SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
FOURTH REPORT OF 1998
1 April 1998
ISSN 0729-6258
MEMBERS OF THE COMMITTEE
Senator B Cooney (Chairman)
Senator W Crane (Deputy Chairman)
Senator J Ferris
Senator S Macdonald
Senator A Murray
Senator J Quirke
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.
The Committee presents its Fourth Report of 1998 to the Senate.
The Committee draws the attention of the Senate to clauses of the following
bills which contain provisions that the Committee considers may fall within
principles 1(a)(i) to 1(a)(v) of Standing Order 24:
Genetic Privacy and Non-discrimination Bill 1998
Intellectual Property Laws Amendment Bill 1998
Migration Legislation Amendment (Strengthening of Provisions Relating
to Character and Conduct) Bill 1997
National Residue Survey Administration Amendment Bill 1997
National Residue Survey (Customs) Levy Bill 1998
National Residue Survey (Excise) Levy Bill 1998
Native Title Amendment Bill 1997 [No. 2]
Genetic Privacy and Non-discrimination Bill 1998
This bill was introduced into the Senate on 11 March 1998 by Senator
Stott Despoja as a Private Senator's bill.
The bill proposes to:
- protect the genetic privacy of individuals and makes genetic discrimination
unlawful;
- define the circumstances in which genetic information and DNA samples
may be collected, stored, analysed and disclosed;
- outlines the rights and responsibilities of individuals and persons
with respect to genetic information; and
- establishes mechanisms to enforce these rights and responsibilities.
The committee dealt with this bill in Alert Digest No. 3 of 1998, in
which it made various comments. Senator Stott Despoja has responded to
those comments in a letter dated 25 March 1998. A copy of that letter
is attached to this report, and relevant parts of the response are discussed
below.
Commencement
Clause 2
In Alert Digest No. 3 of 1998, the committee noted that Clause 2 of this
Bill would permit the whole Bill to commence on Proclamation. No provision
is made for automatic commencement or repeal at a particular time.
With respect to commencement provisions, the committee has placed importance
on the Office of Parliamentary Counsel Drafting Instruction No. 2 of 1989.
The Drafting Instruction provides, in part:
3. As a general rule, a restriction should be placed on the time within
which an Act should be proclaimed (for simplicity I refer only to an Act,
but this includes a provision or provisions of an Act). The commencement
clause should fix either a period, or a date, after Royal Assent, (I call
the end of this period, or this date, as the case may be, the 'fixed time').
This is to be accompanied by either:
(a) a provision that the Act commences at the fixed time if it has not
already commenced by Proclamation: or
(b) a provision that the Act shall be taken to be repealed at the fixed
time if the Proclamation has not been made by that time.
4. Preferably, if a period after Royal Assent is chosen, it should not
be longer than 6 months. If it is longer, Departments should explain the
reason for this in the Explanatory Memorandum. On the other hand, if the
date option is chosen, [the Department of the Prime Minister and Cabinet]
do not wish at this stage to restrict the discretion of the instructing
Department to choose the date.
5. It is to be noted that if the 'repeal' option is followed, there is
no limit on the time from Royal Assent to commencement, as long as the
Proclamation is made by the fixed time.
6. Clauses providing for commencement by Proclamation, but without the
restrictions mentioned above, should be used only in unusual circumstances,
where the commencement depends on an event whose timing is uncertain (eg
enactment of complementary State legislation).
The committee noted that paragraph 6 of Drafting Instruction No. 2 of
1989 suggests that clauses providing for commencement by Proclamation,
with no other restrictions as to time of commencement, should be used
only in unusual circumstances, where commencement depends on an event
whose timing is uncertain. The committee further noted that there is no
indication in the explanatory memorandum of the reason for adopting a
provision in this form.
Accordingly, the Committee sought the advice of the Senator on the reason
for choosing the mechanism in clause 2.
Pending the Senator's advice, the committee drew 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.
The Senator has responded as follows:
This was an oversight in the drafting of this Bill. I would be happy
to include an amendment to set a date for commencement after Royal Assent
(the `fixed time'), according to the Office of Parliamentary Counsel Drafting
Instructions No. 2 of 1989.
If you require further information, please do not hesitate to contact
my office.
The committee thanks the Senator for the proposed amendment.
Intellectual Property Laws Amendment Bill 1997
This bill was introduced into the House of Representatives on 26 November
1997 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility:
Industry, Science and Tourism]
The bill proposes to amend the following Acts:
- provide for an extension (of up to five years) of term scheme for pharmaceutical
patents;
- make arrangements relating to Patent Office employees and record keeping
and access;
- revise procedures for the payment of certain fees; and
- Copyright Act 1968, Designs Act 1906, Patents Act
1990 and the Trade Marks Act 1995 to create the Professional
Standards Board for Patent and Trade Marks Attorneys and allows for
changes to the registration system.
The committee dealt with this bill in Alert Digest No. 18 of 1997, in
which it made various comments. The Minister for Industry, Science and
Tourism responded to those comments in a letter dated 22 December 1997.
A copy of that letter is attached to this report, and relevant parts of
the response are discussed below.
Non-reviewable decision
Item 3 of Schedule 1 - proposed new section 74
In Alert Digest No. 18 of 1997, the committee noted that item 3 of Schedule
1 to this bill, if enacted, would insert proposed new section 74
in the Patents Act 1990. The proposed new section would provide
for the Commissioner to accept or refuse an application for an extension
of a patent. Acceptance or refusal is to depend on whether the Commissioner
is satisfied that the requirements of proposed new sections 70 and 71
have been complied with in relation to the application.
It appeared to the committee that, as proposed in the bill, the Commissioner's
decision to refuse the application is non-reviewable.
Where, however, the Commissioner accepts the application, the process
of granting the extension is reviewable. The Commissioner, before deciding
to grant the extension, must ascertain whether there is opposition to
the grant and, if so, give reasonable opportunity to the applicant and
the opponent(s) to be heard. Appeal to the Federal Court will lie against
the Commissioner's subsequent decision to grant or refuse the extension.
As it seemed to the committee that the proposed legislation did not grant
any avenue of appeal should the Commissioner make an initial decision
not to accept the application, the committee sought the Minister's advice
on whether that initial decision to refuse the application should
also be subject to review.
Pending the Minister's advice, the committee drew Senators' attention
to the provision, as it may be considered to make rights, liberties or
obligations unduly dependent upon non-reviewable decisions, in breach
of principle 1(a)(iii) of the committee's terms of reference.
