1.1
On 13 May 2020, the Payment Times Reporting Bill 2020 (the Reporting Bill) and the Payment Times Reporting (Consequential Amendments) Bill 2020 (the Amendment Bill) were introduced into the House of Representatives by the Hon Karen Andrews MP, Minister for Industry, Science and Technology.
1.2
Following the recommendation of the Senate Selection of Bills Committee, the Senate referred the provisions of the bill to the Senate Education and Employment Legislation Committee (the committee) for inquiry and report by 30 July 2020.
Conduct of the inquiry
1.3
Details of the inquiry were made available on the committee's website. The committee also contacted a number of organisations inviting submissions to the inquiry. Submissions were received from 17 organisations, as listed at Appendix 1. Submissions are available on the committee's website.
1.4
The committee held a public hearing in Canberra on 7 July 2020. The witness list for this hearing can be found at Appendix 2.
Structure of the report
1.5
Chapter 2 outlines the background to the bill and the key provisions contained in the bill.
1.6
Chapter 3 outlines the key issues as raised by submitters and witnesses and sets out the committee view.
Consideration by the Senate Standing Committee for the Scrutiny of Bills
1.7
The Senate Standing Committee for the Scrutiny of Bills considered the Payment Times Reporting Bill 2020 in the Scrutiny Digest 7 of 2020.
1.8
That committee raised the following concerns with the Reporting Bill:
Broad delegation of investigatory powers
Reversal of the evidential burden of proof
Incorporation of external materials existing from time to time.
Broad delegation of investigatory powers
1.9
The Scrutiny of Bills Committee raised concerns that the Reporting Bill seeks to trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014. These powers provide for an authorised person to be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation.
1.10
In this context, the Scrutiny of Bills Committee noted that:
…the explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training. The committee's consistent scrutiny position in relation to the exercise of coercive or investigatory powers is that persons authorised to use such powers should have the appropriate training and experience.
1.11
Accordingly, the Scrutiny of Bills Committee requested the minister provide more detailed advice as to:
why it is necessary to confer investigatory powers on any 'other person' to assist an authorised person; and
whether it would be appropriate to amend the bill to require that any person assisting an authorised person have the knowledge and expertise appropriate to the function or power being carried out (as is the case with authorised officers under subclause 35(2) of the bill).
Reversal of the evidential burden of proof
1.12
The Scrutiny of Bills Committee noted that the Reporting Bill contains a clause whereby unauthorised disclosure of protected information requires the defendant to bear an evidential burden of proof rather than legal burden. This burden potentially interferes with the common law right of being presumed innocent until proven guilty. The explanatory materials do not justify why the Guide to Framing Commonwealth Offences has not been followed in this instance.
1.13
Accordingly, the Scrutiny of Bills Committee requested the minister to provide advice as to why an offence-specific defence which reverses the evidential burden of proof is used in this instance.
Incorporation of external materials existing from time to time
1.14
The Scrutiny of Bills Committee raised concerns that rules made for the purpose of the definition of small business may make provisions to allow the application, adoption or incorporation of any matter contained in any other instrument or writing as in force or existing from time to time.
1.15
The incorporation of legislative provisions by reference to other documents generally raises scrutiny concerns as is the case in the Reporting Bill. Such an approach could create opportunities for changes being made to the law without the involvement of Parliament, could bring about uncertainty around the law, and could deprive those obliged to obey the law from adequate access to information and data.
1.16
As such, the Scrutiny of Bills Committee requested the minister’s advice regarding whether documents incorporated by reference into the rules would be made freely and readily available to all persons interested in the law.
Compatibility with human rights
1.17
The statement on compatibility with human rights for the bills states that they are compatible with the human rights and freedoms recognised or declared in the international instruments listed in clause 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.18
The Parliamentary Joint Committee on Human Rights (PJCHR) assessed the human rights compatibility of both bills, but made no comment on either as the committee found that they ‘[do] not engage, or only marginally [engage], human rights; [promote] human rights; and/or permissibly [limit] human rights’.
Financial impact statement
1.19
The combined financial impact of the bills was projected to be $10 million over four years from 2019–20, $2.6 million in 2023–24, and $2.4 million per year from 2024–25.
Notes on references
1.20
References in this report to Hansard are to the Proof Hansard. Please note that page numbers may vary between the proof and official transcripts.
Acknowledgements
1.21
The committee thanks those individuals and organisations who contributed to this inquiry by preparing written submissions and giving evidence at the public hearing.