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redundant and outdated laws relating to matters such as: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been superseded by the introduction of the New Business Tax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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