The Minister responded as follows:
The Committee commented that a decision by the Commissioner of Patents
(the Commissioner) to refuse an application for an extension of a patent
under new section 74 of the Patents Act 1990 (the Act) (introduced
by item 3 of Schedule 1) is non-reviewable. This decision is actually
reviewable.
I would draw the Committee's attention to item 5 of Schedule 1 to the
Bill which amends paragraph 224(1)(a) of the Act to include a reference
to subsection 74(3). Section 224 of the Act, inter alia, makes
provision for applications to review certain decisions of the Commissioner
to be made to the Administrative Appeals Tribunal (AAT). The effect of
including reference to subsection 74(3) of the Act in section 224
is that the Commissioner's decision under section 74 of the Act to refuse
an application for an extension of a patent will be subject to review
by the AAT.
The committee thanks the Minister for this response.
Migration Legislation Amendment (Strengthening of Provisions relating
to Character and Conduct) Bill 1997
This bill was introduced into the House of Representatives on 30 October
1997 by the Minister for Immigration and Multicultural Affairs. [Portfolio
responsibility: Immigration and Multicultural Affairs]
The bill proposes to amend the Migration Act 1958 to increase
control over the entry into, and presence in, Australia of non-citizens
who have a criminal background or have criminal associations and to strengthen
the procedures used in dealing with such people.
The committee dealt with this bill in Alert Digest No. 16 of 1997, in
which it made various comments. The Minister for Immigration and Multicultural
Affairs has responded to those comments in a letter dated 5 January 1998.
A copy of that letter is attached to this report, and relevant parts of
the response are discussed below.
Commencement
Clause 2
In Alert Digest No. 16 of 1997, the committee noted that Clause 2 of
this bill provides that the substantive provisions of the bill would commence
on Proclamation, with no date being specified within which such a Proclamation
must be made.
With respect to commencement provisions, the committee has placed importance
on the Office of Parliamentary Counsel Drafting Instruction No. 2 of 1989.
The Drafting Instruction provides, in part:
3. As a general rule, a restriction should be placed on the time within
which an Act should be proclaimed (for simplicity I refer only to an Act,
but this includes a provision or provisions of an Act). The commencement
clause should fix either a period, or a date, after Royal Assent, (I call
the end of this period, or this date, as the case may be, the 'fixed time').
This is to be accompanied by either:
(a) a provision that the Act commences at the fixed time if it has not
already commenced by Proclamation: or
(b) a provision that the Act shall be taken to be repealed at the fixed
time if the Proclamation has not been made by that time.
4. Preferably, if a period after Royal Assent is chosen, it should not
be longer than 6 months. If it is longer, Departments should explain the
reason for this in the Explanatory Memorandum. On the other hand, if the
date option is chosen, [the Department of the Prime Minister and Cabinet]
do not wish at this stage to restrict the discretion of the instructing
Department to choose the date.
5. It is to be noted that if the 'repeal' option is followed, there is
no limit on the time from Royal Assent to commencement, as long as the
Proclamation is made by the fixed time.
6. Clauses providing for commencement by Proclamation, but without the
restrictions mentioned above, should be used only in unusual circumstances,
where the commencement depends on an event whose timing is uncertain (eg
enactment of complementary State legislation).
The committee noted that the explanatory memorandum did not appear to
give any reasons for not imposing some restriction on the open ended power
to bring the legislation into force.
The committee, therefore, sought the advice of the Minister on the reasons
for this.
Pending the Minister's advice, the committee drew 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.
On this issue, the Minister has responded as follows:
The Committee has noted that the Bill does not contain a specified date
or time limit within which the bill must be proclaimed. The Committee
believes that this omission may be a breach of principle 1(a)(iv) of the
Committee's terms of reference in that it may be considered to delegate
legislative power inappropriately.
As a general rule, legislation in the Immigration and Multicultural Affairs
portfolio is designed to commence either on Royal Assent or by proclamation.
It is also usual to include a clause providing that commencement will
take place 6 months after Royal Assent if the legislation has not already
been proclaimed. The Bill does not contain any such provision because:
. it is highly desirable for reasons of administrative efficiency and
public convenience that the Bill should commence at the same time as the
amendments made by the Migration Legislation Amendment Bill (No. 4) 1997
(MLAB4) and the Migration Legislation Amendment Bill (No. 5) 1997 (MLAB5)
both of which were already before Parliament when the Bill was introduced.
However, the measures contained in the Bill are sufficiently important
to justify an earlier commencement date if the Bill is passed first. Accordingly,
commencement was not made conditional on the commencement of either of
the other bills; and
. the new administrative procedures which are required by the Bill will
significantly affect the operations of the relevant areas of my Department
and of the Administrative Appeals Tribunal (AAT). The best possible level
of service to the public will not be possible unless these new procedures
are fully developed and in place when the legislation commences.
Insufficiently defined administrative powers
Items 12 and 13 of Schedule 1 - proposed section 339 and proposed subsection
411(3)
In Alert Digest No. 16 of 1997, the committee noted that in Alert Digest
No. 10 of 1997, the committee had commented on a proposal in Migration
Legislation Amendment Bill (No. 4) 1997 to substitute a new section 339.
The committee noted that, if enacted, this amendment would give the Minister
a wide power to certify that some decisions not be reviewable by the Migration
Review Tribunal. The proposed grounds upon which the Minister could issue
such a certificate were:
if the Minister thinks that:
(a) it would be contrary to the public interest to change the decision,
because any change in the decision would prejudice the security, defence
or international relations of Australia; or
(b) it would be contrary to the public interest for the decision to be
reviewed because such review would require consideration by the Tribunal
of deliberations or decisions of the Cabinet or of a committee of the
Cabinet.
The committee noted that proposed section 339 appeared to limit to some
extent the type of decisions which may be so certified. The committee
noted that several issues arose among which was whether the characteristics
of the Minister's power to issue a certificate resulted in rights and
liberties becoming unduly dependent upon an insufficiently defined administrative
power. Consequently the committee sought the advice of the Minister on
this matter.
The Minister responded as follows:
Insufficiently defined administrative powers
Whilst the power in section 339 is discretionary, its exercise is limited
in two broad areas. First, to the circumstances outlined in subsections
339(a) and (b) and secondly, by its susceptibility to judicial review.
