Broadcasting Services Amendment (Online Services) Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 7 of 1999, in which it made various comments. The Minister for Communications, Information Technology and the Arts has responded to those comments in a letter dated 12 May 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. 7 of 1999

This bill was introduced into the Senate on 21 April 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Communications, Information Technology and the Arts]

The bill proposes to amend the Broadcasting Services Act 1992 to provide for the regulation of online services by:

• establishing a complaints mechanism to enable complaints to be made to the Australian Broadcasting Authority (ABA) about offensive material online;
• defining material that will trigger action by the ABA, on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures;
• giving powers to the ABA to issue notices to service providers aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or, if the material is sourced overseas, to take reasonable steps to prevent access if technically feasible;
• providing indemnities for service providers to protect them from litigation by customers affected by ABA notices;
• providing a graduated scale of sanctions against service providers breaching ABA notices or the legislation;
• providing that the framework will not apply to private or restricted distribution communications such as e-mail (subject to the ability of the Minister to declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider) – however, current provisions of the Crimes Act 1914 (Cth) in relation to offensive or harassing use of a telecommunications service will apply in this context;
• establishing a community advisory body to monitor material, operate a `hotline' to receive complaints about illegal material and pass relevant information to the ABA and police authorities, and also advise the public about options such as filtering software that are available to address concerns about online content;
• giving the Commonwealth responsibility for regulating the activities of Internet service providers and Internet content hosts, and providing that the Attorney-General is to encourage the development of uniform State and Territory offence provisions complementing the Commonwealth legislation that creates offences for the publication and transmission of proscribed material by users and content creators; and

makes a consequential amendment to the Crimes Act 1914.

Non-disallowable instruments

Clause 3 of Schedule 5

Item 10 of Schedule 1 to this bill proposes to add a new Schedule 5 to the Broadcasting Services Act 1992. This Schedule sets up a system for regulating certain aspects of the Internet industry.

Clause 3 of proposed Schedule 5 will permit the ABA to declare that “a specified access-control system is a restricted access system in relation to Internet content”. In making such a declaration, the ABA must have regard to the objective of protecting children from exposure to Internet content which is unsuitable for children, and such other matters (if any) as the ABA considers relevant.

Subclause 3(3) states that a copy of any such instrument must be laid before each House of the Parliament within 15 days after the date on which the instrument was made. No provision seems to have been made for the possible disallowance of such instruments. The Committee, therefore, seeks the Minister's advice as to whether instruments made under clause 3 of Schedule 5 of the Broadcasting Services Act 1992 are disallowable, and, if not, why they should be exempt from disallowance.

Pending the Minister's response, 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.

Relevant extract from the response from the Minister

The Digest notes that clause 3 of proposed Schedule 5 of the Broadcasting Services Amendment (Online Services) Bill 1999 (the Bill) will permit the ABA to declare that “a specified access-control system is a restricted access system in relation to Internet content.” Subclause 3(3) provides that a copy of any such instrument must be laid before each House of the Parliament within 15 days. The Standing Committee seeks my advice as to whether instruments made under clause 3 of Schedule 5 of the Bill are disallowable and, if not, why they should be exempt from disallowance.

The Bill does not currently provide for the disallowance of instruments made by the ABA under clause 3 of proposed Schedule 5. I propose provision for disallowance will be made through Government amendments of the Bill.

The Committee thanks the Minister for this response and for the amendment foreshadowed.

Norfolk Island Amendment Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 6 of 1999, in which it made various comments. The Minister for Regional Services, Territories and Local Government has responded to those comments in a letter dated 13 May 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. 6 of 1999

This bill was introduced into the Senate on 31 March 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Regional Services, Territories and Local Government]

The bill proposes to amend the Norfolk Island Act 1979 to:

• allow Commonwealth oversight of firearms legislation on Norfolk Island;
• provide for Deputy Administrators to be appointed by the Federal Minister responsible for Territories rather than the Governor-General;
• extend the right to vote in Legislative Assembly elections to all Australian citizens ordinarily resident on the Island;
• establish Australian citizenship as a qualification for enrolment and election to the Legislative Assembly; and
• preserve the existing enrolment rights of enrolled non-Australian citizens.

