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Alert Digest 1999

Scrutiny of Bills Alert Digest No. 11 of 1999

Senate Standing Committee for The Scrutiny of Bills

11 August 1999

ISSN 1329-668X

Members of the Committee

Senator B Cooney (Chairman)

Senator W Crane (Deputy Chairman)

Senator H Coonan

Senator T Crossin

Senator J Ferris

Senator A Murray

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.

TABLE OF CONTENTS

A New Tax System (Taxation Laws Amendment) Bill (No. 1) 1999

Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1999

Authorised Non-operating Holding Companies Supervisory Levy Determination Validation Bill 1999

Broadcasting Services Amendment Bill (No. 1) 1999

Broadcasting Services Amendment Bill (No. 2) 1999

Crimes Amendment (Fine Enforcement) Bill 1999

Customs Legislation Amendment Bill (No. 2) 1999

Electronic Transactions Bill 1999

Export Finance and Insurance Corporation Amendment Bill 1999

Financial Sector Reform (Amendments and Transitional Provisions) Bill (No. 2) 1999

General Insurance Supervisory Levy Determination Validation Bill 1999

Health Insurance Amendment (Diagnostic Imaging Services) Bill 1999

Higher Education Funding Amendment Bill 1999

Indigenous Education (Supplementary Assistance) Amendment Bill 1999

Life Insurance Supervisory Levy Determination Validation Bill 1999

Parliamentary Service Bill 1999

Republic (Consultation on an Elected President) Bill 1999

Retirement Savings Account Providers Supervisory Levy Determination Validation Bill 1999

Social Security Amendment (Disposal of Assets) Bill 1999

States Grants (Primary and Secondary Education Assistance) Amendment Bill 1999

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Bill 1999

Superannuation Supervisory Levy Determination Validation Bill 1999

Superannuation (Unclaimed Money and Lost Members) Bill 1999

Superannuation (Unclaimed Money and Lost Members) Consequential and Transitional Bill 1999

Taxation Laws Amendment Bill (No. 8) 1999

Television Licence Fees Amendment Bill 1999

Veterans' Affairs Legislation Amendment Bill (No. 1) 1999

Vocational Education and Training Funding Amendment Bill 1999

Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999

Provisions imposing criminal sanctions for failure to provide information

A New Tax System (Taxation Laws Amendment) Bill (No. 1) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the Taxation Administration Act 1953 to:

introduce pay as you go arrangements (PAYG) to enable 11 existing payment and reporting systems (pay as you earn (PAYE), prescribed payments system (PPS), reportable payments system (RPS) and other withholding systems) as well as the provisional tax and company instalments to be abolished or replaced;
effect the aligned business tax obligations of one return and one payment by:
- extending the application of current running balance account arrangements;
- aligning the payment dates for fringe benefits tax instalments with the quarterly remittance dates of other business taxes;
- facilitating the lodgment of a single compliance statement and corresponding net payment or refund claim;
- enabling the Commissioner to accept voluntary payments from taxpayers on account of future taxation debts; and
- making technical amendments to the existing running balance accounts and general interest charge measures; and
make transitional amendments; and

make consequential and transitional amendments to nine Acts.

The Committee has no comment on this bill.

Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the following Acts:

Australian Wine and Brandy Corporation Act 1980 to:

ensure that all relevant details of the transformation of wine from grape to retail sale are duly recorded;
ensure that all documents and records relevant to the claims made on wine labels can be inspected; and
make technical amendments;

Natural Resources Management (Financial Assistance) Act 1992 to rename the National Landcare Advisory Committee as the Australian Landcare Council;

Plant Breeder's Rights Act 1994 to:

provide relief to applicants affected by a reduction of the allowable period for “prior sale” during the transition from the Plant Variety Rights Act 1987 to the current Act;
remove the requirement to maintain a copy of the Register of Plant Varieties in each State and Territory;
attribute costs associated with a request for a test growing;
extend public access to information;
clarify the payment of prescribed fees; and
make minor technical amendments;

Primary Industry Councils Act 1991 to repeal the Schedule establishing the Grains Industry Council (which is no longer relevant following privatisation of the Australian Wheat Board and other changes to grain marketing arrangements);

Primary Industries Levies and Charges Collection Act 1991 to:

clarify and update levy and export charge collection techniques used in rural industries, including the association between producers and intermediaries; and
upgrade powers for authorised persons to align them with those used by inspectors under the Export Control Act 1982;

Rural Adjustment Act 1992 to rename the Rural Adjustment Scheme Advisory Council as the National Rural Advisory Council and to change the role and functions of the Council; and

Australian Horticultural Corporation Act 1987, the Farm Household Support Act 1992 and the Primary Industries and Energy Legislation Amendment Act (No. 1) 1996 to make technical amendments.