The current power has been used infrequently and I expect this will continue
to be the case. There have been no situations where submissions have been
made to Cabinet in an attempt to justify use of the power.
Were a Minister to attempt to use this power by putting the matter to
Cabinet, judicial review of the bona fides of such decision under section
339 would be available: privative clauses have been interpreted by the
High Court as not excluding acting in bad faith as a ground of judicial
review.
In its Thirteenth Report of 1997 the committee thanked the Minister for
explaining the limiting and inhibiting factors on the exercise of this
administrative power.
The present bill, however, will reduce the range of factors which may
inform the Minister's decision to issue a conclusive certificate and thereby
prevent merits review of the decision the subject of the certificate.
In place of the relatively precise grounds of prejudicing the security,
defence or international relations of Australia and the possibility of
exposing Cabinet deliberations to review, items 12 and 13 of the `Character
and Conduct Bill' will allow the Minister to issue a certificate merely
because he or she believes that it would be contrary to the national interest
that a decision be changed or reviewed. In the committee's view, this
reduction of grounds widens the discretion in the use of this administrative
power and the issue of whether it constitutes an insufficiently defined
administrative power arises. Accordingly, the committee sought the Minister's
advice on this matter.
Pending the Minister's advice, the committee drew Senators' attention
to the provisions, as they 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.
Insufficiently defined administrative powers
Item 23 of Schedule 1 - proposed subsections 501(3) to (5) and 501A (3)
and (4)
In Alert Digest No. 16 of 1997, the proposed subsections 501(3) to (5),
if enacted, would allow the Minister, acting personally, either to refuse
to grant a visa or to cancel one that had been granted without hearing
any representations which the affected person may wish to make and therefore
in derogation of the rules on natural justice and the codes of procedure
set out in the Act. The Minister may use this power where he or she reasonably
suspects that the person does not pass the character test and the Minister
is satisfied that the refusal or cancellation is in the national interest.
As noted above, the use of this power solely on the grounds of 'the national
interest' raises the issue of an insufficiently defined administrative
power.
Further, the same issue arises with respect to proposed new subsections
501A(3) and (4) which allow the Minister to overturn a favourable decision
of his delegate or the Administrative Appeals Tribunal on the character
test.
Accordingly, the committee sought the Minister's advice on these matters
and, within that context, whether there would be grounds for judicial
review.
Pending the Minister's advice, the committee drew Senators' attention
to the provisions, as they 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.
On these last two issues, the Minister has responded as follows:
The Committee seeks my advice on whether the introduction of a “national
interest” test is in breach of principle 1(a)(ii) of the Committee's
terms of reference in that the proposed provisions are legislation which
makes rights, liberties or obligations unduly dependent upon insufficiently
defined legislative powers.
In particular, the “national interest” test is used in both
my powers:
. to issue a conclusive certificate to prevent review of a decision by
the Migration Review Tribunal (the MRT is established by MLAB4) (item
12) and by the Refugee Review Tribunal (RRT) (item 13); and
. of personal intervention, to make decisions without prior natural justice
to:
- cancel a visa or refuse a visa application under proposed subsection
501(3). Proposed subsections 501(4) and (5), to which the Committee
has also referred, are purely supplementary to proposed subsection 501(3);
or
- substitute a cancellation or refusal decision under proposed subsection
501A(3). Proposed subsection 501A(4), to which the Committee has also
referred, is purely supplementary to proposed subsection 501A(3).
These amendments are designed to ensure that my personal power to intervene
in the review process will be controlled by consistent and uniform criteria
(that is, the national interest) across the entire Migration Act. I believe
that Australia's national interest is a better test than the existing
public interest test for direct Ministerial intervention in the review
process because Australia's national interest encompasses a broader range
of conduct and considerations than does the public interest.
Judicial review issues
The Committee has also sought my view on whether there would be grounds
for judicial review in relation to my powers under proposed subsections
501(3) or 501A(3).
Pending the passage of MLAB5, decisions may be reviewed by:
. the Federal Court under the grounds set out in Part 8 of the Migration
Act. The applicability of those grounds depends on what the judicial review
applicant is contending; and
. the High Court of Australia in its original jurisdiction under section
75(v) of the Commonwealth Constitution, which in essence means the common
law grounds for judicial review of administrative decisions. The applicability
of those grounds depends on what the judicial review applicant is contending.
Under the judicial review scheme embodied in MLAB5, review by the Federal
Court would be under section 39B of the Judiciary Act 1903 and
by the High Court under section 75(v) of the Constitution, but the grounds
of review would be confined to: whether there has been a bona fide attempt
by the Minister to exercise a power conferred by the legislation; whether
the exercise of the power related to the subject matter of the legislation;
and whether the decision was reasonably capable of reference to that power.
Possible denial of natural justice
Item 23 of Schedule 1 - proposed subsections 501(3) to (5) and 501A (3)
and (4) and subsection 501C(4) and (11)
In Alert Digest No. 16 of 1997, the committee noted that with respect
to the same provisions the issue of natural justice arises. The committee
noted, however, that proposed new section 501C provides that the Minister
must invite the person affected by the decision to make representations
showing why the Minister should revoke the earlier decision. This appears
to restore a right to be heard. On the other hand, allowing a right to
be heard only after the initial decision or after the initial overturning
of an earlier decision may not sufficiently safeguard natural justice.
Accordingly, the committee sought the Minister's advice on this issue.
Subsections 501C(4) and (11) add a further factor to these considerations.
Subsection (4) provides that the Minister may revoke the original decision
if the representations satisfy the Minister that the person passes the
character test. Subsection (11), however, raises the possibility that
the Minister may decide not to exercise the power conferred by subsection
(4). This may mean that the Minister must take the representations into
account but still decide not to revoke his decision. If, however, it means
that the Minister is not required to consider the representations, natural
justice is completely denied. Accordingly, the committee sought the Minister's
advice on the meaning of subsection (11).
Pending the Minister's advice, the committee drew 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.
On this issue, the Minister has responded as follows:
The Committee has queried whether natural justice is sufficiently protected
by:
. proposed subsection 501(3) by which the Minister of the day acting
in person may cancel a visa or refuse a visa application without natural
justice; and
. proposed subsection 501A(3) by which the Minister acting personally
may substitute a cancellation or refusal decision without natural justice.
The power to act without prior natural justice is restricted to proposed
subsections 501(3) and 501A(3) and will only apply to the Minister of
the day acting personally, and only then if it is in Australia's national
interest.
