Scrutiny of Bills Alert Digest No. 3 of 1998

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

25 March 1998

ISSN 1329-668X

MEMBERS OF THE COMMITTEE

Senator B Cooney (Chairman)

Senator W Crane (Deputy Chairman)

Senator J Ferris

Senator S Macdonald

Senator A Murray

Senator J Quirke

TERMS OF REFERENCE

Extract from Standing Order 24

(1) (a) At the commencement of each Parliament, a Standing Committee for the Scrutiny of Bills shall be appointed to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

(b) The Committee, for the purpose of reporting upon the clauses of a bill when the bill has been introduced into the Senate, may consider any proposed law or other document or information available to it, notwithstanding that such proposed law, document or information has not been presented to the Senate.

CONTENTS

Child Support Legislation Amendment Bill 1998

Genetic Privacy and Non-discrimination Bill 1998

Health Legislation Amendment (Health Care Agreements) Bill 1998

International Monetary Agreements Amendment Bill 1998

Native Title Amendment Bill 1997 [No. 2]

Parliamentary Service Bill 1997 [No. 2]

Social Security and Veterans' Affairs Legislation Amendment (Retirement Assistance for Farmers) Bill 1998

Child Support Legislation Amendment Bill 1998

This bill was introduced into the House of Representatives on 12 March 1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Child Support (Assessment) Act 1989 to:
- modify the child support administrative formula;
- limit the disclosure of information relating to children of a parent on the notice of assessment;
- provide for a $260 minimum annual rate of child support;
- modify the effect of care arrangements on assessments;
- provide that the starting date of liability for applications for administrative assessment will be the date the application is made to the Registrar;
- allow a person in receipt of more than the minimum rate of Family Allowance to elect to end their administrative assessment where approval has been granted by the Secretary to the Department of Social Security;
- modify the date of effect of information provided to or obtained by the Registrar;
- allow clients to object to decisions made by the Registrar;
- allow both parents to be involved and to participate in the assessment departure process;
- modify the income on which a child support liability is raised;
- enable child support assessments to be calculated using the most current taxable income available for each parent;
- allow a person to lodge an income estimate election up to 31 July following the end of the child support year, and to allow the Registrar to reject an income estimate election where satisfied it does not accurately reflect the person's financial circumstances;
- provide that either parent can apply for a child support assessment; and
- make corrections to out of date or incorrect references;
Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 to:
- enable a carer to apply for a child support assessment to continue to the end of the school year in which a full-time secondary student turns 18; and
- modify the manner in which information must be provided to the Registrar;
Child Support (Registration and Collection) Act 1988 to:
- allow the Registrar to request the Secretary to the Department of Social Security to make deductions from social security pensions or benefits to be applied towards child support liabilities;
- allow parties to move to private collection by agreement at any time;
- require parties to move to private collection in certain circumstances where the Registrar is satisfied that regular payments would be likely to continue;
- allow the Registrar to hold money collected from a payer in certain circumstances;
- allow debts between two persons who owe child support in respect of their children to be offset;
- enable paying parents to elect to pay their child support in accordance with a nominated period rather than having to pay a monthly amount by the seventh of each month; and
- ensure that a liability arising out of a paying parent's application will not be registered for collection until the eligible carer applies to the Registrar to have it collected; and
Social Security Act 1991 to:
- enable deductions to be made from social security pensions and benefits where requested by written notice from the Registrar; and
- ensure that 50 per cent of any child maintenance paid by a paying parent will be deducted from their Family Allowance income when calculating entitlement to Family Allowance.

The committee has no comment on this bill.

Genetic Privacy and Non-discrimination Bill 1998

This bill was introduced into the Senate on 11 March 1998 by Senator Stott Despoja as a Private Senator's bill.

The bill proposes to:

protect the genetic privacy of individuals and makes genetic discrimination unlawful;
define the circumstances in which genetic information and DNA samples may be collected, stored, analysed and disclosed;
outlines the rights and responsibilities of individuals and persons with respect to genetic information; and
establishes mechanisms to enforce these rights and responsibilities.

Commencement

Clause 2

Clause 2 of this Bill will permit the whole Bill to commence on Proclamation. No provision is made for automatic commencement or repeal at a particular time.

With respect to commencement provisions, the committee has placed importance on the Office of Parliamentary Counsel Drafting Instruction No 2 of 1989. The Drafting Instruction provides, in part:

3. As a general rule, a restriction should be placed on the time within which an Act should be proclaimed (for simplicity I refer only to an Act, but this includes a provision or pr

ovisions of an Act). The commencement clause should fix either a period, or a date, after Royal Assent, (I call the end of this period, or this date, as the case may be, the 'fixed time'). This is to be accompanied by either:

(a) a provision that the Act commences at the fixed time if it has not already commenced by Proclamation: or

(b) a provision that the Act shall be taken to be repealed at the fixed time if the Proclamation has not been made by that time.