The rights and liberties of electors

Schedule 1, items 5, 7 and 9

Items 5, 7 and 9 of Schedule 1 to this bill propose to insert new paragraphs 38(ba), 39(2)(da) and 39A(1)(b) in the Norfolk Island Act 1979. These new paragraphs will require those who wish to stand for election to the Norfolk Island Legislative Assembly (the Assembly), and those who wish to vote in elections for that Assembly, to be Australian citizens.

The Explanatory Memorandum notes that the Norfolk Island Act 1979 currently provides that a person may stand for election to the Assembly if he or she is at least 18 years of age, is entitled to vote at elections, and has been ordinarily resident on the Island for 5 years immediately preceding the date of nomination. The Legislative Assembly Act 1979 (Norfolk Island) provides that a person is qualified to enrol where that person is at least 18 years of age, and has been present on the Island for 900 days during the period of 4 years immediately preceding their application for enrolment.

The Explanatory Memorandum goes on to note that the 900 day qualifying period for enrolment on Norfolk Island far exceeds the one month period that applies to the Commonwealth and in all States and Territories on the mainland (with Tasmania having a qualifying period of 6 months). It also notes that the Assembly is the only Australian legislative body where non-Australian citizens are entitled to enrol and stand for election. Finally, on this issue, the Explanatory Memorandum notes that the enrolment rights of non-Australian citizens currently on the electoral roll will be preserved, but that the proposed amendments will apply to candidates and voters in the future.

This bill will effectively override subsection 6(1) of the Legislative Assembly Act 1979 (Norfolk Island). In Alert Digest No 7 of 1996, the Committee outlined a number of concerns raised by the Euthanasia Laws Bill 1996, which similarly proposed to overturn a law duly passed by a Territory Assembly. Specifically, the Committee noted that the Territory Assemblies are all elected democratically on a universal adult franchise. The Euthanasia Laws Bill seemed “to take away from the people living within those democracies an ability they now have to elect an assembly with power to legislate about a matter of great moment”.

The Committee has received representations from the Government of Norfolk Island which express similar views about this bill (copy appended to this Digest). Specifically, the Island's Chief Minister questions the urgency of the legislation, which is based on proposals first advanced in 1991, and observes that the proposals were rejected in a local referendum in August 1998. He goes on to state that requiring all residents of Norfolk Island to become Australian citizens in order to vote in local elections is “of utmost concern” to the people of the Island, and that “it is not proper for the Commonwealth of Australia to interfere in our local electoral laws”.

Norfolk Island enjoys an unusual status as an External Territory under the authority of Australia and attached to it only by historical accident and geographic proximity. The Commonwealth of Australia finds our status “an anomaly” given that we pay no taxes, are not represented in the Australian parliament, receive no medicare benefits, nor social security. We prefer it that way and regard it as unique. We have our own Parliament and Government. We are self-sufficient, relying largely on tourism for our income and levying local taxes to support social welfare, health, education, and a range of local government functions.

For the past twenty years we have been moving progressively toward full self government. This has been a successful transition and we anticipate a harmonious relationship with Australia during the final phases of transition.

It has, therefore, been both confrontational and provocative for the Commonwealth of Australia to pursue a course of action which few on the Island would support and which, in essence, achieves nothing of consequence for either Australia or Norfolk Island.

Our residency qualifications prior to voting are no more onerous than those of Australia. In Australia you must be resident for 2 of the previous 5 years (including 12 continual months in the past 24 months) in order to become a citizen and vote. On Norfolk you must be resident for 2 years and five months in order to vote. Our immigration laws are similar to Australia's but we have much stricter residency requirements.

We do not think transient Australians have any more real place or interest voting in our local elections than we do if temporarily resident in Australia for the purposes of business or study …

Approximately one-quarter of our residents are not Australian citizens, and do not choose to alter their citizenship status. Non-Australian citizens would no longer be able to be enrolled if the proposed amendments succeed.

The Committee, therefore, seeks the Minister's advice on the concerns expressed by the Chief Minister of the Government of Norfolk Island, which address the effect of the bill on the rights and liberties of electors on the Island, and also on the relationship between this bill and Norfolk Island's transition to self-government.