A Minister will only intervene in such character cases in those rare
emergency situations where he or she believes that the national interest
demands a prompt response involving the immediate detention of the non-citizen
involved. An example of such a situation would be a suspected terrorist
who has entered Australia as a tourist for the Sydney Olympic Games. Where
the Minister uses these special powers, the freedom to act without natural
justice is carefully circumscribed by the requirement that the relevant
powers may only be exercised by the Minister personally (that is, the
power cannot be delegated), the decision must be made in the national
interest, and that the outcome of all such cases must be reported to both
Houses of Parliament.
In addition, the Bill includes important procedural safeguards that ensure
that where the Minister makes a decision without prior natural justice,
the spirit of natural justice is preserved by giving the person
the right to make subsequent representations to the Minister that the
decision should be revoked. This procedure was modelled on an existing
provision for emergency visa cancellations that were included in section
128 of the Migration Act in 1994. Proposed subsection 198(2A) also ensures
that the person cannot be removed from Australia during the period allowed
for making representations, nor can a person who makes representations
in accordance with the regulations be removed from Australia until the
Minister has decided whether the original decision should be revoked.
The Committee has also sought my advice on the purpose of proposed subsection
501C(11) which provides that decisions made under section 501C are not
reviewable under Parts 5 or 7 of the Migration Act.
The reference in subsection 501C(11) to the Minister not making a decision
under subsection 501C(4) is a reference to the Minister making a decision
not to revoke a decision. Subsection 501C(11) is not intended to imply
that I would not be obliged to consider representations to revoke decisions
made without natural justice under proposed subsections 501(3) or 501A(3).
In fact, proposed paragraph 198(2A)(c) ensures that a non-citizen whose
visa has been cancelled or refused without natural justice cannot be removed
from Australia before the time allowed for making representations and,
if representations are made, removal is further delayed until after the
Minister has decided whether to revoke the original decision.
Inappropriate delegation of legislative power
Proposed new subsection 501C(10)
In Alert Digest No. 16 of 1997, the committee noted that proposed new
subsection 501C(10) would allow the making of regulations which would
deny any right to be heard in relation to a decision of the Minister under
the provisions discussed above to refuse to grant or to cancel a visa
on the grounds of failing to pass the character test.
Proposed new subsection 501C(10) provides:
The regulations may provide that, for the purposes of this section:
(a) a person; or
(b) a person included in a specified class of persons;
is not entitled to make representations about revocation of an original
decision unless the person is a detainee.
The committee noted that although the regulations would be disallowable
by either House of the Parliament, they could come into force as soon
as they were gazetted and might not be considered for disallowance for
a considerable time later.
The committee also noted paragraph 81 of the explanatory memorandum which
states:
New subsection 501C(10) provides that regulations may be made, for the
purposes of section 501C, which prevent a person, or a person within a
specified class of persons, from making representations about revocation
of the original decision, unless the person is a detainee. This amendment
enables the Minister to exercise greater control over unlawful non-citizens
who would, if the regulation making power was exercised, have to become
detainees before they are able to make representations to the Minister
to have the original decision revoked.
The committee could not follow this reasoning and sought further clarification
from the Minister on the purpose of the subsection and on whether this
is an appropriate delegation of legislative power.
Pending the Minister's advice, the committee drew 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.
On this issue, the Minister has responded as follows:
The Committee has requested further clarification on the purpose of proposed
new subsection 501C(10), which confers a new regulation making power,
and has queried whether it is an appropriate delegation of legislative
power.
As the Committee will be aware, the Migration Act has a number of provisions
dealing with unlawful non-citizens (that is, persons who are not Australian
citizens, who are in Australia and who do not hold a current visa). In
particular, section 189 of the Act requires that all unlawful non-citizens
must be detained, and section 198 imposes a mandatory requirement that
they be removed from Australia as soon as practicable. In addition, new
section 501F ensures that, with the exception of the some holders of protection
visas, a non-citizen who is in Australia will immediately become an unlawful
non-citizen if their visa is cancelled or their visa application is refused
on character grounds.
There is a real risk that a person will be unlawfully at liberty in cases
where the decision has been made by the Minister personally in the national
interest without natural justice. The intention of proposed subsection
501C(10) is to offer the person a real incentive to submit to detention
by only permitting detainees to make representations concerning possible
revocation. However, because the loss of personal liberty is involved,
I believe that the appropriate mechanism is to proceed by way of regulation
which will provide the appropriate flexibility to modify and refine the
classes of people in the light of operational experience.
I trust that these comments will be of assistance to the Committee.
The committee thanks the Minister for this detailed response which generally
addresses its concerns. The committee notes the minister's observation
that Australia's national interest is a better test than the existing
public interest test for direct Ministerial intervention in the review
process.
The Committee seeks clarification from the Minister of the differences
between these two terms and, in particular, whether the definition of
public interest in section 339 might be expanded to include considerations
of the national interest.
Pending the advice of the Minister, the committee continues to draw Senators'
attention to the provisions, as they 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.
National Residue Survey Administration Amendment Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to amend the National Residue Survey Administration
Act 1992 and related legislation to:
- clarify that national residue survey (NRS) levies are “stand
alone” levies, levied separately from other primary industry levies;
- validate the imposition of the NRS levy on onions;
and repeals the 22 NRS levy imposition Acts to enable their consolidation
into two Acts.
The committee dealt with this bill in Alert Digest No. 2 of 1998, in
which it made various comments. The Minister for Primary Industries and
Energy has responded to those comments in a letter dated 24 March 1998.
A copy of that letter is attached to this report, and relevant parts of
the response are discussed below.
Retrospectivity
Subclause 2(2)
In Alert Digest No. 2 of 1998, the committee noted that Subclause 2(2)
of the bill, if enacted, would provide for the amendments contained in
Schedule 1 to take effect retrospectively from 1 February 1994 in order
to validate levies on onions that have already been collected.
The bill is said to be necessary to overcome technical faults in the
National Residue Survey Administration Act 1992 which made liability
for payment of National Residue Survey (NRS) levies dependent upon liability
for the payment of another primary industry levy. According to the explanatory
memorandum, the original intention had been that the liabilities for payment
of both levies would arise at the same point in the process and would
be collected at the same time, not that one should depend on the other.
