Scrutiny of Bills Alert Digest No. 11 of 1998
2 December 1998
ISSN 1329-668X
MEMBERS OF THE COMMITTEE
Senator B Cooney (Chairman)
Senator W Crane (Deputy Chairman)
Senator H Coonan
Senator T Crossin
Senator J Ferris
Senator A Murray
TERMS OF REFERENCE
Extract from Standing Order 24
(1)
(a) At the commencement of each Parliament, a Standing
Committee for the Scrutiny of Bills shall be appointed to report, in respect
of the clauses of bills introduced into the Senate, and in respect of
Acts of the Parliament, whether such bills or Acts, by express words or
otherwise:
(i) trespass unduly on personal rights and liberties;
(ii) make rights, liberties or obligations unduly dependent
upon insufficiently defined administrative powers;
(iii) make rights, liberties or obligations unduly dependent
upon non-reviewable decisions;
(iv) inappropriately delegate legislative powers; or
(v) insufficiently subject the exercise of legislative
power to parliamentary scrutiny.
(b) The Committee, for the purpose of reporting upon the
clauses of a bill when the bill has been introduced into the Senate, may
consider any proposed law or other document or information available to
it, notwithstanding that such proposed law, document or information has
not been presented to the Senate.
CONTENTS
Aboriginal Land Rights (Northern Territory) Amendment
Bill (No. 1) 1998
Classification (Publications, Films and Computer Games)
Amendment Bill 1998
Classification (Publications, Films and Computer Games)
Charges Bill 1998
Constitution Alteration (Right to Stand for Parliament—Qualification
of Members and Candidates) Bill 1998
Customs Legislation Amendment Bill (No. 1) 1998
Electoral And Referendum Amendment Bill (No. 2) 1998
Health Legislation Amendment Bill (No. 3) 1998
National Environment Protection Measures (Implementation)
Bill 1998
National Transmission Network Sale Bill 1998
National Transmission Network Sale (Consequential Amendments)
Bill 1998
Petroleum Retail Legislation Repeal Bill 1998
Regional Forest Agreements Bill 1998
Rural Adjustment Amendment Bill 1998
Superannuation Legislation Amendment (Resolution of Complaints)
Bill 1998
Workplace Relations Legislation Amendment (Youth Employment)
Bill 1998
Aboriginal Land Rights (Northern Territory) Amendment
Bill (No. 1) 1998
This bill was introduced into the House of Representatives
on 25 November 1998 by the Minister representing the Minister for Aboriginal
and Torres Strait Islander Affairs. [Portfolio responsibility: Aboriginal
and Torres Strait Islander Affairs]
The bill proposes to amend the Aboriginal Land Rights
(Northern Territory) Act 1976 to:
- raise the retiring age for the occupant of the position
of Aboriginal Land Commissioner from 65 to 70 years; and
- add the Innesvale Land Claim and the Urrpantyenye Land
Claim to Schedule 1 so that those claims may be granted to Aboriginal
Land Trusts to hold title on behalf of Aboriginal people.
The Committee has no comment on this bill.
Classification (Publications, Films and Computer Games)
Amendment Bill 1998
This bill was introduced into the House of Representatives
on 25 November 1998 by the Attorney-General. [Portfolio responsibility:
Attorney-General]
The bill, consequent upon the Classification (Publications,
Films and Computer Games) Charges Bill 1997, proposes administrative provisions
relating to the collection of charges and the waiver of charges and prescribes
time limits for the making of classification decisions.
The Committee has no comment on this bill.
Classification (Publications, Films and Computer Games)
Charges Bill 1998
This bill was introduced into the House of Representatives
on 25 November 1998 by the Attorney-General. [Portfolio responsibility:
Attorney-General]
The bill proposes to impose charges for the classification
of publications, films and computer games and for related services.
Setting a rate of levy by regulation
Clause 13
Clause 13 of this bill authorises amendment of the charges
levied by the bill by regulation. However, the bill sets no upper limit
on the amount of those charges.
In these circumstances, the Committee would normally
seek the advice of the Minister on such a provision. However, this bill
is in the same form as a bill of the same name introduced into the House
of Representatives on 26 November 1997. The Committee reported on that
bill in its Third Report of 1998. In that Report the Committee
noted advice from the Attorney General that:
- the bill implements a budget-related decision to
implement full cost recovery for the services provided by the Office
of Film and Literature Classification (OFLC);
- the charges imposed by the bill are intended solely
to generate sufficient revenue to pay the full annual operating cost
of the OFLC;
- while the costs associated with running the OFLC
have remained fairly constant over time, the revenue generated (particularly
by classification services) in any one year may vary greatly;
- given that the revenue to fund OFLC will be obtained
from a broad range of application based charges, the Government's
preferred approach (regulations to set initial charges, subject to
a formula or ceiling included in the primary legislation) could not
be applied;
- alternative approaches (such as inserting a general,
but uncertain, formula in the bill, or including an upper level charge
which would, of necessity, have to be artificially high) were also
considered but rejected for practical reasons;
- any fees set by regulation would be disallowable;
and
- the bill represents an appropriate compromise in
the circumstances of this particular case.