Retrospective application

Subclause 2(3)

By virtue of subclause 2(3), the amendments proposed by items 2 and 3 of Schedule 3 to the bill are to commence retrospectively on 28 June 1996. However, the Explanatory Memorandum observes that this Schedule provides for technical amendments to correct errors in certain Acts.

In these circumstances, the Committee makes no further comment on these provisions.

Retrospective application

Subclause 2(4)

By virtue of subclause 2(4), the amendments proposed by Schedule 6 to the bill are to commence retrospectively on 1 April 1999. Schedule 6 deals with amendments to the Rural Adjustment Act 1992. The Explanatory Memorandum (at page 4) states that the amendments proposed “are relatively minor”, aimed at redefining the roles and functions of the Rural Adjustment Scheme Advisory Council in the light of the winding-down of the Rural Adjustment Scheme.

However, the Explanatory Memorandum (at pages 20-21) offers a more detailed explanation of the various provisions in Schedule 6. This suggests that the changes proposed in Schedule 6 may have already taken place in anticipation of the passage of this legislation, and that these changes now require retrospective validation – a matter on which the Committee usually comments. The Committee, therefore, seeks the Minister advice on the need for making these relatively minor amendments retrospective.

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.

Authorised Non-operating Holding Companies Supervisory Levy Determination Validation Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

One of a package of five bills, this bill proposes to validate the Authorised Non-operating Holding Companies Supervisory Levy Imposition Determination 1998. The determination was to take effect from 1 July 1998, but did not appear in the Gazette until 13 August 1998.

Retrospective application

Clause 4

Clause 4 of this bill proposes to retrospectively validate a determination purportedly made on 11 August 1998, notified in the Gazette on 13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the Acts Interpretation Act 1901 provides that determinations have no effect if they are due to take effect before the date of notification.

Retrospective validation is a matter about which the Committee often seeks advice. In this instance, the Minister's Second Reading Speech indicates that, while this determination was expressed to take effect from 1 July 1998, levies were not actually payable until 1 October 1998. Therefore, whether the determination was truly retrospective is unclear. However, the Minister goes on to observe that “there is sufficient uncertainty to warrant legislation to ensure that these determinations are valid”.

In these circumstances, the Committee makes no further comment on this provision.

Broadcasting Services Amendment Bill (No. 1) 1999

This bill was introduced into the House of Representatives on 28 June 1999 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 following Acts:

Broadcasting Services Act 1992 to:

impose a new licence condition on commercial television broadcasting licensees, and impose an obligation on licensees' program suppliers and on national broadcasters, to ensure rights acquired by them to live television coverage of full and live free-to-air coverage of major events (particularly sporting events) are not “hoarded”;
impose restrictions on the provision of certain television broadcasting services in regional areas by subscription television broadcasting licensees or their related bodies corporate;
increase the period allowed for the broadcast of sponsorship announcements from four to five minutes per hour;

Broadcasting Services Act 1992, the Copyright Act 1968, the National Transmission Network Sale Act 1998 and the Telecommunications Act 1997 to:

establish a new regime for the retransmission of radio and television programs; and
make transitional and consequential amendments.

The Committee has no comment on this bill.

Broadcasting Services Amendment Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister representing the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Communications, Information Technology and the Arts]

Complementary to the Television Licence Fees Amendment Bill 1999, this bill proposes to amend the Broadcasting Services Act 1992 to ensure that the Australian Broadcasting Authority cannot fix charges for its costs in relation to the commercial television conversion scheme (from analog to digital) over the next three years.

The Committee has no comment on this bill.

Crimes Amendment (Fine Enforcement) Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Attorney-General. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the Crimes Act 1914 to allow State and Territory court officers to impose certain penalties on Commonwealth fine defaulters, subject to the laws of that State and Territory. The penalties include garnishment of a debt, seizure of property and imprisonment of the defaulter.

The Committee has no comment on this bill.

Customs Legislation Amendment Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the Customs Act 1901 to:

introduce an Electronic Lodgement and Payments system (ELOR) for refunds of customs duty;
stipulate the time when payment of customs duty is required;
provide a mechanism for the deferral of payment of customs duty by enabling regulations to prescribe later times for the payment of such duty;
make changes to the Customs Brokers Licensing System to:
- extend the length of customs agents and corporate customs agents licences from one to three years;
- change the time when licences have to be renewed from 31 December to 30 June; and
- rename “customs agents” as “customs brokers”.

