I am being investigated by the victorian state revenue office to see if I have complied with the PPR requirement of my first home owners grant.
They are suggesting that I have not complied due to the lack of usage in terms of utilities ie. gas, electricity.
I did in fact move in to the residence, I bought furniture etc. and resided there for six months. However, I spent alot of time away from the property, in that I would usually have dinner out or at my mums house and often I would stay the night at my mums house. Most of my weekends were spent going out and sometimes at my girlfriends house. Is there any guide on exactly how many nights you must spend at your PPR? I assume it would need to be at least 50%
The SRO seem to be of the opinion that this was not my PPR.
Can anyone help with advice or personal experience in this matter?
Talk to Vic state revenue office directly to find out exactly why and what cause they have. This way there won't be any miss understandings and you can verbalise you concerns to them. Be proactive and get it sorted out quickly.
Always get their side in writing first; that way you are sure of their concerns and it locks them into a single position.
How would have access to your private 'usage' details? This may be a breach of your privacy, an unlawful act.
I assume that the bills are in your name and it was not rented out so there will be no other name registered to that address?
Their suspensions are NOT proof of anything; if they wish to take administrative action, they MUST base their decision on FACT.I recall reading a VIC case about 3 years ago re a FHOG audit and the person was required to pay back the grant and copped a fine. This was based on electricity usage.
Colin, probably no breach of Privacy Act as it relates in an investigation.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Terryw wrote:Colin, probably no breach of Privacy Act as it relates in an investigation.I was thinking the same thing.
Cheers
Jamie
Jamie Moore | Pass Go Home Loans Pty Ltd
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Email Me | Phone MeMortgage Broker assisting clients Australia wide Email: [email protected]
If it is part of an investigation, they would need a warrant to access company records of the power, water, gas etc. Ask to see those warrants. The 'investorgators' would also need to have the power to seek a warrant to be issued. Warrants are not issued willy nilly; they are usually only issued if the party seeking them can offer up evidence of a possible crime and not when they are on a 'fishing trip'. If it can be proven that they had not valid reason to suspect a crime BEFORE the warrant was issued then everything that they gained was the warrant would be inadmissable and unusable (the fruit from the poisonous tree). If a warrant was not issued or there was not a legislative power for an officer of that department to seek the info they say they have, then it is a breach of your privacy. Just because a department has legislative power does not mean that it has been issued to a specified person within that department or that the proper procedure has been followed in granting that power. Find out if there is such a power and how it has to be issued, was it done in the correct manner (an documented) and how they are required to seek info from private power, water and gas companies.
Also confirm with the power, water and gas companies (in writing) who has had access to your records since you purchased the property. Just because a party says that they have records of your usage or that they are basing their decisions on these 'records' does not prove that they actually 'have' these records….it being a bluff, seeing if you blink.Unless they had an investigator sitting on your front door step for 6 months….good luck to them; unless you had your mail forwarded to a separate address or had a separate property with power, water, gas etc in your name??
Remember, its is based on the fact that it is your 'Principal' place of residence and not you ONLY place of residence. I do not belive that they could support a case where say you purchased the property, moved in, then went on an extended holiday or was required to work away from home for a time (ie. a mine worker that works 4 weeks on and 4 weeks off). If this person was to take 4-8 weeks holidays during their normal working cycle they would be 'normally' at home for just 10-14 weeks (4 on, 4 off, 4 on, 4 off with 4-8 weeks leave, then thefirst 2 weeks of their next 4 on). That represents just 38-54% at home; then you subtract time away to visit friends in the country, time away at your girlfriends place etc etc.
No need for a warrant for these sorts of enquiries. Police and other agencies, even private investigators, could get access to these records if they relate to the investigation of a possible offence.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Terry, do you know where I could find previous cases similar to mine that I could read?
