Book 8 - Parliament of Victoria

STATE TAXATION ACTS AMENDMENT BILL 2011
Thursday, 2 June 2011 COUNCIL 1735
To the extent that clause 31 introduces a defence to the
relevant offences it imposes a legal burden on an individual to
satisfy the court that the person did not know that the
information, statement or document was false or misleading,
or that they did not omit information from an application or
statement or fail to produce a document knowing that without
that information or document their first home owner grant
application was false or misleading. These defences may limit
the right to be presumed innocent in section 25(1) of the
charter act.
On balance, however, the limitations upon this right are
reasonable and justifiable in a democratic society for the
purposes of section 7(2) of the charter act, having regard to
the factors set out below.
(a) What is the nature of the right being limited?
The right to be presumed innocent enshrined in the charter act
is a fundamental common-law principle that requires the
prosecution to prove all elements of an offence beyond
reasonable doubt.
However, the courts have recognised that this principle may
be subject to limits particularly where, as here, the offence is
of a regulatory nature, and a defence is enacted for the benefit
of a defendant in respect of what could otherwise be an
absolute or strict liability offence.
(b) What is the importance of the purpose of the limitation?
The purpose of this limitation is to provide an opportunity for
an individual to escape liability, where they did not know that
the information, statement or document given in or in
connection with a first home owner grant application was
false and misleading, or that omitting information or failing to
produce a document would cause their application to be false
and misleading. These are matters which are only within the
knowledge of the defendant and therefore it is reasonable that
they adduce or point to the evidence which puts this matter in
issue for consideration by the court hearing the charge.
Overall, this ensures an appropriate degree of culpability
before an individual can be found guilty of the offence.
(c) What is the nature and extent of the limitation?
The limitation is confined to the extent that it only reverses
the onus in respect of the defence. The prosecution is still
required to establish that the defendant provided, or omitted to
provide, the relevant false or misleading information,
statement or document, and where a defendant raises
evidence of lack of knowledge, the prosecution will have the
burden of disproving those matters beyond reasonable doubt.
(d) What is the relationship between the limitation and its
purpose?
The imposition of a burden of proof on the accused is directly
related to its purpose. Unless a defendant can satisfy the court
that he or she did not knowingly give information, make a
statement, or produce a document that is false or misleading,
or omit to give information or produce a document, without
which the first home owner grant application is false or
misleading, they will be convicted. This is information that is
within the knowledge of the defendant, which would be
difficult and onerous for the Crown to investigate and prove
beyond reasonable doubt.
(e) Are there any less restrictive means reasonably
available to achieve its purpose?
An evidential onus would be less restrictive upon the right to
be presumed innocent, however, it would not be as effective
because it could be too easily discharged by the accused,
leaving the prosecution in the difficult position of having to
prove what the accused did reasonably know. The inclusion
of a defence with a burden on the accused to prove the
matters on the balance of probabilities achieves an
appropriate balance of all interests.
Conclusion
I consider that the bill is compatible with the charter act.
The Hon. Gordon Rich-Phillips, MLC
Assistant Treasurer
Second reading
Ordered that second-reading speech be
incorporated into Hansard on motion of
Hon. G. K. RICH-PHILLIPS (Assistant Treasurer).
Hon. G. K. RICH-PHILLIPS (Assistant
Treasurer) — I move:
That the bill be now read a second time.
Incorporated speech as follows:
During the 2010 election campaign this government promised
to increase assistance for first home buyers and older
Victorians, and provide a new stamp duty exemption for
young farmers. This bill delivers on those election
commitments, showing that this government is serious about
easing the cost of living and providing a better quality of life
for all Victorians, while helping Victoria reach its full
economic potential.
This government is committed to making housing more
affordable in Victoria and ensuring that stamp duty is not an
impediment to first home ownership. In line with this
commitment, this bill enacts our election promise to cut stamp
duty for eligible first home buyers by 50 per cent. The stamp
duty cuts will be available for all first-time buyers purchasing
a principal place of residence up to the value of $600 000 and
will be phased in with a 20 per cent cut on 1 July 2011, with a
further series of cuts commencing from 1 July 2013,
1 January 2014 and 1 September 2014.
In addition to this significant cut in stamp duty, this
government will also maintain the existing first home bonus
of $13 000 and first home regional bonus of $6500 for newly
constructed homes. Under the previous government these
measures were due to expire on 30 June 2011.
These bonuses are in addition to the $7000 first home owner
grant (FHOG), which means Victorian first home buyers will
continue to be eligible for $20 000 on the purchase of a new
home in Melbourne and $26 500 for a new home purchased
in regional Victoria. All Victorian first home owners eligible
to receive these payments will also benefit from the
government’s stamp duty cuts, representing a significant
boost for Victorians wanting to enter the housing market for
the first time.