4. Preferably, if a period after Royal Assent is chosen, it should not be longer than 6 months. If it is longer, Departments should explain the reason for this in the Explanatory Memorandum. On the other hand, if the date option is chosen, [the Department of the Prime Minister and Cabinet] do not wish at this stage to restrict the discretion of the instructing Department to choose the date.

5. It is to be noted that if the 'repeal' option is followed, there is no limit on the time from Royal Assent to commencement, as long as the Proclamation is made by the fixed time.

6. Clauses providing for commencement by Proclamation, but without the restrictions mentioned above, should be used only in unusual circumstances, where the commencement depends on an event whose timing is uncertain (eg enactment of complementary State legislation).

The committee notes that paragraph 6 of Drafting Instruction No. 2 of 1989 suggests that clauses providing for commencement by Proclamation, with no other restrictions as to time of commencement, should be used only in unusual circumstances, where commencement depends on an event whose timing is uncertain. The committee further notes that there is no indication in the explanatory memorandum of the reason for adopting a provision in this form.

Accordingly, the Committee seeks the advice of the Senator on the reason for choosing the mechanism in clause 2.

Pending the Senator's advice, the committee draws Senators' attention to the provision, as it may be considered to delegate legislative power inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

Health Legislation Amendment (Health Care Agreements) Bill 1998

This bill was introduced into the House of Representatives on 12 March 1998 by the Minister for Health and Family Services. [Portfolio responsibility: Health and Family Services]

The bill proposes to amend the Health Insurance Act 1973 and National Health Act 1953 to enable the Commonwealth to enter into agreements with the States and Territories, to be known as Australian Health Care Agreements, for the provision of designated health care services for eligible people from 1 July 1998 to 30 June 2003.

Commencement

Subclause 2(3)

By virtue of subclause 2(3), items 2 and 13 of Schedule 1 to this bill will be taken to have been repealed if they have not been proclaimed to commence within 12 months of Assent. In this case, the drafter has used the “repeal” option as referred to in paragraph 5 of the Office of Parliamentary Counsel Drafting Instruction No. 2 of 1989.

In these circumstances, the committee makes no further comment on this bill.

International Monetary Agreements Amendment Bill 1998

This bill was introduced into the House of Representatives on 12 March 1998 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the International Monetary Agreements Act 1947 to:

enable the Treasurer, on behalf of Australia, to enter into agreements to lend money or enter into currency swaps in circumstances where the International Monetary Fund requests Australia to provide assistance in support of a Fund program and where at least one other country or organisation has provided or intends to provide assistance to the recipient country in response to a similar request; and
apply to agreements that meet the above conditions, made with the Republic of Indonesia or the Republic of Korea prior to the bill commencing.

The committee has no comment on this bill.

Native Title Amendment Bill 1997 [No. 2]

This bill was introduced into the House of Representatives on 9 March 1998 by the Attorney-General. The bill comprises the earlier bill, as amended and passed by the House of Representatives on 29 October 1997, and certain amendments made by the Senate and agreed to by the House. [Portfolio responsibility: Prime Minister]

The bill proposes to amend the following Acts:

Native Title Act 1993 to:
- deal with certain acts done on or before 23 December 1996 (the date of the High Court's decision in Wik) concerning the interaction between native title rights and the interests and other rights and interests in land or waters;
- confer new functions on representative Aboriginal/Torres Strait Islander bodies and deal with the selection, funding, accountability and administration of representative bodies;
- explain how the new future acts processes will apply to processes already underway when the amendments commence, what will happen to applications already made to the NNTT and the Federal Court and how the new registration test will apply to claims already on the Register of Native Title Claims; and
- list historic and current leases considered, on the basis of common law, to confer exclusive possession on the grantee and therefore extinguish native title; and
Native Title Act 1993, Federal Court of Australia Act 1976 and Human Rights and Equal Opportunity Commission Act 1986 to:
- explain how applications concerning native title issues are to be made and dealt with by the Federal Court, the NNTT and State or Territory bodies which have been approved under the Native Title Act 1993 in relation to applications about native title matters; and
- amend the way in which the Register of Native Title Claims and the National Native Title Register are to be kept and, in particular, the new registration test that is to be applied to claims for native title.

This Bill is the same, in all relevant respects, as the Bill introduced into the House of Representatives on 4 September 1997, and on which the Committee commented in Alert Digest No 12 of 1997. The committee will follow up a letter forwarded to the Prime Minister on 25 September 1997 seeking a response. For the information of Senators, the comments from Alert Digest No. 12 of 1997 are repeated below.

Extract from Alert Digest No. 12 of 1997Commencement by Proclamation/effluxion of time

Subclauses 2(2) to (6)

Subclauses 2(2) to (6) of this bill provide that the substantive amendments made by the bill will commence at various times after Royal Assent. The subclauses state:

(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to be fixed by Proclamation.