The Committee thanked the Attorney-General for this
comprehensive response.
In these circumstances, the Committee notes its earlier
concerns and the Minister's advice, and makes no further comment on
this bill.
Constitution Alteration (Right to Stand for Parliament—Qualification
of Members and Candidates) Bill 1998
This bill was introduced into the Senate on 24 November
1998 by Senator Brown as a Private Senator's bill.
The bill proposes to amend section 44 of the Constitution
to allow persons who hold an “office of profit under the Crown”
or who are not Australian citizens to nominate for election to Federal
parliament.
The Committee has no comment on this bill.
Customs Legislation Amendment Bill (No. 1) 1998
This bill was introduced into the Senate on 25 November
1998 by the Parliamentary Secretary to the Minister for Communications,
Information Technology and the Arts. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the following Acts in relation
to powers of Australian Customs Service (ACS) officers and the detection
of illicit drugs:
- Customs Act 1901 to:
- extend frisk search powers;
- insert new power to allow officers to read and
copy documents found in baggage and cargo searches;
- insert new power to allow officers to take into
custody firearms which are on ships and aircraft and which, if
imported, would be prohibited imports;
- limit circumstances where reasonable force can
be used in the conduct of the external search under the detention
and search provisions;
- extend the operation of section 59, which sets
out the circumstances in which a ship or aircraft can be boarded
by Customs, to include foreign ships in the contiguous zone in
accordance with international law and ships into the waters on
the landward side of the territorial sea, including such waters
within the limits of a State and Territory; and
- insert new offences relating to the transfer
of goods at sea; and
- Customs Administration Act 1985 to facilitate
access by other law enforcement agencies to Customs' information and
intelligence for the purposes of carrying out mutual law enforcement
functions.
The Committee has no comment on this bill.
Electoral and Referendum Amendment Bill (No. 2) 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).
Voting rights
With regard to the voting rights of prisoners, the Committee
in its Seventh Report of 1998:
- noted that the Commonwealth Electoral Act 1918
currently provides that persons serving a sentence of imprisonment
of 5 years or longer are not entitled to enrol or vote at a federal
election;
- noted that this provision had been under discussion
and review for a number of years, with the Joint Standing Committee
on Electoral Matters proposing at various times that voting rights
be granted to all prisoners, and that voting rights be denied
to all prisoners;
- drew the attention of Senators to the continuing
debate and the various views which had informed it; and
- noted that, under the proposed amendment, it was
possible that people might be imprisoned – perhaps on weekend
detention – for relatively minor offences and be denied a vote.
The Committee sought the Minister's advice as to whether
consequences such as these were intended. The Minister responded that:
- the proposed amendment would not apply to persons
on remand or held at her Majesty's pleasure (as they were not considered
to have been sentenced to imprisonment);
- with regard to persons sentenced to short term imprisonment,
where the Australian Electoral Commission received timely notice of
a sentence, it would remove that person's name form the roll, but
where the Commission received notice of a term of imprisonment which
had expired, it would take no retrospective action;
- the bill also proposed to repeal the facilities for
mobile polling in prisons and the right to a postal vote due to imprisonment
– hence there would be no facility for voting by persons in prison;
and
- similar provisions applied in Tasmania and in Britain.
The Committee thanked the Minister for this advice.
It noted that, under the bill, it was possible that voters might be
dealt with differently depending on the nature of their sentence and
the effectiveness of the notification procedures in the various States
and Territories. Accordingly, the Committee continued to note the possible
effect of this provision on personal rights and liberties.
In these circumstances, the Committee draws the Senate's
attention to its previous comments on this provision.
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.
Health Legislation Amendment Bill (No. 3) 1998
This bill was introduced into the House of Representatives
on 26 November 1998 by the Minister for Health and Aged Care. [Portfolio
responsibility: Health and Aged Care]
The bill proposes to amend the National Health and
Medical Research Council Act 1992 to:
- introduce a single stage public consultation process
when Council intends to issue guidelines or approval guidelines developed
by other organisations;
- retain the existing two stage public consultation
process in instances where the Council is making regulatory recommendations
or engaging in a prescribed activity;
- rename the Medical Research Committee to the Research
Committee and change some of Council's operations; and
- enable Principal Committees to appoint a Deputy Chairperson
and extend the Council's power to delegate to a working committee
and the Chairperson of the Council.
