Scrutiny of Bills Alert Digest No. 10 of 1998
Senate Standing Committee for The Scrutiny of Bills
25 November 1998
PART II
Contains bills commencing with F-Z
CONTENTS (PART II)
Film Licensed Investment Company Bill 1998
Higher Education Funding Amendment Bill 1998
Migration Legislation Amendment Bill (No. 1) 1998
Migration Legislation Amendment (Strengthening of Provisions Relating
to Character and Conduct)
Bill 1998
NRS Levy Imposition Amendment Bill 1998
Parliamentary Proceedings Broadcasting Amendment Bill 1998
Payment Processing Legislation Amendment (Social Security and Veterans'
Entitlements) Bill 1998
Private Health Insurance Incentives Amendment Bill 1998
Private Health Insurance Incentives Bill 1998
Space Activities Bill 1998
States Grants (General Purposes) Amendment Bill 1998
States Grants (Primary and Secondary Education Assistance) Amendment
Bill 1998
Superannuation Legislation Amendment (Choice of Superannuation Funds)
Bill 1998
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
Bill 1998
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
(Consequential Amendments) Bill 1998
Superannuation Legislation (Commonwealth Employment—Saving and Transitional
Provisions) Bill 1998
Taxation Laws Amendment Bill (No. 2) 1998
Taxation Laws Amendment (Film Licensed Investment Company) Bill 1998
Taxation Laws Amendment (Private Health Insurance) Bill 1998
Telecommunications Amendment Bill (No. 2) 1998
Telecommunications (Consumer Protection and Service Standards) Bill 1998
Telecommunications Legislation Amendment Bill 1998
Telecommunications (Universal Service Levy) Amendment Bill 1998
Telstra (Transition to Full Private Ownership) Bill 1998
Wool International Amendment Bill 1998
Workplace Relations Amendment (Unfair Dismissals) Bill 1998
Film Licensed Investment Company Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for the Arts and the Centenary of Federation. [Portfolio
responsibility: Arts and the Centenary of Federation]
Together with the Taxation Laws Amendment (Film Licensed Investment Company)
Bill 1998 , the bill proposes to provide for the establishment of a pilot
scheme for the delivery of tax concessions to investors in the film industry
by means of concessional investment in Film Licensed Investment Companies.
The Committee has no comment on this bill.
Higher Education Funding Amendment Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the Higher Education Funding Act 1988
to:
- vary the maximum aggregate amount which may be granted to higher education
institutions for operating purposes for the funding year 1998 and set
the maximum total amount of financial assistance for these purposes
for the funding years 1999 and 2000;
- vary the maximum total financial assistance payable to higher education
institutions for superannuation expenditure for the funding year 1998
and set the maximum total amount of financial assistance for the funding
years 1999 and 2000;
- set the maximum aggregate amount of financial assistance which may
be granted to open learning organisations for the funding years 1999
and 2000;
- vary the limit on total funds available for higher education institutions
for certain grants under the Act in respect of the funding years 1998
and 1999 and set the limit on total funds for the funding year 2000;
- vary the maximum aggregate amount of financial assistance which may
be granted to higher education institutions in respect of their teaching
hospitals for the 1998 funding year and set the maximum aggregate amount
of financial assistance for the funding years 1999 and 2000;
- vary the maximum aggregate amount which may be granted to higher education
institutions for approved special capital projects for the 1998 funding
year and set the maximum aggregate amount for the funding years 1999
and 2000;
- make provision for funding for expenditure on the international marketing
and promotion of Australian education and training services by Australian
Education International and set the maximum funding levels for the years
1998, 1999 and 2000;
- provide for the Minister to table in each House of the Parliament,
determination of amounts for Australian Education International; and
- empower the Minister to approve grants to the University of Notre
Dame Australia for limited operating purposes;
- provide additional funding for the James Cook University of North
Queensland; and
- provide additional funding to enable university and industry collaboration
under the Strategic Partnerships-Industry Research and Training Scheme.
The Committee has no comment on this bill.
