Scrutiny of Bills Alert Digest No. 1 of 1998
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
4 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
Aboriginal and Torres Strait Islander Commission Amendment Bill 1997
Australian Capital Territory (Planning and Land Management) Amendment
Bill 1997
Charter of Budget Honesty Bill 1996 [No. 2]
Commonwealth Superannuation Board Bill 1997
Company Law Review Bill 1997
Criminal Code Amendment Bill 1997
Customs and Excise Legislation Amendment Bill (No. 3) 1997
Electoral and Referendum Amendment Bill 1997
Insurance Laws Amendment Bill 1997
Law Officers Amendment Bill 1997
Managed Investments Bill 1997
NRS Levy Imposition Bill 1997
Primary Industries and Energy Legislation Amendment Bill (No. 3) 1997
Social Security and Veterans' Affairs Legislation Amendment (Budget and
Other Measures) Bill 1997
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
Bill 1997
Superannuation Legislation (Commonwealth Employment - Saving and Transitional
Provisions) Bill 1997
Taxation Laws Amendment Bill (No. 7) 1997
Taxation Laws (Technical Amendments) Bill 1997
Telecommunications Amendment Bill (No. 2) 1997
Therapeutic Goods Legislation Amendment Bill 1997
Workplace Relations Amendment (Superannuation) Bill 1997
Aboriginal and Torres Strait Islander Commission Amendment Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister representing the Minister for Aboriginal and Torres
Strait Islander Affairs. [Portfolio responsibility: Aboriginal and Torres
Strait Islander Affairs]
The bill proposes to amend the Aboriginal and Torres Strait Islander
Commission Act 1989 to:
- allow ATSIC to impose conditions to its consent to the disposal of
an interest in ATSIC funded property;
- enable ATSIC to delegate to a Regional Council powers incidental to
its funding powers;
- allow ATSIC to delegate its power to approve the disposal of residential
property;
- provide that certain remedies for breaches of grant or loan conditions
do not affect the availability of other remedies for such breaches to
the Commission; and
- correct minor drafting errors.
Retrospectivity
Subclauses 2(2), (3) and (4)
Subclauses 2(2), (3) and (4) of this bill, if enacted, would provide
for the amendments proposed in Schedule 1 to have retrospective effect
from various dates. It seems to the committee, however, that the amendments
are for the purpose of correcting grammatical and other similar errors
in the legislation affected and make no substantive change to the law.
In these circumstances, the committee makes no further comment on
these subclauses.
Australian Capital Territory (Planning and Land Management) Amendment
Bill 1997
This bill was introduced into the House of Representatives on 4 December
1997 by the Minister for Regional Development, Territories and Local Government.
[Portfolio responsibility: Regional Development, Territories and Local
Government]
The bill proposes to amend the Australian Capital Territory (Planning
and Land Management) Act 1988 to increase the maximum permissible
limit for the grant of new estates to 999 years and remove the provision
for prescribing periods longer than 99 years.
The committee has no comment on this bill.
Charter of Budget Honesty Bill 1996 [No. 2]
This bill was introduced into the House of Representatives on 5 December
1997 by the Treasurer. It is identical to the bill introduced into the
House of Representatives on 11 December 1996 and passed by the Senate,
with amendments, on 28 October 1997. [Portfolio responsibility: Treasury]
The bill proposes to implement arrangements to require governments to
provide regular fiscal and economic reports. Further, the bill proposes
that Secretaries to the Treasury and Department of Finance release a pre-election
report to provide updated fiscal and economic projections and to publicly
release the fiscal impact of announced election commitments as requested
by the Government or Opposition.
The committee has no comment on this bill.
Commonwealth Superannuation Board Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Finance and Administration. [Portfolio responsibility:
Finance and Administration]
The bill proposes to establish a new body corporate, the Commonwealth
Superannuation Board, to administer certain Commonwealth superannuation
schemes for civilian employees and to manage the Funds of those schemes.
Inappropriate delegation of legislative power Subclause 8(1)
Subclause 8(1) of this bill, if enacted, would permit the Minister to
make determinations which would vary the operation of any provision in
Acts relating to superannuation for members of the Australian Public Service.
The committee notes that the explanatory memorandum indicates that the
variations thus made must not result in the legislation falling outside
the terms of the Superannuation Industry (Supervision) Act 1993.
