Scrutiny of Bills Alert Digest No. 5 of 1998

8 April 1998

ISSN 1329-668X

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.

CONTENTS

Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Australian Science, Technology and Engineering Council Repeal Bill 1998

Crimes Amendment (Enforcement of Fines) Bill 1998

Customs Tariff Amendment Bill (No. 1) 1998

Interstate Road Transport Amendment Bill 1998

Interstate Road Transport Charge Amendment Bill 1998

Payments Systems and Netting Bill 1998

Taxation Laws Amendment Bill (No. 4) 1998

Telecommunications (Carrier Licence Charges) Amendment Bill 1998

Telstra (Transition to Full Private Ownership) Bill 1998

Veterans' Entitlements Amendment (Male Total Average Weekly Earnings Benchmark) Bill 1998

Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

This bill was introduced into the House of Representatives on 2 April 1998 by the Attorney-General. [Portfolio responsibility: Prime Minister]

The bill proposes to replace the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Primarily the bill:

provides a discretion for the Minister to protect areas and objects of particular significance to Aboriginal peoples and Torres Strait Islanders;
reforms the processes for dealing with applications for protection under the Act;
seeks to engage the States and Territories in protecting indigenous heritage;
establishes a Director of Indigenous Heritage Protection to assist the Minister in the administration of the bill;
encourages applications to be resolved by negotiation and/or mediation facilitated by the Director;
provides for the separation of assessments of significance from the Minister's decision about whether or not to grant protection;
requires that significance be assessed according to indigenous traditions, observances, customs and beliefs and that primacy be given to the views of indigenous people in making assessments of significance;
provides protection for culturally sensitive information disclosed in the course of administering the bill;
provides for accreditation by the Commonwealth Minister of State/Territory heritage protection regimes which meet certain minimum standards; and
requires applicants to exhaust State/Territory processes before seeking protection under the Commonwealth Act and, where State/Territory regimes are accredited, limits applications to cases where protection may be in the national interest.

Strict liability offence

Subclause 67(2)

Subclause 67(1) of the bill creates an offence of failing to report the discovery of indigenous human remains. Subclause 67(2) states that this is a strict liability offence. As a result, a person may be convicted of an offence against this subclause even though that person was unaware of any relevant heritage protection regime in force. The Explanatory Memorandum makes no reference to any reason for the imposition of strict liability. Accordingly, the Committee seeks the advice of the Prime Minister on the reasons for making this an offence of strict liability.

Pending the Prime Minister's advice, the committee draws Senators' attention to this 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.

Onus of proof

Subclause 70(2)

Subclause 70 of the bill applies in relation to proceedings for certain offences. Under subclause 70(2), a defendant must not be committed for trial or convicted of those offences “if there is evidence” that “the defendant did not know of the existence” of certain matters. However, the subclause makes no provision as to who bears the onus of proving this lack of knowledge, nor is the matter referred to in the Explanatory Memorandum to the bill. Accordingly, the Committee seeks the advice of the Prime Minister on the following matters:

whether the bill should specify on whom the onus of proof falls under the subclause; and
if that onus is to be placed on the defendant, the reason for reversing the normal requirement that a person should not be found guilty of an offence unless the prosecution has established all the elements of the offence.

Australian Science, Technology and Engineering Council Repeal Bill 1998

This bill was introduced into the House of Representatives on 1 April 1998 by the Minister for Industry, Science and Tourism. [Portfolio responsibility: Industry, Science and Tourism]

The bill proposes to repeal the Australian Science, Technology and Engineering Council Act 1978 as a consequence of the establishment of a new advisory body to be known as the Prime Minister's Science, Engineering and Innovation Council.

The Committee has no comment on this bill.

Crimes Amendment (Enforcement of Fines) Bill 1998

This bill was introduced into the Senate on 1 April 1998 by the Parliamentary Secretary to the Treasurer. [Portfolio responsibility: Justice]

The bill proposes to amend the Crimes Act 1914 to:

apply new and anticipated fine enforcement procedures under State and Territory law to federal offenders;
ensure that fine enforcement procedures of a judicial nature are only performed by judicial officers in relation to federal offenders; and
ensure that arrangements between the Commonwealth and each State and Territory covering the performance of fine enforcement functions by officers of the States and Territories, can extend to new fine enforcement procedures.

The Committee has no comment on this bill.

Customs Tariff Amendment Bill (No. 1) 1998

This bill was introduced into the House of Representatives on 2 April 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Customs and Consumer Affairs]

The bill proposes to amend the Customs Tariff Act 1995 to:

reduce the rate of customs duty on aviation gasoline by 0.6 cents per litre from 3 July 1997;
reinstate the $0.17403 per litre rate of duty on aviation gasoline from 31 January 1998;
allow non-personal and non-commercial cargo, with certain exceptions, to be imported duty free by non-Australian Olympic and Paralympic Family members attending the Sydney 200 Olympics and associated events; and
makes administrative and technical amendments.

