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.
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).
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.
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