Scrutiny of Bills Alert Digest No. 10 of 1998

Bills Restored to the Notice Paper

On 23 November 1998, on the motion of Senator Bourne (AD), certain bills which had been introduced into the Senate in previous sessions were restored to the Notice Paper.

Under Standing Order 136, a bill restored to the Notice Paper may be proceeded with in both Houses as if its passage had not been interrupted by a prorogation of the Parliament.

The Committee has dealt with all of these bills in previous Digests. Following is a list of the bills restored and any comments made by the Committee:

Air Navigation Amendment (Extension of Curfew and Limitation of Aircraft Movements) Bill 1995 [1996] The Committee made no comment on this bill: see Alert Digest No. 6/1995.

Captioning for the Deaf and Hearing Impaired Bill 1998 The Committee made no comment on this bill: see Alert Digest No. 8/1998.

D'Entrecasteaux National Park Protection Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 9/1996.

Defence Cooperation Control Amendment Bill 1997 The Committee made no comment on this bill: see Alert Digest No. 3/1997.

Genetic Privacy and Non-discrimination Bill 1998 In its Fourth Report of 1998, the Committee drew attention to clause 2 of this bill. This clause would have permitted the whole bill to commence on Proclamation, with no additional provision for automatic commencement or repeal at a particular time as required by Office of Parliamentary Counsel Drafting Instruction No 2 of 1989. The Committee sought advice from Senator Stott Despoja, who introduced the bill. Senator Stott Despoja responded that she would be happy to include an amendment to set a date for commencement after Royal Assent.

Koongarra Project Area Repeal Bill 1996 In Alert Digest 1/96, the Committee was concerned as to whether any rights existing by reason of the Koongarra Project Area Act 1981 would be extinguished, or otherwise affected, by the repeal of that Act proposed by this bill. The Committee sought the guidance of Senator Lees, who introduced the bill. As yet, the Committee has received no response on this issue.

Native Forest Protection Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 7/of 1996.

Parliamentary Approval of Treaties Bill 1995 [1996] The Committee made no comment on this bill: see Alert Digest No. 8/1995.

Patents Amendment Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 5/1996.

Plebiscite for an Australian Republic Bill 1997 The Committee made no comment on this bill: see Alert Digest 10/1997.

Prohibition of Exportation of Uranium (Customs Act Amendment) Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 1/1996.

Restitution of Property to King Island Dairy Products Pty Ltd Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 1/1996.

Sexuality Discrimination Bill 1995 [1996] In Alert Digest 1/96, the Committee drew attention to clause 94 of the bill, which abrogated the privilege against self-incrimination, and clause 109 of the bill, which would permit the delegation of all of the powers of the Commission and of the Commissioner to any person. The Committee sought the guidance of former Senator Spindler, who introduced the bill. As yet, the Committee has received no response on these issues.

Taxation Laws Amendment (Part-Time Students) Bill 1997 The Committee made no comment on this bill: see Alert Digest No. 16/1997.

Telecommunications Amendment (Prohibition of B-Party Charging of Internet Service Providers) Bill 1997 The Committee made no comment on this bill: see Alert Digest No. 10/1997.

Uranium Mining in or near Australian World Heritage Properties (Prohibition) Bill 1998 The Committee made no comment on this bill: see Alert Digest No. 8/1998.

World Heritage Properties Conservation Amendment (Protection of Wet Tropics of Tully) Bill 1996 The Committee made no comment on this bill: see Alert Digest No. 1/1996.

1998 Budget Measures 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 following Acts:

Social Security Act 1991 and Veterans' Entitlements Act 1986 to change the income test for the seniors health card to one based on taxable income, and extend income limits for single people and couples;
Social Security Act 1991 to:
- exempt from the “sharers rule” recipients of rent assistance who are lodging in commercial board and lodging type accommodation; and
- remove the 12-month waiting period for parenting payment for single foster carers; and
National Health Act 1953 to enable the issue of a health care card to the fostered child of certain carers.

The Committee has no comment on this bill.

Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Minister for Arts and the Centenary of Federation. [Portfolio responsibility: Prime Minister]

The bill proposes to replace the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Primarily the bill:

provides a discretion for the Minister to protect areas and objects of particular significance to Aboriginal peoples and Torres Strait Islanders;
reforms the processes for dealing with applications for protection under the Act;
seeks to engage the States and Territories in protecting indigenous heritage;
provides for accreditation by the Commonwealth Minister of State/Territory heritage protection regimes which meet certain standards of accreditation;
encourages the resolution of heritage protection issues by negotiation and/or mediation;
provides for the separation of assessments of significance from the decisions about heritage protection;
requires that significance be assessed according to indigenous traditions, observances, customs and beliefs and that primacy be given to the views of indigenous people in making assessments of significance;
provides protection for culturally sensitive information disclosed in the course of administering the legislation;
requires applicants to exhaust State/Territory processes before seeking protection under the Commonwealth Act and, where State/Territory regimes are accredited, limits applications to cases where protection may be in the national interest; and
establishes a Director of Indigenous Heritage Protection to assist the Minister in the administration of the legislation.

The bill also proposes to amend the following Acts:

Archives Act 1983 and Freedom of Information Act 1982 to provide a category of exemption relating to confidential indigenous information collected in the course of administering the legislation; and
Hindmarsh Island Bridge Act 1997 to clarify that the Act applies to the proposed Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 in the same way that it applies to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Committee consideration of the bill in the 38th Parliament

This bill is similar in form to the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, which was introduced into the House of Representatives on 2 April 1998, and on which the Committee commented in Alert Digest No 5/98.

In Alert Digest No 5/98, the Committee commented on two aspects of the bill: its creation of a strict liability offence in subclause 67(2), and on a possible reversal of the onus of proof in subclause 70(2).

The Minister for Aboriginal and Torres Strait Islander Affairs responded to the Committee's comments in letters dated 6 August 1998 and 5 November 1998 (copies appended to this Digest). These letters were received after the cessation of sittings in the 38th Parliament, but prior to the commencement of the 39th Parliament.

The bill as introduced on 12 November 1998 addresses some of the concerns originally voiced by the Committee.

Strict liability offence

Subclause 67(2)

Subclause 67(1) of the bill creates an offence of failing to report the discovery of indigenous human remains. Subclause 67(2) states that this is a strict liability offence. As a result (as the Committee noted in Alert Digest No 5/98), a person may be convicted of an offence against this subclause even though that person was unaware of any relevant heritage protection regime in force.

The Explanatory Memorandum provides no reason for the imposition of strict liability in these circumstances. However, in his letter to the Committee of 6 August 1998, the Minister for Aboriginal and Torres Strait Islander Affairs stated that:

this offence is primarily aimed at persons who discover indigenous human remains while performing work on a site;
the obligation to report the discovery ensures that steps may be taken to deal with any heritage protection issues that arise;
the existing Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (to be repealed and replaced by the bill) creates a similar offence to that in clause 67(2) of the bill, but does not make it an offence of strict liability;
the new offence provision has been redrafted following advice from the Attorney-General's Department that the existing provision has a number of deficiencies and runs counter to certain principles in the Criminal Code;
given the relatively small penalty (10 penalty units) and the need for effective enforcement, strict liability is appropriate and not contrary to Commonwealth law policy; and
even where strict liability is imposed, it is open to a defendant to rely on a defence of honest and reasonable mistake of fact.

Given this explanation, the Committee makes no further comment on this provision.

Onus of proof

Subclause 70(2)

Subclause 70 of the bill applies in relation to proceedings for certain offences. Under subclause 70(2), a defendant must not be committed for trial or convicted of those offences “if there is evidence” that “the defendant did not know of the existence of the protection order alleged to have been contravened”. The subclause makes no provision as to who bears the onus of proving this lack of knowledge.

In Alert Digest No 5/98, the Committee sought the advice of the Prime Minister on two matters: whether the bill should specify who bears the onus of proof under the subclause; and, if that onus is to be placed on the defendant, the reason for reversing the normal requirement that the prosecution must establish all the elements of an offence.

In his letter to the Committee of 6 August 1998, the Minister for Aboriginal and Torres Strait Islander Affairs stated that:

the clause is not intended to impose a burden on the defendant;
as advised by the Attorney-General's Department, the clause will not impose such a burden because of the requirement in the Criminal Code for an express statement of intention if a legal burden of proof is to be imposed on a defendant; and
the Government intended to remove clause 70 from the bill and redraft clause 69 to incorporate a clear physical element into the offences to remove any doubts about the onus of proof.

However, in his subsequent letter to the Committee dated 5 November, the Minister stated that the same result may be achieved by inserting appropriate wording in the Explanatory Memorandum on clause 70. The Committee notes that the Explanatory Memorandum on clause 70 now states:

In accordance with the Criminal Code, a defendant will only bear an evidential burden of proof in relation to lack of knowledge of the existence of a protection order. That is, the defendant must show evidence that suggests a reasonable possibility that, at the time the offence is alleged to have been committed, the defendant did not know of the existence of the protection order alleged to have been contravened.