It appears to the committee that making the Minister's power to make determinations
subject to the Superannuation Industry (Supervision) Act 1993 sufficiently
circumscribes this delegation of legislative power.
In these circumstances, the committee makes no further comment on
this subclause.
Inappropriate delegation of legislative power Subclause 8(9)
Subclause 8(9) of this bill, if enacted, would enable the Minister to
give retrospective effect to the determinations which the Minister may
make under subclause 8(1). These determinations would vary the operation
of any provision in Acts relating to superannuation for members of the
Australian Public Service.
The committee notes that the explanatory memorandum points out that the
Superannuation Industry (Supervision) Act 1993 to which these determinations
are subject, does not permit the reduction of benefits to members except
in particular circumstances. The committee seeks the advice of the
Minister on the particular circumstances in which a determination
would be made which would reduce superannuation benefits to which members
would otherwise be entitled.
Pending the Minister's advice, the committee draws Senators' attention
to the provision, as it 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.
Company Law Review Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
The bill proposes to amend the Corporations Law to:
- streamline the process of a setting up a company;
- remove the requirement for companies to have memoranda of association;
- enable companies limited by guarantee to convert into companies limited
by shares;
- remove the requirement for proprietary companies to keep their registered
offices open to the public and to have a common seal;
- facilitate the use of electronic technology to hold meetings;
- enable members of a proprietary company to pass all forms of resolution
by signing a circulating resolution;
- require that 21 days notice is given individually to members for all
general meetings;
- give certain members certain powers in relation to general meetings
and proposed resolutions;
- recognise the right of members to ask questions about or comment on
company management at annual general meetings;
- streamline the process for appointing a proxy;
- enable members of both public and proprietary companies to appoint
proxies and allow that proxy documents are provided at least 48 hours
before the meeting;
- enable a proxy to vote on a show of hands;
- set out rules for when an appointment specifies the way the proxy
is to vote on a particular resolution;
- provide that the quorum for a general meeting will be two for both
proprietary and public companies;
- no longer require that companies hold a statutory meeting or send
members a statutory report following the issue of shares under their
first prospectus;
- base the rules for meetings of members of collective investment schemes
on those for companies;
- provide that shares will no longer have a par value;
- streamline provisions relating to the issue and conversion of shares,
the redemption of redeemable preference shares, partly-paid shares and
dividends;
- provide that capital reductions no longer require court confirmation;
- amend the rules in relation to a company acquiring its own shares;
- amend provisions to allow the buy-back of redeemable preference shares;
- retain the requirement to prepare a profit and loss statement and
balance sheet and introduce the requirement to prepare a cash flow statement;
- enable a company or collective investment scheme to send its members
a concise version of its annual report;
- revise over half the items currently required to be included in annual
reports;
- facilitate electronic lodgment of returns with the ASC;
- introduce new procedures for ASC deregistration of defunct companies;
- enable a person to sue a deregistered company's insurer directly;
- rewrite rules for obtaining and using company names and Australian
Company Numbers; and
- restrict the type of companies and the conditions applicable when
companies are permitted to omit “Limited” from their names.
The committee has no comment on this bill.
Criminal Code Amendment Bill 1997
This bill was introduced into the Senate on 3 December 1997 by the Parliamentary
Secretary to the Treasurer. [Portfolio responsibility: Justice]
The bill proposes to amend the Criminal Code Act 1995 to bring
forward commencement of provisions which relate to the proof of an offence
where the accused person is intoxicated. The provisions provide that self-induced
intoxication cannot be considered in determining intent or voluntariness
in relation to basic offences such as assault.
The committee has no comment on this bill.
Customs and Excise Legislation Amendment Bill (No. 3) 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility:
Industry, Science and Tourism]
The bill proposes to amend the following Acts:
- Customs Act 1901 to clarify that the Act does not apply in,
or in relation to, the external Territories;
- Customs Amendment Act (No. 1) 1997 to defer by six months the
commencement of the reduced entry threshold for goods imported by the
post;
- Australian Postal Corporation Act 1989 to correct an anomaly
in the exercise of Customs' powers of examination of mail arriving into
Australia from the external Territories; and
- Customs Act 1901 and Excise Act 1901 to make minor technical
amendments.
Retrospectivity
Subclauses 2(2) and (3)
Subclauses 2(2) and (3) of this bill, if enacted, would provide for the
amendments proposed in Schedule 1 to have retrospective effect from various
dates. It seems to the committee, however, that the amendments are of
a technical nature only and make no substantive change to the law.