The Committee has no comment on this bill.

Electronic Transactions Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to establish a regulatory framework for the use of electronic communications in transactions (electronic commerce) and removes legal impediments that may prevent a person from using electronic communications to satisfy obligations under Commonwealth law. The bill further proposes to give business and the community the option of using electronic communications when dealing with Government agencies.

The Committee has no comment on this bill.

Export Finance and Insurance Corporation Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Foreign Affairs. [Portfolio responsibility: Trade]

The bill proposes to amend the following Acts:

Export Finance and Insurance Corporation Act 1991 to apply a debt neutrality charge, guarantee fee and tax-equivalent payments to EFIC's operations in the short-term insurance contract area; and

Insurance (Agents and Brokers) Act 1984 and the Insurance Contracts Act 1984 to remove EFIC's current exemptions in relation to such operations.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill provides that the amendment proposed by item 4 of Schedule 1 is to commence retrospectively on 1 July 1998. However, the effect of this amendment is to apply an aspect of the Commonwealth's competitive neutrality policy to the Export Finance and Insurance Corporation (EFIC) – a statutory authority. Under the proposed amendment, EFIC is required to pay tax-equivalent amounts to the Commonwealth in lieu of tax that would, but for section 63 of the Principal Act, have been payable. Therefore, the retrospective application of the bill does not affect members of the public.

In these circumstances, the Committee makes no further comment on this provision.

Commencement

Subclauses 2(3) and 2(4)

Subclause 2(3) permits the other amendments proposed in this bill to commence on Proclamation. However, subclause 2(4) provides that these amendments must commence by 1 July 2000 at the latest. While this is longer than the period of 6 months after assent, which the Committee normally accepts as complying with the requirements of Drafting Instruction No 2 of 1989 issued by the Office of Parliamentary Counsel, it is nevertheless a fixed end-date. As such, it ensures that these amendments cannot commence at the discretion of the Executive.

In these circumstances, the Committee makes no further comment on these provisions.

Financial Sector Reform (Amendments and Transitional Provisions) Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Australian Prudential Regulation Authority Act 1998 to:

exempt the Australian Prudential Regulation Authority (APRA) from paying sales tax on the goods it purchases; and
make technical amendments to secrecy provisions;

Banking Act 1959 to enable the Treasurer to issue disclosure guidelines to ensure that all authorised deposit-taking institutions (ADIs) seeking to demutualise give proper regard to members' interests and disclose adequate information for members to make an informed decision;

Financial Corporations Act 1974 to:

enable information to be collected from registered financial corporations to assist the Reserve Bank of Australia (RBA) in formulation of monetary policy;
lift the threshold to which the Act applies, for corporations where the value of assets of the corporation engaged in the provision of finance, in the course of carrying on retail business of selling goods, exceeds $25 million;
make the Act inapplicable to a corporation and every related corporation with assets of less than $5 million unless a lesser amount is prescribed by regulations;
enable the RBA to delegate the majority of its functions under the Act to APRA, the Australian Statistician or staff members of APRA or the Australian Bureau of Statistics;
enable the RBA to specify, in writing, standards on the information to be provided by corporations registered under the Act and the form that the information should be provided in;
specify that certain documents are only required to be delivered to the Head Office of the RBA;
increase the maximum penalty level for a corporation holding itself out in the course of its business as being registered under the Act;
repeal the provision relating to the appointment of advisory committees by the Treasurer; and
make technical amendments;

Financial Corporations (Transfer of Assets and Liabilities) Act 1993 to extend until 30 June 2000 the deadline for foreign ADIs operating in Australia since 18 June 1993 to obtain a banking authority;

Financial Institutions Supervisory Levies Collection Act 1998, the Superannuation (Financial Assistance Funding) Levy Act 1993 and the Superannuation Industry (Supervision) Act 1993 to clarify the circumstances in which certain superannuation funds, which suffer losses due to fraud or theft, will be eligible for a grant of financial assistance;

Financial Laws Amendment Act 1997:

to correct an error to the definition of newly established foreign bank; and
make consequential amendments;

Life Insurance Act 1995 to expand the requirements for the assignment of an interest in an approved benefit fund of a friendly society;

Reserve Bank Act 1959 to disqualify from RBA Board membership any person who is a director, officer or employee of an ADI;

Retirement Savings Accounts Act 1997 to make a technical amendment;

Superannuation Industry (Supervision) Act 1993 to:

extend the range of information required under the Act that may be submitted in electronic form;
strengthen safeguards against misuse or fraud in relation to electronic lodgement;
remove the requirement for affixing a common seal to election notices; and
make consequential and other minor amendments;

and amends three Acts to make various miscellaneous technical amendments, and makes transitional, saving and application provisions.

