Scrutiny of Bills Third Report of 1999
10 March 1999
ISSN 0729-6258
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.
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
THIRD REPORT OF 1999
The Committee presents its Third Report of 1999 to the Senate.
The Committee draws the attention of the Senate to clauses of the following
bills which contain provisions that the Committee considers may fall within
principles 1(a)(i) to 1(a)(v) of Standing Order 24:
Electoral and Referendum Amendment Bill (No. 2) 1998
Judiciary Amendment Bill 1998
Superannuation Legislation Amendment (Choice of Superannuation Funds)
Bill 1998
Electoral and Referendum Amendment Bill (No. 2) 1998
Introduction
The Committee dealt with this bill in Alert Digest No 11 of 1998,
in which it made various comments. The Special Minister of State has responded
to those comments in a letter dated 17 February 1999. A copy of the letter
is attached to this report. An extract from the Alert Digest and
relevant parts of the Minister's response are discussed below.
Extract from Alert Digest No. 11 of 1998
This bill was introduced into the House of Representatives on 26 November
1998 by the Parliamentary Secretary to the Minister for Finance and Administration.
[Portfolio responsibility: Finance and Administration]
The bill proposes to amend the Commonwealth Electoral Act 1918
and Referendum (Machinery Provisions) Act 1984 to:
- require new electors to produce one original form of identification
at time of enrolment;
- provide that a person witnessing an enrolment application must be
an elector in a prescribed class of persons;
- provide that all electors must notify the Australian Electoral Commission
of a change of address within one month of moving;
- reduce the time period between the issue of the writ and the close
of the rolls;
- allow for the provision of date of birth and salutation details of
electors to Members, Senators and registered political parties;
- provide that any person sentenced to imprisonment is not entitled
to enrol or to vote;
- provide that only the Presiding Officer at a polling place may assist
electors in marking their ballot papers;
- provide that the preliminary scrutiny of declaration votes may commence
on the Monday prior to polling day;
- raise from $500 to $1,500 the threshold for counting individual amounts
received in regard to donations to political parties;
- provide that political parties are required to disclose a total amount
of $5,000 or more (currently $1,500) received from a person or organisation
during a financial year; and
- increase from $1,500 to $10,000 the amount above which a donor to
a registered political party must furnish a return for a financial year.
Committee consideration of the bill in the 38th Parliament
This bill is, in all relevant respects, the same as a bill of the same
name introduced into the Senate on 14 May 1998. The Committee commented
on that bill in Alert Digest 7/98, and reported on it in the Committee's
Seventh Report of 1998.
In that Report, the Committee referred to two matters: the debate
concerning the proposed abolition of the voting rights of prisoners (Item
10 of Schedule 1), and the commencement provisions of the bill (subclause
2(3).
Commencement
Under subclause 2(3) of the bill, many of the items in Schedule 1 are
to commence on Proclamation, with no further provision made for automatic
commencement or repeal at a particular time. In Alert Digest 7/98,
the Committee sought the advice of the Minister as to the reason for departing
from Drafting Instruction No 2 of 1989, issued by the Office of
Parliamentary Counsel.
On this issue, the Minister stated that:
- the provisions listed in subclause 2(3) related to the upgrading of
witnessing requirements for electoral enrolment; the requirement for
new electors to produce proof of identity before lodging an enrolment
form; and the removal of the one month qualifying period for enrolment;
- the delay in commencement would enable consultation and discussion
with State and Territory governments, giving them the opportunity to
enact necessary complementary legislation; and
- the Australian Electoral Commission had advised that it would require
a minimum of 6 months to make the necessary administrative arrangements
to implement the amendments.
The Committee thanked the Minister for this response, which addressed
its concerns. However, this explanation properly belongs in the Explanatory
Memorandum accompanying the bill. No reference to these matters appears
in the Explanatory Memorandum accompanying the bill as reintroduced. Accordingly,
the Committee seeks the Minister's advice as to why this necessary
explanation does not appear in the Explanatory Memorandum accompanying
the current bill.
