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LAND VALUERS BILL 2001 (No. 99)

Second Reading

Quorum formed.

Mr LLEWELLYN (Lyons - Minister for Primary Industries, Water and Environment - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Speaker, in introducing this bill can I just say that we have certainly completed the Notice Paper but there is still half an hour to go and I have called on the Land Valuers Bill.

Mr SMITH (Franklin) - Point of order, Mr Speaker.

Mr LLEWELLYN - I intend to adjourn the House at six o'clock.

Mrs Swan - Are you going to do the second reading and adjourn?

Mr LLEWELLYN - Yes, I will do the second reading.

Opposition members interjecting.

Mr SPEAKER - Order.

Mr LLEWELLYN - Mr Speaker, The purpose of this bill is to repeal the Valuers Registration Act 1974 -

Mr CHEEK (Denison - Leader of the Opposition) - Point of order, Mr Speaker. This has only been pulled on and it has not given my colleague, Mrs Swan any time at all. We were not expecting to have this on today. Would the minister consider adjourning after he has done his second reading speech to give my colleague more time to prepare for this? Could we adjourn it after you make your second reading speech?

Mr SPEAKER - This is a point of explanation really so I will allow it. It is just a matter of what the minister wants to do. The minister is in charge of the bill and the House.

Mr LLEWELLYN - Mr Speaker, I think the member for Lyons will manage. She is very competent at these particular matters and I am sure she has been studying this bill now for some time. It has been in front of the Parliament -

Mrs Swan - You've observed me, have you, Minister?

Mr LLEWELLYN - Yes. It is not a complicated bill but it does deal with a number of important points.

Mr Speaker, the purpose of the bill is to repeal the Valuers Registration Act 1974 and replace it with a new Land Valuers Act. This bill is cognate with the Valuation of Land Bill 2001 which is being introduced to Parliament this session.

Members, the issue of deregulating the valuation industry in Tasmania first arose in May 1994 when the Vocational Education, Employment and Training Committee Report identified valuers as an occupation where registration could no longer be justified. This view was to be later enforced following the Tasmanian Government's agreement relating to the implementation of a National Competition Policy. Included in the National Competition Policy is the Competition Principles Agreement, which requires the State Government to review and, where appropriate, reform all legislation restricting competition.

In June 1996 the Tasmanian Government approved the establishment of a Legislative Review Program, which both reflected the Government's requirements for broad regulatory review and fulfilled the National Competition Policy obligations in relation to the review of anti-competitive legislation. Consistent with Government's deregulation strategies the November 1996 Final Report of the Business Licence Rationalisation Project, carried out by the Department of Treasury and Finance, identified various State Government administered licences that could be potentially rationalised. In dealing with the Valuers Registration Act 1974 the report recommended that the licensing of valuers should be abolished and that a negative licensing system for valuers be introduced along the lines of the South Australian model.

In November 1997 the Land Valuation Review Committee was established. Its specific aim was to review both the Land Valuation Act 1971 and the Valuers Registration Act 1974. With respect to the Valuers Registration Act 1974, the committee's July 1998 final report reconfirmed that the Valuers Registration Board should be abolished and replaced by a practice of negative registration. Further research, Australia-wide, dealing with valuer controls, standards and practices was then completed. A consultative process with the local valuation industry was also implemented, prior to the final recommendations being made to Government. On 11 June 2001, after consideration of the final report, Government approved that:

The Valuers Registration Act 1974 be repealed and replaced by an act that permits a system of negative registration for land valuers in Tasmania;
The new act be named the Land Valuers Act 2001, in keeping with the terminology adopted in other Australian States - this act will define the term 'land valuer', identify offences and provide a process for lodging and dealing with complaints;
The Director of Consumer Affairs and Fair Trading be appointed to administer the complaints mechanism of the new act, in accordance with the principles of the Fair Trading Act 1990;and
The Valuer-General, in conjunction with the Director of Consumer Affairs and Fair Trading and the peak body, the Australian Property Institute, determine the most appropriate way to redistribute the subscriber fees held by the Valuers Registration Board.

