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| A New Tax System (Family Assistance) Bill 1999 |
| A New Tax System (Family Assistance) (Consequential and Related Measures) Bill (No. 1) 1999 |
| Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999 |
| Australia New Zealand Food Authority Amendment Bill 1999 |
| Commonwealth Grants Commission Amendment Bill 1999 |
| Customs Amendment Bill (No. 1) 1999 |
| Customs Amendment (Temporary Importation) Bill 1999 |
| Defence Legislation Amendment Bill (No. 1) 1999 |
| Employment, Education and Training Amendment Bill 1999 |
| Employment Security Bill 1999 |
| Environment and Heritage Legislation Amendment Bill 1999 |
| Migration Legislation Amendment Bill (No. 2) 1999 |
| Norfolk Island Amendment Bill 1999 |
| Public Employment (Consequential and Transitional) Amendment Bill 199 |
| Public Service Bill 1999 |
| Statute Stocktake Bill 1999 |
| Superannuation Legislation Amendment Bill (No. 3) 1999 |
| Taxation Laws Amendment Bill (No. 6) 1999 |
| Tradesmen's Rights Regulation Repeal Bill 1999 |
| Wool International Privatisation Bill 1999 |
| Provisions imposing criminal sanctions for failure to provide information |
This bill was introduced into the House of Representatives on 31 March 1999 by the Treasurer. [Portfolio responsibility: Family and Community Services]
The bill proposes to simplify the structure and administration of family assistance by replacing twelve existing forms of assistance with three and to move the maternity allowance and maternity immunisation allowance from the Social Security Act to the proposed A New Tax System (Family Assistance) Act.
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 31 March 1999 by the Treasurer. [Portfolio responsibility: Family and Community Services]
Consequent on the A New Tax System (Family Assistance) Bill 1999, the bill proposes to:
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 30 March 1999 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:
Commencement
Subclause 2(3)
By virtue of subclause 2(3), Schedule 1 to the bill will commence up to 12 months after assent. Drafting Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel, refers to the desirability of an explanation where a commencement period longer than 6 months after Royal Assent is chosen. The Explanatory Memorandum makes it clear that additional time is required because the amendments proposed in that Schedule depend on the passage of complementary legislation in the Northern Territory.
In these circumstances, the Committee makes no further comment
on this provision.
Retrospective application
Clause 3
Clause 3 of this bill is to apply retrospectively from 5 December 1991. However, the Explanatory Memorandum observes that this provision is intended to correct an administrative error which was made in 1991.
In these circumstances, the Committee makes no further comment
on this provision.
Retrospective application
Proposed new subparagraph 67A(6)(b)(i)
Item 4 of Schedule 1 to this bill proposes to insert new subparagraph 67A(6)(b)(i) in the Aboriginal Land Rights (Northern Territory) Act 1976. This provision will apply retrospectively from 5 June 1997. However, the Minister's Second Reading Speech indicates that this amendment is intended simply to correct some earlier drafting deficiencies, and has no substantive effect on the law.
In these circumstances, the Committee makes no further comment
on this provision.
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: Health and Aged Care]
The bill proposes to amend the Australia New Zealand Food Authority Act 1991 to:
Retrospective application
Subclause 2(2) and Schedule 1, item 13
Item 13 of Schedule 1 to the bill inserts a provision which “enables standards to relate to particular brands of food in addition to a type of food generally”. By virtue of subclause 2(2), this item is to commence retrospectively on 30 July 1998. The Explanatory Memorandum simply observes that this commencement date has been chosen to ensure that “existing standards are enforceable”. This would seem to suggest that there is doubt as to the enforceability of standards made by the Australia New Zealand Food Authority since that date. The Committee, therefore, seeks the Minister's advice on the status and enforceability of standards issued by the Food Authority since 30 July 1998, and on whether the retrospective commencement of this provision will adversely affect any person.
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.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]
The bill proposes to amend the Commonwealth Grants Commission Act 1973 to enable the Commission to inquire and report on the distribution of funding for meeting the needs of indigenous people.
The Committee has no comment on this bill.
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: Justice and Customs]
The bill proposes to address the possible consequences of the recent decision of the Supreme Court of Queensland in the matter of Prechelt by amending the Customs Act 1901 to:
Retrospective application
Subclause 2(2)
By virtue of subclause 2(2), items 4 and 5 of Schedule 1 to this bill are to commence retrospectively on 1 September 1992. As indicated in the Explanatory Memorandum, the reason for this retrospectivity is to correct a mistake in the drafting of earlier amendments to the Customs Act 1901. This mistake came to light in a recent court case in Queensland.
The Committee accepts that a failure to make the amendments retrospective could ultimately jeopardise a significant amount of revenue. However, some aspects of the operation of the bill are not immediately clear. For example, it is not clear whether the bill will affect the rights of the importer or other parties in the Prechelt case, and whether any other cases are pending following the decision in that case.
