Bills Digest no. 62 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Diane Spooner
Law and Bills Digest Section
2 December 2014
Contents
Purpose of the Bill
Structure of the Bill
Committee consideration
Policy position of non-government parties/independents
Financial implications
Regulation Impact Statement
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 22 October 2014
House: House of Representatives
Portfolio: Prime Minister
Commencement: Commencement information can be found at page 5 of the Explanatory Memorandum.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.
This Omnibus Repeal Day (Spring 2014) Bill 2014 (the Bill) is part of a package of repeal Bills, which include the Statute Law Revision Bill (No. 2) 2014[1] and the Amending Acts 1970 to 1979 Repeal Bill 2014.[2] All three Bills were introduced into the House of Representatives on 22 October 2014, and passed that House on 29 October 2014 without amendments. This Bill is concerned mainly with abolishing defunct bodies, and repealing spent and redundant provisions and Acts. This Digest examines only the amendments judged material or apparently material.
The Bill has nine Schedules reflecting amendments across nine government portfolios. These are:
- Agriculture
- Communications
- Environment
- Immigration and Border Protection
- Industry
- Prime Minister
- Social Services
- Treasury and
- Veterans’ Affairs.
The Senate Selection of Bills Committee has recommended that the Bill not be referred to a committee.[3] The Parliamentary Joint Committee on Human Rights has deferred its consideration of the Bill.[4] Mr Burke, Manager of Opposition business in the House of Representatives indicated that ‘there are some advisory groups within the environment portfolio [that the Bill proposes to abolish] where there will be a Senate legislation committee inquiry to confirm that those advisory groups are no longer playing a relevant role’.[5] The Senate Scrutiny of Bills Committee has commented on the Bill, particularly on inappropriate delegation of legislative power and consultation requirements.[6]
The Opposition did not oppose the passage of the Bill in the House of Representatives. Only Labor and Government members spoke on the Bill in the House.
According to the Explanatory Memorandum, the Bill has no financial implications for the Government.[7] However in his second reading speech, the Parliamentary Secretary, Senator Colbeck, stated:
The Omnibus Repeal Day Bill itself contains 26 deregulatory measures from across nine portfolios that are more appropriately contained in an omnibus bill than in individual stand-alone bills and have a compliance cost saving of $1.4 million.[8]
The Explanatory Memorandum states that a Regulation Impact Statement (RIS) was not required for this Bill.[9] The Government has a RIS process guidance note which sets out the rationale and processes required in developing a RIS and the note states:
A RIS is required for all Cabinet submissions. This includes proposals of a minor or machinery nature and proposals with no regulatory impact on business, community organisations or individuals.
A RIS is also mandatory for any non-Cabinet decision made by any Australian Government entity if that decision is likely to have a measurable impact on businesses, community organisations, individuals or any combination of them.
A RIS is not required for non-Cabinet decision makers if the proposal is non-regulatory or the regulatory impact is of a minor or machinery nature. Where a RIS is not required but there are regulatory costs or savings, those costs or savings will need to be quantified and, where there is a net increase in regulatory costs, offsetting regulatory savings must be identified.[10]
The Statement of Compatibility with Human Rights can be found at page 69 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible. The Parliamentary Joint Human Rights Committee, as noted above, is yet to comment.
Agriculture
Schedule 1 —Agriculture
Parts 1 – 3 of Schedule 1 make amendments to various Acts in the Agriculture portfolio and include the repeal of Part 3 of the Fisheries Administration Act 1991 which establishes the Fishing Industry Policy Council (Part 1, item 4). According to the Explanatory Memorandum, this ministerial advisory council has not been convened since the Act was passed.[11] The Australian Fisheries Management Authority (AFMA) will continue in existence under the Fisheries Administration Act and has functions and objectives relating to the management of fisheries. The Authority consists of a CEO, the AFMA Commission AFMA staff members.[12]
Communications
Schedule 2 — Communications
The most significant amendments in the communications portfolio relate to the repeal of the consultation requirements in the Broadcasting Services Act 1992, the Interactive Gambling Act 2001, the Radiocommunications Act 1992 and the Telecommunications Act 1997. In his second reading speech the Parliamentary Secretary states:
These specific consultation provisions are considered unnecessary as section 17 of the Legislative Instruments Act requires a rule-maker to be satisfied that appropriate and reasonably practicable consultation has been undertaken prior to making a legislative instrument.[13]
Section 17 of the Legislative Instruments Act 2003 (LI Act) sets out detailed requirements that rule-makers must comply with before making a legislative instrument, such as being satisfied that the consultation was appropriate and has been undertaken, having regard to any relevant matter including the extent to which the consultation drew on the knowledge of persons with expertise and ensuring that persons likely to be affected had opportunity to comment.[14] The form of consultation could also involve notifying bodies or organisations representing persons who are likely to be affected by the proposed instrument and inviting submissions to be made to the rule-maker as well. In addition, subsection 26(1A) of the LI Act requires a description to be included in the explanatory statement to the instrument setting out the details of the consultation process.
