Page 3067 - Week 09 - Tuesday, 22 August 2017
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Consistent with the fact that the decision is an internally reviewable decision, the executive must assess any counter offer from the interest holder before making a final decision. The executive has two months to do so. The executive must put its final decision, its final offer of compensation, to the interest holder. This is the effect of existing section 63, as amended by clause 7. The interest holder may either accept the final offer or reject it and seek a merit review of the final offer in ACAT. This is made clear in existing section 64, the heading to which section is amended by clause 9. The right to seek ACAT merit review of such a final offer is made clear in schedule 1 to the act that lists the decisions subject to merit review. This schedule is amended by clause 15.
I now refer to provisions relating to advance payments of compensation. Existing section 70 of the act provides for the executive to make an advance payment of compensation in certain circumstances. If the executive accepts a claim and makes an offer pursuant to the claim then section 70 requires the executive to make an advance payment of compensation ahead of any final acceptance or determination of the compensation amount. The advance must amount to no less than 90 per cent of the value of the offer of compensation. The receipt of an advance payment does not constitute acceptance of an offer by the interest holder. The bill makes it clear that this requirement for advance payment applies to offers made by the executive under new section 61A. This is the effect of clause 10 and new sections 70(2) and 70(3).
I now turn to the transitional arrangements under the bill. In doing so I will refer to comments of the Standing Committee on Justice and Community Safety, in its legislative scrutiny role, and the government’s proposed amendment of the bill in response. Clause 14 of the bill inserts new part 15 on transitional matters. The intention is for new part 15 to cover existing cases where land has been compulsorily acquired under the act but a claim for compensation has yet to be made. I am informed that there are currently seven outstanding matters where no claim for compensation has as yet been made.
The intention is for the three-year time limit to apply to these matters. The purpose of new section 201, inserted by clause 14, is to apply this three-year period, with the effect that if the interest holder has not made a claim for compensation within three years from the commencement of this bill the executive may make an offer of compensation. In its report No 7, the Standing Committee on Justice and Community Safety, in its legislative scrutiny role, commented on these transitional provisions. The committee suggested there may be some procedural unfairness about this approach in that it was conceivable that the three-year time limit could expire without the interest holder being made aware of the new time limit.
While this issue could possibly be addressed through administrative practice, without an express legal mandate, to remove any doubt as to the proposed process the government proposes to amend the bill so that new section 201 will require a notice to be sent to the interest holders who have not yet made a claim for compensation when the bill commences and for the three-year period to run from the date of the notice. The executive must send the notice within 14 days of the commencement of the bill.
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