Scrutiny of Bills Alert Digest No. 2 of 1998
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
11 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
Aged Care Amendment Bill 1998
Child Care Legislation Amendment Bill 1998
Commonwealth Places (Consequential Amendments) Bill 1998
Commonwealth Places (Mirror Taxes) Bill 1998
Commonwealth Places Windfall Tax (Collection) Bill 1998
Commonwealth Places Windfall Tax (Imposition) Bill 1998
Legislative Instruments Bill 1996 [No. 2]
Managed Investments Bill 1997
National Residue Survey Administration Amendment Bill 1998
National Residue Survey (Customs) Levy Bill 1998
National Residue Survey (Excise) Levy Bill 1998
Privacy Amendment Bill 1998
Public Employment (Consequential and Transitional) Amendment Bill 1997
Public Service Bill 1997 [No. 2]
Social Security Legislation Amendment (Youth Allowance Consequential
and Related Measures) Bill 1998
Aged Care Amendment Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Minister for Family Services. [Portfolio responsibility: Family
Services]
The bill proposes to amend the following Acts:
- Aged Care Act 1997 to:
- introduce accommodation charges, as a replacement for accommodation
bonds, for care recipients requiring nursing home level care;
- make consequential changes to some of the rules about payment
of accommodation bonds;
- clarify definitions, rules about pre-entry leave, rules about
entering into accommodation payment agreements where a person has
a mental impairment and the keeping of essential aged care service
records in English;
- Social Security Act 1991 and Veterans' Entitlements Act
1986 to ensure that rental income will be excluded from the pension
income test and the value of the home will be exempted from the pension
assets test where the former home is being rented to pay the accommodation
charge;
- Veterans' Affairs Legislation Amendment (Budget and Simplification
Measures) Act 1997 to correct cross reference errors; and
- Aged Care (Consequential Provisions) Act 1997 to remedy unintended
effects in the original measures.
RetrospectivitySubclauses 2(2) and (3)
Subclauses 2(2) and (3) of this bill, if enacted, would allow the amendments
in Schedule 4 and some amendments in Schedule 5 to have retrospective
effect. The committee notes from the explanatory memorandum that the retrospectivity
under subclause 2(2) is in respect of amendments which are technical in
nature and will not adversely affect any individual. The amendments correct
cross references between the Aged Care Act 1997 and Rate Calculators
in the Veterans' Entitlements Act 1986.
Schedule 5, according to the explanatory memorandum, amends the Aged
Care (Consequential Provisions) Act 1997 to remedy unintended effects
and oversights in the original transitional measures. Items 3 and 4, which
will commence retrospectively if subclause 2(3) is enacted, relate to
additional recurrent funding for new and rebuilt and upgraded nursing
homes. These items will effectively reverse the earlier repeal of subsections
52C(3) and 58CA(3) of the National Health Act 1953 to restore the
power to extend the time for approvals-in-principle for additional recurrent
funding where construction has not been commenced within the relevant
time. According to the explanatory memorandum, the withdrawal of this
power was unintended as it would have had unfair consequences. The retrospective
commencement of these provisions prevents those unfair consequences.
In these circumstances, the committee makes no further comment on
these subclauses.
Retrospective application?
Items 1 and 2 of Schedule 5
These items rectify a drafting defect in the Aged Care (Consequential
Provisions) Act 1997 which repealed certain provisions of the National
Health Act 1953 and the Aged or Disabled Persons Care Act 1954.
After the Aged Care legislation took effect on 1 October 1997 it became
apparent that sanctions could not be invoked against a provider for breaches
of responsibilities that occurred before 1 October 1997 under the previous
legislation. These items insert new clauses 78A and 81A which provide
for breaches that occurred under the previous legislation, but in respect
of which no action had been commenced, to be dealt with under the Aged
Care Act 1997. The committee notes from the explanatory memorandum
that these items correct a technical defect that would otherwise have
prevented appropriate action being taken against providers who did not
meet their obligations and responsibilities.
In these circumstances, the committee makes no further comment on
these items.