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

Acts Interpretation Amendment Bill 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Acts Interpretation Act 1901 to address the implications of a recent decision of the Federal Court in Foster v Attorney-General (relating to section 19). The bill proposes to:

provide for a Minister to authorise a non-portfolio Minister or Parliamentary Secretary to act on his or her behalf;
validate past authorisations that may have been made in reliance on section 19 to the extent that they may be invalid; and
ensure that an order can be made by the Governor-General under section 19 whenever there is any change to the administration of government business and validates past orders made under section 19BA to the extent that they may be invalid.

Retrospective validation

Schedule 1, items 2, 5 and 7

This bill proposes to amend the Acts Interpretation Act 1901 to address the implications of the decision of the Federal Court in Foster v Attorney-General, handed down on 12 October 1998.

The Explanatory Memorandum notes that, in that case, the Federal Court found that section 19 of the Act did not enable the Attorney-General to authorise the Minister for Justice to exercise statutory powers for and on his behalf. The Explanatory Memorandum goes on to suggest that this decision has significant ramifications for other authorisations made under section 19 of the Act, and serious implications for government administration generally.

Therefore, items 2, 5 and 7 of Schedule 1 to the bill retrospectively validate acts undertaken under the legislation as presently in force.

While understanding the argument that this validation may be necessary for the orderly conduct of government, the Committee is concerned that the bill may go further than necessary, and that it may prejudice longstanding tradition and practice. Accordingly, the Committee seeks the advice of the Minister:

to identify the specific implications of the decision in Foster's case which the legislation is seeking to address;
to confirm that a non-portfolio Minister (or member of the Executive Council who is not a Minister) has the same general rights and responsibilities at law as a portfolio Minister;
to identify the usual protocol with regard to oversight by a portfolio Minister of a non-portfolio Minister (or member of the Executive Council who is not a Minister) who would be authorised by the bill to act on the Minister's behalf; and
to reassure the Committee that the amendment will not prejudice practice that, in the past, has ensured due process.

Pending the Minister's advice, the Committee draws Senators' attention to this provision, as it may be considered to make rights, liberties and obligations unduly dependent on insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference, and inappropriately delegate legislative power in breach of principle 1(a)(iv) of the Committee's terms of reference.

Aged Care Amendment (Accreditation Agency) Bill 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Minister for Aged Care. [Portfolio responsibility: Aged Care]

The bill proposes to enable the Aged Care Standards and Accreditation Agency to charge fees for accrediting aged care services.

Imposing a levy by regulation

Schedule 1, item 1

Item 1 in Schedule 1 to this bill enables delegated legislation (the Accreditation Grant Principles) to set fees that may be charged for services provided, or “a way of determining such fees”. While the bill does not specify an upper limit on these fees, item 2 in Schedule 1 states that fees charged for a service must be reasonably related to the cost of providing the service and “must not amount to taxation”.

The Committee has consistently drawn attention to legislation which provides for the level of a `levy' to be set by regulation. This creates a risk that the levy may become a tax. At page 62 of its report on The Work of the Committee during the 37th Parliament (May 1993-March 1996), the Committee noted:

It is for Parliament to set a tax rate and not for the makers of subordinate legislation to do so. Where the level of a levy needs to be changed frequently and expeditiously the question arises as to whether this can best be done by regulation rather than by statute. If a compelling case can be made out for the level to be set by subordinate legislation the Committee seeks to have the enabling Act prescribe a maximum figure above which the relevant regulations cannot fix the levy or alternatively a formula by which such an amount can be calculated.

Many bills adopt such an approach, providing for a basic levy to be set by regulation, subject to a statutory maximum rate. Some recent examples considered by the Committee include the Laying Chicken Levy Amendment (AAHC) Bill 1996 and the Live-stock Export Charge Amendment (AAHC) Bill 1996 (both considered in Alert Digest No 5/1996), and the Retirement Savings Accounts Supervisory Levy Bill 1996 and the Telecommunications (Carrier Licence Charges) Bill 1996 (both considered in Alert Digest No 1/1997).

The Explanatory Memorandum to this Bill makes no reference to the appropriateness of such an approach, and the Minister's Second Reading Speech simply notes that fee levels are expected to reflect the cost of services and be comparable with other commercial accreditation arrangements in similar industries.

A second issue may arise if the Accreditation Grant Principles provide “a way of determining such fees”. In these circumstances, there may be an inappropriate delegation of legislative power where the power to set fees is removed from the direct responsibility of the Minister.