The Committee, therefore, seeks the Minister's advice on the implications of the bill's retrospective application for the litigants in the Prechelt case, and whether any other litigation is pending following the decision in that case.
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.
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: Justice and Customs]
The bill proposes to amend the temporary importation provisions of the Customs Act 1901 to:
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister assisting the Minister for Defence. [Portfolio responsibility: Defence]
The bill proposes to amend the following Acts:
Defence Act 1903 to introduce a urinalysis drug testing scheme that will apply to members of the Australian Defence Force;
Defence Act 1903 and Naval Defence Act 1910 to:
Defence Force Discipline Act 1982 to extend, from three to five years, the time limitation that applies to most charges under the Act, and to remove an obsolete provision;
Defence Force (Home Loans Assistance) Act 1990 and the Defence Legislation Amendment Act (No. 1) 1997 to make technical amendments; and
repeals the Supply and Development Act 1939 and makes consequential amendments to five other Acts.
Retrospective application
Subclause 2(5)
By virtue of subclause 2(5), the amendment proposed in item 2 of Schedule 6 to this bill is to commence retrospectively on 19 February 1997, on the commencement of earlier amending legislation. However, the amendment proposed is technical in nature, and makes no substantive change to the law.
In these circumstances, the Committee makes no further comment
on this provision.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister for Education, Training and Youth Affairs. [Portfolio responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the Employment, Education and Training Act 1988 to:
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 29 March 1999 by Mr Bevis as a Private Member's bill.
The bill proposes to amend the following Acts:
Workplace Relations Act 1996 to:
Corporations Law to:
The Committee has no comment on this bill.
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: Environment and Heritage]
The bill proposes to amend the following Acts:
Environment Protection (Sea Dumping) Act 1981 to:
Sea Installations Act 1987 to remove the prohibitions on issuing, or varying, a permit that would authorise a sea installation to be located partly within and partly outside an adjacent area in respect of a State or an affected Territory.
Reversal of the onus of proof
Proposed new section 15
Item 26 of Schedule 1 to this bill proposes to repeal the existing section 15 of the Environment Protection (Sea Dumping) Act 1981, which contains defences to a charge of a specified offence under the Act, and to substitute a revised section. This revised section imposes an evidential burden on a person charged with an offence against proposed new sections 10A, 10B, 10C, 10E and 36 to prove one of the exceptions set out in the proposed new section.
For example, under one of the exceptions listed, an accused person must show, on the balance of probabilities, that he or she had been granted a permit to dump waste in non-Australian waters by a foreign country. To obtain a conviction, it would then be up to the prosecution to show, beyond reasonable doubt, that there was (for example) some defect in the permit.
If this evidential burden were not imposed on the person accused, it seems that the prosecution would, in every case, be required to prove that the accused could not establish one of the exceptions listed in the proposed new section.
While reversing the onus of proof in such circumstances may be seen as reasonable, some aspects of the operation of the bill are not immediately clear. For example, proposed section 10A, among other things, makes it an offence to dump controlled material into Australian waters, or into any waters from an Australian vessel. Proposed section 15 provides a `defence' in relation to dumping into non-Australian waters in accordance with a foreign permit. It is not clear whether this `defence' is available only to operators of Australian vessels who obtain foreign permits to dump in non-Australian waters, or whether it is to be more widely available. The relationship between the onus of proof under the new provision, and the onus of proof in relation to the existing defences, is also not clear. The Committee, therefore, seeks the Minister's advice on these matters.
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.
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: Immigration and Multicultural Affairs]
The bill proposes to amend the Migration Act 1958 to:
Appointment of `a person'
Schedule 3
In general terms, section 5(1) of the Migration Act 1958 defines an “officer” for the purposes of that Act as an officer of the Department, or a customs officer, or a protective service officer, or a police officer, or any other person authorised by the Minister by notice published in the Gazette.
The amendments proposed by Schedule 3 to this bill will substitute a new definition. The effect of this change will be to define an officer as “a person who is authorised in writing by the Minister to be an officer” or “any person who is included in a class of persons authorised in writing by the Minister to be officers” for the purposes of the Act. In neither case does the bill refer to any qualifications or attributes which such persons must have as a condition of being authorised.
The Committee often draws attention to provisions which delegate power to anyone who fits the all-embracing description of `a person'. As a general rule, the Committee prefers to see some limits placed either on the powers which can be delegated or on the class of potential delegates. Similar considerations apply to the appointment of officers authorised for the purposes of an Act of Parliament. As a general rule, the Committee would prefer that potential appointees be required to have some qualifications or attributes before they are eligible for appointment. The Committee, therefore, seeks the Minister's advice on why the unfettered discretion to appoint authorised officers ought not be limited in some way, for example, by reference to qualifications or attributes which appointees should possess.
Pending the Minister's advice, the Committee draws Senators' attention to the provision, as it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference.