In these circumstances, the committee makes no further comment on
these subclauses.
Electoral and Referendum Amendment Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Finance and Administration. [Portfolio responsibility:
Finance and Administration]
The bill proposes to amend the Commonwealth Electoral Act 1918 and
Referendum (Machinery Provisions) Act 1984 to:
- enable the Australian Electoral Commission (AEC) to delegate to staff
its powers to supply and charge for certain goods and services;
- allow for the provision of the gender of electors for certain information
purposes;
- allow relatives and friends to apply for the removal of certain electors
from the roll on medical advice and without payment of an objection
deposit;
- allow for electors to be removed from the roll in the period between
the issue of the writ for an election and the close of rolls whose enrolment
has been objected to;
- ensure that personal details of silent electors are not disclosed
to persons inspecting applications for postal votes;
- allow the AEC to use the method of security printing of ballot papers
instead of using watermarked ballot papers;
- disallow canvassing in and around hospitals that are polling places
on polling day and in special hospitals during the five days before
and including poll day;
- enable the AEC to conduct Senate scrutiny using a computer process;
- extend the two-candidate preferred count, as conducted in polling
places on polling night, to the fresh scrutiny and declaration votes
scrutinies, as conducted later by the Divisional Returning Officers
and for the election of candidates based on a two-candidate preferred
count;
- enable the release of confidential elector data to State and Territory
electoral administrations;
- allow that the determination of State and Territory representation
entitlements shall fall due in the thirteenth month of the first meeting
of the House of Representatives (rather than the tenth month);
- bring the membership of the Redistribution Committee for the Australian
Capital Territory into line with an equivalent body for a State;
- provide that comments and objections in relation to a redistribution
are made available for public scrutiny;
- allow “community of interest” factors to be properly considered
in relation to electoral variations between electorates;
- enable more opportunity for the public to object to proposed boundaries;
- allow certain Australians living overseas to apply for enrolment within
two years of departure and to obtain eligible overseas status for a
period of six years;
- reduce the nomination period by one day (to not less than 10 days
or no more than 27 days), with the declaration of nominations to be
held 24 hours after the close of nominations;
- increase from six to fifty the number of signatures required in support
of a nomination by a candidate not endorsed by a registered political
party;
- increase the deposit for nomination from $250 to $350 in the House
of Representatives, and from $500 to $700 in the Senate;
- enable voters with a physical incapacity who cannot enter a polling
place to vote outside the polling place;
- remove the possibility for voters to make a formal optional preferential
vote on the ballot paper;
- allow that the declaration of the poll proceeds based on the result
of the two candidate preferred count where, on the basis of first preference
votes, the exclusion of all but two candidates for a House of Representatives
Division is inevitable;
- remove the requirement for registered political parties to lodge returns
of electoral expenditure; and
- allow registered political parties to lodge audited accounts in place
of the annual return subject to certain conditions.
The committee has no comment on this bill.
Insurance Laws Amendment Bill 1997
This bill was introduced into the House of Representatives on 4 December
1997 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
- Insurance Act 1973 to streamline the processes for form setting
and lodgement of accounts and statements within the Insurance and Superannuation
Commissioner by authorised insurers in Australia;
- Insurance (Agents and Brokers) Act 1984 to:
- make certain technical amendments;
- insert additional definitions; and
- strengthen broker disclosure notification requirements;
- Insurance Contracts Act 1984 to:
- place contracts of insurance over non-commercial marine pleasure
craft owned by individuals within the scope of the Insurance
Contracts Act 1984 and removing them from the ambit of the Marine
Insurance Act 1909;
- amend provisions relating to information flows between contracting
parties; and
- amend provisions relating to the insured's duty of disclosure;
and
- Insurance Act 1973, Insurance (Agents and Brokers) Act 1984
and Insurance Supervisory Levies Collection Act 1989 to amend
the prudential supervisory arrangements for Lloyd's of London to improve
the security arrangements for Lloyd's underwriters' Australian policyholders.
Commencement
Subclause 2(4)
Subclause 2(4) of this bill provides that almost all of Schedule 2 to
this bill will commence on Proclamation, with no date being fixed at which
the Bill must come into force or be automatically repealed.
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.