In the circumstances, the Committee makes no further comment on this
provision.
Relevant extract from the response from the Minister
I refer to the letter seeking advice as to why certain information relating
to the commencement dates of a number of provisions contained in the Electoral
and Referendum Amendment Bill (No. 2) 1998 was not included in the Explanatory
Memorandum for the Bill.
The Australian Electoral Commission has advised that the omission of
this information from the Explanatory Memorandum was an oversight, which
occurred as a result of the reintroduction of the legislation at short
notice late in the 1998 Spring Sittings.
I understand this has now been rectified. Thank you for bringing this
matter to my attention.
The Committee thanks the Minister for this response.
Judiciary Amendment Bill 1998
Introduction
The Committee dealt with this bill in Alert Digest No 1 of 1999,
in which it made various comments. The Attorney-General has responded
to those comments in a letter dated 5 March 1999. A copy of the letter
is attached to this report. An extract from the Alert Digest and
relevant parts of the Attorney-General's response are discussed below.
Extract from Alert Digest No. 1 of 1999
This bill was introduced into the House of Representatives on 3 December
1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the Judiciary Act 1903 to establish
the Australian Government Solicitor as a separate statutory authority
to provide legal and related services for government purposes, and makes
transitional provisions and consequential amendments to 10 Acts.
Insufficient Parliamentary scrutiny
Proposed new Part VIIIC
This bill is, in all material respects, identical to a bill of the same
name which was introduced into the House of Representatives on 20 November
1997 and on which the Committee commented in Alert Digest No 17 of
1997 and in its First Report of 1998.
As the Committee previously noted, the bill proposes to insert a new
Part VIIIC in the Judiciary Act. This new Part enables the Attorney-General
to issue Legal Services Directions which must be complied with by a variety
of persons or bodies, not all of whom are otherwise under the control
of the Commonwealth.
It appeared to the Committee that, while these Directions might be legislative
in character, the bill made no provision for them to be disallowable instruments
for the purposes of the Acts Interpretation Act 1901.
The Attorney-General advised the Committee that Legal Services Directions
would be capable of applying either generally to Commonwealth legal work,
or to specific legal work being performed in relation to a particular
matter. The Government
considered it appropriate for Legal Services Directions that were legislative
in character (these are most likely to be Directions of general application)
to be subject to Parliamentary scrutiny. The most effective process for
subjecting such Directions to such scrutiny was under the Legislative
Instruments Bill.
In response, the Committee expressed the view that, as an interim measure,
until the Legislative Instruments Bill became law, alternative provision
should be made for Parliamentary scrutiny of such Directions.
The Committee notes that the Legislative Instruments Bill still has not
been passed, and reaffirms its view as to the desirability of Parliamentary
scrutiny under the Acts Interpretation Act 1901 as an interim measure.
The Committee, therefore, seeks the Attorney's advice on how Legal
Services Directions that are legislative in character are to be scrutinised
by the Parliament if issued prior to the passage of the Legislative Instruments
Bill.
Pending the Attorney's advice, the Committee draws Senators' attention
to these provisions, as they may be considered insufficiently to subject
the exercise of legislative power to parliamentary scrutiny in breach
of principle 1(a)(v) of the Committee's terms of reference.
Relevant extract from the response from the Attorney-General
I would like to thank the Committee for its consideration of the Bill.
The Committee reiterates previous comments that Legal Services Directions
which may be made by the Attorney-General under the Bill, may be of a
legislative character and, if so, should be subject to Parliamentary scrutiny.
I remain of the view that Parliamentary scrutiny of Legal Services Directions
of a legislative character is appropriate and that the most effective
process for subjecting such Directions to this scrutiny is under the Legislative
Instruments Bill. I do not favour an ad hoc approach through the introduction
of an amendment to the Judiciary Amendment Bill dealing specifically with
Legal Services Directions. The Government remains determined to achieve
the enactment of a suitable Legislative Instruments Bill which will provide
a comprehensive regime for effective Parliamentary scrutiny of instruments
of a legislative nature.
