Bills Digest no. 48 2009–10
Statute Stocktake (Regulatory and Other Laws) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date introduced: 24 June 2009
House: Representatives
Portfolio: Finance and Deregulation
Commencement: The Act commences on the day after Royal Assent.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
To amend or
repeal Acts which have been identified in a 2008 stocktake of Commonwealth
regulation as containing redundant provisions.
In a press release issued on 24 June 2009, the Minister for
Finance and Deregulation stated that the Statute Stocktake (Regulatory and
Other Laws) Bill 2009 ‘includes the removal of redundant and outdated laws relating
to matters such as:
- protection for consumers from price exploitation during the
changeover to the GST;
- obligations on digital data service providers to provide services
now overtaken by technological advances; and
- the Income Tax (Franking Deficit) Act 1987, which had been
superseded by the introduction of the New Business Tax System (Franking
Deficit Tax) Act 2002’.[1]
He further stated that ‘relieving businesses and consumers
of the burden of inappropriate, ineffective or unnecessary regulation will
build Australia’s productive capacity and create a stronger economy’.[2]
In a speech given in the House of Representatives on 17
March 2008, the Minister for Finance and Deregulation, the Hon Lindsay Tanner
MP outlined the Government’s ‘Best Practice Regulation Requirements’. He stated that the deregulation agenda was considered a key element in the
Government’s plan to increase Australia’s productivity. As part of the agenda,
the Minister stated that work was already underway in undertaking a stocktake
of existing regulation in order to determine any ‘unnecessarily burdensome or
ineffectual regulation’.[3]
On 12 October 2005, the former Coalition Government
announced the appointment of a taskforce ‘to identify practical options for
alleviating the compliance burden on business from Government regulation’.[4] The Taskforce delivered its report entitled ‘Rethinking Regulation’ in January 2006.[5] Gary Banks, Chairman of the taskforce and then Chairman of the Productivity
Commission, stated that:
The taskforce identified only a few regulations that were
clearly ‘redundant’, in the sense of having fallen into disuse or duplicating
an existing requirement. More regulations were assessed as not being justified
by the policy intent behind them. In some cases, poor regulatory design has
given rise to unintended or even perverse consequences. In others, the regulation
has become ineffective or unnecessary as circumstances have changed over time.
The upshot is that businesses continue to incur compliance costs for no good
reason.[6]
In March 2008, the Hon Lindsay Tanner MP stated that ‘the
Rudd Labor Government fully endorses the six principles of good regulatory
process identified by the 2006 Banks Taskforce on Reducing the Regulatory
Burden on Business’.[7] In addition he stated that:
These principles state that governments should not act to
address problems until a case for action has been clearly established. In
acting, governments need to consider the benefits and costs of a range of
feasible policy options and then select the one which provides the greatest
overall net benefit to the community. Effective guidance should be provided to
regulators and regulated parties about the regulation’s policy intent and
expected compliance requirements. Then there should also be mechanisms to
ensure regulation remains relevant and effective over time as well as effective
consultation with regulated parties at all stages of the regulatory cycle.[8]
According to the Department of Finance and Deregulation
website, the Government has given ‘cabinet-level status’ to deregulation and
two Ministers have been given the responsibility and ‘task of driving
reductions in the levels of business regulation’.[9] Some key elements of the agenda include:
- a strengthening of procedures that
means new or amended regulation will only be enacted where necessary and
at a minimum cost to business, non-profit organisations and consumers.
This includes maintaining and improving the best practice regulation
requirements. As well, a one-in-one-out principle has been introduced that
requires that in bringing forward new regulatory proposals, Ministers
identify other areas where regulation can be modified or removed to reduce
compliance costs for business, thereby addressing the cumulative burden of
regulation, and
- the introduction of a culture of
continuous improvement in regulatory activity that will be demonstrated by
the Government continually looking for opportunities to streamline
regulatory processes. [10]
The Statute Stocktake (Regulatory and Other Laws) Bill 2009
was not referred to a Committee.[11]
The Explanatory Memorandum
states that the Bill has no direct or indirect financial impact for the
Commonwealth. However, it is envisaged that the Bill will reduce costs to
business by removing the need to examine redundant legislation to determine its
applicability.[12]
Schedule
1—Amendments
Schedule 1 amends seventeen Acts. Item 1 repeals section
52 of the Australian Wine and Brandy Corporation Act 1980 because monies
received by the Commonwealth for charges and levies before commencement of the
Act have all been paid making the provision now redundant. Similarly, item 11 repeals section 22 of the Dairy Adjustment Act 1974 because
payments to the States under agreements have all been made making the provision
now redundant. Item 17 repeals section 22 of the Horticulture
Marketing and Research and Development Services (Repeals and Consequential
Provisions) Act 2000 which involved the payment of monies not paid before
the transfer day to a new industry service body Horticulture Australia Limited from
several existing bodies. All payments have now been paid.