The Committee has no comment on this bill.
National Environment Protection Measures (Implementation)
Bill 1998
This bill was introduced into the Senate on 25 November
1998 by the Parliamentary Secretary to the Minister for Communications,
Information Technology and the Arts. [Portfolio responsibility: Environment
and Heritage]
The bill proposes to provide for the implementation
of national environment protection measures (NEPMs) in respect of certain
activities by or on behalf of the Commonwealth and Commonwealth authorities
by:
- extending the application of certain provisions of
applied State laws to Commonwealth activities in Commonwealth places;
- extending the application of certain provisions of
States or Territory laws to Commonwealth activities;
- making regulations;
- implementing environmental audits and environment
management plans;
- providing for Administrative Appeals Tribunal review
of any reviewable decisions made under an applied provision of an
applied State law or applied provision of a State or Territory law;
- providing that certain persons must not disclose
information obtained during their presence while searching premises
occupied by the Commonwealth or a Commonwealth authority;
- providing that regulations may declare premises to
be exempt premises in relation to premises the Environment
Minister considers to be of national interest and to which access
into, or search of, should be restricted or prohibited;
- enabling the Commonwealth or a Commonwealth authority
to pay a fee or charge to a State or Territory or a State or Territory
authority in certain circumstances;
- enabling the Environment Minister to make an arrangement
with an appropriate Minister of a State or Territory in relation to
the exercise of a power, or the performance of a duty or function
by a State or Territory, a State or Territory authority or by one
of their officers;
- requiring the preparation and tabling of an annual
report on the implementation of NEPMs; and
- applying the Criminal Code to certain provisions.
Insufficient parliamentary scrutiny
Subclauses 11(2), 12(2), 16(2) and 17(2)
By virtue of subclauses 11(2), 12(2), 16(2) and 17(2),
the Environment Minister may enable provisions of State and Territory
law to apply, or not apply, to the Commonwealth or its authorities
following notification in the Gazette. The exercise of this
power by the Minister is essentially legislative in that a Gazette
notice will determine whether or not the Commonwealth is subject to
the legislative provisions of a State or Territory.
The exercise by a Minister of what appears to be a
legislative power would ordinarily be carried out by a disallowable
instrument rather than by Gazette notice. The Explanatory Memorandum
makes no further reference to the matter. The Committee, therefore,
seeks the Minister's advice on the reasons why declarations
under subclauses 11(2), 12(2), 16(2) and 17(2) are not disallowable.
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.
Inadmissible audit report
Clause 28
Clause 28 of the bill provides that a report of
an environmental audit, and any information obtained as a direct
or indirect result of the making of that report, is not admissible
in evidence in any civil or criminal proceedings against the Commonwealth
or its authorities if the audit relates to activities carried on
or to be carried on by the Commonwealth or the authority. The Explanatory
Memorandum provides no reason for the inclusion of this provision.
The Committee, therefore, seeks the Minister's advice on
the reasons why an environmental audit report should not be admissible
in proceedings against the Commonwealth.
Pending the Minister'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.
National Transmission Network Sale Bill 1998
This bill was introduced into the Senate on 25 November
1998 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 enable the sale of the national
transmission network (by the sale of shares in one or more Commonwealth-owned
companies) and to set in place a regulatory framework for the provision
of national broadcasting and other transmission services after the
sale.
The Committee has no comment on this bill.
National Transmission Network Sale (Consequential
Amendments) Bill 1998
This bill was introduced into the Senate on 25 November
1998 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 following Acts, as
a consequence of the provisions of the National Transmission Network
Bill 1997:
- Australian Broadcasting Corporation Act 1983
and Special Broadcasting Service Act 1991 to make amendments
in relation to the provision of transmission services, annual
reporting requirements and a mechanism for dealing with complaints
about the degradation of signal quality; and
- Radiocommunications Act 1992 to make minor
amendments relating to licensing provisions of the Act.
The Committee has no comment on this bill.
Petroleum Retail Legislation Repeal Bill 1998
This bill was introduced into the House of Representatives
on 25 November 1998 by the Parliamentary Secretary to the Minister
for Industry, Science and Resources. [Portfolio responsibility:
Industry, Science and Resources]
The bill proposes to repeal the Petroleum Retail
Marketing Sites Act 1980 and the Petroleum Retail Marketing
Franchise Act 1980 to enable the deregulation of the petroleum
products industry. The bill also provides for a regulation making
power to contain savings or transitional provisions.