Child Care Legislation Amendment Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Family Services. [Portfolio responsibility: Health
and Family Services]
The bill proposes to defer implementation of the Child Care Payments
Act 1997. Further it proposes to amend the Child Care Act 1972,
Child Care Rebate Act 1993 and the Child Care Payments (Consequential
Amendments and Transitional Provisions) Act 1997) to effect measures
contained in the Child Care Payments Act 1997, namely to:
- limit child care assistance to 20 hours a week for non-work related
care;
- introduce a planning system for long day care places and a limit on
the number of new places approved in 1998 and 1999;
- introduce immunisation as a criterion for eligibility for child care
assistance and the child care rebate; and
- facilitate the transfer of the current child care assistance program
to Centrelink for an interim period.
The committee has no comment on this bill.
Commonwealth Places (Consequential Amendments) Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
Complementary to the Commonwealth Places (Mirror Taxes) Bill 1998, Commonwealth
Places Windfall Tax (Collection) Bill 1998 and Commonwealth Places Windfall
Tax (Imposition) Bill 1998 , this bill proposes to amend the following
Acts:
- Income Tax Assessment Act 1936 and Income Tax Assessment
Act 1997 to exempt from income tax refunded State taxes subject
to the windfall tax and deny an income tax deduction for the windfall
tax; and
- Commonwealth Places (Application of Laws) Act 1970 to ensure
that the provisions of the State taxing laws which will be mirrored
by the proposed Commonwealth Places (Mirror Tax) Act 1998 will
have effect under that Act rather than the 1970 Act.
Retrospective operationSubclause 4(1)
By virtue of subclause 4(1), the amendments proposed to the Income
Tax Assessment Act 1936 would apply to the 1996-97 year of income.
For most taxpayers, this year ended on 30 June 1997 and to this extent,
the bill would have a retrospective effect, but this is of such a nature
as might be described as technical. However, the bill is one of a package
of measures that are intended to take effect from 6 October 1997. The
bills are designed to overcome the effect of a decision of the High Court
in Allders International Pty Ltd v Commissioner of State Revenue (Victoria)
and to ensure that State revenue bases are not eroded. The legislation
has been formulated with the assistance of State governments, and is intended
to do no more than maintain the current level of indirect taxes payable
to the States.
In these circumstances, the committee makes no further comment on
these items.
Commonwealth Places (Mirror Taxes) Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
Complementary to the Commonwealth Places Windfall Tax (Collection) Bill
1998, Commonwealth Places Windfall Tax (Imposition) Bill 1998 and Commonwealth
Places (Consequential Amendments) Bill 1998, this bill proposes to provide
for the imposition of taxes, in relation to Commonwealth places in a State,
which mirror the stamp duties, payroll taxes, financial institutions duties
and debits taxes of that State.
Retrospective operation
Clause 7
By virtue of clause 7, the provisions of this bill will apply to acts
and transactions taking place on or after 6 October 1997 and the legislation,
if enacted, will have a retrospective operation but this is of such a
nature as might be described as technical. However, the committee notes
that the Explanatory Memorandum indicates that this is one of a package
of bills designed to overcome the effect of a decision of the High Court
in Allders International Pty Ltd v Commissioner of State Revenue (Victoria)
and to ensure that State revenue bases are not eroded. The legislation
has been formulated with the assistance of State governments, and is intended
to do no more than maintain the current level of indirect taxes payable
to the States.
In these circumstances, the committee makes no further comment on
these items.
Regulations which may have retrospective effect
Subclause 25(2)
Subclause 25(2) would permit the making of regulations which might be
retrospective in effect, in derogation of subsection 48(2) of the Acts
Interpretation Act 1901. However, one purpose of regulations made
under this measure is to apply, with or without modifications, State legislation
imposing indirect taxes. The committee notes that in the Explanatory Memorandum,
subclause 25(2) is described as necessary to cover the eventuality that
new State taxing laws, not identified in the bill, may subsequently be
identified and need to be included within the ambit of this measure.
In these circumstances, the committee makes no further comment on
these items.
Commonwealth Places Windfall Tax (Collection) Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
Complementary to the Commonwealth Places (Mirror Taxes) Bill 1998, Commonwealth
Places Windfall Tax (Imposition) Bill 1998 and Commonwealth Places (Consequential
Amendments) Bill 1998, this bill proposes to provide for the determination,
collection and administration of the Commonwealth places windfall tax
which applies to claims for refunds of amounts paid under State taxing
laws before 6 October 1997.