Retrospective application

Clause 2

Subclauses 2(2) to 2(5) and subclauses 2(9) and 2(10) provide that various amendments proposed in this bill are to be taken to have commenced retrospectively. However, in each case, the amendments are either technical, and make no change to the substantive law, or are beneficial to persons and bodies other than the Commonwealth.

In these circumstances, the Committee makes no further comment on these provisions.

General Insurance Supervisory Levy Determination Validation Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

One of a package of five bills, this bill proposes to validate the General Insurance Supervisory Levy Imposition Determination 1998. The determination was to take effect from 1 July 1998, but did not appear in the Gazette until 13 August 1998.

Retrospective application

Clause 4

Retrospective validation is a matter about which the Committee often seeks advice. However, as noted in relation to the Authorised Non-operating Companies Supervisory Levy Determination Validation Bill 1999 (discussed above), with which this bill is complementary, there is doubt about whether the determinations in issue were actually retrospective, but sufficient uncertainty to warrant ensuring that they are valid.

In these circumstances, the Committee makes no further comment on this provision.

Health Insurance Amendment (Diagnostic Imaging Services) Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the Health Insurance Act 1973 in relation to diagnostic imaging services provided by medical practitioners under either the remote area or pre-existing diagnostic imaging practices' exemptions of the Act to:

require that these practitioners must be enrolled and participating in an approved continuing medical education and quality assurance program in the field of diagnostic imaging (in order for a Medicare benefit to be paid for their services);
make provision for the Minister to issue a disallowable instrument prescribing the relevant approved continuing medical education and quality assurance program; and
establish a register maintained by the Health Insurance Commission to record medical practitioners participating in a continuing medical education and quality assurance program.

The Committee has no comment on this bill.

Higher Education Funding Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 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:

set the maximum grant amount for operating purposes for higher education institutions for the funding years 1999, 2000 and 2001;
vary the maximum total financial assistance payable to higher education institutions for superannuation expenditure for the funding year 2000 and set the maximum total amount of financial assistance for the funding year 2001;
vary the maximum aggregate amount of financial assistance which may be granted to open learning organisations for the funding year 2000 and set the maximum aggregate amount of financial assistance for the funding year 2001;
vary the limit on total funds available for higher education institutions for certain grants under the Act in respect of the funding years 1999 and 2000 and set the limit on total funds for the funding year 2001;
vary the maximum aggregate amount of financial assistance which may be granted to higher education institutions in respect of their teaching hospitals for the 2000 funding year and set the maximum aggregate amount of financial assistance for the 2001 funding year;
vary the maximum aggregate amount which may be granted to higher education institutions for approved special capital projects for the 2000 funding year and set the maximum aggregate amount for the 2001 funding year;
set the maximum funding level for expenditure on the international marketing and promotion of Australian education and training services by Australian Education International for the 2001 funding year;
provide for the funding of 60 medical places at James Cook University for the 2001 funding year;
provide for an additional $4.9 million in the 2000 funding year and $9.8 million in the 2001 funding year for science lectureships;
provide for an increase of $36.8 million in each of the 2000 and 2001 funding years for higher education research infrastructure;
reflect reductions to the Higher Education Innovation Program for projects of national priority in each of the 2000 and 2001 funding years; and
reflect savings of $7.8 million in the 2000 funding year and $10.4 million in the 2001 funding year resulting from the phasing out of Merit Equity Scholarships.

The Committee has no comment on this bill.

Indigenous Education (Supplementary Assistance) Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Education, Training and Youth Affairs. [Portfolio responsibility: Education, Training and Youth Affairs]

The bill proposes to amend the following Acts:

Indigenous Education (Supplementary Assistance) Act 1989 to:

provide for the continuation of the Indigenous Education Strategic Initiatives Program for the period 1 January 2000 to 30 June 2001 including the application of cost supplementation to these new funds; and
provide for the continuation of the mixed mode delivery away-from-base element of the ABSTUDY scheme; and

Student Assistance Act 1973 to make a consequential amendment transferring the appropriation of the away-from-base element of the ABSTUDY scheme to the Indigenous Education (Supplementary Assistance) Act 1989.

The Committee has no comment on this bill.

Life Insurance Supervisory Levy Determination Validation Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

One of a package of five bills, this bill proposes to validate the Life Insurance Supervisory Levy Imposition Determination 1998. The determination was to take effect from 1 July 1998, but did not appear in the Gazette until 13 August 1998.