Mr Speaker, apart from the aforementioned provisions, other key elements provided for in the bill are as follows:

All valuers will be required to meet high educational and practical standards in order to practise as a land valuer in Tasmania.
A 'negative register' will be kept to record details of any land valuers suspended from practice.
Under the administration of the Director of Consumer Affairs and Fair Trading consumers and land valuers will be provided with a fair and equitable system in which complaints are independently reviewed. The potential for a claim of bias by what effectively constitutes a peer group review panel, constituted under the Valuers Registration Act 1974, will be removed.

Mr Speaker, I commend the bill to the House.

Mrs SWAN (Lyons - Deputy Leader of the Opposition) - Mr Speaker, I will make my comments after I have just made some comment once again about the lists and the difficulty. Minister, I realise that a good deal of this legislation which we were advised yesterday was in your particular area was likely to be brought on today, but just for the purpose of the listing it is difficult - I happen to have the papers here with me so I can in fact proceed. But you would acknowledge yourself, I have no doubt, that it is difficult in terms of managing the arrangements when we are doing this on the run and the papers are not necessarily here. While we were advised, as I say, yesterday that matters within your portfolio area were likely to be brought on, notwithstanding it is not appropriate management and while you may not have been the person who finally made the decision as to which bill was being brought on, it still makes it difficult for the Opposition. On that basis I simply put on the record again my frustration with the management of the House with respect to these matters. I think really it has got to be improved if we are to do this correctly.

Now, as it happens, I am able to proceed with this particular bill, but in doing so it is of some interest that when I looked at this bill it was in fact my view that I would go on to move that it be withdrawn, and it is for a specific reason. I will put a number of the comments that I have to you surrounding the argument. The argument travels on the basis that, yes, I know exactly what is happening. You are applying competition principles; you were looking at the management of your legislative review program over which we had some debate yesterday when you sought to repeal the postponement of several sets of regulations. We said then that there was obviously some delay inside the legislative review program and you might be able to make some comment on that when you respond or when you take note of the motion that I will put in in a moment.

In fact I have not noted it, except to say that I think that we have a situation here where obviously you have looked at the process of valuation, you have looked at land valuers in the State, and I understand you have quite clearly consulted with them. I have had some words with Paul Wilson, who is the president of the land valuers in Tasmania, and I did in fact put to him the matter that concerned me and found that there had been a similar observation by some of his members. That matter was the failure in the bill to provide a process for the Director of Consumer Affairs with respect to investigations and inquiries that he conducts into land valuers who have offended against the principles of the Fair Trading Act.

I could debate with you just why it was that the land valuers found themselves in a position where they were to be subjected to a system of negative licensing, and they have obviously agreed with that proposition. That is commendable - they have obviously looked at the matter through their legislative committee and considered all the things before them. They believe that they can travel with the arrangements here in this bill. However, the thing that does concern them is the process inside the legislation that does not appear, and that is how we conduct a fair inquiry with regard to those land valuers who are offending against the Fair Trading Act. I would have thought that if we are going to lessen the arrangements and open the whole area of land valuation to competition which is the principle contained in the competition policy - and remember we have gone through a bit of this when we have looked at builders; we have looked through cycles of government at the principle of negative licensing, for example, the principle of registration which the Government applied in their bill.

We have quite clearly looked at other areas and the former Minister for Education brought in legislation to effect the registration of teachers because she believed that it was important to have a registration process that applied to that particular profession.