RetrospectivityClause 2
By virtue of clause 2, this bill is to be taken to have commenced on
6 October 1997. The purpose of the retrospectivity, however, is to protect
State revenues collected before that date in respect of Commonwealth places.
Imposition of stamp duty on a lease covering part of a Commonwealth place
was found to be invalid by the High Court in Allders International
Pty Ltd v Commissioner of State Revenue (Victoria). As well as stamp
duty, the bills cover financial institutions duty, debits tax and payroll
tax, which risk being found similarly invalid by the High Court in relation
to Commonwealth places.
The committee is always concerned about retrospectivity and its potential
to affect personal rights and liberties. The circumstances of this case,
however, are such as to satisfy the committee that the need for retrospective
commencement is reasonable.
In these circumstances, the committee makes no further comment on
this bill.
Commonwealth Places Windfall Tax (Imposition) Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio
responsibility: Treasury]
Complementary to the Commonwealth Places (Mirror Taxes) Bill 1998, Commonwealth
Places Windfall Tax (Collection) Bill 1998 and Commonwealth Places (Consequential
Amendments) Bill 1998, this bill proposes to impose the Commonwealth places
windfall tax at a rate of 100 per cent.
RetrospectivityClause 2
By virtue of clause 2, this bill is to be taken to have commenced on
6 October 1997. The purpose of the retrospectivity, however, is to protect
State revenues collected before that date in respect of Commonwealth places.
Imposition of stamp duty on a lease covering part of a Commonwealth place
was found to be invalid by the High Court in Allders International
Pty Ltd v Commissioner of State Revenue (Victoria). As well as stamp
duty, the bills cover financial institutions duty, debits tax and payroll
tax, which risk being found similarly invalid by the High Court in relation
to Commonwealth places.
The committee is always concerned about retrospectivity and its potential
to affect personal rights and liberties. The circumstances of this case,
however, are such as to satisfy the committee that the need for retrospective
commencement is reasonable.
In these circumstances, the committee makes no further comment on
this bill.
Legislative Instruments Bill 1996 [No. 2]
This bill was introduced into the House of Representatives on 5 March
1998 by the Attorney-General. This bill comprises the earlier bill, as
amended and passed by the House of Representatives on 11 September 1996,
and amendments made by the Senate and agreed to by the House, and further
amendments made by the House and agreed to by the Senate. [Portfolio responsibility:
Attorney-General]
The bill proposes to establish a regime to govern drafting standards
and procedures for the making, registration, publication, scrutiny and
sunsetting of delegated legislation.
The committee commented on the previous version of this bill in Alert
Digest No. 5 of 1996, the Ninth Report of 1996, and the Fourth and Sixth
Reports of 1997. In the course of its consideration of the bill, the committee
corresponded with the Attorney-General on a number of occasions and the
Attorney-General's responses are discussed in those reports. The issues
that were of concern to the committee are summarised below.
Attorney-General's certificate—judicial review and parliamentary
scrutiny
Clause 8 of the bill authorises the Attorney-General to determine whether
an instrument is a legislative instrument and to issue a certificate accordingly.
The Attorney-General's decision is reviewable by the Federal Court. The
committee sought advice from the Attorney-General as to whether the certificate,
registrable under Part C of the Federal Register of Legislative Instruments,
was itself a legislative instrument and therefore also subject to parliamentary
scrutiny and disallowance. The Attorney-General's reply, included in the
Ninth Report of 1996, confirmed that the certificate was not, and was
not intended to be, disallowable; and that a policy decision had been
made to provide for judicial review, rather than parliamentary disallowance,
on the basis that “the certificate is in essence a legal opinion
to which ADJR review is appropriate and disallowance is not” (Ninth
Report of 1996, page 136). The committee thanked the Attorney-General
for this response.
An amendment made by the Senate to provide for the disallowance of an
Attorney-General's certificate in addition to judicial review was subsequently
disagreed to by the House of Representatives.
Insufficient scrutiny by Parliament—national schemes of legislation
Subclause 61(7) of the bill provides for legislative instruments made
to facilitate the establishment or operation of an intergovernmental body
or scheme involving the Commonwealth and one or more States to be exempt
from the general disallowance framework where the legislation authorising
the instrument to be made directs that the instruments may not be disallowed.