Migration Legislation Amendment Bill (No. 1) 1998
This bill was introduced into the Senate on 12 November 1998 by the Assistant
Treasurer. [Portfolio responsibility: Immigration and Multicultural Affairs]
The bill proposes to amend the following Acts:
- Migration Act 1958 to:
- merge the Migration Internal Review Office and the Immigration
Review Tribunal into a new body to be called the Migration Review
Tribunal (MRT);
- provide the principal members of the MRT and the Refugee Review
Tribunal (RRT) with clear authority to apply efficient processing
practices;
- specify the circumstances when the Principal Member of the MRT
or the RRT may reconstitute a Tribunal for the more efficient conduct
of the review;
- allow the Minister to appoint a person to act as a Senior Member
of the RRT for a period of no more than 12 months;
- prevent MRT and RRT hearings from being unnecessarily delayed
in certain circumstances;
- provide that the MRT and RRT must invite an applicant to appear
before the Tribunal, unless specified circumstances exist;
- give the MRT and RRT authority to use telephone or other media
to conduct personal hearings or for people to appear before them;
- provide for the publication of tribunal decisions of interest
at the discretion of Principal Members;
- provide for the formal handing down of decisions and certainty
of dispatch;
- apply a code of procedure to the MRT and RRT in relation to decisions
on entry and stay of non-citizens;
- provide for the “no further stay” condition on temporary
visas to be waived in prescribed circumstances;
- enable more effective cancellation of visas which were granted
on the basis of incorrect information; and
- clarify existing provisions and make amendments of a technical
nature;
- Australian Citizenship Act 1948 to bring the penalty provision
into line with similar offences under Commonwealth law; and
- Immigration (Education) Act 1971, the Migration Reform Act
1992 and the Migration Legislation Amendment Act (No. 5) 1995
to make minor technical amendments.
Retrospective application
Subclauses 2(4) to 2(8)
By virtue of subclauses 2(4) to 2(8), the amendments proposed in Schedule
8 will commence at various dates prior to the date of Assent to the Bill.
In each case, however, the purpose of the amendment is to correct a drafting
error, with no substantive change made to the law.
In these circumstances, the Committee makes no further comment on
this provision.
Non-reviewable decisions
Schedule 1, item 10
Item 10 of Schedule 1 to the bill proposes to insert a new section 339
in the Principal Act. This provision will give the Minister the discretion
to decide that certain administrative decisions cannot be reviewed by
the Migration Review Tribunal.
While such a provision is usually of concern, the Committee notes its
comments in its Thirteenth Report of 1997 on similar provisions
in the Migration Legislation Amendment Bill (No 4) 1997.
In that Report, the Committee noted the Minister's response that the
proposed new section simply transferred a power already vested in the
Minister under sections 338(3) and 346(4) of the Act. The Committee also
noted that these existing powers were reviewable in the Federal Court,
and this would continue in relation to the proposed new provision.
The Committee further notes that, by virtue of item 12 in Schedule 1
to the Migration Legislation Amendment (Strengthening of Provisions relating
to Character and Conduct) Bill 1998, also currently before the Parliament,
the proposed new section 339 to be inserted by this bill will itself be
replaced by a provision in the `Character and Conduct' Bill.
In these circumstances, the Committee makes no further comment on
this provision.
Migration Legislation Amendment (Strengthening of Provisions relating
to Character and Conduct) Bill 1998
This bill was introduced into the Senate on 11 November 1998 1997 by
the Assistant Treasurer. [Portfolio responsibility: Immigration and Multicultural
Affairs]
The bill proposes to amend the Migration Act 1958 to increase
control over the entry into, and presence in, Australia of non-citizens
who have a criminal background or have criminal associations and to strengthen
the procedures used in dealing with such people.
Commencement
Clause 2
By virtue of clause 2 of this bill, all but two items in the Schedule
are to commence on proclamation, with no further time specified within
which the provisions either must come into force or be repealed.
The Committee notes that paragraph 6 of Office of Parliamentary Counsel
Drafting Instruction No 2 of 1989 suggests that such an approach
should be used only in unusual circumstances, where commencement depends
on an event whose timing is uncertain.
Committee consideration of the provision in its Fourth Report of 1998
In its Fourth Report of 1998, the Committee sought advice from
the Minister in relation to a similar commencement provision in a bill
of the same name introduced into the House of Representatives on 30 October
1997. In relation to that bill, the Minister advised that the approach
of commencement on proclamation had been adopted because:
- it was desirable for reasons of administrative efficiency and public
convenience that the bill should commence at the same time as amendments
made by other related bills, however the measures contained in this
bill were sufficiently important to justify an earlier commencement
should it be passed first; and
- the new administrative procedures which are required by the bill would
significantly affect the operations of the Department and the Administrative
Appeals Tribunal – these procedures should be fully developed and
in place when the legislation commences.
It is unclear whether these reasons remain relevant and the Explanatory
Memorandum does not clarify the issue. Accordingly, the Committee seeks
the advice of the Minister on the reason for departing from Drafting
Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel.
Pending the Minister'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.