Retrospective application

Clause 4

In these circumstances, the Committee makes no further comment on this provision.

Parliamentary Service Bill 1999

This bill was introduced into the House of Representatives on 28 June 1999 by the Speaker. This bill is similar to the Parliamentary Service Bill 1997, 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.

Republic (Consultation on an Elected President) Bill 1999

This bill was introduced into the Senate on 30 June 1999 by Senator Murray as a Private Senator's bill.

The bill proposes to provide that, at the same time as electors vote on the Constitution Alteration (Establishment of Republic) 1999, they may determine whether the president should be directly elected. If there is a preference for an elected president, the bill further provides for an elected convention to consider and report to Parliament on options for an elected president and for Presiding Officers to prepare draft constitutional amendments to effect options canvassed in the convention report, including any option recommended by the convention.

The Committee has no comment on this bill.

Retirement Savings Account Providers Supervisory Levy Determination Validation Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister representing the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

One of a package of five bills, this bill proposes to validate the Retirement Savings Account Providers Supervisory Levy Imposition Determination 1998. The determination was to take effect from 1 July 1998, but did not appear in the Gazette until 13 August 1998.

Retrospective application

Clause 4

In these circumstances, the Committee makes no further comment on this provision.

Social Security Amendment (Disposal of Assets) Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the Social Security Act 1991 to:

reduce from $10,000 to $5,000 the “free area” that a person or couple may gift before that gift begins to impact on the level of assistance provided to them; and
change the basis of the concession from “pension year” to “financial year”.

Retrospective application

Clause 2

Clause 2 of this bill provides that, to some extent, it is to commence retrospectively, on 1 July 1999. Further, the bill will adversely affect recipients of social security benefits by reducing the value of assets of which they may dispose in any year without affecting their entitlement to those benefits.

However, item 20 of the Schedule proposes to protect social security beneficiaries from those adverse effects where they dispose of assets between 1 July 1999 and the date on which the bill is assented to. The Explanatory Memorandum observes that the effect of this item is that “amounts paid prior to the Royal Assent under the existing disposal rules are protected from recovery insofar as the provisions of this Act are concerned”.

While the bill is expressed to apply retrospectively, this item seems to reverse the effect of that retrospectivity. Given this, it is not clear why retrospectivity is thought necessary. It is also not clear whether this protection provided by item 20 will be available to all social security beneficiaries, or only a particular class of beneficiaries. The Committee, therefore, seeks the Minister's advice to clarify why the bill has taken this approach to retrospectivity, and whether any particular group of social security beneficiaries may be disadvantaged by the approach taken.

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

States Grants (Primary and Secondary Education Assistance) Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 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 $36.3 million for 2000 for funding under the Literacy and Numeracy Program to be allocated to the Support for the National Literacy and Numeracy Plan and strategies to improve literacy and numeracy in the middle years of schooling;
provide $26.4 million for 2000 to fund the National Asian Languages and Studies in Australian Schools (NALSAS) strategy;
provide an additional $10.1 million for the program years 2000-2003 for the non-government component of the Capital Grants Program;
provide an additional $1.9 million for Short Term Emergency Assistance (STEA) for 2000 during the transitional period to the new SES funding model for non-government schools; and
make a minor technical amendment to change the name of the Literacy Program to the Literacy and Numeracy Program.

The Committee has no comment on this bill.

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Superannuation Contributions Tax (Assessment and Collection) Act 1997 to:

remove the requirement for the Commissioner to determine an advance instalment if superannuation contributions surcharge is payable for a member for a financial year; and
provide for a system of self assessment for specified superannuation funds;

Superannuation Contributions Tax (Assessment and Collection) Act 1997 and Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 to:

clarify what surchargeable contributions are and how they are to be calculated;
clarify the identify of the holder of the surchargeable contributions of a member for a particular financial year who is to pay the surcharge liability;
provide a means for members of constitutionally protected schemes who transfer benefits to another fund to direct the transferee provider to pay the surcharge liability from the benefits transferred;
ensure that members of all superannuation funds who commute part of a pension to pay a surcharge liability are treated equitably;
provide alternative reporting requirements for superannuation providers to reduce administration costs incurred in reporting surcharge information to all members; and
clarify what is to be reported to the Commissioner in respect of surchargeable contributions and contributed amounts; and

Superannuation Contributions Tax (Assessment and Collection) Act 1997, Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 and Termination Payments Tax (Assessment and Collection) Act 1997 to:

distinguish between the making of an assessment and the assessment notice;
support the making and electronic transmission of assessments;
provide that the validity of an assessment (and determination of advance instalment where appropriate) is not affected by any non-compliance;
limit the time in which the Commissioner can amend an assessment; and
expand the objection provisions and remove current limits on the rights of members and providers to object against surcharge assessments; and

Income Tax Assessment Act 1936, the Superannuation Industry (Supervision) Act 1993 and the Taxation Laws Amendment Act (No. 3) 1997 to make technical amendments.

