For the sitting period 16-27 June 1997
DELEGATED LEGISLATION
A notice of intention was given on 23 June, not to withdraw a
disallowance motion under standing order 78, but to amend it by
means of a letter under standing order 77. The notice, given by
Senator Margetts, related to migration regulations, and had not
been dealt with at the end of the period of sittings. The reason
for the notice of intention was that Senator Margetts wished to
narrow the scope of the disallowance motion so that it did not
cover some regulations initially caught by it. Such an amendment to
a disallowance motion, either before or after it is moved, is
permissible because the resulting motion meets the statutory time
limit for giving notice in that the regulations caught by the
amended motion are also caught by the initial notice. An amendment
which expands the scope of a disallowance motion is not permissible
unless the time for giving notice has not passed, because extending
a motion to regulations not covered by the initial notice would
mean that the statutory requirement for giving notice would not be
met. An amendment of a notice to reduce its scope, however, should
not be made without an opportunity for another senator, who may
have been intending to support the disallowance of regulations
excluded from the notice by the amendment, to object to the
amendment. Thus the notice of intention to amend, a procedure which
has not been employed hitherto.
There has been something of a growth in motions for disallowance
not arising from the scrutiny of the Regulations and Ordinances
Committee. This probably reflects the inclusion in regulations of
major policy matters. The following significant instruments of
delegated legislation were disallowed by the Senate during the
period:
- regulations making very large increases in High Court fees, on
19 June
- social security guidelines relating to access to benefits by
newly arrived residents, on 25 June
- workplace relations regulations, relating to unfair dismissal,
on 26 June.
The Regulations and Ordinances Committee made two significant
statements on 23 June, again asserting its right to scrutinise
delegated legislation made by the judiciary, in the context of
certain High Court rules, and setting out its continuing problems
with the Legislative Instruments Bill. This bill is designed to
overhaul the system for making delegated legislation, and it
remains unfinalised.
LEGISLATIVE SCRUTINY COMMITTEES
Apart from its statements on its scrutiny of particular
delegated legislation instruments, the Regulations and Ordinances
Committee presented on 25 June its annual report, its report
relating to its work during the autumn and winter sittings and a
statement about its scrutiny of explanatory memorandums. The
Scrutiny of Bills Committee presented, also on 25 June, its report
on its work during the Parliament of 1993-1996. These substantial
reports record the very significant scrutiny of legislation
conducted by these two committees, which has a major impact on the
shape of primary and delegated legislation, and most of which is
not reflected in the proceedings in the Senate chamber.
ORDERS FOR PRODUCTION OF DOCUMENTS
The end of the winter period of sittings was marked by something
of a flurry of activity in relation to orders for production of
documents.
A report in response to an order made in September 1996 was
tabled on 17 June. This order was unusual in requiring the minister
to refer a matter to the Australian Securities Commission and the
production of a report by the Commission (see Bulletin 107, p. 1).
The order related to the affairs of King Island Dairy Products Pty
Ltd.
In relation to two orders for copies of reports made to
government, the government declined to produce the reports on the
last day of sittings, leaving no time for the Senate to follow up
on the refusals. One order, made on 25 June, related to a report by
consultants on the social security system. The other order, made on
26 June, related to a report on the workings of legislation on
tobacco advertising; while declining to produce this report, the
government promised to provide a full response to a Senate
committee report on the subject.
An order made on 26 June was more successful in securing the
production on the following day of documents relating to
predictions of the greenhouse effect and the impact of greenhouse
gas emissions restrictions.
PARLIAMENTARY PRIVILEGE
The Privileges Committee received a reference on 26 June
relating to the statutory terms of reference of the Joint Committee
on the National Crime Authority. The reference follows a dispute in
the committee arising from its examination of the operations of the
National Crime Authority. Having heard evidence from two persons
concerning investigations and prosecutions of them by the
Authority, the majority of the committee attempted to prevent
Senator Conroy cross-examining those persons on the basis of
records of interview made by the Authority and produced during the
prosecutions. Senator Conroy subsequently quoted the records of
interview during debate in the Senate, thereby achieving his aim of
counteracting the evidence of the witnesses before the committee.