Insufficiently defined administrative powers
Schedule 1, item 12
Item 12 of Schedule 1 to the bill proposes to insert a new section 339
in the Principal Act. This provision will enable the Minister to issue
a conclusive certificate – thereby preventing merits review of the
decision the subject of the certificate – where he or she believes
that it would be contrary to the national interest that a decision be
changed or reviewed.
This provision is in the same terms as section 339 proposed to be inserted
by a bill of the same name, introduced into the House of Representatives
on 30 October 1997. This provision was the subject of correspondence with
the Minister, and was discussed extensively by the Committee in its Fourth
and Ninth Reports of 1998.
Committee consideration of the provision in its Fourth Report of 1998
In its Fourth Report of 1998, the Committee noted that the proposed
provision would reduce the range of factors which might inform a Ministerial
decision to issue a conclusive certificate and thereby prevent merits
review of the decision the subject of the certificate. The `Character
and Conduct Bill' proposed to replace two relatively precise grounds (prejudice
to the security, defence or international relations of Australia, and
possibly exposing Cabinet deliberations to review) with a single more
general ground: the Minister could issue a conclusive certificate merely
because he or she believed that it would be contrary to the national interest
that a decision be changed or reviewed.
It was the Committee's view that this reduction widened the discretion
in the use of this administrative power and raised the issue of whether
it constituted an insufficiently defined administrative power.
The Minister responded that:
- the amendments were designed to ensure that his personal power to
intervene in the review process would be controlled by consistent and
uniform criteria (that is, the national interest) across the entire
Migration Act; and
- Australia's national interest was a better test than the existing
public interest test for direct Ministerial intervention in the review
process because Australia's national interest encompassed a broader
range of conduct and considerations than does the public interest.
The Committee sought clarification from the Minister as to the differences
between the terms `public interest' and `national interest' and, in particular,
whether the definition of public interest in section 339 might be expanded
to include considerations of the national interest.
Committee consideration of the provision in its Ninth Report of 1998
The Minister provided the Committee with a further response, and this
was considered by the Committee in its Ninth Report of 1998.
In particular, the Minister noted that judicial comments about `national
interest' stressed that it was not possible to give an exhaustive definition
of what could be said to be in the national interest. Matters such as
Australia's international reputation might be relevant. For example, a
reference to the `national interest' in the context proposed for
section 501 of the Migration Act should allow account to be taken of the
Government's interest in ensuring that Australia is not perceived internationally
as a haven for criminals, terrorists and other persons of proven bad character.
The risk that the presence in Australia of particular persons would promote
discord or violence also appeared to be relevant to an assessment of the
national interest.
The Minister concluded that the `national interest' generally allowed
regard to be had to more specific governmental concerns related to public
safety, national security, defence and Australia's reputation abroad.
With regard to expanding the definition of `public interest' in section
339 to include considerations of the `national interest', the Minister
noted that the `Character and Conduct' Bill proposed to replace one test
with the other.
The Committee thanked the Minister for this further response.
In these circumstances, the Committee draws the Senate's attention
to its previous comments on this provision.
Insufficiently defined administrative powers
Schedule 1, item 23
Item 23 of Schedule 1 to the bill proposes to insert new subsections
501(3) to (5) and 501A(3) and (4) in the Principal Act. These provisions
will enable the Minister, acting personally, either to refuse to grant
a visa or to cancel a visa that has been granted where the Minister reasonably
suspects that the person does not pass the character test and is satisfied
that the refusal or cancellation is in the national interest. The Minister
may similarly overturn a favourable decision of his or her delegate or
the Administrative Appeals Tribunal on the character test. Such decisions
may be made without hearing any representations which the affected person
may wish to make.
These provisions are in the same terms as identically numbered provisions
proposed to be inserted into the Principal Act by item 23 of a bill of
the same name, introduced into the House of Representatives on 30 October
1997. These provisions were the subject of correspondence with the Minister,
and were discussed extensively by the Committee in its Fourth and
Ninth Reports of 1998.
Committee consideration of the provision in its Fourth and Ninth Reports
of 1998
In its Fourth and Ninth Reports of 1998, the Committee
noted that, by referring to the `national interest' these proposed provisions
also raised the issue of an insufficiently defined administrative power.
The Minister's response on the matter of the `national interest' is set
out above.
In these circumstances, the Committee draws the Senate's attention
to its previous comments on these provisions.