Jules, I have written about it here before – its in one of my 11,220 posts somewhere -2-3 years ago from memory.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
more like 4 years
https://www.propertyinvesting.com/forums/getting-technical/legal-accounting/4322697But the links in my post are dead now
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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TerryW, I do not know which country you live in but here in Australia police and govt agents still need a warrant to get copies of documents from private companies. As for private investigators getting access to private data, forget it! The 'only' agency that I know of that did not need a warrant was the WA Industrial Relations Department inspectors in regard to wage records; even the police HAD to get a warrant to obtain the same private and confidential material and that was BEFORE the Privacy Act came into effect.
Even if (and that is a BIG if) they got such records it still does not negate the fact that people are: 1) entitled to live away from their PPOR for however long they like; 2) Having a small power, water and gas bill is NOT evidence that it is not his PPOR, rather it is evidence that his bills are small and nothing more than that; 3) Suspicion is NOT proof that it is NOT his PPOR; 4) It is still the law that they have to PROVE the facts alleged before his has to provide a defence.
The Vic "SRO gathers information via the public [dobbed in], data-matching [from public records; this does NOT include private company records unless under a warrant**] and other sources to ensure recipients of the Grant comply with the 6 month residence requirement." http://www.sro.vic.gov.au/SRO/sronav.nsf/childdocs/-6BF180369BCB3975CA2575A1004420CF-FFEFCD2ABA129376CA2575CB0001A2F0?open
** We would all be happy to be enlightened as to what power the Vic SRO has to be able to gather private document without a warrant?? The same goes for private investigators', who I understand are private citizensThe Vic SRO also defines:
"Principal Place of Residence [as]…
The home you primarily reside in. This home must be occupied by an applicant for a continuous period of at least six months commencing within 12 months of the completion of the eligible transaction."
http://www.sro.vic.gov.au/SRO/sronav.nsf/childdocs/-6BF180369BCB3975CA2575A1004420CF-8024A4ADFB9DAED9CA2575A1004420DC-517A6BE594B53E7FCA2575CB0000A442?openThe definition states that it is:
A…."the home that you primarily reside in….[and]
The home must be occupied by the applicant;
C) …for a continuous period of …six months….
D) …commencing within 12 months of the eligible transaction [either settlement or completion of construction] with each of the 4 items being required to be met.
So;
1) "Primarily' means "essentially; mostly; chiefly; principally, mainly": It does not mean 100% of the time; at best that might mean 50% of the time.
2) 'Occupied' means "To dwell or reside in; To hold or fill (an office or position); To seize possession of and maintain control over".
'Occupied' includes dwell in or reside in or hold the property or to seize possession or to maintain control over'. No where does it say that the application must ONLY reside in the said property or for what % of time would be considered a minimum requirement.
3) 'By the applicant'. This does not mean that he can be the only occupant of the property.
4) 'for a continuous period of 6 months; self explanatory and
5) This period of 6 months can 'start' at any time within 12 months…In a nut shell, as long as you lived in the house and did not rent or lease it out to a 3rd party and you maintained control over the property for 6 months, starting no later than 12 maths after settlement/completion then there is no way that there is any requirement to solely reside in the house and nowhere else AND to rack up bills that some party considers to be 'normal usage'.
What is 'normal uage' anyway? Is that for one person or for a family of 6? Is that for one guy or a house full of childern that spend hours racking up water and hot water bills by taking long, hot showers? {I shared a house with 3 guys with an 'average power bill. One of the guys had his daughter visiting 2 days a week plus every other weekend for 3 months; the power, water and gas bills doubled with just that one 7 year old child beccause she would stand under the hot shower, twice a day for 30 minutes at a time.}The onus remains on the Vic SRO to PROVE their case.
Haven't you heard of data sharing? Are you telling me the ATO needs to get a warrant to get your interest details from a bank, or from centrelink?
I used to be in the AFP. You can't imagine how many checks are done everyday such as telephone subscribers, electricity checks. No warrant is needed for these.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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This is not the ATO nor the AFP, its the Vic SRO and in every case they need a prima faca case of wrong doing before they can get access to private data. Are you saying that you accessed personal data without a warrant such as phone records, power/water/gas bills? And data sharing/matching only relates to sharing of data between govt departments and not private companies.