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 5 of the explanatory memorandum points
out the unusual circumstances where uncertainty of the timing of an event
would make paragraph 6 of the Drafting Instruction applicable. The explanatory
memorandum states:
The main purpose of the amendments contained in Schedule 2 is to replace
the current security arrangements applying to the authorisation and conduct
of business of Lloyd's underwriters in Australia with new arrangements
which will accommodate Lloyd's new trading structure and substantially
improve the protection available to Lloyd's underwriters' Australian policyholders.
If Schedule 2 were subject to commencement by default, and for some reason
Lloyd's had not met the requirements of the new arrangements within the
given time frame, this would lead to the untenable situation where the
existing security arrangements would fall away with no substitute in place.
While the Commissioner could immediately revoke authorisation for Lloyd's
underwriters in Australia, this would only have the effect of not allowing
Lloyd's underwriters to write new business in Australia. Existing liabilities
would have no financial backing. Accordingly, it is extremely important
that the commencement provision not permit the cessation of the current
security until there is at least a simultaneous commencement of the new
security.
In these circumstances, the committee makes no further comment on
this subclause.
Power of entry and search without warrant
Item 5 of Schedule 2 - proposed subsection 80(1)
Proposed subsection 80(1), to be inserted in the Insurance Act 1973
by item 5 of Schedule 2 to this bill provides:
Entry on premises
(1) If the Commissioner or the inspector, while investigating the whole
or a part of the affairs of a designated security trust fund, believes
on reasonable grounds that it is necessary for the purposes of the investigation
to enter land or premises occupied by:
(a) the trustee, or a former trustee, of the fund; or
(b) the custodian, or a former custodian, of the fund; or
(c) the investment manager, or a former investment manager, of the fund;
the Commissioner or the inspector may, at all reasonable times, enter
the land or premises and may:
(d) examine books on the land or premises that relate to the affairs
of the trust fund or that the Commissioner or inspector believes on reasonable
grounds relate to those affairs; and
(e) take possession of any of those books for such period as the Commissioner
or inspector thinks necessary for the purposes of the investigation; and
(f) make copies of, or take extracts from, any of those books.
This power of entry and search is not subject to any requirement that
the officer obtain a judicially sanctioned search warrant before entering
the premises.
The committee recognises that, in this respect, subclause 31(1) does
not differ from similar provisions in taxation laws. For example, the
Income Tax Assessment Act 1936 contains a provision (section 263)
of similar effect. Another example occurs in the Superannuation Contributions
Tax (Assessment and Collection) Act 1997.
There would appear, however, to be no basis in principle for giving officers
enforcing insurance laws greater powers than officers enforcing criminal
law where a judicially sanctioned warrant is generally required. The committee
is also interested to receive advice on what might constitute “reasonable
grounds” for exercising the power of entry.
Accordingly, the committee seeks the advice of the Treasurer on
this issue.
Pending the advice of the Treasurer, the committee draws Senators'
attention to the provision, as it 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.
Abrogation of the right against self-incrimination
Item 5 of Schedule 2 - proposed subsections 82(3) and (4)
Proposed Division 4, to be inserted in the Insurance Act 1973
by item 5 of Schedule 2 to this bill, deals with investigations
by the Commissioner. Proposed subsections 82(3) and (4) deal with the
requirement for persons being examined by the Commissioner or the inspector
to answer questions. The person is not excused from doing so on the grounds
that it may incriminate him or her.
To protect the person under examination, however, proposed subsection
82(4), would make inadmissible in evidence against the person, in any
criminal proceedings, any information or thing (including a document)
obtained as a direct or indirect result of answering a question. This
inadmissibility is subject to an exception with respect to a proceeding
for an offence against proposed subsection 82(2). That provision
makes it an offence intentionally or recklessly to give information or
evidence that is false or misleading. The committee is concerned about
all such exceptions, but is prepared to accept the position in these circumstances.
In these circumstances, the committee makes no further comment on
this provision.
Law Officers Amendment Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the Law Officers Act 1964 to:
- remove the current entitlement to a judge's pension and payment in
lieu of unused long service leave for future appointees to the office
of Solicitor-General; and
- preserve the current Solicitor-General's accrued pension entitlements
under the Act.
The committee has no comment on this bill.
Managed Investments Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
The bill proposes to amend the Corporations Law to implement a new regime
for the regulation of managed investment schemes. Each managed investment
scheme is to be operated by a single responsible entity; most of the schemes
must be licensed by the Australian Securities Commission and submit compliance
plans to the ASC; and will be required to hold a securities dealer's licence.