In the case of onions, the other primary industry levy is set at $0.00
and there is some question whether a zero rate triggers an NRS levy liability.
As the levy on onions has been collected since 1 February 1994, the retrospective
application of Schedule 1 is regarded as necessary to validate the imposition
of NRS levy on onions.
Although the proposal is said to be supported by the industry, such retrospectivity
is of concern to the committee as it may have the effect of trespassing
unduly on personal rights and liberties. The committee, therefore, sought
the Minister's advice on the circumstances which have given rise to the
bill and whether the rights of any person may be adversely affected by
its retrospective operation.
Pending the Minister's advice, the committee drew 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.
The Minister has responded as follows:
In the Alert your Committee raised concerns that Subclause 2(2) of the
proposed National Residue Survey Administration Amendment Bill 1998,
if enacted, would trespass unduly on a person's rights and liberties by
the retrospective operation of a levy on the export onion industry. You
also requested information on the circumstances that gave rise to the
bill.
These circumstances occurred during the restructure of the Meat and Livestock
Industry. In making amendments to the Primary Industries and Energy portfolio
legislation that covers this industry it became necessary to make consequential
amendments to the National Residue Survey (NRS) package of legislation.
Legal advice received from the Attorney-General's Department during this
process indicated the statutory mechanism used to collect the levy from
the export sector of the onion industry was ineffective in law. This also
meant that onion exporters paying the NRS export charge had a common law
right to a refund.
This advice was circulated to all onion exporters prior to the industry's
Annual General Meeting (AGM) held in Adelaide on 9-12 November 1997. This
particular AGM, held in conjunction with the World Onion Conference, had
present a larger number of onion exporters than usually occurs.
The AGM moved that the Minister for Primary Industries and energy be
petitioned to validate the levies already collected as the industry is
fully committed to its chemical residue monitoring program and the monies
collected had already been spent, in good faith, in the delivery of this
program. This proposal was unanimously accepted by those attending the
AGM, which included all the major onion exporters.
The validation of the levy does not impose any further cost on individual
levy payers and is in accordance with the industry's commitment to a national
chemical residue monitoring program under full cost recovery.
I trust that this information allays the concerns of your Committee and
I am happy to provide any further information that the Committee may require.
The committee thanks the Minister for this response.
National Residue Survey (Customs) Levy Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to impose levies that are duties of customs on five
commodity groups to replace the relevant imposition Acts proposed to be
repealed by the National Residue Survey Administration Amendment Bill
1998.
The committee dealt with this bill in Alert Digest No. 2 of 1998, in
which it made various comments. The Minister for Primary Industries and
Energy has responded to those comments in letters dated 24 March 1998
and 31 March 1998. Copies of those letters are attached to this report,
and relevant parts of the responses are discussed below.
Imposing levy by regulation
Clause 3 of Schedule 4
In Alert Digest No. 2 of 1998, the committee noted that Clause 3 of Schedule
4 sets the rate of levy on onions at 40 cents per tonne, with provision
for amendment by regulation and a maximum rate of levy of $5.00. The committee
has consistently drawn attention to provisions which allow that rate of
a levy to be set by regulation, largely on the basis that a rate of a
levy could be prescribed which would amount to a tax. Generally, the committee
has taken the view that setting taxes is more appropriately a matter for
primary legislation, a prerogative of Parliament, not the executive. If
there is a need for flexibility (that is, adjustments to the rate of a
levy need to be made so frequently and/or so quickly that it is impractical
to amend primary legislation) the committee prefers that the primary legislation
prescribe either a maximum rate of the levy or a method of calculating
such a maximum rate. In this case, although a maximum rate has been set,
the disproportion between the current rate of 40 cents and the proposed
maximum of $5.00 is such that the committee is concerned that this clause
may effectively allow the rate of levy to be set by regulation.
The committee therefore sought the Minister's advice on why the parameters
set by the legislation are so broad in relation to the rate of levy and
whether the industry has been consulted on the maximum rate of levy.
Pending the Minister's advice, the committee drew 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.
Imposing levy by regulation
Subclause 5(1)
Subclause 5(1) of Schedule 4 would permit the rate of levy on a particular
class of eligible horticultural products to be set by regulation. Although
subclause 5(2) seeks to provide for a maximum rate of levy in the legislation,
that maximum is dependent upon the Australian Statistician publishing
a particular set of figures. The purpose of this clause is to provide
for a rate of levy for horticultural products other than onions, apples
and pears in anticipation of arrangements with the relevant growers of
such products. While the committee understands that an attempt is being
made to set a maximum, the committee notes that such clauses are potentially
an inappropriate delegation of legislative power for the reasons outlined
above and therefore seeks the Minister's views on why this particular
formula for setting the maximum rate was chosen.
Pending the Minister's advice, the committee drew 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.
On 24 March, the Minister responded as follows:
In the Alert your Committee raised concerns about the broad range between
the operative rate of levy for export onions and the maximum rate of levy
for export onions that is included in Clause 3 of Schedule 4 of the proposed
National Residue Survey (Customs) Levy Bill 1998. Your committee
also expressed concern that the levy may become a tax and that it was
for Parliament to set a tax rate and not for the makers of subordinate
legislation to do so.
The purpose of the National Residue Survey Legislation (NRS) is to recover
the cost of an ongoing chemical residue monitoring program from industries
that choose to participate in the NRS under a statutory mechanism. The
levies are designed to be a collection mechanism to recover the cost of
chemical residue monitoring programs on a least-cost basis, that is, as
a fee for service rather than as a tax.
The NRS onion export levy was originally put in place in 1992, with an
operative rate of $1.56 per tonne. Since then the NRS has been able to
reduce the operative rate of levy to 40 cents per tonne through the inclusion
of all onions in the monitoring program and efficiencies in operating
costs. It is not the intention of this legislation to make any alterations
to current operational or maximum levy rates.
As the levy is meant to be applied on a least-cost basis, some amendment
to the operative rate of levy may occur from time to time as the industry
expands and contacts with seasonal and market fluctuations. The current
legislation allows for the operative rate of levy to be amended by regulation
only after full consultation has been carried out with industry.
Under Parliamentary process regulations are also disallowable instruments
that are subject to the scrutiny of the Standing Committee on Regulations
and Ordinances and must sit in both houses for 15 working days during
which disallowance can occur.
The system currently operates effectively in ensuring that the twenty-three
agricultural commodities that participate in the NRS, and have levy collection
mechanisms imposed by regulation, are subject to the scrutiny of the Parliament
and also receive the best possible value for money in terms of the service
provided.