The Committee thanks the Attorney-General for this response, and notes
that he remains of the view that Parliamentary scrutiny of Legal Services
Directions that are legislative in nature is appropriate.
The Legislative Instruments Bill undoubtedly represents the most effective
and comprehensive regime for Parliamentary scrutiny of such instruments.
However, that bill, which was first introduced in 1994, was not passed
during the 37th Parliament, or the 38th Parliament, and is not currently
on the Senate Notice Paper. It may be some years yet before the Parliament
agrees to its passage.
In these circumstances, the extent to which Legal Services Directions
that are legislative in nature should be scrutinised before the passage
of the Legislative Instruments Bill is a matter to be determined by the
Senate.
Superannuation Legislation Amendment (Choice of Superannuation Funds)
Bill 1998
Introduction
The Committee dealt with this bill in Alert Digest No 10 of 1998,
in which it made various comments. The Assistant Treasurer has responded
to those comments in a letter received on 22 December 1998. A copy of
the letter is attached to this report. An extract from the Alert Digest
and relevant parts of the Assistant Treasurer's response are discussed
below.
Extract from Alert Digest No 10 of 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 of 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.
Relevant extract from the response from the Assistant Treasurer
The provisions of concern to the Committee form part of amendments that
shift the responsibilities for meeting Superannuation Guarantee obligations
from the Commonwealth as a whole to individual Commonwealth Departments
and certain authorities.
I understand that the Committee is concerned that some of the provisions
in Item 2 of Schedule 1 to the Bill may involve an inappropriate delegation
of power. The relevant provisions either make the Act subject to prescribed
modifications or provide that Ministerial directions must be complied
with notwithstanding any other law of the Commonwealth.
My advice to the Committee is that these provisions involve an appropriate
delegation of legislative power. As was recognised by the Committee in
the Alert Digest, the relevant provisions are part of amendments which
have the effect of treating individual Commonwealth Departments as separate
employers for Superannuation Guarantee purposes.
Accordingly, the provisions only apply to Commonwealth Government entities
and are exclusively a matter of Commonwealth internal financial management.
The provisions will not affect the rights of individuals, businesses or
corporations.
Each of the provisions highlighted by the Committee involve technical
matters contemplated by the policy implemented by the Superannuation
Guarantee (Administration) Act 1992. That Act applies to encourage
individual employers to make certain levels of superannuation contributions
on behalf of their employees. While Commonwealth public servants are technically
employees of the Commonwealth as a whole, personnel issues, such as superannuation,
are dealt with on a Department by Department basis. Therefore, it is appropriate
that Superannuation Guarantee responsibilities are shifted from the Commonwealth
as a whole to individual Departments and authorities. The use of the Minister
of Finance directions in particular will provide Departments and authorities
with valuable guidance on how to satisfy their obligations.
The use of regulations and Ministerial directions in these matters is
also justified on the grounds of flexibility. The regulations and directions
will efficiently allow for the provision of rules in what is a technical
and potentially complex area of Commonwealth administration. Amendments
to primary legislation to implement highly technical rules would be a
burden on the Parliament's time. However, you should also note that any
rules made by regulation are disallowable by the Parliament.
In this context, I draw your attention to the following legislation,
which have identical or very similar provisions to those inserted by Item
2 of Schedule 1 to the Bill:
- sections 4, 5 and 7 of the Fringe Benefits Tax (Application to
the Commonwealth) Act 1986 ensure that individual Commonwealth Departments
are each responsible for fulfilling fringe benefits tax obligations.
The rationale for having these provisions in that Act are similar to
those outlined above for the rules in the Bill that are to apply for
Superannuation Guarantee purposes.
- section 126A of the Superannuation Act 1976 allows for regulations
to override that Act in certain situations. Like the provisions in this
Bill, section 126A of that Act applies to Commonwealth superannuation.
It therefore also applies to a highly technical area.
I trust this information is of assistance.
The Committee thanks the Assistant Treasurer for this response.
Barney Cooney
Chairman
|