I might well make an argument that said land valuation too is highly critical if we have a loose system that is not properly policed. I am not saying that this will not arrange a system that will be well delivered but you could equally argue on the public benefits test that if you allowed the land valuers to be subjected to some process when the teachers were not, you have to do a bit of a balancing act about why it would apply to one and not to the other. From my point of view you could indeed make a case for land valuers that happens to say the process of land valuation in the State underpins an enormous principle of confidence in the marketplace, underpins a system with regard to the proper understanding of the value of capital assets which is absolutely paramount to the running of an effective economy. If in fact that got wildly out of control so that here we valued in a way that was quite out of kilter with reality, if you like, which of course does not apply - I am not saying that anything other than professional conduct is undertaken by land valuers and I know that they do a fine job - you could certainly argue the principle that there is capacity to do damage to an economy. Either too low, too high, whatever else it was, you were obviously getting a distortion in how you ran a system so it could quite clearly easily compromise a whole economy. On that basis I would just simply question the public benefits test and I know that the Government has changed its public benefits test since it came to office. That is something that you are able to do under the competition principle policy but I am interested in the consistency that applies to different groupings and why one would be more agreeable than others. My suspicion is that perhaps it is the strength of the voices that delivers the message and that the land valuers may, when they looked at this matter, have been very reasonable and said, 'We ll, yes we think we could travel under that. If we have decent training and proper standards and we have a system where if anyone offends under the Fair Trading Act then they will be struck out on the principles of negative licensing, they will then be listed so we then know that they are people we should not go to and seek valuations from'.

In essence there is a principle there that confuses me when I look at how the Government applies its arrangements with respect to competition policy and I would put that general question to the minister. But in the light of that discrepancy, if you like, between one body and another it would then seem to me to be very important to turn around in the legislation and say, 'Very well, these people have agreed to a set of arrangements that see them set up on the basis of negative licensing'.

They will fall within the arrangements that prevail for fair trading and the Director of Consumer Affairs will be the person who sits to investigate and inquire into matters that are brought before him with respect to any offences that maybe perpetrated by land valuers within the meaning of that act. That to me seems to bring on a higher consideration, if you like, to set forward very clearly what you intend to do when you carry out the procedure with regard to that investigation or that inquiry. I cannot find that, Minister, in the legislation.

In clause 11, and I will use the clauses -

Mr Llewellyn - Of the Fair Trading Act.

Mrs SWAN - No, not in the Fair Trading Act and I cannot find the same thing in the Fair Trading Act because you will say, as I said to myself, we can imply that the Fair Trading Act will deliver a process that is the process that should be applied inside these arrangements and that indeed may be the implication within the legislation. I am not going to argue about that because I think we could probably quite fairly imply that that is the case.

What I am saying is that if I look at the Fair Trading Act I cannot find a set of processes and they may well be in the regulations. You may be able to advise me that they are there as to the conduct of a hearing or an investigation and, even if they were to be there, in my view, we ought not to place on them burdens in excess of that that we are already applying to them, because we are subjecting the land valuers to the principles of competition policy and they have agreed to it. As I say, I applaud their view. They have been I think open in their conduct. They have been cognisant of the changing circumstances in the economy. They are willing to get out there and compete and that is to their very great credit.

We are subjecting them to negative licensing and they have agreed to that and that is fine. They ask one thing and I suggest that thing, too, and that is that in the legislation itself, irrespective of what might apply inside the Fair Trading Act, we should have a clause that actually sets out a process for the investigation or the hearing. As I say, Minister, I have some concern that Fair Trading actually does the job anyway. That has to do - and I do not have to remind you, Minister - with what happens there. It has to do with the notification of the valuer, what he then does, what kind of response he makes, whether he can appeal, whatever those arrangements are - the simple procedures that relate to justice as the director takes on the job of determining whether there are grounds for disciplinary action.

If we read clause 11 we find there:

'On receipt of an application from any person, the Director must determine whether there are grounds for disciplinary action against a land valuer in accordance with the application and, for that purpose, may conduct a hearing or such investigation as he or she thinks fit.'