The maximum rate of levy to which you refer cannot be amended by subordinate
legislation, only by primary legislation.
I trust that this information allays the concerns of your Committee and
I am happy to provide any further information that the Committee may require.
On 31 March, the Minister provided a supplementary response as follows:
I refer to the verbal request from your Standing Committee's Secretariat
on 30 March 1998 for supplementary information on the proposed National
Residue Survey Bills concerning the cost recovery approach used for
small industries whose production figures are not covered by Australian
Bureau of Statistics (ABS) surveys. I am only too happy to oblige.
In responding to your request I would again draw your attention to the
purpose of the National Residue Survey (NRS) package of legislation, to
recover the cost of ongoing chemical residue monitoring programs from
industries participating in the NRS. The levies are, in fact, a fee for
service rather than as a tax, and are paid into a Trust Account rather
than Consolidated Revenue.
This Trust Account (now titled Reserve Money Funds under the new Audit
Act provisions) is established by the National Residue Survey Administration
act 1992. Through this the NRS is accountable for all industry monies
paid into the account (section 7) and paid out of the account (section
8).
Monies can be paid into the account through two mechanisms: a statutory
mechanism (levy) or by direct payment through a Memorandum of Understanding
(MOU). In the case of smaller industries where the Statistician does not
publish production figures, industries are encouraged by the NRS to use
the MOU system of payment, as the identification of production figures
and collection points and the collection cost involved can sometimes double
the relevant cost of the monitoring program. Examples of sectors which
currently have monitoring programs with the NRS under an MOU are the camel,
possum and pecan industries.
An alternative approach that keeps costs to a minimum for closely related
industries is to move to the next tier of production where ABS production
figures are more readily available. An example of this is the current
discussions being held with the stone fruit industry on the implementation
of a monitoring program. A proposal has been put to industry to sample
all stone fruits on a rotating basis rather than test individual stone
fruits. This approach would also overcome the problem of economies of
scale and a lack of ABS survey data for some of the lesser known stone
fruits.
All programs are reviewed with the industry concerned on an annual basis
and consultations carried out with the agreed industry representatives
on how costs can be reduced in delivering a cost effective, statistically
valid monitoring program. The onion industry is an example of how these
efficiencies can be gained. With the inclusion of all onions in the survey,
rather than just the export sector as initially intended, the NRS was
able to reduce the operative levy rate from $1.56 per tonne ($5.00 maximum)
to 40 cents per tonne. Results from the survey were then used by the industry
as a marketing tool to encourage greater consumption of the industry's
products.
In the event of the NRS being wound up, or an industry no longer requiring
a monitoring program, all monies are returned to individual levy payers,
not to Consolidated Revenue, nor to the peak industry body.
I trust that this additional information covers the concerns your Committee
has raised and I am only too happy to provide any further information
that the Committee may require.
The committee thanks the Minister for these comprehensive responses.
National Residue Survey (Excise) Levy Bill 1998
This bill was introduced into the House of Representatives on 4 March
1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility:
Primary Industries and Energy]
The bill proposes to impose levies that are duties of excise on 16 commodity
groups to replace the relevant imposition Acts proposed to be repealed
by the National Residue Survey Administration Amendment Bill 1998.
The committee dealt with this bill in Alert Digest No. 2 of 1998, in
which it made various comments. The Minister for Primary Industries and
Energy has responded to those comments in letters dated 24 March 1998
and 31 March 1998. Copies of those letters are attached to this report,
and relevant parts of the responses are discussed below.
Imposing levy by regulation—proportionality
Clause 3 of Schedule 3, subclause 4(1) of Schedule 4, the table of rates
in clause 3 of Schedule 5 and clause 4 of Schedule 9
In Alert Digest No. 2 of 1998, the committee noted that these provisions
set minimum and maximum rates of levy for various primary products that
appear to be in disproportionate relationship with one another in that
the maximum figure is considerably greater than the minimum. As noted
in relation to the National Residue Survey (Customs) Levy Bill 1998, the
committee has consistently drawn attention to provisions which allow that
rate of a levy to be set by regulation, largely on the basis that a rate
of a levy could be prescribed which would amount to a tax. Generally,
the committee has taken the view that setting taxes is more appropriately
a matter for primary legislation, a prerogative of Parliament, not the
executive. If there is a need for flexibility (that is, adjustments to
the rate of a levy need to be made so frequently and/or so quickly that
it is impractical to amend primary legislation) the committee prefers
that the primary legislation prescribe either a maximum rate of the levy
or a method of calculating such a maximum rate. In these cases, although
maximum rates have been set, the disproportion between the current rates
and the proposed maxima are such that the committee is concerned that
these provisions may effectively allow the rates of levies to be set by
regulation.
The committee therefore sought the Minister's advice on why the parameters
set by the legislation are so broad in relation to the rates of levy and
whether the replacement levies differ in scope from the previous regime.
Pending the Minister's advice, the committee drew 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.
Imposing levy by regulation
Clause 9 of Schedule 9
Clause 9 of Schedule 9 would permit the rate of levy on a particular
class of eligible horticultural products to be set by regulation. Although
subclause 9(2) seeks to provide for a maximum rate of levy in the legislation,
that maximum is dependent upon the Australian Statistician publishing
a particular set of figures. The purpose of this clause is to provide
for a rate of levy for horticultural products other than onions, apples
and pears in anticipation of arrangements with the relevant growers of
such products. While the committee understands that an attempt is being
made to set a maximum, the committee notes that such clauses are potentially
an inappropriate delegation of legislative power for the reasons outlined
above and therefore sought the Minister's views on why this particular
formula for setting the maximum rate was chosen.
Pending the Minister's advice, the committee drew 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.
On 24 March 1998, the Minister responded as follows:
In the Alert your Committee raised concerns about the broad range between
several operative rates of levy and the maximum rates of levy included
in Schedules 3,4,5 and 9 of the proposed National Residue Survey (Excise)
Levy Bill 1998. Your committee also expressed concern that the imposition
of a levy by regulation proposed by Clause 9 of Schedule 9 may become
a tax and that it was for Parliament to set a tax rate and not for the
makers of subordinate legislation to do so.