Retrospective application

Subclauses 2(2) and 2(3)

Subclause 2(2) of the bill provides that the substantive provisions in Schedule 1 are taken to have commenced retrospectively on 5 June 1997. Similarly, subclause 2(3) provides that the substantive provisions in Schedule 2 are taken to have commenced retrospectively on 7 December 1997. The Explanatory Memorandum simply notes that “Some of the amendments will apply retrospectively to ensure the surcharge measure applies equitably to both defined benefit fund members and to members of funds other than defined benefit funds”.

In addition, item 28 of Schedule 1 to the bill proposes to insert a new subsection 42(2) in the Superannuation Contributions Tax (Assessment and Collection) Act 1997. This will allow for the making of regulations with retrospective effect, contrary to subsection 48(2) of the Acts Interpretation Act 1901. The Committee seeks the Treasurer's advice as to why so many of the provisions proposed by this bill are to operate retrospectively; why the bill is to apply retrospectively for a period as long as 2 years; whether this retrospective application will detrimentally affect anyone; and why the bill authorises the making of regulations with retrospective effect.

Pending the Treasurer'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(4)

Subclause 2(4) of the bill provides that the amendments proposed by Schedule 6 are to be taken to have commenced retrospectively from 14 October 1997. However, these amendments are technical in nature and make no substantive change to the law.

In these circumstances, the Committee makes no further comment on these provisions.

Superannuation Supervisory Levy Determination Validation Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

One of a package of five bills, this bill proposes to validate the Superannuation Supervisory Levy Imposition Determination 1998. The determination was to take effect from 1 July 1998, but did not appear in the Gazette until 13 August 1998.

Retrospective application

Clause 4

In these circumstances, the Committee makes no further comment on this provision.

Superannuation (Unclaimed Money and Lost Members) Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to establish a scheme to enable superannuation members who have lost contact with their fund to have a comprehensive register to check where their superannuation is held.

Search and entry provisions

Clause 46

Proposed clause 46 of the bill will permit authorised officers, having the written authority of the Commissioner, to enter and search any premises without first obtaining a judicially sanctioned warrant. The Explanatory Memorandum states that the access and entry provisions in the bill are similar to those found in other legislation administered by the Commissioner (for example, section 263 of the Income Tax Assessment Act 1936) and are necessary to ensure compliance with the Act.

The Committee is currently inquiring into search and entry provisions in Commonwealth legislation. The inquiry has so far demonstrated that provisions which authorise entry to premises without a judicially sanctioned warrant are common throughout the tax legislation, but are much less common elsewhere. While the Committee has as yet formed no view on the desirability of their inclusion in the tax legislation, it nevertheless draws the attention of the Senate to the anomalous nature of these powers.

Other than this, the Committee makes no further comment on these provisions at this time.

Superannuation (Unclaimed Money and Lost Members) Consequential and Transitional Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to make consequential amendments to nine Acts and sets out transitional provisions applicable to the Superannuation (Unclaimed Money and Lost Members) Bill 1999.

Retrospective application

Subclause 2(5)

Subclause 2(5) of the bill provides that the amendments proposed by Part 1 of Schedule 3 are to be taken to have commenced retrospectively. However, the purpose of these amendments is to correct an earlier drafting error, and clause 9 protects from criminal liability any person who relied on the relevant provisions as they originally stood.

In these circumstances, the Committee makes no further comment on these provisions.

Taxation Laws Amendment Bill (No. 8) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Income Tax Assessment Act 1936 to remove anomalies preventing the intended Australian taxation of capital gains arising on deemed disposals of tainted assets of a controlled foreign company (CFC) where that CFC ceases to be a member of a group and has previously benefited from capital gains tax roll-over relief;

Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997 to:

exempt from income tax post-judgment interest received in personal injury compensation cases;
allow an income tax deduction to certain funds, authorities and institutions and to political parties for a gift of property worth more than $5,000, regardless of when or how the property was acquired;
provide a capital gains tax (CGT) exemption for testamentary gifts of property to certain funds, authorities and institutions and to political parties unless the property is reacquired by the estate, a beneficiary of the estate or an associate;
provide a CGT exemption for gifts of property made under the Cultural Gifts Program unless the property is reacquired for less than market value by the donor or an associate;
allow concessional taxation treatment for specified private funds which will not be required to seek donations from the public but will be subject to the other requirements applying to public funds;
allow the apportionment of deductions for donations made under the Cultural Gifts Program over a period of up to five income years; and
extend to companies two concessional tracing rules which are available to trusts under trust loss measures;