Retrospectivity

Clause 2

By virtue of the various subclauses in clause 2 of the bill, many of the amendments proposed by the bill will have retrospective effect. For example, subclause 2(2) states that Schedule 1 is taken to have commenced on 1 July 1996. However, the Committee notes that the provision contained in this Schedule is technical only, and no change is made to the substantive law.

Subclause 2(3) states that Schedule 2 to the bill is taken to have commenced on 3 July 1997, and subclause 2(5) states that Schedule 4 to the bill is taken to have commenced on 1 March 1998. However, the Committee notes that, in each case, the amendments referred to are apparently beneficial to those liable to pay customs duty.

In these circumstances, the committee makes no further comment on these provisions.

Interstate Road Transport Amendment Bill 1998

This bill was introduced into the House of Representatives on 2 April 1998 by the Minister for Transport and Regional Development. [Portfolio responsibility: Transport and Regional Development]

The bill proposes to amend the Interstate Road Transport Act 1985 to enable the appointment of additional inspectors by the ACT Government. The bill also updates references to penalties by converting existing monetary penalties to equivalent penalty units.

The Committee has no comment on this bill.

Interstate Road Transport Charge Amendment Bill 1998

This bill was introduced into the House of Representatives on 2 April 1998 by the Minister for Transport and Regional Development. [Portfolio responsibility: Transport and Regional Development]

The bill proposes to amend the Interstate Road Transport Charge Act 1985 to provide for a charge formula relating to less than one year registration charges for vehicles registered under the Federal Interstate Registration Scheme.

The Committee has no comment on this bill.

Payment Systems and Netting Bill 1998

This bill was introduced into the House of Representatives on 1 April 1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio responsibility: Treasury]

The bill proposes to:

ensure that multilateral netting arrangements in the payment system that are approved by the Reserve Bank will survive the insolvency of a participant in the arrangement;
exempt real time gross settlement payments from the possible application of the Zero Hour Rule; and
provide certainty for close-out netting in financial markets and for netting undertaken in accordance with the rules governing stock and futures exchanges and the associated clearing houses.

Non-reviewable discretions

Clauses 9 and 12

Clause 9 of the bill provides the Reserve Bank with a discretion to approve a payment or settlement system. Under subclause 9(3)(c), the exercise of this discretion is subject to a measure of Parliamentary review in that an approval is a disallowable instrument.

Clause 12 of the bill provides the Reserve Bank with a discretion in deciding whether or not to approve a multilateral netting arrangement. However, the exercise of this discretion does not seem subject to review of any kind. Accordingly, the Committee seeks the advice of the Treasurer on the following matters:

i) why the exercise of the discretion by the Reserve Bank under clause 12 is not subject to review; and

ii) why a failure or refusal by the Reserve Bank to exercise its discretion under clauses 9 and 12 is not reviewable.

Pending the Treasurer's advice, the committee draws Senators' attention to these provisions, as they may be considered to make rights, liberties or obligations unduly dependant upon non-reviewable decisions, in breach of principle 1(a)(iii) of the committee's terms of reference.

Taxation Laws Amendment Bill (No. 4) 1998

This bill was introduced into the House of Representatives on 1 April 1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio responsibility: Treasury]

This bill proposes to amend the following Acts:

Sales Tax (Exemptions and Classifications) Act 1992 to:
- ensure that sales tax exemption for goods incorporated into properties owned by, or leased to, always exempt persons (AEPs) or the government of a foreign country is only available for the purchase of goods principally for their own use or for use by organisations conducting the business of AEPs or the government of a foreign country; and
- provide that certain properties are ineligible for the exemption;
Fringe Benefits Tax Assessment Act 1986 to:
- exempt certain employers from keeping records for fringe benefits tax purposes and, providing certain conditions are met, allow those employers to calculate their FBT liability for an FBT year on the basis of fringe benefits provided in a previous FBT year; and
- exempt certain benefits consisting of places in student exchange programs from FBT;
Income Tax Assessment Act 1936 to:
- ensure that amounts of commercial debt that are forgiven will be applied, where relevant, in reduction of a debtor's prior net capital losses in respect of all years before the forgiveness year of income, rather than the immediately preceding year of income;
- make consequential amendments arising from the rewrite of the income tax laws;
- prevent unintended usage of franking credits through franking credit trading schemes;
Taxation Administration Act 1953 to enable the Commissioner of Taxation to provide the New South Wales Police Integrity Commission with certain taxation information;
Income Tax Assessment Act 1997 to:
- to allow income tax deductions for gifts made to the Menzies Research Centre Public Fund;
- amend technical errors arising from the rewrite of the income tax laws;
- include an amount in the assessable income of a taxpayer where amounts are unpaid on the termination of a hire purchase or limited recourse debt arrangement;
- treat taxpayers who acquire capital assets by hire purchase or instalment sale as the owners of those assets for the purposes of determining eligibility for capital allowance deductions and relevant anti-avoidance provisions;
- treat a hire purchase or instalment sale as though it were a loan transaction, and makes consequential amendments to the Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997;
- change the way that depreciation is to be calculated on plant previously owned by an exempt entity when that plant enters the tax net, and makes consequential amendments to two other Acts;