The committee has no comment on this bill.
NRS Levy Imposition Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister representing the Minister for Communications, the
Information Economy and the Arts. [Portfolio responsibility: Communications,
the Information Economy and the Arts]
The bill proposes to impose a levy on participating carriers to provide
funding for the National Relay Service (NRS). It is intended that the
NRS will be provided by a person, who may or may not be a carrier, under
a contract with the Commonwealth and that the cost of the NRS will be
met by carriers depending on their eligible revenue or timed traffic.
The committee has no comment on this bill.
Primary Industries and Energy Legislation Amendment Bill (No. 3) 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to:
- amend 9 portfolio Acts to give the portfolio bodies full responsibility
for the employment of their CEOs; and
amend the following Acts:
- Agricultural and Veterinary Chemicals (Administration) Act 1992
to:
- provide a wider scope from which applicants with experience in
occupational health and safety can be considered for appointment
as a Director of the National Registration Authority for Agricultural
and Veterinary Chemicals (NRA); and
- provide for an additional Director of the NRA with experience
in the development or administration of Commonwealth government
policy;
- Australian Horticultural Corporation Act 1987 to:
- reduce the number of “other members” on the Australian
Horticultural Corporation Selection Committee from seven to three,
four or five; and
- repeal the Corporation's export trading powers;
- Australian Wine and Brandy Corporation Act 1980 to correct
a drafting error in relation to regulation-making powers;
- Dairy Produce Act 1986 to repeal clauses which provide for
the exclusion of people aged 65 and over from holding membership on
the Board of the Australian Dairy Corporation;
- Farm Household Support Act 1992 to annul Farm Household Support
scheme debts;
- Income Tax Assessment Act 1936 and Income Tax Assessment
Act 1997 to make consequential amendments in relation to the annulment
of the Farm Household Support scheme debts;
- Petroleum (Submerged Lands) Act 1967 to amend the descriptions
of the Adjacent Areas defined in respect of Western Australian and the
Territory of Ashmore and Cartier Islands;
- Primary Industries and Energy Research and Development Act 1989
to reduce Commonwealth funding to the Fisheries Research and Development
Corporation in 1997-98 by $3.612 million; and
- Primary Industries Councils Act 1991 to abolish the Australian
Pig Industry Council.
The committee has no comment on this bill.
Social Security and Veterans' Affairs Legislation Amendment (Budget
and Other Measures) Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister representing the Minister for Social Security. [Portfolio
responsibility: Social Security]
The bill proposes to amend the following Acts:
- Social Security Act 1991 to:
- extend qualification for carer payment to the carers of profoundly
disabled children under the age of 16;
- allow a person to cease caring for a person for up to 63 days
in a calendar year and still continue to qualify for carer payment;
- ensure that lump sum payments received by social security recipients
will be consistently treated as either income over 12 months or
a deemed asset;
- impose preclusion periods on certain high income seasonal, intermittent
and contract workers following cessation of the work period; and
- take account of the introduction of the exceptional circumstances
relief payment and restart income support;
- Social Security Act 1991 and Veterans' Entitlements Act
1986 to change the means testing of income streams;
- Social Security Act 1991 and Social Security Legislation
Amendment (Parenting and Other Measures) Act 1997 to make amendments
consequent upon the amendments relating to seasonal worker preclusion
periods;
- Social Security Act 1991 and Student and Youth Assistance
Act 1973 to reflect the role of the Commonwealth Services Delivery
Agency in relation to payments to the unemployed; and
- Bankruptcy Act 1966, Child Support (Assessment) Act 1989,
Data-matching Program (Assistance and Tax) Act 1990, Farm
Household Support Act 1992, Health Insurance Act 1973, Income
Tax Assessment Act 1997, Medicare Levy Act 1986 and Veterans'
Entitlements Act 1986 to reflect the change of term from “family
payment” and associated references to “family allowance”.
The committee has no comment on this bill.