Income Tax Assessment Act 1936 and the Taxation Laws Amendment Act (No. 3) 1998 to:

allow a deduction where franking rebates exceed the ceiling imposed under the benchmark portfolio ceiling method;
treat shares and interests in shares held by a bare trust as if they were held by the beneficiaries of the trust;
remove the restrictions on exempting credits for dividends paid by former exempting companies for natural persons where all the shares are owned by natural persons and there has been no change in ownership of the company; and
extend the scope of a transitional concession for the general anti-avoidance rule and the specific anti-streaming rule;

Income Tax Assessment Act 1997 to:

disallow a deduction for bribes made to foreign public officials; and
make technical amendments;

Taxation (Deficit Reduction) Act (No.2) 1993 to maintain the rate of tax imposed on the eligible insurance business of friendly societies and other registered organisations at 33% for the 1999-2000 income year;

Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to:

provide machinery provisions to collect untainting tax;
ensure that distributions from share premium accounts are within the ambit of the capital streaming and dividend substitution rules;
ensure that bonus shares deemed to be a dividend have a cost base of the dividend amount where the shares are held on revenue account; and
make minor technical changes;

Income Tax Assessment Act 1936 and the Taxation Laws Amendment (Trust Loss and Other Deductions) Act 1997 to allow an extended period for making family trust elections and interposed entity elections.

Retrospective application

Subclauses 2(3) to 2(7)

By virtue of subclauses 2(3) to 2(7), the various amendments proposed by Schedule 3 to the bill are to be taken to have commenced retrospectively. However, these amendments do no more than correct earlier drafting errors, and make no substantive change to the law.

In these circumstances, the Committee makes no further comment on these provisions.

Retrospective application

Schedule 1, Part 1

The amendments proposed by Part 1 of Schedule 1 are to apply from 13 May 1997 – the date of the 1997 Budget. While the Committee generally accepts the need for Budget announcements to apply from the date of the Budget, on this occasion it seems to have taken more than 2 years for these changes to take legislative form. The Committee, therefore, seeks the Treasurer's advice as to the reasons for such retrospectivity in these circumstances, and which taxpayers or categories of taxpayers will be disadvantaged by that retrospectivity.

Retrospective application

Schedule 2

The amendments proposed by Schedule 2 to the bill are to apply from the 1992-93 year of income. These amendments exempt from income tax any post-judgment interest received as part of an award of compensation in a personal injury case where that interest relates to delays that have occurred while avenues of appeal are being pursued. The amendments are beneficial to taxpayers and, as such, would usually attract no further comment from the Committee.

However, given that the amendments are to apply from the 1992-93 income year the Committee seeks the Treasurer's advice on any action proposed to be taken to inform taxpayers of this legislation to enable them to apply for the amendment of assessments going back over 7 years. Without such action, amendments which set out to be beneficial to all taxpayers in a particular category may end up, somewhat capriciously, benefiting only some of those taxpayers.

Other than this, the Committee makes no further comment on these provisions.

Retrospective application

Schedule 9, Parts 1 and 3

The amendments proposed by Parts 1 and 3 of Schedule 9 to the bill are to apply from the 1996-97 year of income. However, these amendments are beneficial to taxpayers.

In these circumstances, the Committee makes no further comment on these provisions.

Television Licence Fees Amendment Bill 1999

Complementary to the Broadcasting Services Amendment Bill (No. 2) 1999, this bill proposes to amend the Television Licence Fees Act 1964 to impose a requirement on commercial television broadcasting licensees to pay an additional $3.41 million in annual licence fees over the next three years.

The Committee has no comment on this bill.

Veterans' Affairs Legislation Amendment Bill (No. 1) 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Veterans' Affairs. [Portfolio responsibility: Veterans' Affairs]

The bill proposes to amend the following Acts:

Veterans' Entitlements Act 1986 to:

change the eligibility criteria for invalidity service pension and income support supplement, on the grounds of permanent incapacity, and provide for associated administrative processes;
enable approximately 63,000 persons with limited treatment eligibility (white card holders) to access the Home Front program;
extend eligibility for the Veterans' Children Education Scheme to certain children of living veterans and members of the Forces and members of a Peacekeeping Force;
allow the Minister to declare, by gazettal, a Peacekeeping Force as a Peacekeeping Force for the purposes of the Act;

Defence Service Homes Act 1918 to provide a new home support advance of up to $10,000;

Defence Service Homes Act 1918 and the Veterans' Entitlements Act 1986 to make technical amendments.