Item 7 amends the Civil Aviation (Carriers’
Liability) Act 1959 to remove reference to the Montreal Protocol No.3 which
did not come into operation. Items 8 to 10 similarly repeal subsection
2(2), section 9, and subsections 11(1) and 13(1) of the Civil Aviation
(Carriers’ Liability) Amendment Act 1991 for the same reason. As the report
on unproclaimed legislation states:
According to the official database of the International Civil
Aviation Organisation, this Protocol currently has 21 ratifications. As the
Protocol has now been superseded by the 1999 Montreal Convention on Carriers’
Liability, it is unlikely to ever enter into force.[13]
Items 14 and 15 repeal Schedule 1 and its associated
commencement provisions of the Hearing Services and AGHS Reform Act 1997.
The Explanatory Memorandum states that Schedule 1 contained amendments as well
as transitional arrangements. The transitional arrangements have now taken
effect.[14] Item 16 provides that the repeal of these provisions does not affect the
amendments made by Schedule 1 to the Hearing Services Act 1991.
Part VB (price exploitation in relation to a new tax system)
and Part XIAA– (the new tax system price exploitation code) were inserted into
the Trade Practices Act 1974 by A New Tax System (Trade Practices
Amendment) Act 1999. Part VB prohibited price exploitation in relation to
the imposition of the GST. It allowed the Australian Competition and Consumer
Commission (ACCC) to monitor prices for a period before and after the
implementation of the GST. Part XIAA dealt with the New Tax System Price
Exploitation Code. The Bills Digest on the Bill stated that:
The limits on the Commonwealth's constitutional power mean
that whilst it can implement price monitoring in respect of goods sold by
corporations and prohibit price exploitation by corporations, it can't easily,
if at all, implement those measures in respect of goods sold by businesses
which are not run by corporations, i.e. sole traders and partnerships (usually
smaller businesses).
For that reason, it is proposed that the States and
Territories will be able to implement a uniform New Tax System Price
Exploitation Code, which will essentially give the ACCC the same powers and
functions as Part VB, but in respect of individuals rather corporations.[15]
Items 26 to 50 provide for the repeal of the
GST price exploitation provisions in the Trade Practices Act 1974 in Part
VB, Part XIAA, Part 2 of the Schedule and other consequential amendments.[16] Item 32 repeals Part VB of the Trade Practices Act 1974. Miller
in his Annotated Trade Practices Act comments on the provisions in Part VB as
follows:
Between July 1999 and 30 June 2002, the ACCC had a role in
ensuring that with the introduction of Australia’s goods and services tax, no
price exploitation occurred. Under this Part the ACCC was empowered to monitor
and deal with any such price exploitation. For each quarter during the three
year transition period the ACCC was required to report on its operations in
overseeing the introduction of the goods and services tax. In that period the
ACCC commenced proceedings in 11 cases and accepted enforceable undertakings in
55 cases. The Part now has little or no application.[17]
In 2008, the Government revoked the Digital Data Service
Provider Declaration 1999 (No.1). The ‘universal service regime is
currently set out in Part 2 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999, consisting of the universal service obligation
and the general and special digital data service obligation, known collectively
as the digital data service obligation (DDSO)’.[18]
The policy rationale for the decision was that there is now,
according to the instrument of revocation, a wide choice for consumers to
choose from various digital data services including Telstra. Services are more
effectively provided through these existing providers and government programs
than through a separate obligation on Telstra.[19] The explanatory statement to the revocation instrument stated that:
The revocation of the DDSO will result in the removal of
related regulatory and reporting burdens that applied to Telstra as a provider
for general and special digital data services. The measure will also lead to a
minor reduction in the Australian Communications and Media Authority’s (ACMA’s)
responsibility to monitor Telstra’s performance in meeting its digital data
obligations and to oversight and pay DDSO subsidies. The removal of the DDSO is
consistent with the Government’s policy to reduce unnecessary and superseded
regulation.[20]
Items 51 to 54 amend provisions of the Telecommunications
Act 1997 as they relate to digital data services. Items 51 repeals
paragraph 3(2)(b) which relates to a regulatory framework supportive of a specific
digital data capability and item 52 removes the definition of digital
data service provider from section 7. Item 53 repeals subsection 105(5) which
requires the Australian Media and Communications Authority (ACMA) to monitor
carriers and carriage service providers who provide digital data capability.
Items 55 to 69 repeal the definitions relating
to digital data services in subsection 5(2) of the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
Items 79 to 97 repeal provisions of the Act
that deal with the digital data service obligation. Item 84 repeals
Division 3 (digital data obligation), Division 8 (digital data providers),
Division 10 (digital data cost of digital data service providers) and Division
12 (regulation of digital data service charges) of Part 2 of the Act.
Schedule 2—Repeal of Acts etc.
Part 1 repeals Acts which no longer have any operation or
have been subsumed under the operation of another Act. For example the services
once controlled by the Acts listed in Items 2, 3, 6 and 8 are now
redundant as they are currently administered under the Home and Community
Care Act 1985.
Items 9 to 13 make consequential amendments in
relation to the Acts that have been repealed in Part 1.
Item 14 applies the repeal made by item 4 to any
other matters after 14 September 2006 while items 15—17 preserve any
residual operation of the Act which is repealed by item 4.[21]
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2784.
Moira Coombs
27 October 2009
Bills Digest Service
Parliamentary Library
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