Even the AFP is restricted in what they can and cannot access. I refer you to Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). The TIA Act generally prohibits interception of telecommunications. The main exception to this prohibition is interception under a warrant. Under sections 46, 46A and 48 of the TIA Act a telecommunication interception warrant, a named person warrant and a warrant for entry on premises can only be granted for investigations of serious offences as defined in section 5D.
The Vic Information Privacy Act 2000 – SECT 9 shows that privacy must not be violated by a Govt department or its agents (including outsourceing [private investigators]).
http://www.austlii.edu.au/au/legis/vic/consol_act/ipa2000231/index.html
Application of Act 9. Application of Act (1) This Act applies to- (a) a Minister; (b) a Parliamentary Secretary, including the Parliamentary Secretary of the Cabinet; (c) a public sector agency; (d) a Council; (e) a body established or appointed for a public purpose by or under an Act; (f) a body established or appointed for a public purpose by the Governor in Council, or by a Minister, otherwise than under an Act; (g) a person holding an office or position established by or under an Act (other than the office of member of the Parliament of Victoria) or to which he or she was appointed by the Governor in Council, or by a Minister, otherwise than under an Act; (h) a court or tribunal; (i) the police force of Victoria; (j) a contracted service provider, but only in relation to its provision of services under a State contract which contains a provision of a kind referred to in section 17(2);
There are exceptions of course: ie. Law enforcement by a law enforcement 'agency' [as defined under he Act].Information Privacy Act 2000 - SECT 13
Law enforcement 13. Law enforcement It is not necessary for a law enforcement agency to comply with IPP 1.3 to 1.5, 2.1, 6.1 to 6.8, 7.1 to 7.4, 9.1 or 10.1 if it believes on reasonable grounds that the non-compliance is necessary- (a) for the purposes of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or (b) for the enforcement of laws relating to the confiscation of the proceeds of crime; or (c) in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or (d) in the case of the police force of Victoria, for the purposes of its community policing functions.
IPP means Information Privacy Principle; law enforcement agency means- (a) the police force of Victoria or of any other State or of the Northern Territory; or (b) the Australian Federal Police; or (c) the Australian Crime Commission; or (d) the Commissioner appointed under section 8A of the Corrections Act 1986; or (e) the Business Licensing Authority established under Part 2 of the Business Licensing Authority Act 1998; or (f) a commission established by a law of Victoria or the Commonwealth or of any other State or a Territory with the function of investigating matters relating to criminal activity generally or of a specified class or classes; or (fa) the Chief Examiner and Examiners appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004; (fb) the Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004; (g) an agency responsible for the performance of functions or activities directed to- (i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction for a breach; or (ii) the management of property seized or restrained under laws relating to the confiscation of the proceeds of crime or the enforcement of such laws, or of orders made under such laws; or (h) an agency responsible for the execution or implementation of an order or decision made by a court or tribunal, including an agency that- (i) executes warrants; or (ii) provides correctional services, including a contractor within the meaning of the Corrections Act 1986, or a sub-contractor of that contractor, but only in relation to a function or duty or the exercise of a power conferred on it by or under that Act; or (iii) makes decisions relating to the release of persons from custody; or (i) an agency responsible for the protection of the public revenue under a law administered by it;
You will note that the party must believe "on reasonable grounds" (s13) that non complienance is necessary.
This is the main point; it is NOT reasonable for a party to assume wrong doing based on the low level of spending of a power/water
or gas bill, without taking into account the circumstances of the person concerned. An assumption has been that every person
MUST fit into a 'normal' level of spending.
To access private data without 'reasonable grounds' is a breach of the Vic Infomation Act 2000.
As to the method of collecting private data, the Information Privacy Act 2000 - SCHEDULE 1 requires that private data be collected
from the individual concerned [s1.4]. Only then can it seek info from another person, after first informing the individual the 'must take reasonable steps to ensure that the individual is or has been made aware of the matters...' [s1.5].