NRS Levy Imposition Amendment Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Together with four other bills relating to consumer protection and service
standards applicable to telecommunications carriers and service providers,
the bill proposes to amend the NRS Levy Imposition Act 1998 to
replace a reference to a provision of the Telecommunications Act 1997
with a reference to the corresponding provision of the proposed Telecommunications
(Consumer Protection and Service Standards) Act 1998.
The Committee has no comment on this bill.
Parliamentary Proceedings Broadcasting Amendment Bill 1998
This bill was introduced into the House of Representatives on 10 November
1998 by the Prime Minister. The bill, a privilege bill, is customarily
presented by the Prime Minister on the first sitting day of a new Parliament
as the first item of formal business.
The bill proposes to amend the Parliamentary Proceedings Broadcasting
Act 1946 to effect gender neutral language.
The Committee has no comment on this bill.
Payment Processing Legislation Amendment (Social Security and Veterans'
Entitlements) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Community Services. [Portfolio responsibility:
Family and Community Services]
The bill proposes to amend the Social Security Act 1991 and the
Veterans' Entitlements Act 1986 to provide for the payment of social
security payments and income support payments to be paid fortnightly in
arrears with daily entitlements. Consequential amendments are also made
to the Social Security Act 1991 in relation to bereavement provisions.
The bill also proposes to make further consequential amendments to the
Child Care Payments Act 1997 and the Income Tax Assessment Act
1997.
The Committee has no comment on this bill.
Private Health Insurance Incentives Amendment Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Health and Aged Care. [Portfolio responsibility:
Health and Aged Care]
Together with the Private Health Insurance Incentives Bill 1998 and the
Taxation Laws Amendment (Private Health Insurance) Bill 1998, the bill
proposes to provide transitional arrangements to enable the establishment
of a 30 per cent tax offset scheme to replace the private health insurance
incentive scheme from 1 January 1999. The bill also proposes to repeal
the Private Health Insurance Incentives Act 1997 (effective from
1 July 2000).
The Committee has no comment on this bill.
Private Health Insurance Incentives Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Health and Aged Care. [Portfolio responsibility:
Health and Aged Care]
Together with the Private Health Insurance Incentives Amendment Bill
1998 and the Taxation Laws Amendment (Private Health Insurance) Bill 1998,
the bill proposes to enable the establishment of a 30 per cent tax offset
scheme to replace the private health insurance incentive scheme from 1
January 1999.
The Committee has no comment on this bill.
Space Activities Bill 1998
This bill was introduced into the Senate on 12 November 1998 by the Assistant
Treasurer. [Portfolio responsibility: Industry, Science and Resources]
The bill proposes to provide a framework for space activities in Australia
or involving Australian interests and to effect Australia's obligations
as a signatory to five United Nations space treaties.
The Committee has no comment on this bill.
State Grants (General Purposes) Amendment Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to amend the States Grants (General Purposes) Act
1994 to:
- provide for general revenue assistance (including competition payments)
to the States and Territories in 1998-99;
- provide for the States and Territories to make fiscal contributions
to the Commonwealth in 1998-99 by way of deductions from general revenue
assistance; and
- enable the Commonwealth to make payments under the safety net arrangements
relating to business franchise fees.
The Committee has no comment on this bill.
State Grants (Primary and Secondary Education Assistance) Amendment
Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the States Grants (Primary and Secondary
Education Assistance) Act 1996 to:
- provide $21 million to introduce the Full Service Schools program;
- provide $40.2 million to extend the National Asian Languages and Studies
in Australian Schools (NALSAS) strategy;
- enable the Minister to vary funding allocations for Literacy and Country
Areas programs;
- change funding schedules for capital grants for government and non-government
schools to enable capital funding for 2001, 2002 and 2003;
- vary the amounts of 1997 and 1998 recurrent and capital grants for
the 1997 and 1998 supplementation and provide flow on effects for 1999
and 2000; and
make technical amendments.
The Committee has no comment on this bill.
Superannuation Legislation Amendment (Choice of Superannuation Funds)
Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
- Superannuation Guarantee (Administration) Act 1992 to:
- require employers to make compulsory superannuation contributions
to a complying superannuation fund 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; and
- Retirement Savings Accounts Act 1997 and the Superannuation
Industry (Supervision) Act 1993 to make consequential amendments.
Inappropriate delegation of legislative power
Schedule 1, item 2
Item 2 of Schedule 1 to the bill proposes to insert new subsections 5(2)
and (2A) in the Superannuation Guarantee (Administration) Act 1992.
These new subsections would make that Act subject to “such modifications
as are prescribed”. This would seem to permit the amendment of the
Act by regulation – an example of a `Henry VIII' clause – and
so may be regarded as an inappropriate delegation of legislative power.