The reference raises again the question of the relationship between
statutory secrecy provisions, particularly those relating to the
NCA, and the law of parliamentary privilege (See Odgers'
Australian Senate Practice, 7th ed, electronic update, pp
43-7).
LEGISLATION CONSIDERED
In the last two weeks of the winter sittings there was a heavy
concentration on legislation, and several highly controversial
bills were the subject of hasty, last-minute proceedings.
The Constitutional Convention (Election) Bill 1997, to provide
for a convention to consider the republic issue, was extensively
amended by the Senate on 18 and 19 June, principally to substitute
a compulsory attendance election for the government's proposed
voluntary postal ballot. The government refused to accept the
amendments, but the Senate insisted on them on 24 June. That
occasion prompted a statement by the Chair of Committees, Senator
West, on the effect of equally divided votes on motions to
determine whether amendments are to be insisted on (see Odgers'
Australian Senate Practice, 7th ed, electronic update, p.
264); this contingency, however, did not eventuate, as the
amendments were insisted upon by a majority. The bill remained
unresolved at the end of the period, and on 26 June the opposition
and the Democrats introduced a bill to provide for an indicative
referendum on the question of a republic.
The Customs and Excise Legislation Amendment Bill (No. 2) 1996,
relating to the diesel fuel tax rebate, was finally passed on 17
June and the amendments made by the Senate accepted by the
government.
The government's Reform of Employment Services Bill 1996,
dealing with competition in employment services, was the subject of
prolonged consideration and extensive amendment on 16 and 17 June,
but the government then dropped it down the order of government
business and did not return to it.
The Bounty Legislation Amendment Bill 1997, designed to carry
out the government's policy of terminating certain bounties, was
significantly amended in the Senate by the government on 20 June
after representations concerning some of the bounties, but was
further amended by the non-government parties, principally in
relation to books and computers. The government had a hold over the
Senate, in that the significant ship bounty would not continue
without the bill. The final result in relation to the bill, on the
last day of the sittings, was something of a compromise, with the
government agreeing to continue the book bounty.
The Aged Care package of bills was considered at great length
and extensively amended on 25 and 26 June; the Senate's amendments
were substantially accepted by the government when the bill was
finalised on the last day.
The highly controversial Social Security Legislation Amendment
(Work for the Dole) Bill 1997 surprisingly was eventually passed
without substantial amendment, mainly because of a disagreement
between the opposition and the Democrats as to the amendments which
should be made.
The Veterans' Affairs Legislation Amendment (1996-97 Budget and
Other Measures) Bill 1997 was substantially amended on 26 and 27
June and, although the government rejected the amendments in the
House of Representatives on the last day, the bill remained
unresolved when the Senate rose.
On two occasions the Chair of Committees made statements
concerning aberrations in government amendments drafted as
requests. The first bill concerned, the Tax Law Improvement Bill
1997, considered on 26 June, was amended by the government in the
House of Representatives to remove provisions which had the effect
of imposing substantial amounts of taxation on transactions not
previously subject to tax. The government then sought, by way of
request, to reinstate those provisions in the Senate. The Chair
pointed out that this had the effect of initiating an imposition of
taxation in the Senate contrary to section 53 of the Constitution.
The requests for amendments were agreed to, indicating once again
that violations of section 53 are accepted in the House of
Representatives when they are initiated by the government, while
other amendments which should not be requests are objected to when
they come from the non-government parties. The second bill, the
Taxation Laws Amendment Bill (No.1) 1997, considered on 27 June,
provided another example of government amendments presented as
requests notwithstanding that the explanatory memorandum
accompanying the amendments indicated that they had no financial
impact. It was fortunate for the government that the Chair
converted their requests to amendments, because the bill was the
subject of final proceedings at the very end of the last sitting
day, with the Senate not insisting on some of its amendments.
Amongst significant legislation remaining unresolved at the end
of the period was the package of bills relating to the
Auditor-General. It appears that there is still disagreement about
the provision allowing the government to issue a binding
certificate concerning matters not to be included in
Auditor-General's reports (see Bulletin No. 114, pp 4-5).