Accordingly, the Committee seeks the advice of the Minister on the following matters:

why the bill itself fails to specify an upper limit on the level of fees; and
if the Principles simply provide a way by which fees are to be determined, whether the task of setting fees will remain the ultimate responsibility of the Minister.

Pending the Minister's advice, the Committee draws Senators' attention to this provision, as it may be considered to inappropriately delegate legislative power in breach of principle 1(a)(iv) of the Committee's terms of reference.

Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 1) 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to:

repeal the Dried Vine Fruits Equalization Act 1978 to cease the current equalization of export returns for dried vine fruits from 1 January 1999; and
amend the Pig Industry Act 1986 to:
- replace references to the former National Meat Processors' Association in the Act with reference to the Australian Food Council's Processed Meats Forum;
- allow for the nominee of the Australian Food Council's Processed Meats Forum to be nominated to the selection committee for the Australian Pork Corporation; and
- enable the Australian Food Council's Processed Meats Forum to be defined as an “eligible industry body” for the purpose of making regulations, prescribing levy amounts, formulating or revising a corporate plan or annual operation plan, and the appointment of the Australian Pork Corporation company auditor.

The Committee has no comment on this bill.

Anti-Personnel Mines Convention Bill 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Minister for Foreign Affairs. [Portfolio responsibility: Foreign Affairs]

The bill proposes to effect Australia's obligation as a party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction by:

creating offences relating to placement, possession, development, production, acquisition, stockpiling and transfer of anti-personnel mines by Australian citizens or members of the Australian Defence Force or on territory under Australian jurisdiction or control;
authorising the Minister for Defence to grant permission to place, possess, produce or acquire, stockpile or move anti-personnel mines for the purposes of the development of, or training in, mine detection, mine clearance, mine destruction or mine deactivation;
providing that, if a fact finding mission to Australia is authorised under the Convention, the Minister for Foreign Affairs must appoint each member of the mission as an inspector;
authorising appropriate Australian officials to accompany members of any fact-finding mission;
providing that the Minister must not impose any conditions on the appointment of an inspector unless the Minister is satisfied it is necessary to do so for the protection of sensitive equipment, information or areas or for the physical protection and safety of the inspector;
providing for the power to make regulations with respect to privileges and immunities under Australian law in accordance with the Convention; and
authorising the Minister for Foreign Affairs to obtain information and documents from persons relevant to the administration or enforcement of the legislation and to Australia's obligations under the Convention.

Commencement

Clause 2

Subclause 2(1) provides that this bill is to commence on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia. Subclause 2(2) provides that if such a Proclamation is not made within 6 months of the Convention entering into force, the Act will automatically commence on the expiry of 6 months.

The Explanatory Memorandum notes that the time the Convention will enter into force for Australia is uncertain as this depends on the ratification of the Convention by at least 40 State Parties.

Although there is a measure of uncertainty concerning the bill's commencement, clause 2 confers no discretion on the Executive to determine commencement.

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

Australian National Training Authority Amendment Bill 1998

This bill was introduced into House of Representatives on 12 November 1998 by the Minister for Education, Training and Youth Affairs. [Portfolio responsibility: Education, Training and Youth Affairs]

The bill proposes to amend the following Acts:

Australian National Training Authority Act 1992 to:
- reflect a new Agreement between the Commonwealth, States and Territories on vocational education and training for the three years 1998 to 2000; and
- clarify that the Australian National Training Authority is exempt from State and Territory taxes; and
Vocational Education and Training Funding Act 1992 to make consequential amendments.

Retrospective application

Subclause 2(2) and Schedule 1, item 17.

Subclause 2(2) of this bill provides that item 17 in Schedule 1 is to be taken to have commenced on 21 December 1992, immediately after the commencement of the Australian National Training Authority Act 1992. The retrospective application in this instance is, therefore, more than five years. The Explanatory Memorandum notes that the purpose of this amendment is to ensure that the Australian National Training Authority is not liable to pay State and Territory taxes, and the Minister's Second Reading Speech states that this provision “rectifies an omission” from the original Act.

Committee consideration of the bill in the 38th Parliament

This bill is similar in form to the Australian National Training Authority Amendment Bill 1998 which was introduced into the House of Representatives on 24 June 1998, and on which the Committee commented in Alert Digest No 9/98.

In Alert Digest No 9/98, the Committee noted that, while the proposed immunity from taxation was usual for Commonwealth statutory authorities, the retrospective application in this instance was approximately five and a half years. The Explanatory Memorandum did not explain why such a lengthy period of time had been required to rectify an apparent oversight. Therefore, the Committee sought the Minister's advice on the circumstances giving rise to this provision at this time, and why the Explanatory Memorandum made no reference to these circumstances.