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Finance and Administration. [Portfolio responsibility:
Finance and Administration]
The bill proposes to change superannuation arrangements for Commonwealth
employees by amending the following Acts:
- Superannuation Act 1990 to close the Public Sector Superannuation
Scheme (PSS) to new members from 1 July 1998;
- Superannuation Act 1976 and Superannuation Act 1990 to
allow Commonwealth Superannuation Scheme (CSS) and PSS members to choose
to leave those schemes for another scheme offered by, or arranged with,
their employer;
- Superannuation Act 1976 to:
- improve access to superannuation spouse benefits in certain circumstances
where the retirement pensioner commenced a marital relationship
after age 60 years;
- provide an option for age and early age retirees to reduce their
pension entitlements and increase reversionary benefits payable
to their spouse or to any children of the retiree;
- enable certain payments payable from other superannuation funds
or schemes to be paid into the CSS Fund; and
- restore the original intention in relation to the acceptance of
late elections for preservation of rights;
- Superannuation Benefits (Supervisory Mechanisms) Act 1990 to
provide that a determination made under the Act in relation to agencies
meeting certain requirements in setting up superannuation arrangements
for their employees will be a disallowable instrument;
- Parliamentary Contributory Superannuation Act 1948 to:
- improve access to superannuation spouse benefits in certain circumstances
where the retirement pensioner commenced a marital relationship
after age 60 years;
- rectify anomalies and technical errors in relation to orphan benefits;
- rectify anomalies and technical errors in relation to the maximum
reversionary benefit payable where there is more than one beneficiary;
- amend the arrangements relating to transfer values;
- cease the application of the inwards transfer value arrangements
to persons who become Members of Parliament after the date Royal
Assent is given to this bill;
- Administrative Appeals Tribunal Act 1975, Law Officers Act
1964 and Workplace Relations Act 1996 in relation to people
who leave the CSS or PSS to join the Judges' Pension Scheme to assist
the schemes to comply with the national regulatory system for superannuation
schemes.
The bill also proposes to repeal the Superannuation Act 1922,
Superannuation Act 1976, Superannuation Act 1990, Superannuation
(Productivity Benefit) Act 1988 and the superannuation and retirement
income provisions of the Papua New Guinea (Staffing Assistance) Act
1973. However, in most circumstances, the repealed legislation will
continue to operate through the application of the Superannuation Legislation
(Commonwealth Employment–Savings and Transitional Provisions) Act
1997.
Delegated legislation with retrospective effect
Item 14 of Schedule 1 - proposed subsection 3(1A)
Proposed subsection 3(1A), to be inserted in the Superannuation Act
1976 by item 14 of Schedule 1 to this bill, would allow delegated
legislation to be made which might have retrospective effect. Subsection
48(2) of the Acts Interpretation Act 1901, however, ensures that
such measures are of no effect if they would prejudicially affect any
person other than the Commonwealth. Hence, any retrospectivity would not
trespass unduly on personal rights and liberties.
The committee appreciates the intention of the legislation but is concerned
that the bill allows delegated legislation to be made which may have retrospective
and prejudicial effect, notwithstanding the safeguards provided by the
Acts Interpretation Act 1901. The committee notes, however, that
the role of the Senate Regulations and Ordinances Committee is to scrutinise
delegated legislation and to pursue any possible instances of undue trespass
on personal rights and liberties in delegated legislation and therefore
draws this item to the attention of that committee.
In these circumstances, the committee makes no further comment on
this provision.
Superannuation Legislation (Commonwealth Employment—Saving and
Transitional Provisions) Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister for Finance and Administration. [Portfolio responsibility:
Finance and Administration]
The bill proposes to make savings and transitional provisions arising
out of amendments to, and subsequent repeals of, five Acts by the Superannuation
Legislation (Commonwealth Employment) Repeal and Amendment Bill 1997 and
the Commonwealth Superannuation Board Bill 1997.
The committee has no comment on this bill.