Schedule 2, Part 2, items 5-22 of the Bill will remove the specific legislative requirements for consultation from the nominated Acts. For example, item 7 repeals subsections 130R(3), 130T(4), 130U(4), 130ZCA(5) and (6) and 130ZD(2) of the Broadcasting Services Act 1992.[15] These provisions relate to industry codes and standards and require the Australian Communications Media Authority (ACMA) to consult with bodies or associations that represent relevant sections of the industry before making a determination.
Environment
Schedule 3 — Environment
Schedule 3 has four Parts. Parts 1 and 2 abolish the Product Stewardship Advisory Group and the Oil Stewardship Advisory Council respectively. The Oil Stewardship Advisory Council was established under the Product Stewardship (Oil) Act 2000 to advise the Minister on matters such as the product stewardship arrangements for oils, the recovery and recycling of used oils and the state of the oil production and oil recycling industries.[16] The rationale in the Parliamentary Secretary’s second reading speech for the abolition of the Advisory Council is that:
… the Department of the Environment is better placed to consult with industry on an “as needs” basis in relation to product stewardship arrangements for oils and the recovery and recycling of used oils under the Product Stewardship (Oil) Act 2000.[17]
Similar reasons are given for the abolition of the Product Stewardship Advisory Group.
Part 3 of Schedule 3 makes similar amendments in that it seeks to abolish the Fuel Standards Consultative Committee (FSCC) which is established under the Fuel Quality Standards Act 2000.[18] This is a committee that the Minister must consult with before doing things such as granting approvals and making certain decisions. It is comprised of persons who represent the Commonwealth, states and territories, fuel producers, a non‑government body with an interest in protecting the environment, and a person representing the interests of consumers. Item 22 of Part 3 repeals sections 24 to 29 of the Fuel Quality Standards Act to abolish the Committee.
According to the Explanatory Memorandum:
The Advisory role of the FSCC will be undertaken by the Department of the Environment. In undertaking this role, the Department of the Environment will be able to consult with the bodies currently represented on the FSCC and more broadly to ensure that relevant expertise and knowledge is captured, without the requirement to maintain a permanent statutory body.[19]
Items 13 and 18 of Part 3 insert new sections 14(3) and 17DA into the Fuel Quality Standards Act, setting out new consultation requirements which in essence require the Minister to seek submissions before doing things such as granting or varying an approval under current sections 13, 17C or 17D of the Act. The Minister ‘must’ consider any submissions received.
Paragraphs 20(1)(a)-(g) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (HW Act) sets out matters to be specified in Basel import permits.[20] Item 30 of the Bill repeals and substitutes subsection 20(1), and simplifies and dilutes the matters required to be specified. The Explanatory Memorandum states:
Sections 20 and 21 of the HW Act set out the matters that must be specified in a Basel import permit and a Basel export permit. These matters include the method of transport by which the hazardous waste is to be imported/exported, the place to which the hazardous waste is to be imported/exported, the way in which the hazardous waste is to be dealt with after the import/export, and if the hazardous waste is to be disposed of after the import/export – the facility to be used in the disposal and the process (if any) involved in the disposal.
The requirement to specify this level of detail in Basel import and export permits has resulted in situations where a permit holder is required to apply for a variation to their permit due to changes in circumstances after the permit has been granted (for example, changes in the method of transport from road to rail, or a change in the port to which the hazardous waste is to be shipped to due to changes in shipping routes).[21]
The changes will reduce the detail contained in permits, and therefore minimise the number of times variations to permits will be required. Similar changes are made by item 31 in relation to matters required for Basel export permits.
In commenting on this aspect of the Bill, ALP member, Mr Giles said:
I note the aspect of the bill that I have touched upon —the proposed changes to hazardous waste—only saves $130,000. In this context I definitely think this is something which deserves much greater scrutiny before we potentially subject our environment to what could be devastating damage.[22]
Prime Minister and Cabinet
Schedule 6 — Prime Minister and Cabinet
Item 200 of Schedule 1 of the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 provides that an individual or body who has acquired an interest in land, and the interest was acquired in certain circumstances set out in paragraphs 200(1)(a), (b) or (c),[23] then the individual or body cannot dispose of that interest unless the appropriate consenting authority had given written consent to that disposal.[24] Item 1 of Schedule 6 inserts new subitem 200(1A) whereby the consenting authority can give written notice that consent in not required. No rationale is in the explanatory material, but if the consenting authority does have a discretion to decide that it need not consent, this may provide simpler processes and procedures.