The then Minister for Employment, Education, Training and Youth Affairs responded to the Committee's comments in a letter dated 19 August 1998 (copy appended to this Digest). This letter was received after the cessation of sittings in the 38th Parliament, but prior to the commencement of the 39th Parliament.

The Minister's letter addresses the concerns originally voiced by the Committee.

The Minister's advice

In his letter of 19 August, the Minister stated that the reasons why the immunity issue had not been clarified previously were “not clear”, and may have been the result of an administrative oversight. The Minister confirmed that “to date, no State or Territory has sought to recover from ANTA any money relating to outstanding State tax liability and, as a result, urgent action on the issue may not have been required”.

The Minister stated that the matter had first been drawn to the Government's attention in October 1996, and consultations were begun with relevant State and Territory Ministers. For various reasons these consultations were protracted. When the new ANTA Agreement was endorsed in November 1997, and the current bill was being prepared to reflect that Agreement, “it was considered opportune to include a specific provision clarifying that ANTA was immune from State and territory taxes”.

Given this explanation, the Committee makes no further comment on this provision.

Australian Radiation Protection and Nuclear Safety Bill 1998

This bill was introduced into the House of Representatives on 11 November 1998 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to establish a scheme to regulate the operation of nuclear installations and the management of radiation sources, including ionizing material and apparatus and non-ionizing apparatus, where these activities are undertaken by Commonwealth entities.

Abrogation of the privilege against self-incrimination

Subclause 66(2)

Subclause 66(1)(e) of this bill authorises an inspector to require any person on particular premises to answer any questions put by the inspector and produce any documents requested by the inspector. Subclause 66(2) seems to make compliance an absolute requirement.

Subclause 66(2) is in the same form as subclause 55(2) in a bill of the same name which was introduced into the House of Representatives on 8 April 1998 and on which the Committee reported in its Seventh Report of 1998. In that Report, the Committee referred to correspondence from the Parliamentary Secretary to the Minister for Health and Family Services. This correspondence confirmed the Government's intention that the bill should not abrogate the privilege against self-incrimination, and proposed to clarify this by including a statement to this effect in the Explanatory Memorandum to the bill.

The Committee notes that neither the current bill, nor its Explanatory Memorandum, refers to the privilege against self-incrimination. The Committee also notes the different approach taken in subclause 16(2) of the Anti-Personnel Mines Convention Bill 1998, presently before the Parliament, which specifies that a person is guilty of an offence if that person recklessly contravenes a requirement to answer questions or produce documents. The Explanatory Memorandum to this bill states that the offence created does not abrogate the privilege against self-incrimination.

Accordingly, the Committee reiterates the observations in its Seventh Report of 1998 and seeks the advice of the Minister as to:

the reason why neither the bill nor its Explanatory Memorandum clarifies the intention to retain the privilege against self-incrimination; and
the disadvantages, if any, of the different approach to the same issue adopted in the Anti-Personnel Mines Convention Bill 1998.

Pending the Minister's advice, the Committee draws Senators' attention to this 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.

Australian Radiation Protection and Nuclear Safety (Consequential Amendments) Bill 1998

This bill was introduced into the House of Representatives on 11 November 1998 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to make consequential changes to the Australian Nuclear Science and Technology Organisation Act 1987 and to provide for transitional arrangements to cover the operation of controlled facilities and the handling of radiation sources while applications for licences to cover these facilities and activities are being made under the proposed Australian Radiation Protection and Nuclear Safety Bill 1998. The bill also proposes to repeal the Environment Protection (Nuclear Codes) Act 1978.

Commencement

Subclause 2(2) and Schedule 1, item 5

By virtue of subclause 2(2), the amendment proposed by item 5 of Schedule 1 to the bill is to commence on Proclamation, with no further time specified within which the bill 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.

Accordingly, the Committee seeks the advice of the Minister on the reason for departing from the Drafting Instruction.

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.

Australian Radiation Protection and Nuclear Safety (Licence Charges) Bill 1998

This bill was introduced into House of Representatives on 11 November 1998 by the Minister for Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to enable annual charges to be levied in respect of licences issued under the proposed Australian Radiation Protection and Nuclear Safety Act 1998.

Imposing a levy by regulation

Clauses 4 and 5

Clauses 4 and 5 of this bill impose charges on holders of licences, with the amount of those charges to be fixed by regulation and with no upper limit specified in the bill. This is a matter which usually concerns the Committee.