(3) If Part 1 of Schedule 3 does not commence within the period of 9 months beginning on the date on which this Act receives the Royal Assent, that Part commences on the first day after the end of that period.

(4) Part 2 of Schedule 3 commences:

(a) on the first day after the end of the period of 12 months after the commencement of Part 1 of Schedule 3; or

(b) if, before the end of that period, a later day is fixed by Proclamation—on that later day.

(5) Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(6) If a provision referred to in subsection (5) does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period.

With respect to commencement provisions, the committee has placed importance on the Office of Parliamentary Counsel Drafting Instruction No. 2 of 1989. The Drafting Instruction provides, in part:

3. As a general rule, a restriction should be placed on the time within which an Act should be proclaimed (for simplicity I refer only to an Act, but this includes a provision or provisions of an Act). The commencement clause should fix either a period, or a date, after Royal Assent, (I call the end of this period, or this date, as the case may be, the 'fixed time'). This is to be accompanied by either:

(a) a provision that the Act commences at the fixed time if it has not already commenced by Proclamation: or

(b) a provision that the Act shall be taken to be repealed at the fixed time if the Proclamation has not been made by that time.

5. It is to be noted that if the 'repeal' option is followed, there is no limit on the time from Royal Assent to commencement, as long as the Proclamation is made by the fixed time.

With respect to subclauses (3) and (6), the committee notes that paragraph 4 of the Drafting Instruction is applicable. The explanatory memorandum does not appear to give a reason for using a nine month period rather than a 6 month period for automatic commencement.

With respect to subclause (4), the committee notes that the explanatory memorandum at paragraph 1.13 suggests that the change from the present system for recognising and regulating representative bodies to the new system will need a transition period sufficiently long to enable the necessary preparatory work to be completed. The mechanism chosen, however, will result in a date for commencement that is not limited to any particular time. Paragraph 6 of the Drafting Instruction suggests that such a method should be used only in unusual circumstances.

The committee, therefore, seeks the advice of the Minister on the reasons for choosing the mechanisms in subclauses 2(3), (4) and (6).

Pending the Minister's advice, the committee draws Senators' attention to the provisions, as they may be considered to delegate legislative power inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

Vicarious liability and reversal of the onus of proof
Subclause 203FH(4)

Subclause 203FH(4) provides:

(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.

This subclause, if enacted, would impose vicarious liability on a person for the criminal acts of his or her employee or agent. It would also put the onus of disproving liability on the principal by requiring that person to establish that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

The committee has been prepared to accept the imposition of criminal liability on the manager/directors of a company for the acts of a company as they constitute the effective mind and heart of the company. The company, in effect, thinks and makes decisions through them. Different considerations, however, apply where vicarious liability for the acts of other persons is imposed on an employer or principal who is a natural person.

The primary issue is whether imposing criminal liability vicariously on an employer who is a natural person unduly trespasses on that person's personal rights and liberties. Accordingly, the committee seeks the Minister's advice on this matter.

Pending the Minister's advice, the committee draws Senators' attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

The Committee reiterates its comments in relation to this Bill.

Pending the Prime Minister's advice, the committee draws Senators' attention to the provisions, as they may be considered to delegate legislative power inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference and also may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

Parliamentary Service Bill 1997 [No. 2]

This bill was introduced into the House of Representatives on 10 March 1998 by the Speaker. This bill is identical to the bill, as amended and passed by the House of Representatives on 30 October 1997. [Portfolio responsibility: Prime Minister]

The bill proposes to provide for the establishment and administration of the Australian Parliamentary Service.

The committee has no comment on this bill.

Social Security and Veterans' Affairs Legislation Amendment (Retirement Assistance for Farmers) Bill 1998

This bill was introduced into the House of Representatives on 11 March 1998 by the Minister representing the Minister for Social Security. [Portfolio responsibility: Social Security]

The bill proposes to amend the Social Security Act 1991 and Veterans' Entitlements Act 1986 to establish the Retirement Assistance for Farmers Scheme (to operate until 14 September 2000) to enable pension age farmers, veterans and their partners to transfer their farm and farm assets, up to a maximum of $500,000, to the next generation without affecting their access to the age pension and Veterans' Affairs income support payments, respectively.

Retrospectivity Clause 2

By virtue of clause 2, this Bill will be deemed to have commenced on 15 September 1997. It seems to the Committee, however, that the retrospectivity will not disadvantage any person. The purpose of this retrospectivity is to provide benefits in relation to social security payments and Veterans' Affairs allowances to those who can show a long term involvement in farming. Therefore, the committee merely notes this retrospectivity.

In these circumstances, the committee makes no further comment on this bill.

Scrutiny of Bills Alert Digest No. 3 of 1998