In addition, proposed new subsection 5(2C) will permit the Minister for
Finance to issue directions which “must be complied with, notwithstanding
any other law of the Commonwealth”. This would seem to permit the
Minister to override any other Commonwealth law – another example
of a `Henry VIII' clause in that it will permit the amendment of primary
legislation without reference to the Parliament.
In referring to these provisions, the Explanatory Memorandum (at paragraph
1.99) simply notes that the Bill “contains amendments which have
the effect of treating individual Commonwealth Departments as separate
employers”.
The provisions are in the same form as in a bill of the same name which
was introduced into the House of Representatives on 28 May 1998, and on
which the Committee commented in Alert Digest No 8/98.
The Committee reiterates its comments as made in that Digest, and seeks
the Minister's advice on whether it might be more appropriate to achieve
the required purposes by amendments to primary legislation.
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.
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Parliamentary Secretary to 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 1999;
- 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 late elections to
preserve benefits;
- 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; and
- 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;
and repeals 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 1998.
Retrospective application
Subclauses 2(3) to 2(5)
By virtue of subclause 2(3) of this bill, the amendments proposed in
items 248, 251 and 263 of Schedule 1 will be taken to have commenced on
27 June 1997. The Explanatory Memorandum comments that this date was “the
date of announcement of the new scheme”.
The Committee consistently disapproves of legislation by press release.
For example, The Work of the Committee during the 37th Parliament (May
1993 – March 1996) contains the following comments:
The Committee draws attention to legislation by press release. The fact
that it is to have effect only after the intention to introduce it is
made public is no justification for it being given force prior to its
enactment. The expectations of its proposer that parliament will subsequently
pass the legislation and that the people it is aimed at will comply with
its provisions in the meantime are presumptuous.
By virtue of subclauses 2(4) and (5), other provisions will also commence
retrospectively. Paragraphs 2(d) and (c) indicate that the amendments
referred to here seek to do no more than clarify provisions in existing
legislation, and make no substantive changes to the law. It is difficult
to confirm this from the provisions in the bill.
Accordingly, the Committee seeks the Minister's advice as to why
the provisions referred to in subclauses 2(3) to 2(5) need to commence
retrospectively.
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.
Retrospective application
Subclause 2(6) and Schedule 1, Part 5
Subclause 2(6) will permit Part 5 of Schedule 1 to this bill to commence
retrospectively on 5 December 1997. The Explanatory Memorandum indicates
that these amendments will “restore the original intention of the
1976 Act”.
It is unclear whether this retrospectivity will advantage or disadvantage
members of the superannuation scheme established by the 1976 Act. Accordingly,
the Committee seeks the Minister's advice as to the effect of the
amendments referred to in subclause 2(6).
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.
Retrospective application
Subclause 2(10) and Schedule 13, items 3 to 6
The amendments referred to in subclause 2(10) of the bill will also commence
retrospectively. The Explanatory Memorandum states that these are “minor
and technical amendments” taken to have commenced on the day on which
a previous amending Act received Royal Assent.
In these circumstances, the Committee makes no further comment on
these provisions.
Retrospective application
Schedule 1, item 15
Item 15 of Schedule 1 to the bill inserts a proposed new subsection 3(1A)
in the Superannuation Act 1976. This new subsection will allow
the Minister to make declarations which might have retrospective effect.
However, the Committee notes that, by virtue of section 48(2) of the
Acts Interpretation Act 1901, such declarations are of no effect
if they prejudicially affect any person other than the Commonwealth.
In these circumstances, the Committee makes no further comment on
this provision.
Inappropriate delegation of legislative power
Schedule 1, item 18 and Schedule 3, item 10
Item 18 of Schedule 1 to the bill proposes to insert new subsections
3D(8) and (9) in the Superannuation Act 1976. Item 10 of Schedule
3 to the bill proposes to insert new subsections 3AAA(8) and (9) in the
Superannuation Act 1990. Each of these proposed new subsections
will permit the Minister to make a declaration as to the status of a Commonwealth
authority or body, which declaration may be made “despite the previous
provisions of” the relevant legislation.
Apparently, such declarations are not disallowable instruments. Accordingly,
the Committee seeks the Minister's advice as to why these provisions
are appropriate delegations of legislative power and why they are not
subject to Parliamentary scrutiny.