The committee was concerned that the subclause, if enacted, could be considered
to give a general approval for removing from Parliament's scrutiny subordinate
legislation in respect of national schemes of legislation. The Attorney-General's
response indicated that removal of the provision would be premature while
the principles and framework for scrutiny of National Scheme Legislation
were still under development (Ninth Report of 1996, page 137). The committee
continued to query the need for such a provision given that there was
no general exemption for such legislation at present. The committee continued
to draw senators' attention to the provision.
The Attorney-General's further response undertook that the operation
of the subclause would be considered in the review of the operation of
the bill under clause 72 (Fourth Report of 1997, page 65). The committee
thanked the Attorney-General for this response.
An amendment by the Senate to omit subclause 61(7) was subsequently disagreed
to by the House of Representatives.
Insufficient parliamentary scrutiny of legislative power—Proclamation
not disallowable
Paragraph 61(8)(c) provides an exemption from disallowance of Proclamations
under section 5 of the Flags Act 1953. In the absence of any explanation
for this exemption in the explanatory memorandum, the committee sought
the Attorney-General's response on the matter. The Attorney-General advised
the committee that most authorised flags are required to be authorised
by methods other that Proclamation. To allow disallowance of such Proclamations
would therefore discriminate against those few flags which were authorised
by Proclamation (Ninth Report of 1996, page 139). The committee thanked
the Attorney-General for this response.
Insufficient parliamentary scrutiny of legislative power—instruments
that are not legislative instruments
Schedule 1 of the bill lists certain instruments and provides that they
are not to be legislative instruments for the purpose of the legislation.
Table item 14 provides for certain instruments, relating to terms and
conditions of Commonwealth employees, to be included in the list by being
prescribed. While the instrument including other instruments in the Schedule
would itself be disallowable, the committee considered that this was not
a satisfactory safeguard. The Attorney-General responded that the exemption
of instruments dealing with terms and conditions of persons employed by
the Commonwealth was consistent with the Government's industrial relations
policy but would be reviewed in the course of the review of the legislation.
The committee remained concerned that the bill altered the status quo
by removing such instruments from parliamentary scrutiny and continued
to draw senators' attention to the provision. Further comments on this
issue were included in the Fourth and Sixth Reports of 1997, the latter
containing extracts from a letter from the Minister for Industrial Relations
to the Regulations and Ordinances Committee in which the Minister stated
that the Government would introduce amendments to ensure preservation
of the status quo. Certain public sector instruments would be exempt
from the requirements of the bill but those instruments currently subject
to disallowance would continue to be so subject.
An amendment by the Senate to omit table item 14 of Schedule 1 was subsequently
disagreed to by the House of Representatives but a further amendment was
made by the House of Representatives restoring the status quo.
This amendment was agreed to by the Senate and is included in the new
bill.
Inappropriate delegation of legislative power—amendment of various
Acts with respect to Rules of Court
Schedule 4 of the bill, among other things, regulates the relationship
between the substantive provisions of the bill and the Rules of Court
of the Family Court, Federal Court, High Court and the Industrial Relations
Court, although clause 7 provides that such rules are not generally legislative
instruments. Schedule 4, however, provides that the bill, with some exceptions,
would apply to those rules as if they were legislative instruments. Schedule
4 also provides that the provisions of the bill which apply to the rules
of court may be modified or adapted by regulations made under the Acts
regulating those Courts. Although such regulations would themselves be
disallowable, the committee was concerned that modifications achieved
through such regulations could have the effect of ousting parliamentary
scrutiny. The Attorney-General noted that any modification made by such
regulations could not affect the requirement to comply with Part 5 of
the bill (concerning scrutiny of legislative instruments). The committee
remained concerned, however, and continued to draw senators' attention
to the provisions. The Attorney-General's further response indicated that
he was considering an amendment to make it clear that a modification or
adaptation by regulation could not operate to affect the operation of
Part 5 of the bill.
Amendments to this effect were agreed to by the Senate and subsequently
by the House of Representatives as well. They have been included in the
version of the bill currently before the Parliament.
The committee notes that the bill was previously passed by the Senate
with amendments, some of which were agreed to by the House of Representatives
and others of which were not agreed to. The issues are now before the
Senate again in the form of 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 dealt with the bill in Alert Digest No. 1 of 1998 but made
no comment.
