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