Taxation Laws Amendment Bill (No. 7) 1997
This bill was introduced into the House of Representatives on 4 December
1997 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
- Income Tax Assessment Act 1997 to:
- provide for the tax deductibility of expenses incurred in contesting
an election for delegates to the Constitutional Convention;
- allow income tax deductions for gifts made to the National Nurses'
Memorial Trust;
- ensure that the rewrite of the income tax law reflects recent
changes to the exempt entities provisions in relation to charitable
trusts and makes consequential amendments to the Income Tax Assessment
Act 1936; and
- make technical amendments to ensure that depreciation rules relating
to ownership of lessors' fixtures operate appropriately and properly
reflect connecting provisions in the Income Tax Assessment Act
1936;
- Sales Tax (Exemptions and Classifications) Act 1992 to exempt
certain goods from sales tax to effect the Status of Forces Agreement
between the Government of Australia and the Government of Malaysia which
was entered into on 3 February 1997;
- Income Tax Assessment Act 1936 to:
- rationalise the remittance obligations of withholders under the
Pay-As-You-Earn, Prescribed Payments and Reportable Payments schemes
and make consequential amendments to the Child Support (Registration
and Collection ) Act 1988; Crimes (Taxation Offences) Act 1980,
Income Tax Assessment Act 1936 and Taxation (Interest on Overpayments
and Early Payments) Act 1983;
- allow taxpayers to use an asset register instead of source documents
for capital gains tax record keeping purposes; and
- introduce a general anti-avoidance provision that applies to franking
credit trading and dividend streaming schemes where one of the purposes
of the scheme is to obtain a franking credit benefit;
- Superannuation Guarantee (Administration) Act 1992 to:
- require employers to make superannuation contributions on behalf
of an employee to a complying superannuation fund or scheme or retirement
savings account in compliance with the “choice of fund requirements”;
and
- increase the amount of Superannuation Guarantee Charge payable
by the employer where these contributions do not comply with the
choice of fund requirements;
- Retirement Savings Accounts Act 1997 and Superannuation
Industry (Supervision) Act 1993 to make consequential amendments
on the amendments made to the Superannuation Guarantee (Administration)
Act 1992;
- Income Tax Assessment Act 1936, Fringe Benefits Tax Assessment
Act 1986 and Income Tax Assessment Act 1997 to ensure that
all advances, loans and other credits (unless they come within a defined
class of exclusions) by private companies to shareholders and their
associates are deemed to be dividends to the extent that there are realised
or unrealised profits in the company; and
- Income Tax Assessment Act 1997 and Income Tax Assessment
Act 1936 to provide for a new tax offset (the savings rebate) for
resident individuals in respect of savings and investment income and
underacted superannuation contributions.
Retrospectivity
Items 9 and 26 of Schedule 8
Items 9 and 26 of Schedule 8 would provide that the amendments proposed
by Schedule 8 will apply from 7.30pm on Budget night, 13 May 1997, and
therefore prior to Royal Assent. The committee notes that the amendments
give effect to a budget announcement.
The committee has previously indicated that, in relation to retrospectivity,
budget measures are something of a special case. In a paper titled
The Operation of the Senate Standing Committee for the Scrutiny of Bills,
1981-85, the then Chairman of the Committee, Senator Tate, said:
It is customary ... for budgetary measures to be made retrospective to
the date of their announcement on Budget night and for changes to taxes,
levies, fees to be given effect from the date of their introduction into
Parliament.
In these circumstances, the committee makes no further comment on
these provisions.
Taxation Laws (Technical Amendments) Bill 1997
This bill was introduced into the House of Representatives on 4 December
1997 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
- Taxation Administration Act 1953 and Income Tax Assessment
Act 1936 to:
- enable interest payable on distributions received by companies
and superannuation funds from non-resident trust estates, that are
not taxed at a comparable rate in foreign countries, to be subject
to the self-assessment process;
- remove the requirement for various elections to be in writing
and given to the Commissioner; and
- enable the Commissioner to amend an assessment outside the usual
time period, to give effect to a private ruling;
- Income Tax Assessment Act 1997 and Income Tax Assessment
Act 1936 to ensure that the film component of a company's tax loss
is calculated separately for each period in an income year;
- Fringe Benefits Tax Assessment Act 1986 to make minor amendments
in relation to the retention of statutory evidentiary documents;
- Income Tax Assessment Act 1936 to:
- amend the provisions which set out the rules for calculating the
amount of the deduction for car parking expenses incurred by self-employed
persons;
- ensure that the rollover of the post-June 1994 invalidity component
of an eligible termination payment to purchase an annuity or superannuation
pension does not change the “tax free” status of the component;
- ensure that bankrupt estates administered by a registered trustee
will be given the same tax treatment as estates administered by
the Official Receiver;
- amend the definition of “eligible investment business”
to ensure that the definition specifically includes secured loans;
- ensure that the franking surplus of a demutualising life or general
insurance company, a mutual affiliate company, or wholly-owned subsidiary
is to be reduced to nil;
- ensure that the spouse rebate is reduced by a taxpayer's entitlements
to certain benefits paid by the Department of Social Security;
- provide a foreign tax credit for Australian tax paid by a foreign
investment fund;
- amend the definition of “associate”;
- ensure that life assurance companies; superannuation funds, registered
organisations and pooled superannuation trusts holding shares indirectly
through a trust or partnership receive the same franking benefits
as those who hold the shares directly;
- provide that where a beneficiary of a discretionary trust has
an interest in a public entity and the trust deed provides that
the entity is a potential beneficiary of the trust, then the entity
will not be deemed to control the trust for the purposes of the
$5 million threshold test;
- clarify that a payment received by a person from the sale of a
debt that would otherwise be a reportable payment is subject to
the reportable payment system; and
- ensure that provisional tax credits cannot be applied against
provisional tax notified for a later year that is not due and payable;
- Taxation Administration Act 1953 to permit regulations to provide
that a decision by the Commissioner of Taxation is reviewable by the
Administrative Repeals Tribunal; and
- Income Tax Assessment Act 1936, Income Tax Assessment Act
1997, Taxation Laws Amendment Act (No. 4) 1995, Taxation
Laws Amendment Act (No. 2) 1997, Statute Law Revision Act 1996
and Industry Research and Development Act 1986 to make technical
amendments.