The committee has subsequently received a submission on the bill from
the Trustee Corporations Association of Australia (TCAA) which claims
that the bill transgresses principles (1)(a)(i), (ii) and (iv) of the
committee's terms of reference. A copy of the covering letter accompanying
the submission is included at the end of this Alert Digest.
Does the bill trespass unduly on personal rights and liberties?
The TCAA claims that the bill denies the beneficial owners of some $160
billion of assets in collective investments the right to continue to have
those assets held for them on the same terms and conditions, and with
the same level of protection as they presently enjoy. Further, the TCAA
suggests that the bill is retrospective in seeking to overturn established
contractual and equitable rights.
The committee does not regard the bill as having any retrospective effect.
Although the bill may well affect the relationship between the beneficial
owners and the managers of collective investments, those charges apply
only for the future and cannot affect any matters occurring prior to this
bill being assented to.
In these circumstances, the committee makes no further comment on
this issue.
Does the bill make rights unduly dependent upon insufficiently defined
administrative powers?
The TCAA suggests that because implementation of the scheme contained
in the bill will be the responsibility of the ASC and the relevant draft
regulations and policy guidelines have not been released, the Parliament
cannot know how the law, if enacted, will operate to achieve its stated
intent.
The committee notes that it is not an uncommon practice for matters of
administration to be dealt with in delegated legislation. In the committee's
view, the bill does not exceed acceptable parameters in that the matters
of administrative detail are sufficiently defined for the bill not to
transgress the committee's terms of reference. While it may be considered
desirable for draft regulations to be available before the bill is debated,
this is a matter for the Senate to determine.
In these circumstances, the committee makes no further comment on
this issue.
Does the bill inappropriately delegate legislative power?
The TCAA suggests that policy statements, responsibility for which is
delegated to the ASC, are legislative in character but not subject to
parliamentary or public scrutiny. Examples are given.
The committee is not convinced that the required policy statements, examples
of which are alluded to in the submission are indeed legislative in character
or that the matters raised under this heading contravene any of the committee's
terms of reference.
In these circumstances, the committee makes no further comment on
this issue.
Other matters
The TCAA's submission also suggests that the bill inappropriately creates
civil penalties to enforce private contracts, a matter which does not
fall within the committee's terms of reference.
In the circumstances, the committee has no further comment on the
bill but will make a copy of the TCAA's submission available to the Treasurer.
National Residue Survey Administration Amendment Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to amend the National Residue Survey Administration
Act 1992 and related legislation to:
- clarify that national residue survey (NRS) levies are “stand
alone” levies, levied separately from other primary industry levies;
- validate the imposition of the NRS levy on onions; and
and repeals the 22 NRS levy imposition Acts to enable their consolidation
into two Acts.
RetrospectivitySubclause 2(2)
Subclause 2(2) of the bill, if enacted, would provide for the amendments
contained in Schedule 1 to take effect retrospectively from 1 February
1994 in order to validate levies on onions that have already been collected.
The bill is said to be necessary to overcome technical faults in the
National Residue Survey Administration Act 1992 which made liability
for payment of National Residue Survey (NRS) levies dependent upon liability
for the payment of another primary industry levy. According to the explanatory
memorandum, the original intention had been that the liabilities for payment
of both levies would arise at the same point in the process and would
be collected at the same time, not that one should depend on the other.
In the case of onions, the other primary industry levy is set at $0.00
and there is some question whether a zero rate triggers an NRS levy liability.
As the levy on onions has been collected since 1 February 1994, the retrospective
application of Schedule 1 is regarded as necessary to validate the imposition
of NRS levy on onions.
Although the proposal is said to be supported by the industry, such retrospectivity
is of concern to the committee as it may have the effect of trespassing
unduly on personal rights and liberties. The committee, therefore, seeks
the Minister's advice on the circumstances which have given rise to
the bill and whether the rights of any person may be adversely affected
by its retrospective operation.
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.
National Residue Survey (Customs) Levy Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to impose levies that are duties of customs on five
commodity groups to replace the relevant imposition Acts proposed to be
repealed by the National Residue Survey Administration Amendment Bill
1998.