The Committee has no comment on this bill.
Regional Forest Agreements Bill 1998
This bill was introduced into the House of Representatives
on 26 November 1998 by the Minister for Forestry and Conservation.
[Portfolio responsibility: Forestry and Conservation]
The bill proposes to implement Regional Forest Agreements
entered into between the Commonwealth and State and Territory Governments
in relation to native forests.
The Committee has no comment on this bill.
Rural Adjustment Amendment Bill 1998
This bill was introduced into the House of Representatives
on 26 November 1998 by the Minister for Agriculture, Fisheries and
Forestry. [Portfolio responsibility: Agriculture, Fisheries and
Forestry]
The bill proposes to amend the Rural Adjustment
Act 1992 to enable the introduction of the Farm Business Improvement
Program, known as FarmBis.
The Committee has no comment on this bill.
Superannuation Legislation Amendment (Resolution
of Complaints) Bill 1998
This bill was introduced into the House of Representatives
on 26 November 1998 by the Minister for Financial Services and Regulation.
[Portfolio responsibility: Treasury]
The bill proposes to amend the Superannuation
(Resolution of Complaints) Act 1993 to enable the Superannuation
Complaints Tribunal to arbitrate superannuation complaints with
the consent of the parties to the complaints.
Termination by Proclamation
Schedule 1, item 10
Item 10 of Schedule 1 proposes to insert a new section
48F in the Principal Act. This section will allow the operation
of the amendments proposed in the bill to terminate on a date to
be fixed by Proclamation, with no further limit specified within
which such a Proclamation might be made.
The Explanatory Memorandum notes that the bill is
a response to two recent Federal Court decisions. These decisions
prevent the Superannuation Complaints Tribunal (the Tribunal) from
using its review powers, leaving it with only an inquiry and conciliation
role. As an interim solution to the growing backlog of cases awaiting
review before the Tribunal, the bill proposes to allow the Tribunal
to arbitrate disputes by consent.
With specific reference to proposed new section
48F, the Explanatory Memorandum simply notes that “in the light
of the interim nature of the Tribunal's arbitration function, Part
7A will cease to have effect on a day to be fixed by Proclamation”.
The Committee has consistently drawn attention to
provisions which permit legislation to commence by Proclamation.
Such provisions remove from Parliament, as the elected holder of
federal legislative power, the responsibility of determining when
its laws are to come into force. Provisions which remove from Parliament
the responsibility of determining when its laws should cease
to have effect raise similar concerns.
The Committee notes that the bill represents an
interim solution. However, it does not refer to any timeframe within
which a long term solution is to be developed, nor does it provide
that the interim solution should cease to have effect on the adoption
of the long term solution. Accordingly, the Committee seeks the
advice of the Minister on the reason for providing the Executive
with an unfettered discretion to determine when the amendments made
by this bill will cease to have effect.
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.
Workplace Relations Legislation Amendment (Youth
Employment) Bill 1998
This bill was introduced into the House of Representatives
on 26 November 1998 by the Minister for Employment, Workplace Relations
and Small Business. [Portfolio responsibility: Employment, Workplace
Relations and Small Business]
The bill proposes to amend the following Acts:
- Workplace Relations Act 1996 to:
- include in the principal object of the Act
and the objects of Part VI of the Act the protection of the
competitive position of young people in the labour market,
the promotion of youth employment and the reduction of youth
unemployment;
- permanently exempt junior rates of pay from
the provisions of the Act intended to prevent and eliminate
age discrimination in awards and agreements; and
- promote the inclusion of junior rates of
pay in awards and agreements; and
- Workplace Relations and Other Legislation
Amendment Act 1996 to:
- permanently exempt junior rates of pay from
the provisions of the Act intended to prevent and eliminate
age discrimination in awards; and
- promote the inclusion of junior rates of
pay in awards.
General comment
Schedule 1, item 4
Item 4 of Schedule 1 to the bill provides, in part,
that “junior wage provisions are not to be treated as constituting
discrimination by reason of age”. In general terms, this amendment
simply recognises a state of affairs that has continued for a considerable
period of time, and it may have been included in the bill to avoid
conflict with the provisions of other legislation. Nevertheless,
the Committee recognises that there are some who may regard such
a provision as trespassing on personal rights and liberties, and
the reason for its inclusion in the bill is not clear to the Committee.
Accordingly, the Committee seeks the advice of
the Minister on the reason for including this provision in the
bill.
Pending the Minister'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.
|
