Scrutiny of Bills Alert Digest No. 6 of 1998

Senate Standing Committee for The Scrutiny of Bills

13 May 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

Australian Radiation Protection and Nuclear Safety Bill 1998

Australian Radiation Protection and Nuclear Safety (Consequential

Amendments) Bill 1998

Australian Radiation and Nuclear Safety (Licence Charges) Bill 1998

Cheques and Payment Orders Amendment Bill 1998

Cheques and Payment Orders Amendment (Turnback of Cheques) Bill 1998

Comprehensive Nuclear Test-Ban Treaty Bill 1998

Datacasting Charge (Imposition) Bill 1998

Excise Tariff Amendment Bill (No. 1) 1998

Fisheries Legislation Amendment Bill (No. 1) 1998

Human Rights Legislation Amendment Bill (No. 2) 1998

Income Tax (Untainting Tax) Bill 1998

National Measurement Amendment Bill 1998

National Road Transport Commission Amendment Bill 1998

Stevedoring Levy (Collection) Bill 1998

Stevedoring Levy (Imposition) Bill 1998

Sydney Airports Bill 1998

Taxation Laws Amendment (Company Law Review) Bill 1998

Television Broadcasting Services (Digital Conversion) Bill 1998

Trade Practices Amendment (Country of Origin Representations) Bill 1998

Australian Radiation Protection and Nuclear Safety Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Parliamentary Secretary to the Minister for Health and Family Services. [Portfolio responsibility: Health and Family Services]

The bill proposes to establish a scheme to regulate the operation of nuclear installations and the management of radiation sources, including ionising material and apparatus and non-ionising apparatus, where these activities are undertaken by the Commonwealth, Commonwealth entities and those who deal with such entities.

Abrogation of the privilege against self-incrimination

Subclause 55(2)

Subclause 55(1)(e) of the bill authorises an inspector to require any person on particular premises to answer any questions put by the inspector and produce any documents requested by the inspector.

Subclause 55(2) makes compliance an absolute requirement. No provision is made for non-compliance where a person has a reasonable excuse. As a consequence, subclause 55(2) removes the privilege against self-incrimination and does not contain the safeguards often included in such provisions (see, for example, Agricultural and Veterinary Chemicals Code 1994, s 146; Child Support Assessment Act 1989, s 161(4); Australian Wine and Brandy Corporation Act 1980, s 39ZH(3); Ozone Protection Act 1989, s 64(2)).

Accordingly, the Committee seeks the advice of the Minister on the reasons why the requirement in subclause 55(2) makes no provision for possible non-compliance where a person has a reasonable excuse, which would include the likelihood that the information required was likely to incriminate that person.

Pending the 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.

Australian Radiation Protection and Nuclear Safety (Consequential Amendments) Bill 1998

The bill proposes to make consequential changes to the Australian Nuclear Science and Technology Organisation Act 1987 and to provide for transitional arrangements to cover the operation of controlled facilities and the handling of radiation sources while applications for licences to cover these facilities and activities are being made under the proposed Australian Radiation Protection and Nuclear Safety Bill 1998.

The Committee has no comment on this bill.

Australian Radiation Protection and Nuclear Safety (Licence Charges) Bill 1998

The bill proposes to enable annual fees and application fees to be payable by entities regulated under the Australian Radiation Protection and Nuclear Safety Bill 1998.

Imposing a levy by regulation

Subclauses 4(2) and 5(2)

Subclause 4(2) of the bill requires the holder of a “facility licence” to pay an annual charge. Subclause 5(2) imposes a similar requirement on the holder of a “source licence”. In each case, the amount of the charge is set by regulation.

At page 62 of its report on The Work of the Committee during the 37th Parliament (May 1993-March 1996), the Committee restated its concerns in this area in the following terms:

[T]he Committee has consistently drawn attention to legislation which provides for the level of a `levy' to be set by regulation. This creates a risk that the levy may in fact become a tax. It is for Parliament to set a tax rate and not for the makers of subordinate legislation to do so. Where the level of a levy needs to be changed frequently and expeditiously the question arises as to whether this can best be done by regulation rather than by statute. If a compelling case can be made out for the level to be set by subordinate legislation the Committee seeks to have the enabling Act prescribe a maximum figure above which the relevant regulations cannot fix the levy or alternatively a formula by which such an amount can be calculated.