Imposing levy by regulation
Clause 3 of Schedule 4
Clause 3 of Schedule 4 sets the rate of levy on onions at 40 cents per
tonne, with provision for amendment by regulation and a maximum rate of
levy of $5.00. The committee has consistently drawn attention to provisions
which allow that rate of a levy to be set by regulation, largely on the
basis that a rate of a levy could be prescribed which would amount to
a tax. Generally, the committee has taken the view that setting taxes
is more appropriately a matter for primary legislation, a prerogative
of Parliament, not the executive. If there is a need for flexibility (that
is, adjustments to the rate of a levy need to be made so frequently and/or
so quickly that it is impractical to amend primary legislation) the committee
prefers that the primary legislation prescribe either a maximum rate of
the levy or a method of calculating such a maximum rate. In this case,
although a maximum rate has been set, the disproportion between the current
rate of 40 cents and the proposed maximum of $5.00 is such that the committee
is concerned that this clause may effectively allow the rate of levy to
be set by regulation.
The committee therefore seeks the Minister's advice on why the
parameters set by the legislation are so broad in relation to the rate
of levy and whether the industry has been consulted on the maximum rate
of levy.
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.
Imposing levy by regulationSubclause 5(1)
Subclause 5(1) of Schedule 4 would permit the rate of levy on a particular
class of eligible horticultural products to be set by regulation. Although
subclause 5(2) seeks to provide for a maximum rate of levy in the legislation,
that maximum is dependent upon the Australian Statistician publishing
a particular set of figures. The purpose of this clause is to provide
for a rate of levy for horticultural products other than onions, apples
and pears in anticipation of arrangements with the relevant growers of
such products. While the committee understands that an attempt is being
made to set a maximum, the committee notes that such clauses are potentially
an inappropriate delegation of legislative power for the reasons outlined
above and therefore seeks the Minister's views on why this particular
formula for setting the maximum rate was chosen.
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.
National Residue Survey (Excise) Levy Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to impose levies that are duties of excise on 16 commodity
groups to replace the relevant imposition Acts proposed to be repealed
by the National Residue Survey Administration Amendment Bill 1998.
Imposing levy by regulation—proportionality
Clause 3 of Schedule 3, subclause 4(1) of Schedule 4, the table of rates
in clause 3 of Schedule 5 and clause 4 of Schedule 9
These provisions set minimum and maximum rates of levy for various primary
products that appear to be in disproportionate relationship with one another
in that the maximum figure is considerably greater than the minimum. As
noted in relation to the National Residue Survey (Customs) Levy Bill 1998,
the committee has consistently drawn attention to provisions which allow
that rate of a levy to be set by regulation, largely on the basis that
a rate of a levy could be prescribed which would amount to a tax. Generally,
the committee has taken the view that setting taxes is more appropriately
a matter for primary legislation, a prerogative of Parliament, not the
executive. If there is a need for flexibility (that is, adjustments to
the rate of a levy need to be made so frequently and/or so quickly that
it is impractical to amend primary legislation) the committee prefers
that the primary legislation prescribe either a maximum rate of the levy
or a method of calculating such a maximum rate. In these cases, although
maximum rates have been set, the disproportion between the current rates
and the proposed maxima are such that the committee is concerned that
these provisions may effectively allow the rates of levies to be set by
regulation.
The committee therefore seeks the Minister's advice on why the
parameters set by the legislation are so broad in relation to the rates
of levy and whether the replacement levies differ in scope from the previous
regime.
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.
Imposing levy by regulation
Clause 9 of Schedule 9
Clause 9 of Schedule 9 would permit the rate of levy on a particular
class of eligible horticultural products to be set by regulation. Although
subclause 9(2) seeks to provide for a maximum rate of levy in the legislation,
that maximum is dependent upon the Australian Statistician publishing
a particular set of figures. The purpose of this clause is to provide
for a rate of levy for horticultural products other than onions, apples
and pears in anticipation of arrangements with the relevant growers of
such products. While the committee understands that an attempt is being
made to set a maximum, the committee notes that such clauses are potentially
an inappropriate delegation of legislative power for the reasons outlined
above and therefore seeks the Minister's views on why this particular
formula for setting the maximum rate was chosen.
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.
Privacy Amendment Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the Privacy Act 1988 to apply it to
personal information held by contractors in relation to services provided
to the Commonwealth. It proposes to:
- require “contracted service providers” to comply with the
Information Privacy Principles when collecting or holding personal information
in relation to that contract;
- enable the Privacy Commissioner to investigate, conciliate or make
determinations in respect of a complaint about an act or practice of
a contracted service providers and to conduct audits of contracted service
providers; and
- provide accountability mechanisms to involve outsourcing agencies
in such investigations.