However, these provisions are the same as provisions in a bill of the same name which was introduced into the House of Representatives on 8 April 1998, and on which the Committee reported in its Seventh Report of 1998.

Committee consideration of the bill in its Seventh Report of 1998

In its Seventh Report of 1998, the Committee sought the advice of the Minister on why the legislation placed no upper limit on the power to set a rate of levy by regulation.

The Minister responded that the proposed charges would only apply to Commonwealth entities rather that private individuals, businesses or corporations, and the charges would equate only to the amount necessary to recover the cost of the additional functions described in the Bill.

Before any upper limit could be set, it had been necessary to undertake a comprehensive assessment of the additional functions that resulted from the legislation, and to approximate the number of facility and source licences that would be held by various Commonwealth entities. In addition, the Commonwealth had engaged the independent consultancy firm, Ernst and Young, to establish a fees and charges regime based on the newly developed regulatory framework.

The Minister concluded that any move to set an upper limit at this time “would be arbitrary and contrary to the consultative approach undertaken to date”. He also noted that, while an upper limit could not be included in the bill at this time, the entire cost recovery regime would be the subject of Parliamentary scrutiny through the regulation making process. In addition, should concerns about the inclusion of an upper limit in the bill continue, it would be possible for the Licence Charges Act to be amended to reflect the outcome of the current independent consultancy process.

In its Seventh Report of 1998, the Committee thanked the Minister for the explanations provided.

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

Australian Wool Research and Promotion Organisation Amendment Bill 1998

This bill was introduced into the House of Representatives on 12 November 1998 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the Australian Wool Research and Promotion Organisation Act 1993 to:

increase the Australian Wool Research and Promotion Organisation Board from nine to eleven members;
clarify the prior knowledge and experience required of the Chair;
provide for the Board selection committee to include:
- a Presiding Member and another member appointed by the Government;
- the Chair of the Organisation; and
- two members nominated by the Wool Council of Australia;
allow grower initiated motions to be debated at the Annual General Meeting and ease restrictions on eligibility to register for the meeting;
remove restrictions on conduct of the wool tax ballot and increase flexibility in the form that the ballot may take;
increase consultation with peak industry councils during development of the corporate plan;
empower the Organisation to set up a voluntary register of wool growers;
align the calculation of wool gross value of production with other primary industry research and development authorities;
allow the Organisation to charge fees for provision of technical services and market information; and
enable the Organisation to create licensing arrangements.

The Committee has no comment on this bill.

Child Support Legislation Amendment Bill 1998

This bill was introduced into the House of Representatives on 11 November 1998 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the following Acts:

Child Support (Assessment) Act 1989 to:
- modify the child support administrative formula;
- limit the disclosure of information relating to children of a parent on the notice of assessment;
- provide for a $260 minimum annual rate of child support;
- modify the effect of care arrangements on assessments;
- provide that the starting date of liability for applications for administrative assessment will be the date the application is made to the Registrar;
- allow a person in receipt of more than the minimum rate of Family Allowance to elect to end their administrative assessment where approval based on risk assessment has been granted by the Secretary to the Department of Social Security;
- give clients the right to lodge objections to decisions made by the Registrar;
- modify the process relating to departure from administrative assessment of child support;
- modify the income on which a child support liability is raised;
- enable child support assessments to be calculated using the taxable income for the financial year immediately preceding the assessment;
- allow a person to lodge an income estimate election up to 31 July, and to allow the Registrar to reject an income estimate election;
- allow a person to apply for an administrative assessment to pay child support; and
- make corrections to out of date or incorrect references;
Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 to:
- enable a child support assessment to continue to the end of the school year in which a full-time secondary student turns 18; and
- modify the date of effect of information provided to or obtained by the Registrar and the manner in which information is provided to the Registrar;
Child Support (Registration and Collection) Act 1988 to:
- allow the Registrar to request deductions to be made from social security pensions and benefits and applied towards child support liabilities;
- to enable private collection of child support between parents;
- allow the Registrar to hold in reserve money collected where a paying parent has lodged an application to the Family Court seeking a declaration that they are not a person from whom child support may be sought;
- allow for debts between two persons who owe child support in respect of their children to be offset;
- modify the way in which non agency payments may be credited against a child support liability; and
- enable payers to elect to pay their child support in accordance with a nominated period rather than having to pay a monthly amount by the seventh of each month; and
Social Security Act 1991 to:
- require deductions to be made from social security pensions and benefits where requested by the Registrar; and
- ensure 50 per cent of any child support paid by a paying parent will be deducted from the income which is used to calculate their entitlement to Family Allowance.

