made the payment in respect of which the refund is sought except to the extent that any departure from those interpretations and practices is required by legislative change made after the payment. (4) If the result of determination of an application under this section is that the applicant has made an overpayment, the Commissioner must, subject to the other provisions of this Subdivision, refund the amount overpaid. 17D—Form of application for refund An application for a refund must be made to the Commissioner in a form approved by the Commissioner. 17E—Commissioner may refuse to determine application until information etc provided (1) If the Commissioner has, under Subdivision 5, made a requirement of an applicant for a refund for the purposes of determining the application, the Commissioner may refuse to determine the application until the applicant complies with the requirement. (2) A refusal under subsection (1) is a non‑reviewable decision. 17F—Offset of refund against other liability (1) The Commissioner may apply the whole or part of an amount that would otherwise be required to be refunded to meet any amount payable by the applicant under this Division. (2) The whole or part of an amount that would otherwise be required to be refunded may be credited towards a person's future liability under this Division, but only with the person's consent. (3) A decision under this section is a non‑reviewable decision. 17G—Windfalls—refusal of refund (1) The Commissioner may refuse to make a refund if— (a) the amount of the levy, penalty levy or interest to be refunded has been p