The committee has no comment on this bill.
Public Employment (Consequential and Transitional) Amendment Bill 1997
[No. 2]
This bill was introduced into the House of Representatives on 5 March
1998 by the Minister Assisting the Prime Minister for the Public Service.
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 deal with consequential and transitional matters
arising from the repeal of the Public Service Act 1992 and the
enactment of replacement legislation, the Public Service Act 1997.
Primarily, the bill proposes to:
- set in place conversion arrangements for those who work in the Australian
Public Service;
- make transitional arrangements for some conditions covered by the
Public Service Act 1922 because they will no longer be regulated
in the same way;
- provide for the continuation of processes already in progress, eg.
appointments, promotions, suspensions, transfers and advancements, as
well as appeals, grievances and other reviews of employment decisions;
- deal with the consequences of devolving the arrangements for setting
the salaries of the Senior Executive Service; and
- make consequential amendments to amend or repeal numerous Acts.
Delegation of legislative power
Subclauses 14(4) and (5)
In Alert Digest No. 10 of 1997, the committee noted that subclauses 14(4)
and (5), if enacted, would permit the making of regulations which may
prevail over existing legislation or amend existing legislation, but that
such regulations were authorised only for the purpose of providing for
the transition from the present Public Service Act to the new one.
In these circumstances, the committee makes no further comment on
these provisions.
Regulations with retrospective effect
Subclause 14(7)
The committee noted in Alert Digest No. 10 of 1997 that subclause 14(7)
of the bill, if enacted, would permit the making of regulations which
might have retrospective effect, in that it would be possible for the
regulations to take effect from a date prior to that on which they were
made. Such regulations, however, would be subject to the Acts Interpretation
Act 1901. Any regulations made under this subclause which retrospectively
affected adversely any person other than the Commonwealth would, therefore,
be invalid.
In these circumstances, the committee makes no further comment on
this provision.
Public Service Bill 1997 [No. 2]
This bill was introduced into the House of Representatives on 5 March
1998 by the Minister Assisting the Prime Minister for the Public Service.
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 replace the current legislative framework for the
establishment and management of the Australian Public Service.
The committee has no comment on this bill.
Social Security Legislation Amendment (Youth Allowance Consequential
and Related Measures) Bill 1998
This bill was introduced into the House of Representatives on 5 March
1998 by the Minister for Family Services. [Portfolio responsibility: Social
Security]
The bill proposes to amend the following Acts:
- Social Security Act 1991 to:
- introduce austudy payment for students aged 25 years and over;
- standardise the hardship rules for the liquid assets waiting period
with those of other similar social security payments;
- ensure the consistent treatment of lump sum payments received
by youth allowance recipients;
- transfer the rules relating to the austudy pensioner education
supplement to the Social Security Act;
- with the exception of ABSTUDY customers, move the Student Financial
Supplement Scheme to the Social Security portfolio;
- enable the making of a disallowable instrument to provide fares
allowance for certain tertiary students;
- ensure that youth allowance and austudy payment are indexed;
- make amendments and transitional and consequential amendments
to various rate calculator provisions resulting from the youth allowance
changes and the repeal of youth training allowance, Benefit Rate
Calculator A and the Sickness Allowance Rate Calculator;
- Student and Youth Assistance Act 1973 to make amendments consequential
on the introduction of youth allowance and austudy payment into the
Social Security Act;
- Income Tax Assessment Act 1936, Income Tax Assessment Act
1997 and Taxation (Interest on Overpayments and Early Payments)
Act 1983 to provide for the taxation treatment of the new youth
allowance package;
- and makes consequential amendments to 11 other Acts.
Tax file numbers
Proposed sections 577A and 577B in Item 6 of Schedule 1
These sections, if enacted, would provide that austudy would not be payable
if the applicant has not provided the tax file number of the applicant
and (where relevant) his or her partner. The committee recognises that
these provisions may be included in the bill in order to prevent overpayments
and fraud against the Commonwealth. The committee, however, notes that
this is yet one more example of tax file numbers being used more as a
means of identification and as an aid to income testing rather than as
part of the tax laws. This is an issue to which the committee has repeatedly
drawn attention.
In these circumstances, 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.
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