Pending the Minister's advice, the Committee draws Senators' attention
to the provisions, as they may be considered to inappropriately delegate
legislative power, in breach of principle 1(a)(iv) of the Committee's
terms of reference, and insufficiently subject the exercise of legislative
power to parliamentary scrutiny, in breach of principle 1(a)(v) of the
Committee's terms of reference
Superannuation Legislation (Commonwealth Employment) Repeal and Amendment
(Consequential Amendments) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Parliamentary Secretary to the Minister for Finance and Administration.
[Portfolio responsibility: Finance and Administration]
The bill proposes to amend the followings Acts:
- Commonwealth Funds Management Limited Act 1990 retrospectively
to remove redundant provisions in relation to the sale of Commonwealth
Funds Management Limited; and
- Defence Force Retirement and Death Benefits Act 1973, Governor-General
Act 1974, Judges' Pensions Act 1968 and Military Superannuation
and Benefits Act 1991 as a consequence of changes to the Commonwealth's
superannuation arrangements.
Retrospective application
Subclause 2(2) and Schedule 1
By virtue of subclause 2(2), Schedule 1 to this bill is taken to have
commenced on 23 December 1996. The Explanatory Memorandum points out that
the repeal effected by that Schedule (which concerns the obligation to
provide the Minister with a copy of an annual return) will have no effect
on the law, as the provision repealed is redundant.
In these circumstances, the Committee makes no further comment on
this provision.
Superannuation Legislation (Commonwealth Employment—Saving and
Transitional Provisions) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Parliamentary Secretary to 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 1998 and
the Commonwealth Superannuation Board Bill 1998.
The Committee has no comment on this bill.
Taxation Laws Amendment Bill (No. 2) 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
- Income Tax Assessment Act 1936 to:
- deny the ability to offset against capital gains certain capital
losses created by an arrangement entered into before 3pm on 29 April
1997 and to prevent companies using capital losses artificially
created through an arrangement entered into after that time;
- allow instalment taxpayers classified as small to pay their likely
tax on 15 December following their income year and the balance,
if any, of their tax liability on the following 15 March, and make
consequential amendments;
- prevent franking credits or debits arising from the payment or
refund of tax where those amounts are attributable to the retirement
savings account business of a life assurance company;
- replace the formulae used to determine the passive income of the
controlled foreign companies of life and general insurance companies;
- require life companies to use average calculated liabilities,
rather than calculated liabilities at the end of the year of income,
as the basis for determining income that relates to immediate annuity
policies and apportioning income and capital gains;
- clarify the operation of the depreciation provisions in circumstances
when an entity the income of which is exempt becomes, for any reason,
subject to tax on any part of its income under the provisions of
the Act; and
- exclude superannuation funds, approved deposit funds, and pooled
superannuation trusts from the grouping provisions contained in
the company tax instalment system;
- Fringe Benefits Tax Assessment Act 1986 to:
- exempt certain benefits relating to approved student exchange
programs from FBT;
- introduce new record keeping exemption arrangements;
- Fringe Benefits Tax Assessment Act 1986, Income Tax Assessment
Act 1936 and Income Tax Assessment Act 1997 to:
- extend the existing exemption for taxi travel beginning or ending
at an employee's place of work;
- introduce a new exemption from FBT for car parking benefits for
certain small business owners;
- simplify “arranger” provisions; and
- Income Tax Assessment Act 1936, Income Tax Assessment Act
1997 and Taxation Laws Amendment (Landcare and Water Facility
Tax Offset) Act 1998 to ensure that taxpayers must reduce the cost
base or indexed cost base of an asset to the extent of any net deductions
allowable for expenditures included in the cost base;
- Income Tax Assessment Act 1997 to prevent a taxpayer who has
become bankrupt from using a carried forward landcare and water facility
tax offset in certain circumstances.
Retrospective application
Subclause 2(2) and Schedule 7, Part 3
By virtue of subclause 2(2) of this bill, the amendments proposed in
Part 3 of Schedule 7 are to commence retrospectively on 14 July 1998.
This is the commencement date of the Taxation Laws Amendment (Landcare
and Water Facility Tax Offset) Act 1998.
The Explanatory Memorandum appears to provide no reason for this retrospectivity.
Reference to the associated Act does not clarify matters. Accordingly
the Committee seeks the Minister's advice as to the reasons for
the retrospective application of the amendments proposed in Part 3 of
Schedule 7.
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.
Legislation by press release
Schedule 1, Part 2 and Schedule 9
The amendments proposed by Part 2 of Schedule 1 to the bill are to apply
from 29 April 1997, being the date of the Treasurer's press release
on the matter. Similarly, the amendments proposed by Schedule 9 are to
apply from the same date, being the date of a separate press release issued
by the Treasurer.