The problem I have is that we immediately thereafter go on to clause 12, which is titled 'Disciplinary Action' and clause 12, subsection (1), says:

'Where the Director determines that there are grounds for taking disciplinary action against a land valuer, the Director may, by order, do one or more of the following:

(a) prohibit the land valuer from carrying on business as a land valuer'.

So clearly the powers that he has are considerable. He can actually go ahead and may be entirely right. He probably has before him something that is offensive, is a genuine breach of the Fair Trading Act and the director sits down and looks at it and says, 'I have found on that evidence that there is a ground for disciplinary action and I choose to prohibit the land valuer from being allowed to carry on his business as a land valuer'. That is no doubt, in some instances, an appropriate response to somebody who offends against those provisions in that act, and we would not be surprised to find that the director has a power like that because he would have to enforce a view.

Mr Llewellyn - If you have a look at the complaints and investigation section in here, I think he is talking in terms of the powers in the Fair Trading Act.

Mrs SWAN - Yes, he is.

Mr Llewellyn - If you look at the Fair Trading Act, the provisions are there to authorise the necessary investigation, and so on.

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Mrs SWAN - Yes. Do they include provisions - and you might be able to help me with this because this might be the answer - that will notify the land valuer, for example, that action is being taken, that a hearing is being conducted, because to me it seems that in this act, because of the -

Mr Llewellyn - It's very similar to the existing act in regard to that, so those have been transferred, and apparently the industry itself is. You mentioned one or two people who might have commented about it but the industry in general has been supportive.

Mrs SWAN - Again, Minister, I agree that in general the industry has said, 'We accept the principle of negative licensing and we are prepared to travel with it', and, as I say, that is to their credit. My concerns are that having had them accept that - and I again draw the minister's attention to the matters that he is fully aware of - the Government has chosen to register teachers, that they have chosen to look at builders in a different fashion. They have actually applied a different regime when it comes to other professional bodies. Here we have the land valuers applying, or having the competition policy applied to them and agreeing to the principles of negative licensing. As I say, I have no trouble with that, that is fine, and the legislation here says, 'All right, when we come to that particular grouping we are going to apply a different arrangement'. I have made the propositions that I have in my mind with regard to public benefits tests and how you apply them and why it looks different in one area from another. That is something I am uncertain of and I do not know the Government's mind on that matter, but that sets up a series of questions in my mind.

Having got to that stage, we then get to a situation where we provide powers for the director to undertake investigations and hearings, as of course he must, and he has quite considerable powers, as of course he would. I do not argue with any of those things, but I think, given the powers that the director has at his disposal, it is appropriate on the surface of the bill to say what the processes are that relate to the hearing and relate to the investigation. I cannot find anything in the legislation that says that if I was valuer X and I was subjected to an investigation or a hearing, I do not know how I am going to be informed, I do not know what arrangements will apply to the rights that I have under those arrangements. It seems to me that in the interests of delivering justice, we ought to be able to at least make reference to a set of processes as you would find in any one of the registration acts that you have put through - physiotherapists, or whomever we have dealt with, and we have dealt with a fair number of them in the Health area. A registration process of course will clearly set out how the particular registration board goes about the process of dealing with the offending professional that is subject to a hearing.

I simply make that proposition to the Government because I think it warrants attention, and that is the reason why I suggest to the Government that the bill be withdrawn. We are shortly to conclude so it may provide us with an opportunity where you can go back and in fact -

Mr Llewellyn - Can I just clarify it. We won't stop the bill when we get to six o'clock, but I have said certainly I will find all this information out for you. We'll take it on board and I'll give you a specific answer to it.

Mr Lennon - Finish your second reading.

Mr Llewellyn - If you finish your second reading speech I'll then adjourn the House and we will come back to it when we return.

Mrs SWAN - All right. On that basis I will sit down!

Debate adjourned.

Resumed from 1 November (page 103)

Mrs SWAN - I think I had concluded the second reading and I wanted to go into committee.

Bill read the second time.