The rates of levy to which you refer to in clause 3 of Schedule 3 (milk
fat), subclause 4(1) of Schedule 4 (dried fruits), the table of rates
in clause 3 of Schedule 5 (game animals) and clause 4 of Schedule 9 (onions)
are current levy rates set at the request of industry. Some of these operative
rates have changed since being put in place in 1992. Since then the NRS
has been able to reduce the operative rate of some levies through efficiencies
in operating costs and an increase in volume of product, while others
have been set at $0.00 while that program is in recess. It is not the
intention of this legislation to make any alterations to current operational
or maximum levy rates.
The overall purpose of the NRS legislation is to recover the cost of
an ongoing chemical residue monitoring program from those industries who
have chosen to participate in a Nation Residue Survey program. The levy
is designed to be a collection mechanism to recover the cost of the program
on a least-cost basis, that is, as a fee for service rather than as a
tax.
The purpose of clause 9 of Schedule 9 is to allow for horticultural industries
currently negotiating with the NRS for the implementation of an ongoing
residue monitoring program to have such a program implemented in a timely
manner. The proposed legislation will allow for the operative rate of
levy to be set by regulation only after full consultation has been carried
out with industry, and the necessary policy approval sought from the Prime
Minister and Treasurer.
This process is part of the `General Principles Applying to Proposals
for new and changed Primary Industry Levies for R&D, Promotion, Marketing
or Fees for Chemical Residue Testing and Animal Health Services' agreed
to by the Government in December 1996.
Under Parliamentary process regulations are also disallowable instruments
that are subject to the scrutiny of the Standing Committee on Regulations
and Ordinances and must sit in both houses for 15 working days during
which disallowance can occur.
This system currently operates effectively in ensuring that the twenty-three
agricultural commodities that participate in the National Residue Survey,
and have levy collection mechanisms imposed by regulation, are subject
to the scrutiny of the Parliament and also receive the best possible value
for money in terms of the service provided.
The maximum rate of levy referred to in the proposed subclause 9(2) of
Schedule 9 cannot be amended by subordinate legislation, only by primary
legislation.
I trust that this information allays the concerns of your Committee and
I am happy to provide any further information that the Committee may require.
On 31 March, the Minister provided a supplementary response as follows:
I refer to the verbal request from your Standing Committee's Secretariat
on 30 March 1998 for supplementary information on the proposed National
Residue Survey Bills concerning the cost recovery approach used for
small industries whose production figures are not covered by Australian
Bureau of Statistics (ABS) surveys. I am only too happy to oblige.
In responding to your request I would again draw your attention to the
purpose of the National Residue Survey (NRS) package of legislation, to
recover the cost of ongoing chemical residue monitoring programs from
industries participating in the NRS. The levies are, in fact, a fee for
service rather than as a tax, and are paid into a Trust Account rather
than Consolidated Revenue.
This Trust Account (now titled Reserve Money Funds under the new Audit
Act provisions) is established by the National Residue Survey Administration
Act 1992. Through this the NRS is accountable for all industry monies
paid into the account (section 7) and paid out of the account (section
8).
Monies can be paid into the account through two mechanisms: a statutory
mechanism (levy) or by direct payment through a Memorandum of Understanding
(MOU). In the case of smaller industries where the Statistician does not
publish production figures, industries are encouraged by the NRS to use
the MOU system of payment, as the identification of production figures
and collection points and the collection cost involved can sometimes double
the relevant cost of the monitoring program. Examples of sectors which
currently have monitoring programs with the NRS under an MOU are the camel,
possum and pecan industries.
An alternative approach that keeps costs to a minimum for closely related
industries is to move to the next tier of production where ABS production
figures are more readily available. An example of this is the current
discussions being held with the stone fruit industry on the implementation
of a monitoring program. A proposal has been put to industry to sample
all stone fruits on a rotating basis rather than test individual stone
fruits. This approach would also overcome the problem of economies of
scale and a lack of ABS survey data for some of the lesser known stone
fruits.
All programs are reviewed with the industry concerned on an annual basis
and consultations carried out with the agreed industry representatives
on how costs can be reduced in delivering a cost effective, statistically
valid monitoring program. The onion industry is an example of how these
efficiencies can be gained. With the inclusion of all onions in the survey,
rather than just the export sector as initially intended, the NRS was
able to reduce the operative levy rate from $1.56 per tonne ($5.00 maximum)
to 40 cents per tonne. Results from the survey were then used by the industry
as a marketing tool to encourage greater consumption of the industry's
products.
In the event of the NRS being wound up, or an industry no longer requiring
a monitoring program, all monies are returned to individual levy payers,
not to Consolidated Revenue, nor to the peak industry body.
I trust that this additional information covers the concerns your Committee
has raised and I am only too happy to provide any further information
that the Committee may require.
The committee thanks the Minister for these comprehensive responses.
Native Title Amendment Bill 1997 [No. 2]
This bill was introduced into the House of Representatives on 9 March
1998 by the Attorney-General. The bill comprises the earlier bill, as
amended and passed by the House of Representatives on 29 October 1997,
and certain amendments made by the Senate and agreed to by the House.
[Portfolio responsibility: Prime Minister]
The bill proposes to amend the following Acts:
- Native Title Act 1993 to:
- deal with certain acts done on or before 23 December 1996 (the date
of the High Court's decision in Wik) concerning the interaction
between native title rights and the interests and other rights and interests
in land or waters;
- confer new functions on representative Aboriginal/Torres Strait Islander
bodies and deal with the selection, funding, accountability and administration
of representative bodies;
- explain how the new future acts processes will apply to processes already
underway when the amendments commence, what will happen to applications
already made to the NNTT and the Federal Court and how the new registration
test will apply to claims already on the Register of Native Title Claims;
and
- list historic and current leases considered, on the basis of common
law, to confer exclusive possession on the grantee and therefore extinguish
native title; and
- Native Title Act 1993, Federal Court of Australia Act 1976
and Human Rights and Equal Opportunity Commission Act 1986 to:
- explain how applications concerning native title issues are to be made
and dealt with by the Federal Court, the NNTT and State or Territory bodies
which have been approved under the Native Title Act 1993 in relation
to applications about native title matters; and
- amend the way in which the Register of Native Title Claims and the
National Native Title Register are to be kept and, in particular, the
new registration test that is to be applied to claims for native title.