In each case, the application provision is outside the `six month rule',
as set out in the Senate resolution of 8 November 1988. This resolution,
which deals with taxation legislation only, states that:
Where the Government has announced, by press release, its intention to
introduce a Bill to amend taxation law, and that Bill has not been introduced
into the Parliament or made available by way of publication of a draft
Bill within 6 calendar months after the date of that announcement, the
Senate shall, subject to any further resolution, amend the Bill to provide
that the commencement date of the Bill shall be a date that is no earlier
than either the date of introduction of the Bill into the Parliament or
the date of publication of the draft Bill.
Accordingly the Committee seeks the Treasurer's advice as to the
reason for the delay in putting the proposed amendments into legislative
form.
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.
Retrospective application
Schedules 2, 3 and 5
The amendments proposed by Schedules 2, 3 and 5 are to apply retrospectively
(by virtue of items 2, 12 and 16 respectively of each of those Schedules).
However, these retrospective amendments are beneficial to taxpayers.
In these circumstances, the Committee makes no further comment on
this provision.
Retrospective application
Schedule 7, Parts 1 and 2, and Schedule 8
As a budget announcement, the amendments proposed by Parts 1 and 2 of
Schedule 7 apply to assets acquired after 13 May 1997. The amendments
proposed by Schedule 8 apply from 1 July 1997.
The Committee usually accepts that measures announced in a Budget may
be deemed to apply from Budget night. However, the usual practice is that
legislation giving effect to such measures is introduced into Parliament
within a few months of the bringing down of the Budget. If the Budget
were to be regarded as the equivalent of a Press Release, the amendments
proposed in these Schedules would clearly fall outside the six-month period
referred to in the Senate Resolution of 8 November 1988.
Accordingly, the Committee seeks the advice of the Treasurer on
the reason for the delay in putting these proposed amendments into legislative
form and whether there are any precedents for such delays in introducing
legislation to give effect to Budget measures.
Pending the Treasurer's advice, the Committee draws Senators' attention
to these 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.
Retrospective application
Schedule 10
The amendments proposed by Schedule 10 to the bill would (by virtue of
item 3) apply to entities which became taxable earlier than 3 July 1995
but not earlier than 1 July 1988.
While these amendments are obviously retrospective, the Explanatory Memorandum
suggests that they do not impose any tax, but merely seek to prevent a
potential loss of revenue, and provide certainty. In general terms, the
amendments are intended to clarify the operation of the depreciation provisions
in the Income Tax Assessment Act 1936 in circumstances where an
entity the income of which is exempt becomes, for any reason, subject
to tax on any part of its income.
In these circumstances, the Committee makes no further comment on
this provision.
Taxation Laws Amendment (Film Licensed Investment Company) Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for the Arts and the Centenary of Federation. [Portfolio
responsibility: Treasury]
Together with the Film Licensed Investment Company Bill 1998, the bill
proposes to provide a tax deduction for amounts paid to subscribe for
shares in a Film Licensed Investment Company (FLIC) during the period
the FLIC is licensed to raise share capital which will qualify for the
deduction.
The Committee has no comment on this bill.
Taxation Laws Amendment (Private Health Insurance) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Health and Aged Care. [Portfolio responsibility:
Treasury]
Together with the Private Health Insurance Incentives Bill 1998 and the
Private Health Insurance Incentives Amendment Bill 1998, the bill proposes
to amend the following Acts:
- Income Tax Assessment Act 1997 to provide a tax offset for
persons who take out or maintain private health insurance and make other
consequential changes necessary to make the offset a refundable tax
offset; and
- Income Tax Assessment Act 1936 to make consequential changes.
The Committee has no comment on this bill.
Telecommunications Amendment Bill (No. 2) 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
The bill proposes to amend the Telecommunications Act 1997 to
provide that environmental impact requirements placed on carriers proposing
to install facilities be extended from 1 January 1999 to 1 January 2001.
The Committee has no comment on this bill.
Telecommunications (Consumer Protection and Service Standards) Bill
1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Together with four other bills relating to consumer protection and service
standards applicable to telecommunications carriers and service providers,
the bill proposes to impose obligations on telecommunications carriers
and carriage service providers for the benefit of consumers by:
- imposing a universal service obligation on carriers to ensure that
standard telephone services, payphones and prescribed carriage services
are reasonably accessible to all people in Australia on an equitable
basis, wherever they reside or carry on business;
- continuing the current arrangements for the National Relay Service;
- enabling continued access to untimed local calls;
- continuing Customer Service Guarantee (CSG) arrangements including
giving the Australian Communications Authority the power to direct a
telephone company to redress systemic problems in relation to the CSG;
- continuing the operation of the Telecommunications Industry Ombudsman
scheme;
- protecting residential customers of standard telephone services against
a failure by their carriage service providers to supply those services
when the customer has made a protected payment;
- continuing the provision of emergency call handling services; and
- continuing the price regulation regime currently applicable to Telstra.