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.

 

Relevant extract from the response from the Minister

Australian citizenship – Voting & Membership of the Territory Assembly

In summary, the proposed changes will:

(i) give Australian citizens on Norfolk Island the right to enrol to vote at Assembly Elections (after 6 months residence on the Island);

(ii) make Australian citizenship a prerequisite for new enrolments to vote;

(iii) preserve the enrolment and voting rights of persons already on the electoral roll, irrespective of citizenship; and

(iv) make Australian citizenship a prerequisite for standing for election to the Legislative Assembly.

I note the preliminary observation in the Committee's Alert Digest 6/99 that “the provisions may be considered to trespass unduly on personal rights and liberties”. On the contrary, they will extend to Australian citizens in this part of Australia personal rights and liberties already enjoyed by all Australian citizens in every other Australian jurisdiction. The personal rights and liberties of foreigners in the Territory will be preserved to the extent that persons already enrolled to vote in Norfolk Island Legislative Assembly elections will have their enrolments preserved, irrespective of citizenship. Further, persons who are already Members of the Assembly will be entitled to serve out in full the terms for which they have been elected, again irrespective of citizenship.

I now turn specifically to the letter to you from the Norfolk Island Chief Minister. Mr Smith mentions a local referendum on the electoral issues. The rights of Australian citizens are national issues for determination by the Federal Parliament, not the subject of local plebiscites by small community groupings, especially where (a) not all resident Australians are permitted to vote and (b) non citizen residents can vote on an essentially national issue.

Mr Smith also says that Norfolk Island enjoys “an unusual status as an External Territory under the authority of Australia and attached to it only by historical accident and geographic proximity”. His letter implies that Norfolk Island is temporarily connected to Australia for the time being; that a progressive “transition to full self-government” will somehow result in a grant of a status for the Island separate from Australia.

This is incorrect. Norfolk Island is and will remain an integral part of the Commonwealth of Australia in the same way as Australia's other inhabited island Territories of Christmas Island and the Cocos (Keeling) Islands, and indeed like the mainland Territories of the ACT, the Northern Territory and the Jervis Bay Territory. As with the ACT and the Northern Territory, the Federal Parliament has devolved a degree of internal self government on the Norfolk Island Legislative Assembly. While the revenue raising and sharing arrangements differ substantively, and there is variation in the range of powers exercised from those of the Northern Territory, the models of internal self government provided for in the self government legislation in these two Territories in 1978 and 1979 are very similar indeed.

The Federal Government remains open to realistic proposals from the Norfolk Island Government for the enhancement of internal self government including the possible transfer of further powers and functions between the Commonwealth and the Territory Assembly. However any such enhancement would occur within the existing constitutional status of the Territory as an integral part of Australia. It would also need to take account of the findings in the recent Commonwealth Grants Commission study of the Island economy that the Island Government is having difficulty effectively funding and discharging its present range of functions.

Mr Smith's letter suggests that “transient Australians” should not be entitled to vote in Territory elections; that Australian citizens moving between Australian jurisdictions should be obliged to acquire over a period of years “an understanding of our life, its benefit and its disadvantages and they may vote”. In all other Australian jurisdictions the residency qualification for enrolment to voting is one month, except Tasmania where it is six months. We have adopted that longer period in respect of Norfolk Island but it is not an acceptable premise that Australian citizens need detailed local knowledge for voting purposes when moving between Australian parliamentary jurisdictions.

Mr Smith's letter implies that “Australia” is somehow a foreign country for citizenship purposes. It needs to be remembered that the Australian Citizenship Act 1948 has applied in Norfolk Island since inception in the same way as in the rest of Australia, and children born on Norfolk Island have been Australian by birth under the same rules applied on the mainland.

I have attached a copy of an article recently published in the local newspaper The Norfolk Islander which may assist the Committee.

The Committee thanks the Minister for this detailed response. Clearly, the bill raises the issue of the constitutional status of Norfolk Island as an external territory of Australia. It also raises the issue of the effect of prescribed residency qualifications on the voting rights of Australian citizens and Norfolk Island residents. These are issues of fundamental policy and are, therefore, best determined by the Senate itself.