COMMITTEES
The following committee reports were presented during the
period:
Date tabled |
Committee |
Title |
16.6 |
Foreign Affairs, Defence and Trade References |
Report—Australian Government's Provision of
Consular Assistance |
" |
Community Affairs Legislation |
Report—Social Security Legislation Amendment
(Work for the Dole) Bill 1997 |
" |
Community Affairs Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Foreign Affairs, Defence and Trade References |
Documents—Role and Future of Radio Australia
and Australia Television |
" |
Employment, Education and Training
Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Native Title and the Aboriginal and Torres Strait
Islander Land Fund |
8th Report—Annual Reports |
16.6 |
Economics Legislation |
Report—Taxation Laws Amendment Bill (No. 3)
1997 |
" |
Native Title and the Aboriginal and Torres Strait
Islander Land Fund |
9th Report—National Native Title Tribunal
Annual Report |
" |
Superannuation |
24th Report—Taxation Laws Amendment Bill
(No. 3) 1997 |
18.6 |
Scrutiny of Bills |
8th and 9th Reports and Alert Digest No. 8 of
1997 |
" |
Economics Legislation |
Report—Excise Tariff Amendment Bill (No. 1)
1997 |
19.6 |
Appropriations and Staffing |
Report—Parliamentary Departments Proposed
Amalgamation |
" |
Legal and Constitutional Legislation |
Report—Administrative Review Council |
" |
Employment, Education and Training
Legislation |
Report—Estimates 1997-98 |
" |
Finance and Public Administration Legislation |
Report—Estimates 1997-98 |
" |
Rural and Regional Affairs and Transport
Legislation |
Report—Estimates 1997-98 |
" |
Community Affairs Legislation |
Report—Estimates 1997-98 |
" |
Economics Legislation |
Report—Estimates 1997-98 |
" |
Environment, Recreation, Communications and the
Arts Legislation |
Report—Estimates 1997-98 |
" |
Foreign Affairs, Defence and Trade
Legislation |
Report—Estimates 1997-98 |
" |
Legal and Constitutional Legislation |
Report—Estimates 1997-98 |
" |
Community Affairs References |
Report—Aged Care Institutions |
23.6 |
Environment, Recreation, Communications and the
Arts Legislation |
Report—Reference of Petitions |
" |
Regulations and Ordinances |
Statements by Chairman |
" |
Rural and Regional Affairs and Transport
Legislation |
Additional Information—Additional Estimates
1997-97 |
" |
Community Affairs Legislation |
Report—Australia New Zealand Food Authority
Amendment Bill 1996 and Australia New Zealand Food Authority
Amendment Bill (No. 2) 1997 |
25.6 |
Foreign Affairs, Defence and Trade
Legislation |
Report—Annual Reports |
" |
Foreign Affairs, Defence and Trade
Legislation |
Additional Information—Budget Estimates
1996-97 |
25.6 |
Legal and Constitutional Legislation |
Report—Annual Reports |
" |
Regulations and Ordinances |
104th Report |
" |
Regulations and Ordinances |
Statements by Chairman |
" |
Scrutiny of Bills |
10th Report and Alert Digest No. 9 of 1997 |
" |
Scrutiny of Bills |
Report—Work of the Committee May 1993-March
1996 |
" |
Corporations and Securities |
Report—Annual Reports |
" |
Employment, Education and Training References |
Report—Private and Commercial Funding of
Government Schools |
26.6 |
Legal and Constitutional References |
Report—Australian Legal Aid
System—Second Report |
" |
Community Affairs References |
Report—Access to Medical Records |
" |
Legal and Constitutional Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Community Standards Relevant to the Supply of
Services Utilising Electronic Technologies |
Report—Regulation of Computer On-line
Services: Part 3 |
" |
Corporations and Securities |
Issues Paper—Securities Markets in an
Electronic Age |
" |
Appropriations and Staffing |
Document—Parliamentary Departments Proposed
Amalgamation |
" |
Legal and Constitutional Legislation |
Report—Human Rights Legislation Amendment
Bill 1996 |
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Ph: (02) 6277 3364