Retrospective application

Subclauses 2(3) to 2(6)

Subclauses 2(3) and (4) provide that some of the amendments proposed by this bill are to commence retrospectively. However, these amendments are beneficial to recipients under the Principal Act.

Further, subclauses 2(5) and (6) provide that other proposed amendments are also to commence retrospectively. However these amendments are technical in nature, and make no substantive change to the law.

In these circumstances, the Committee makes no further comment on these provisions.

Vocational Education and Training Funding Amendment Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Education, Training and Youth Affairs. [Portfolio responsibility: Education, Training and Youth Affairs]

The bill proposes to amend the Vocational Education and Training Funding Act 1992 to:

supplement 1999 funding by $14.208 million in line with real price movements reflected in Treasury indices; and
appropriate $918.352 million for general vocational education and training funding for the Australian National Training Authority for the year 2000.

The Committee has no comment on this bill.

Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Employment, Workplace Relations and Small Business. [Portfolio responsibility: Employment, Workplace Relations and Small Business]

The bill proposes to amend the following Acts:

Workplace Relations Act 1996 to:

amend the object of the Act to emphasise the basic safety net role of awards, choice as to jurisdiction, and the role of the courts and Commission in stopping or preventing unprotected industrial action;
change the name of the Australian Industrial Relations Commission to the Australian Workplace Relations Commission and revise its structure;
change the name of the Australian Industrial Registry to the Australian Workplace Relations Registry;
establish a distinction between compulsory and voluntary conciliation by the Commission;
provide for the voluntary use of mediation in industrial disputes as an alternative or supplement to the processes of the Commission;
provide for a national accreditation scheme for workplace relations mediators;
create the role of Mediation Adviser to oversee and facilitate the use of mediation to resolve workplace disputes;
provide for further simplification of awards;
set out new requirements in relation to logs of claims;
widen the circumstances in which the commission is required to cease dealing with an industrial dispute;
widen the range of agreements that will displace the operation of a federal award;
provide for the acceleration of the process of cancelling obsolete awards;
reinforce disincentives to speculative and unmeritorious unfair dismissal claims;
expand the Commission's powers in relation to unfair dismissal applications;
streamline requirements for certification of agreements;
simplify the processes for the making and approval of AWAs;
clarify rights and responsibilities relating to industrial action;
further distinguish between protected and unprotected industrial action and provide mechanisms for dealing with unprotected industrial action;
introduce new preconditions for the taking or organising of protected industrial action by employees and organisations of employees;
introduce new requirements for entry to premises by union officials and employees;
broaden freedom of association provisions;
preserve aspects of the previous Victorian system and provide for the expanded operation in Victoria of provisions contained in other parts of the Act;
repeal the provisions that allow the Federal Court to vary or set aside contracts made with independent contractors; and
make consequential amendments;

and makes consequential amendments to 25 Acts as result of the renaming of the Commission and the Registry.

The Committee has no comment on this bill.

Provisions imposing criminal sanctions for failure to provide information

The Committee's Eighth Report of 1998 dealt with the appropriate basis for penalty provisions for offences involving the giving or withholding of information. In that Report, the Committee recommended that the Attorney-General develop more detailed criteria to ensure that the penalties imposed for such offences were “more consistent, more appropriate, and make greater use of a wider range of non-custodial penalties”. The Committee also recommended that such criteria be made available to Ministers, drafters and to the Parliament.

The Government responded to that Report on 14 December 1998. In that response, the Minister for Justice referred to the ongoing development of the Commonwealth Criminal Code, which would include rationalising penalty provisions for “administration of justice offences”. The Minister undertook to provide further information when the review of penalty levels and applicable principles had taken place.

For information, the following Table sets out penalties for `information-related' offences in the legislation covered in this Digest. The Committee notes that imprisonment is still prescribed as a penalty for some such offences.

TABLE

*Bill/Act*	Section/Subsection	Offence	Penalty
Reform (Amendments and Transitional Provisions) Bill (No. 2) 1999	Section 13	Fail to comply with requirements of a standard	200 penalty units
Superannuation Contributions and Termination Payments Taxes legislation Amendment Bill 1999	Subitem 43(2) of Schedule 1	Fail to provide corrective statements	60 penalty units
Superannuation (Unclaimed Money and Lost Members) Bill 1999	Subsection 16(5)	Fail to provide an approved statement of unclaimed money	100 penalty units