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:
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.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister Assisting the Prime Minister for the Public Service. [Portfolio responsibility: Prime Minister].
The bill is in the same in all respects as a bill of the same name which was introduced into the House of Representatives on 30 October 1997 and again on 5 March 1998, and on which the Committee commented in Alert Digest No 2 of 1998.
The bill proposes to deal with consequential and transitional matters arising from the repeal of the Public Service Act 1922 and the enactment of replacement legislation, the proposed Public Service Act 1999. Primarily, the bill proposes to:
Delegation of legislative power
Subclauses 14(4) and (5)
In Alert Digest No 2 of 1998, the Committee noted that subclauses 14(4) and 14(5), if enacted, would permit the making of regulations which may prevail over existing legislation or amend existing legislation, but that such regulations were authorised only for the purpose of providing for the transition from the present Public Service Act to the new one.
In these circumstances, the Committee makes no further comment
on these provisions.
Regulations with retrospective effect
Subclause 14(7)
In Alert Digest No 2 of 1998, the Committee also noted that subclause 14(7), if enacted, would permit the making of regulations which might have retrospective effect, in that it would be possible for the regulations to take effect from a date prior to that on which they were made. Such regulations, however, would be subject to the Acts Interpretation Act 1901. As such, any regulations made under this subclause which adversely affected any person (other than the Commonwealth) retrospectively would be invalid.
In these circumstances, the Committee makes no further comment
on this provision.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister Assisting the Prime Minister for the Public Service. [Portfolio responsibility: Prime Minister]
The bill proposes to replace the current legislative framework for the establishment and management of the Australian Public Service.
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]
The bill proposes to:
The Committee has no comment on this bill.
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:
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.
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 following Acts:
Income Tax Assessment Act 1997 to allow certain taxpayers to write off expenditure incurred in acquiring a domestic spectrum licence that is to be used for the purpose of producing assessable income over the effective life of the licence (up to 15 years);
Income Tax Assessment Act 1936, Income Tax Assessment Act 1997 and International Tax Agreements Act 1953 to make amendments consequent on the deduction allowed for expenditure incurred in acquiring a spectrum licence;
Income Tax Assessment Act 1936, Income Tax Assessment Act 1997, Airports (Transitional) Act 1996, Income Tax (Transitional Provisions) Act 1997 and Tax Law Improvement Act 1997 to make technical corrections consequent on the rewrite of the income tax laws;
Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997 to:
Income Tax Assessment Act 1936 to enable the provisional tax uplift factor to be calculated by reference to the measure of gross domestic product which is currently calculated and published by the ABS.
Retrospective application
Schedules 1, 2, 3 and 4
The amendments proposed by Schedule 1 to this bill are to apply from 11 March 1998. However, these amendments are beneficial to taxpayers. In addition, the amendments proposed in Schedules 2, 3 and 4 are to apply from the 1997-98 year of income, and are therefore, to some extent, also retrospective. However, all of these amendments are technical in nature, and make no change to the substantive law.
In these circumstances, the Committee makes no further comment
on these provisions.
This bill was introduced into the House of Representatives on 31 March 1999 by the Minister for Employment, Workplace Relations and Small Business. [Portfolio responsibility: Employment, Workplace Relations and Small Business]
The bill proposes to repeal the Tradesmen's Rights Regulations Act 1946 following the establishment of the Australian Recognition Framework to provide a national approach to the assessment and recognition of domestic skill competencies. The bill also proposes to make a consequential amendment to the Sea Installations Act 1987.
The Committee has no comment on this bill.
This bill was introduced into the House of Representatives on 30 March 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]
The bill proposes to provide for the:
The Committee has no comment on this bill.
Provisions imposing criminal sanctions for failure to provide information
The Committee's Eighth Report of 1998 dealt with the appropriate basis for penalty provisions for offences involving the giving or withholding of information. In that Report, the Committee recommended that the Attorney-General develop more detailed criteria to ensure that the penalties imposed for such offences were “more consistent, more appropriate, and make greater use of a wider range of non-custodial penalties”. The Committee also recommended that such criteria be made available to Ministers, drafters and to the Parliament.
The Government responded to that Report on 14 December 1998. In that response, the Minister for Justice referred to the ongoing development of the Commonwealth Criminal Code, which would include rationalising penalty provisions for “administration of justice offences”. The Minister undertook to provide further information when the review of penalty levels and applicable principles had taken place.
For information, the following Table sets out penalties for `information-related' offences in the legislation covered in this Digest. The Committee notes that imprisonment is still prescribed as a penalty for some such offences.
TABLE
| Bill/Act | Section/Subsection | Offence | Penalty |
|---|---|---|---|
| Superannuation Industry (Supervision) Act 1993 | 252A(3) | Trustee of superannuation fund with fewer than 5 members failing to provide information requested by APRA or the Tax Commissioner. | 50 penalty units |