The Committee has no comment on this bill.
Telecommunications Legislation Amendment Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Together with four other bills relating to consumer protection and service
standards applicable to telecommunications carriers and service providers,
the bill primarily proposes to:
- limit the use an access provider can make of information which is
provided by an access seeker for access purposes;
- enable the Australian Competition and Consumer Commission (ACCC) to
make a binding code in relation to conditions carriers must comply with
in regard to the provision of information, the provision of access to
information or certain consultations;
- enable the ACCC to disclose or require the disclosure of information
it requires to be kept under record-keeping rules;
- enable parties other than the ACCC to seek injunctive relief in regard
to a breach of the competition rule whether or not a competition notice
has been issued in regard to the conduct;
- require the ACCC to monitor and report on compliance by Telstra and
universal service providers with price control arrangements applying
to them;
- require the ACCC to monitor and report to the Minister on such matters
relating to competition in the telecommunications industry as specified
in certain determinations;
- enable the ACCC to give directions in relation to negotiations about
the terms and conditions on which a carrier or carriage service provider
will comply with standard access obligations;
- enable the ACCC to attend or mediate at negotiations about terms and
conditions on which a carrier or carriage service provider will comply
with standard access obligations;
- enable the Australian Communications Authority to make a determination
requiring carriage service providers to give ordinary customers specified
information about the terms and conditions governing the supply of goods
and services to them, including information about their rights as customers
and their rights under the customer service guarantee;
- make changes to various Acts consequential upon the enactment of the
proposed Telecommunications (Consumer Protection and Service Standards)
Act 1998;
- and make transitional arrangements.
Abrogation of the privilege against self-incrimination
Schedule 1, item 15
Item 15 of Schedule 1 to this bill proposes to insert a new section 151BUF
in the Telecommunications Act 1997. This will remove the privilege
against self-incrimination in certain circumstances. However proposed
section 151BUF(2) provides that giving a report, or any information, document
or thing obtained as a direct or indirect consequence of giving the report,
is not admissible in evidence in proceedings for a pecuniary penalty,
or in criminal proceedings (other than proceedings for making incorrect
records). The Committee accepts a provision in this form.
In these circumstances, the Committee makes no further comment on
this provision.
Telecommunications (Universal Service Levy) Amendment Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Together with four other bills relating to consumer protection and service
standards applicable to telecommunications carriers and service providers,
the bill proposes to amend the Telecommunications (Universal Service
Levy) Act 1997 to replace references to provisions of the Telecommunications
Act 1997 with references to the corresponding provisions of the proposed
Telecommunications (Consumer Protection and Service Standards) Act
1998.
The Committee has no comment on this bill.
Telstra (Transition to Full Private Ownership) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Finance and Administration. [Portfolio responsibility:
Communications, Information Technology and the Arts]
The bill proposes to amend the following Acts:
- Telstra Corporation Act 1991 to repeal the provisions which
require the Commonwealth to retain two-thirds of the equity in the company;
and
- Natural Heritage Trust of Australia Act 1997 to increase funding
from the partial sale of Telstra for the Natural Heritage Trust of Australia
Reserve by a further $250 million;
and makes transitional and consequential amendments to two other Acts
and Regulations.
The Committee has no comment on this bill.
Wool International Amendment Bill 1998
This bill was introduced into the House of Representatives on 11 November
1998 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio
responsibility: Agriculture, Fisheries and Forestry]
The bill proposes to amend the Wool International Act 1993 to
prevent any disposal of Wool International stockpile wool before 30 June
1999 and to allow Wool International to support and meet costs in privatising
the wool stockpile.
The Committee has no comment on this bill.
Workplace Relations Amendment (Unfair Dismissals) Bill 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Minister for Employment, Workplace Relations and Small Business.
[Portfolio responsibility: Employment, Workplace Relations and Small Business]
The bill proposes to amend the Workplace Relations Act 1996 to:
- require a six month qualifying period of employment before new employees
can access an unfair dismissal remedy under the Act; and
- exclude new employees of small business from the unfair dismissal
remedy under the Act.
The Committee has no comment on this bill.
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