 

Superannuation Legislation Amendment Bill (No. 3) 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 6 of 1999, in which it made various comments. The Assistant Treasurer has responded to those comments in a letter dated 24 May 1999. 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. 6 of 1999

This bill was introduced into the House of Representatives on 31 March 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to amend the Superannuation Industry (Supervision) Act 1993 to:

• establish a new category of small superannuation fund with fewer than five members to be called a self managed superannuation fund; and
• provide for the transfer of the regulation of self managed superannuation funds from the Australian Prudential Regulation Authority to the Australian Taxation Office, effective from 1 July 1999; and

make consequential amendments to seven other Acts.

Strict liability offence and penalties

Proposed new subsection 252A(4)

Item 56 of Schedule 1 to this bill proposes to insert a new section 252A in the Superannuation Industry (Supervision) Act 1993. This new provision authorises the Australian Prudential Regulation Authority or the Commissioner of Taxation to request certain information from a regulated superannuation fund with fewer than 5 members.

Subsection 252A(3) makes it an offence to fail to provide this information, and subsection (4) makes it an offence of strict liability. Penalties on a conviction are noted in the Table appended to this Digest. Imposing strict liability would seem to absolve the prosecution from having to prove any intention, recklessness or lack of care on the part of an accused who failed to provide the information required within the time specified.

The Explanatory Memorandum provides no reason for departing from the normal practice, which requires the prosecution to prove that an accused person intended to act contrary to the law. The Committee, therefore, seeks the Treasurer's advice on the reasons for departing from this normal practice, and on whether the Committee's Eighth Report of 1998 (The Appropriate Basis for Penalty Provisions in Legislation Comparable to the Productivity Commission Bill 1996) was taken into consideration in developing the penalty provisions in this bill.

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

 

Relevant extract from the response from the Assistant Treasurer

I am responding to your letter as the Minister responsible for the SLA Bill.

The Digest notes that Item 56 of Schedule 1 to the SLA Bill proposes to insert a new section 252A in the Superannuation Industry (Supervision) (SIS) Act 1993. This new provision authorises the Australian Prudential Regulation Authority or the Commissioner of Taxation to request certain information from a regulated superannuation fund with fewer than five members. Subsection 252A(3) makes it an offence to fail to provide this information, and subsection (4) makes it an offence of strict liability. Imposing strict liability would seem to absolve the prosecution from having to prove any intention, recklessness or lack or care on the part of an accused that failed to provide information within the specified time.

The Committee is seeking the Treasurer's advice on the reasons for departing from the normal practice, which requires the prosecution to prove that an accused person intended to act contrary to the law and on whether the Committee's Eighth Report of 1998 (The Appropriate Basis for Penalty Provisions in Legislation Comparable to the Productivity Commission Bill 1996) was taken into consideration in developing the penalty provisions in this bill.

The offence provision in new section 252A was developed having regard to Commonwealth criminal law policy on strict liability offences. That is, strict liability offences should be restricted to offences that are essentially regulatory in nature and which impose only minor penalties.

New section 252A will provide APRA and the ATO with the ability to serve a notice on a fund in order to assess whether the fund is regulated by APRA or the ATO. Without the provision a `regulator' would not be able to determine with certainty whether they had the power to regulate a given fund. In this regard the provision is central to the operation of the supervisory regime in the SIS Act and is clearly of a regulatory nature. The maximum monetary penalty for a person convicted of a breach of new section 252A is 50 penalty units which is appropriate for a minor offence.

Furthermore, it is considered that the inclusion of a `fault' element in the offence provision would make the new section 252A unenforceable thereby leading to non-compliance with the provision by superannuation funds. In particular, it would be almost impossible for a prosecution to demonstrate that the contravention of the provision was reckless or deliberate (i.e. intentional) in order to secure a conviction.

Finally, while consideration was not specifically given to Committee's Eighth Report of 1998 when developing the penalty provisions in the bill, the offence provision in new section 252A is consistent with similar provisions in other Commonwealth legislation which apply to the provision of information for regulatory purposes.

I trust this information will be of assistance to you.

The Committee thanks the Assistant Treasurer for this response.

Barney Cooney

Chairman