Commencement

Subclause 2(10)

By virtue of subclause 2(10), the amendments referred to in subclauses (2), (4) or (9) may commence up to 12 months after assent.

The Committee notes that paragraph 4 of Office of Parliamentary Counsel Drafting Instruction No 2 of 1989 suggests that, where a commencement period after Royal Assent is chosen, it should be no longer than 6 months. “If it is longer, Departments should explain the reason for this in the Explanatory Memorandum.”

The Committee notes that the Explanatory Memorandum in this instance fails to provide such a reason.

Accordingly, the Committee seeks the advice of the Minister on the reason for departing from the Drafting Instruction.

Inappropriate delegation of legislative power

Subclause 5(3)

Subclause 5(3) of the bill permits the modification by regulation of the operation of proposed section 6, or of the legislation referred to in proposed paragraph 5(2)(c). The Explanatory Memorandum again fails to explain why such an approach is necessary in these circumstances.

Accordingly, the Committee seeks the advice of the Minister on the reasons for authorising the modification of these provisions by regulation.

Commonwealth Superannuation Board 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 establish a new body corporate, the Commonwealth Superannuation Board, to administer certain Commonwealth superannuation schemes for civilian employees and to manage the Funds of those schemes.

Inappropriate delegation of legislative power

Subclause 8(1)

Subclause 8(1) of this bill, if enacted, would permit the Minister to make determinations varying the operation of any provision in Acts relating to superannuation for members of the Australian Public Service.

In Alert Digest No 1/98, the Committee dealt with a similar provision in a bill of the same name introduced into the House of Representatives on 3 December 1997.

In Alert Digest No 1/98, the Committee noted that the Explanatory Memorandum indicated that the variations thus made must not result in the legislation falling outside the terms of the Superannuation Industry (Supervision) Act 1993. Making the Minister's power to make determinations subject to the Superannuation Industry (Supervision) Act 1993 sufficiently circumscribed this delegation of legislative power. The Committee reiterates these comments.

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

Inappropriate delegation of legislative power

Subclause 8(11)

Subclause 8(11) of this bill, if enacted, may enable the Minister to give retrospective effect to any determinations made under subclause 8(1). These determinations would vary the operation of any provision in Acts relating to superannuation for members of the Australian Public Service.

Committee consideration of the provision in the 38th Parliament

In Alert Digest No 1/98, the Committee dealt with subclause 8(9) of a bill of the same name, introduced into the House of Representatives on 3 December 1997.

In Alert Digest No 1/98, the Committee noted that the Explanatory Memorandum pointed out that the Superannuation Industry (Supervision) Act 1993 (to which these determinations were subject) did not permit the reduction of benefits to members except in particular circumstances. Therefore the Committee sought the Minister's advice on the particular circumstances in which a determination would be made reducing superannuation benefits to which members would be otherwise entitled.

The Minister for Finance and Administration responded to the Committee's comments in a letter dated 14 July 1998 (copy appended to this Digest). This letter was received after the cessation of sittings in the 38th Parliament, but prior to the commencement of the 39th Parliament.

The Minister's letter addresses the concerns originally voiced by the Committee.

In his letter of 14 July, the Minister stated that:

the public sector superannuation schemes were regulated superannuation funds for the purposes of the Superannuation Industry (Supervision) Act 1993 and its regulations (SIS);
the SIS regulations restrict the circumstances in which the trustees of a regulated fund can alter the fund's rules to adversely affect a beneficiary's right or claim to accrued benefits;
SIS regulation 13.16(2) provides for the making of certain allowable adverse alterations to comply with specific legislative requirements (eg income tax, SIS, and in relation to the superannuation contributions tax);
subclause 8(11) of the Commonwealth Superannuation Board Bill omits the operation of section 48(2) of the Acts Interpretation Act 1901 “as it could prevent the Commonwealth Superannuation Board from making alterations to the rules of the Schemes that are allowable under SIS. This could prevent the making of amendments necessary to comply with other legislative requirements such as reducing members' benefits as a result of the superannuation contributions tax”;
nothing in subclause 8(11) will enable the Board to reduce members' accrued benefits except in the particular circumstances specified in SIS regulation 13.16; and
subclause 8(10) provides for parliamentary scrutiny of all Ministerial determinations by making them disallowable instruments.

Given this explanation, the Committee makes no further comment on this provision.