Section 15 of the Stronger Futures in the Northern Territory Act 2012 (the Act) allows the federal Minister to request the Northern Territory Minister to appoint an assessor to conduct an assessment of particular licensed premises if the federal Minister has a reasonable belief that the sale of alcohol from the premises is causing substantial alcohol-related harm to the community.[25] Item 11 of Schedule 6 will repeal section 15. The rationale for the repeal is two-fold, namely that the Minister cannot enforce the request so it is of limited impact, and secondly the repeal:
… will also remove an unnecessary administrative process and Commonwealth interference in Northern Territory regulatory processes and policy.[26]
Similarly, current section 28 of the Act requires the Commonwealth and Northern Territory Ministers to facilitate an independent review of the operation of various Commonwealth and Northern Territory liquor laws, which is to be completed no later than three years after the commencement of the Act. The Explanatory Memorandum refers to other formal government reviews that are being conducted or have been completed and given this, concludes there is no longer any need for the provision.[27] The alcohol management elements of the ‘Emergency Intervention’ were controversial at the time of passage and have remained so.[28] The reviews were inserted as part of a process of negotiation. Section 28 is also repealed by item 11 of Schedule 6.
Section 117 of the Act provides that the Minister must also cause an independent review to be undertaken of the first three years operation of the Act. The review is to be completed and a report prepared before the end of four years after commencement. Section 117 will be repealed by item 13 of Schedule 6. This will mean that there will be no independent statutory reviews of the intervention in the Northern Territory.
In explaining the proposed repeal of this provision, the Explanatory Memorandum relies on the Commonwealth’s revision of the National Partnership Agreement on Stronger Futures in the Northern Territory , which is designed to ‘simplify and focus the agreement more towards results and economic development leading to the creation of real jobs’.[29] It is argued that, due to the revision, the review is no longer required. Mr Neumann (ALP) expressed concerns about the fact there will be no reviews under Act and stated:
What is the government doing here, in relation to this legislation? They are saying, ‘We don’t think an independent review is required under the legislation for the operation of Commonwealth and Northern Territory laws relating to alcohol in the Northern Territory.’ That takes from the transparency and accountability that a review of how those policies are impacting in the Northern Territory would provide.[30]
Social Services
Schedule 7 — Social Services
Schedule 7 has five Parts. The Home and Community Care Act 1985 is repealed completely, with the Government stating it has become redundant with the bilateral Home and Community Care Program Review Agreements between the Commonwealth and states and territories (Part 1, item 1).[31] Parts 4 and 5 remove spent provisions about spent social security payments and spent family assistance payments. In commenting on the Bill, Catholic Health Australia states the Bill ‘contains two measures that directly relate to aged care – one significant and welcome, and the other an inconsequential (from a sector perspective) tidying up of the statute books’.[32]
Current section 9-1 of the Aged Care Act 1997 obliges a provider to notify the Secretary within 28 days of a change of circumstances that materially affects the provider’s suitability to be a provider, and of a change of any of the provider’s key personnel.[33] Item 2 of Part 2 amends section 9-1 to remove the obligation to notify a change of any key personnel. Items 3 to 6 amend or repeal other subsections that impose a duty to notify the Secretary of changes to key personnel.
In commenting on this change, Catholic Health Australia stated:
Under current provisions of the Aged Care Act 1997 (section 9-1(b)), aged care providers are required to notify the Department of Social Services (DSS) of all changes of key personnel, using a lengthy prescribed form. DSS currently receives about 10,000 reports of key personnel a year. It is hard to imagine that they are gainfully vetted.
DSS estimates annual compliance cost saving for providers of $1.16 million.[34]
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[9]. Explanatory Memorandum, op. cit., p. 2.
[11]. Explanatory Memorandum, op. cit., p. 6.
[13]. R Colbeck, op. cit., p. 8355.
[17]. R Colbeck, op. cit., p. 8354.
[19]. Explanatory Memorandum, op. cit., p. 25
[21]. Explanatory Memorandum, op. cit., p. 29.
[23]. The circumstances are that the interest was acquired as a result of a grant (of money or land) from, or a loan that was guaranteed by, the Aboriginal and Torres Strait Islander Commission (ATSIC).
[26]. Explanatory Memorandum, op. cit., p. 36.
[32]. Catholic Health Australia (CHA), Aged Care update, CHA, 23 October 2014, accessed 21 November 2014.
[34]. Catholic Health Australia (CHA), op. cit.
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