Retrospectivity
Subclauses 2(5) to (7) and (11) to (16)
Subclauses 2(5) to (7) and (11) to (16) of this bill, if enacted, would
provide for some of the amendments proposed by this bill to commence prior
to Royal Assent. It seems to the committee, however, that the amendments
are of a technical nature only and make no substantive change to the law.
In these circumstances, the committee makes no further comment on
these subclauses.
Retrospective application
Subitem 27(3) of Schedule 6
Subitem 27(3) of Schedule 6 to this bill, if enacted, would provide for
the amendment proposed by item 4 to apply from Budget night 1995.
The committee notes, however, that the explanatory memorandum states,
in paragraph 1.82 that the amendment is 'clarificatory only and does not
change the meaning of the relevant provision'.
In these circumstances, the committee makes no further comment on
this subclause.
Retrospective application
Subitem 27(5) of Schedule 6
Subitem 27(5) of Schedule 6 to this bill, if enacted, would provide for
the amendment proposed by item 7 to apply from 1 July 1988. It appears
to the committee, however, that the amendment is beneficial to taxpayers.
In these circumstances, the committee makes no further comment on
this subclause.
Telecommunications Amendment Bill (No. 2) 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Minister representing the Minister for Communications, the
Information Economy and the Arts. [Portfolio responsibility: Communications,
the Information Economy and the Arts]
The bill proposes to deal with the operation and funding of the National
Relay Service (NRS) which provides people who are deaf, hearing, or speech
impaired, with access to the standard telephone service on terms, and
in circumstances, that are comparable to those on which other Australians
have access to a standard telephone service.
The committee has no comment on this bill.
Therapeutic Goods Legislation Amendment Bill 1997
This bill was introduced into the House of Representatives on 3 December
1997 by the Parliamentary Secretary to the Minister for Health and Family
Services. [Portfolio responsibility: Health and Family Services]
The bill proposes to amend the following Acts:
- Therapeutic Goods Act 1989 to:
- introduce a “data protection regime” to provide a five-year
period of protection for information lodged about a new active component
in relation to an application to register therapeutic goods, not
being therapeutic devices;
- enable the Secretary to obtain more detailed information about
the manufacturing processes and premises of an applicant seeking
to list its therapeutic goods in the Australian Register of Therapeutic
Goods, or from a person whose goods are already listed in the Register;
- enable the Secretary to prevent persons in control of another
licensee convicted of an offence against the Act, or a law of a
State or Territory in relation to therapeutic goods, from immediately
applying for and obtaining another manufacturing licence through
another person, such as a new or different company; and
- provide for the Governor-General to make regulations associated
with the issue of import and export licences and permits for therapeutic
goods imported into or exported from Australia; and
- Customs Act 1901 to make amendments consequent upon the Governor-General's
power to regulate the issue of import and export permits and licences
under the Therapeutic Goods Act 1989.
The committee has no comment on this bill.
Workplace Relations Amendment (Superannuation) Bill 1997
This bill was introduced into the House of Representatives on 4 December
1997 by the Minister for Workplace Relations and Small Business. [Portfolio
responsibility: Workplace Relations and Small Business]
The bill proposes to amend the Workplace Relations Act 1996 to
remove superannuation from the allowable award matters set out in the
Act. The effect of the amendment will be that the Australian Industrial
Relations Commission will not be permitted to deal with disputes about
superannuation by arbitration.
The committee has no comment on this bill.
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