This Bill is the same, in all relevant respects, as the Bill introduced
into the House of Representatives on 4 September 1997, and on which the
Committee commented in Alert Digest No 12 of 1997. The committee forwarded
a letter to the Prime Minister on 25 September 1997 seeking a response
to its comments, and followed this up by letter on 25 March 1998. The
Special Minister of State has responded in a letter dated 31 March 1998.
A copy of that letter is attached to this report, and relevant parts of
the response are discussed below. For the information of Senators, the
comments from Alert Digest No. 12 of 1997 are repeated below.
Extract from Alert Digest No. 12 of 1997Commencement by Proclamation/effluxion
of time
Subclauses 2(2) to (6)
Subclauses 2(2) to (6) of this bill provide that the substantive amendments
made by the bill will commence at various times after Royal Assent. The
subclauses state:
(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day
to be fixed by Proclamation.
(3) If Part 1 of Schedule 3 does not commence within the period of 9 months
beginning on the date on which this Act receives the Royal Assent, that
Part commences on the first day after the end of that period.
(4) Part 2 of Schedule 3 commences:
(a) on the first day after the end of the period of 12 months after the
commencement of Part 1 of Schedule 3; or
(b) if, before the end of that period, a later day is fixed by Proclamation—on
that later day.
(5) Subject to subsection (6), the remaining provisions of this Act commence
on a day or days to be fixed by Proclamation.
(6) If a provision referred to in subsection (5) does not commence within
the period of 9 months beginning on the day on which this Act receives
the Royal Assent, that provision commences on the first day after the
end of that period.
With respect to commencement provisions, the committee has placed importance
on the Office of Parliamentary Counsel Drafting Instruction No. 2 of 1989.
The Drafting Instruction provides, in part:
3. As a general rule, a restriction should be placed on the time within
which an Act should be proclaimed (for simplicity I refer only to an Act,
but this includes a provision or provisions of an Act). The commencement
clause should fix either a period, or a date, after Royal Assent, (I call
the end of this period, or this date, as the case may be, the 'fixed time').
This is to be accompanied by either:
(a) a provision that the Act commences at the fixed time if it has not
already commenced by Proclamation: or
(b) a provision that the Act shall be taken to be repealed at the fixed
time if the Proclamation has not been made by that time.
4. Preferably, if a period after Royal Assent is chosen, it should not
be longer than 6 months. If it is longer, Departments should explain the
reason for this in the Explanatory Memorandum. On the other hand, if the
date option is chosen, [the Department of the Prime Minister and Cabinet]
do not wish at this stage to restrict the discretion of the instructing
Department to choose the date.
5. It is to be noted that if the 'repeal' option is followed, there is
no limit on the time from Royal Assent to commencement, as long as the
Proclamation is made by the fixed time.
6. Clauses providing for commencement by Proclamation, but without the
restrictions mentioned above, should be used only in unusual circumstances,
where the commencement depends on an event whose timing is uncertain (eg
enactment of complementary State legislation).
With respect to subclauses (3) and (6), the committee notes that paragraph
4 of the Drafting Instruction is applicable. The explanatory memorandum
does not appear to give a reason for using a nine month period rather
than a 6 month period for automatic commencement.
With respect to subclause (4), the committee notes that the explanatory
memorandum at paragraph 1.13 suggests that the change from the present
system for recognising and regulating representative bodies to the new
system will need a transition period sufficiently long to enable the necessary
preparatory work to be completed. The mechanism chosen, however, will
result in a date for commencement that is not limited to any particular
time. Paragraph 6 of the Drafting Instruction suggests that such a method
should be used only in unusual circumstances.
The committee, therefore, seeks the advice of the Minister on
the reasons for choosing the mechanisms in subclauses 2(3), (4) and (6).
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.
Vicarious liability and reversal of the onus of proofSubclause 203FH(4)
Subclause 203FH(4) provides:
(4) Any conduct engaged in on behalf of a person other than a body corporate
by an employee or agent of the person within the scope of his or her actual
or apparent authority is taken, for the purposes of this Part, to have
been engaged in also by the person unless the person establishes that
the person took reasonable precautions and exercised due diligence to
avoid the conduct.
This subclause, if enacted, would impose vicarious liability on a person
for the criminal acts of his or her employee or agent. It would also put
the onus of disproving liability on the principal by requiring that person
to establish that he or she took reasonable precautions and exercised
due diligence to avoid the conduct.
The committee has been prepared to accept the imposition of criminal
liability on the manager/directors of a company for the acts of a company
as they constitute the effective mind and heart of the company. The company,
in effect, thinks and makes decisions through them. Different considerations,
however, apply where vicarious liability for the acts of other persons
is imposed on an employer or principal who is a natural person.
The primary issue is whether imposing criminal liability vicariously
on an employer who is a natural person unduly trespasses on that person's
personal rights and liberties. Accordingly, the committee sought the Minister's
advice on this matter.
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.
In Alert Digest No. 3 of 1998, the Committee reiterated its comments
in relation to this Bill.
Pending the Prime Minister's advice, the committee drew 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 and also 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.
The Special Minister of State has responded as follows:
The automatic commencement provisions in subclauses 2(3) and 2(6) operate
9 months after the Act receives the Royal Assent because the Bill is dealing
with an operational national system. There are a number of jurisdictions
which already have alternate native title systems in place and the additional
3 months will allow sufficient time for their parliamentary processes
to amend the relevant legislation so that a consistent national regime
can be maintained. The operations of Aboriginal and Torres Strait Islander
representative bodies are also substantially affected by the legislation
which creates obligations for them to perform functions under the new
Act. These functions cannot be performed until the national system is
in place.
Subclause 2(4) deals with the transition period for representative bodies
to be approved under the new Act. The Explanatory Memorandum at paragraph
33.3 explains the purpose of the staged commencement. The circumstances
in relation to this aspect of the Bill are unusual as the Bill seeks to
create a system for existing representative bodies which does not disadvantage
their clients while the representative body is being assessed under the
new criteria. The unspecified date of commencement for the later representative
bodies has been included in the event that this assessment process is
a little delayed.
The Committee expressed some concerns in relation to subsection 203FH(4)
which deals with the conduct of directors, employees and agents of representative
Aboriginal/Torres Strait Islander bodies. As the Explanatory Memorandum
points out at paragraph 33.75, this provision is similar to section 199
of the Aboriginal and Torres Strait Islander Commission Act 1989 and
it is appropriate that representative bodies be similarly accountable.
The committee thanks the Special Minister for this response.
Winston Crane
Deputy Chairman
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