Data-matching Program (Assistance and Tax) Amendment Bill 1998

This bill was introduced into the Senate on 1

The Minister's advice

1 November 1998 by the Assistant Treasurer. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the Data-matching Program (Assistance and Tax) Act 1990 to remove the sunset clause (due to take effect on 22 January 1999) to enable the continuation of the Data-matching Program.

The Committee has no comment on this bill.

Education Services for Overseas Students (Registration of Providers and Financial Regulation) Amendment Bill 1998

This bill was introduced into the Senate on 11 November 1998 by the Assistant Treasurer. [Portfolio responsibility: Education, Training and Youth Affairs]

The bill proposes to amend the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 to extend the Act's sunset clause from 1 January 1999 to 1 January 2002.

The Committee has no comment on this bill.

Environment Protection and Biodiversity Conservation Bill 1998

This bill was introduced into the Senate on 12 November 1998 by the Assistant Treasurer. [Portfolio responsibility: Environment and Heritage]

The bill proposes to implement the 1997 Council of Australian Governments Agreement relating to the Commonwealth's role by reference to certain matters of national environmental significance. Primarily, the bill:

introduces assessment and approval processes that apply to actions which will or are likely to have a significant impact on world heritage properties, certain Ramsar wetlands, nationally threatened species and communities, certain migratory species, nuclear actions, the Commonwealth marine environment, any additional matter specified by regulation, including actions on Commonwealth lands and actions by the Commonwealth and Commonwealth agencies;
empower the Minister to enter into bilateral agreements with States or Territories in relation to actions impacting upon matters of national environmental significance;
provides for the establishment of lists of nationally threatened native species and ecological communities, key threatening processes, internationally protected migratory species, and marine species;
establishes the Australian Whale Sanctuary;
regulates certain activities in Commonwealth areas which affect whales and dolphins, listed species and listed ecological communities;
requires the Minister to prepare recovery plans for listed threatened species and communities and to prepare threat abatement plans for listed key threatening processes;
specifies steps to be followed before a property can be nominated as a world heritage property or designated as a Ramsar wetland;
empower the Minister to enter into conservation agreements with private landholders;
enables regulations to be made about access to biological resources on Commonwealth land and waters; and
replaces the Endangered Species Protection Act 1992, Environment Protection (Impact of Proposals) Act 1974, National Parks and Wildlife Conservation Act 1975, Whale Protection Act 1980 and World Heritage (Properties Conservation) Act 1983.

Non-disallowable declarations

Clause 33

Clause 33 of this bill gives the Minister power to make various declarations. The Committee believes that some of these declarations are legislative in character. However, the bill does not provide for their scrutiny by the Parliament.

Accordingly, the Committee seeks the advice of the Minister on the reasons why the declarations which may be made under clause 33 are not disallowable instruments.

Pending the Minister's advice, the Committee draws Senators' attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to Parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee's terms of reference.

Abrogation of the privilege against self-incrimination

Subclause 112(4)

Subclause 112(4) of the bill abrogates the privilege against self-incrimination. Such provisions are generally of concern to the Committee. However, subclause 112(5) goes on to provide that answers compelled to be given, documents compelled to be produced, and any information obtained as a direct or indirect consequence, is inadmissible in evidence in criminal proceedings against the person (other than proceedings for providing false and misleading information). These protections are in a form which the Committee accepts.

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

Strict liability offences

Subclauses 196(3), 211(3), 229(3), 236(1) and 254(3)

A number of provisions in the bill create criminal offences of strict liability. In each case, the Explanatory Memorandum does not provide a reason for imposing strict liability.

Accordingly, the Committee seeks the advice of the Minister on the reasons why the offences in subclauses 196(3), 211(3), 229(3), 236(1) and 254(3) are declared to be offences of strict liability, particularly given the levels of penalty imposed.

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.

Reversal of the onus of proof

Clauses 235, 255, and 492

A number of provisions in the bill expressly impose an evidential burden on a defendant to criminal charges. These provisions require a defendant wishing to escape liability to show the existence of certain circumstances. These circumstances include some matters which may be within the specific knowledge of the defendant (eg. the taking of actions that are reasonably necessary to deal with an emergency, or that occur as a result of an unavoidable accident). Other circumstances seem less likely to be within the defendant's specific knowledge (eg. the taking of actions which are covered by a relevant Ministerial declaration). The Explanatory Memorandum does not provide a reason for imposing an evidential burden on the defendant in these circumstances.

Accordingly, the Committee seeks the advice of the Minister on the reasons why clauses 235, 255 and 492 impose an evidential burden on a defendant in the circumstances set out.