and makes technical corrections to three Acts as a result of the rewrite of the income tax laws.

Retrospective application

Schedule 2, Clause 2 and Schedule 11, Part 5

Clause 2 of Schedule 2 to the bill will allow the amendments made by that Schedule to apply from 1 April 1998. While retrospective in operation, these amendments are beneficial to taxpayers. Similarly, Part 5 of Schedule 11 will permit the amendments to be made by that Schedule to apply from 28 February 1998. While the Explanatory Memorandum provides no explanation for the choice of this date, it remains well within the 6 month period referred to in Senate Resolution of 8 November 1998. Given this, the Committee notes the retrospective application of these two Schedules.

In these circumstances, the committee makes no further comment on these provisions.

Retrospective application

Schedule 13, Item 81

Item 81 of Schedule 13 provides that the amendments proposed in that Schedule are to apply from 13 May 1997 (ie the night of the 1997 Budget). The Committee usually accepts that measures announced in a Budget may be deemed to apply from Budget night. However, the usual practice is that legislation giving effect to such measures is introduced into Parliament within a few months of the bringing down of the Budget. If the Budget were to be regarded as the equivalent of a Press Release, the amendments proposed in this Item would clearly fall outside the six-month period referred to in the Senate Resolution of 8 November 1988. Accordingly, the Committee seeks the advice of the Treasurer on the reason for the delay in putting these proposed amendments into legislative form and whether there are any precedents for such delays in introducing legislation to give effect to Budget measures.

Pending the Treasurer's advice, the committee draws Senators' attention to these 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.

Telecommunications (Carrier Licence Charges) Amendment Bill 1998

This bill was introduced into the House of Representatives on 1 April 1998 by the Minister for the Status of Women. [Portfolio responsibility: Communications, the Information Economy and the Arts]

The bill proposes to amend the Telecommunications (Carrier Licence Charges) Act 1997 to impose annual charges to recover costs incurred by the Department of Industry, Science and Tourism in monitoring telecommunications industry development plans prepared by certain telecommunications licence carriers.

The Committee has no comment on this bill.

Telstra (Transition to Full Private Ownership) Bill 1998

This bill was introduced into the House of Representatives on 30 March 1998 by the Minister representing the Minister for Communications, the Information Economy and the Arts. [Portfolio responsibility: Communications, the Information Economy and the Arts]

The bill proposes to amend the following Acts:

Telstra Corporation Act 1991 to repeal the provisions which require the Commonwealth to retain two-thirds of the equity in the company; and
Telecommunications Act 1997 to enable the Australian Communications Authority to give remedial directions to carriage service providers requiring them to take specific action to ensure that they do not contravene Customer Service Guarantee performance standards;

and makes transitional and consequential amendments to two other Acts and Regulations.

Commencement

Clause 2

By virtue of clause 2, the substantive provisions of this bill will commence at various presently unspecified times in the future. For example, Schedule 2 to the bill will commence on a day to be fixed by Proclamation, but Proclamation is not to take place before the return of the writs for the first general election of the members of the House of Representatives that occurs after 15 March 1998. While there is uncertainty as to the bill's commencement, this uncertainty seems a necessary corollary of legislation which provides for the sale of public assets. Therefore the Committee simply notes this provision.

In these circumstances, the committee makes no further comment on these provisions.

Veterans' Entitlements Amendment (Male Total Average Weekly Earnings Benchmark) Bill 1998

This bill was introduced into the House of Representatives on 2 April 1998 by the Minister for Veterans' Affairs. [Portfolio responsibility: Veterans' Affairs]

The bill proposes to amend the Veterans' Entitlements Act 1986 to maintain the rate of pension payable to war widows and war widowers at no less than 25 per cent of male total average weekly earnings.

Retrospective application

Clause 2

By virtue of clause 2, this bill will commence retrospectively on 19 March 1998. The Committee notes that the amendments proposed by the Bill are beneficial to war widows and war widowers. However, the Committee also notes that the Explanatory Memorandum fails to indicate why this particular date was chosen.

In these circumstances, the committee makes no further comment on this bill.