1. Principle 1-Collection 1.1. An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities. 1.2. An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way. 1.3. At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of- (a) the identity of the organisation and how to contact it; and (b) the fact that he or she is able to gain access to the information; and (c) the purposes for which the information is collected; and (d) to whom (or the types of individuals or organisations to which) the organisation usually discloses information of that kind; and (e) any law that requires the particular information to be collected; and (f) the main consequences (if any) for the individual if all or part of the information is not provided. 1.4. If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual. 1.5. If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters...
On the facts presented, it does not appear that the individual has been given the opportunity to provide the infomation required before
the Govt department obtained private infomation from a private power/water/gas company (without or without a warrant).
Neither have they taken 'reasonable steps to ensure the individual was made aware of the matters'.
Putting the failure of the Vic SRO to abide by the Infomation Act 2000 to one side for the moment, the clerk conducting this
matter has failed to look at the personal circumstances of the before seeking infomation of an alledged offence.
Even assuming the Act was no breached (which I contend has been breached), there is no evidence that the property was not
and is not still "...occupied by an applicant for a continuous period of at least six months..."
Stick to your guns then when the dust settles, look at lodging a formal complaint for breachs of the Act.
his
Colin,
Yes when i was in the AFP I obtained personal records such as electricity, telephone etc from the providers without a search warrant. This sort of information is requested by filling in a short form and stating what sort of offence you are investigating. Some requests may need to be signed by an authorise officer.
A warrant would be need to intercept telecommunications or to record conversations by listening device etc (state legislation).
Getting back to the SRO, this is a state taxation authority and they would have powers under the Taxation Administration (or similar). This is a State based act which would authorise information sharing. The electricity provider would also be allowed under the privacy acts to release information to a government department to assist in the investigation of a revenue offence.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You have it in a nut-shell…a "revenue offence". No such 'alledged' offence has been or could have been reasonable arrived at.
Just being a state revenue service does NOT negate the requirements of that office to first seek the infomation from the 'alledged offender' or to advise him that the infomation is to be obtained from a 3rd party. The Vic SRO MUST first seek the info from the individual.
It appears that the Vic SRO obtains private info as a matter of course without first contacting the person concerned, a clear breach of the Act.Only AFTER the Vic SRO has the details in front of them could they every come to a conclusion that an 'offence' has/could have/might have been committed. They are not entitled to go on a fishing trip.
Assuming the Act was not breached (which I contend has been breached), there is no evidence that the property was not
and is not still "…occupied by an applicant for a continuous period of at least six months…" being based on an inaccurate assumption (being the level of power/water/gas bills) that everybody must spend the same amount for every house no matter how many people live there or their personal life style or working situations.Stick to your guns ,then when the dust settles, look at lodging a formal complaint for breachs of the Act.
Hang on, I think when an audit is conducted the SRO would write to the individual and to request them to provide them with documents such as electricity notices, drivers licence, etc. So the individual could have provided these documents to the SRO.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Agreed.
Remember, there appears to be no evidence that the property was not and is not still "…occupied by an applicant for a continuous period of at least six months…" being based on an inaccurate/false assumption (being the level of power/water/gas bills) that everybody must spend the same amount for every house no matter how many people live there or their personal life style or working situations.
Hello Jules76
Are you out there????
Seems your post has been attacked by para legal terrorists.
Out of all this, I hope you got what you needed.Contact SRO and tell them to blow it out their ass!
Tell them to prove it or stop harassing you.
Get everything in writing and carry on with your life.Ian
http://theblockblog.com
Free Property Investment Information, Tools & Resources for Investors with a Sense of Humour.sapphire101 wrote:Contact SRO and tell them to blow it out their ass!Haha – I like your straight forward approach Ian.
Cheers
Jamie
Jamie Moore | Pass Go Home Loans Pty Ltd
http://www.passgo.com.au
Email Me | Phone MeMortgage Broker assisting clients Australia wide Email: [email protected]
hi JULES76 ,could you let me knoe how u go in ur case?as im in the same situation as you .stress stress
The home must be occupied by the applicant;
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