Many bills adopt such an approach, providing for a basic levy to be set by regulation, subject to a statutory maximum rate. Examples of such bills considered by the Committee recently include the Laying Chicken Levy Amendment (AAHC) Bill 1996 and the Live-stock Export Charge Amendment (AAHC) Bill 1996 (both considered in Alert Digest No 5 of 1996), and the Retirement Savings Accounts Supervisory Levy Bill 1996 and the Telecommunications (Carrier Licence Charges) Bill 1996 (both considered in Alert Digest No 1 of 1997).

The Explanatory Memorandum to this Bill makes no reference to the appropriateness of such an approach, and the Minister's Second Reading Speech simply notes that the Commonwealth intends employing an independent consultant to advise on appropriate cost recovery processes and fees and charges. Accordingly, the Committee seeks the advice of the Minister on why the legislation places no upper limit on the power to set a rate of levy by regulation.

Pending the Minister's advice, the Committee draws Senators' attention to this provision, as it may be considered to inappropriately delegate legislative power in breach of principle 1(a)(iv) of the committee's terms of reference.

Cheques and Payment Orders Amendment Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the Cheques and Payment Orders Act 1986 to:

allow building societies, credit unions and their industry Special Services Providers to issue cheques in their own name;
repeal the provisions relating to payment orders to enable their abolition;
make miscellaneous amendments; and

make consequential amendments to the Bills of Exchange Act 1909 and the Debits Tax Administration Act 1982.

The Committee has no comment on this bill.

Cheques and Payment Orders Amendment (Turnback of Cheques) Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the Cheques and Payment Orders Act 1986 to transfer the risk of the insolvency of a participant from the collecting institutions and their customers to the customers of the failed drawee institution in relation to cheques drawn on that institution by:

deeming unsettled cheques drawn on the failed drawee institutions to be dishonoured; and
entitling surviving collecting institutions to reverse provisional credits made to their customers' accounts in respect of those cheques.

The Committee has no comment on this bill.

Comprehensive Nuclear Test-Ban Treaty Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Foreign Affairs. [Portfolio responsibility: Foreign Affairs]

The bill proposes to effect Australia's obligations as a party to the Comprehensive Nuclear Test-Ban Treaty.

Commencement

Subclause 2(1)

Subclause 2(1) states that the bill is to commence “on a day to be fixed by Proclamation”, with no further time specified within which the bill either must come into force or be repealed. On its face, therefore, the bill is not in accordance with the Office of Parliamentary Counsel Drafting Instruction No 2 of 1989, which provides that such a fixed time should be included.

However, the Explanatory Memorandum observes that the bill cannot commence until the Comprehensive Nuclear Test-Ban Treaty has been ratified by a number of other countries. The bill, therefore, comes within the exception noted in clause 6 of the Drafting Instruction. This states that clauses simply providing for commencement by Proclamation should only be used in unusual circumstances “where the commencement depends on an event whose timing is uncertain”.

In these circumstances, the Committee makes no further comment on this provision.

Delegation without limitation

Clause 69

Clause 69 of the bill permits the Minister to delegate all or any of his or her powers under the Act. No limitations are imposed as to the qualifications or attributes of any potential delegate.

Generally, the Committee prefers to see limits set either on the sorts of powers that can be delegated or the categories of people to whom they may be delegated. In the latter case, the Committee has expressed a preference that powers be delegated only to the holders of nominated offices, or to members of the Senior Executive Service,

or to persons holding specified qualifications. Accordingly, the Committee seeks the advice of the Minister on why the bill authorises this unfettered delegation.

Pending the Minister's advice, the Committee draws Senators' attention to this provision, as it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers in breach of principle 1(a)(ii) of the committee's terms of reference.

Datacasting Charge (Imposition) Bill 1998

This bill was introduced into the House of Representatives on 8 April 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 provide for the imposition of a charge in relation to the provision of datacasting services by commercial and national free-to-air television broadcasters.

Imposing a levy by regulation

Clause 7

Clause 7 states that the amount of the charge to be imposed by the bill is to be set through delegated legislation – specifically, in accordance with a written determination of the Australian Communications Authority. Further, the bill does not specify an upper limit on this charge.

At page 62 of its report on The Work of the Committee during the 37th Parliament (May 1993-March 1996), the Committee restated its concerns in this area in the following terms:

The Explanatory Memorandum to the Bill and accompanying Second Reading Speech indicate that the government's intention is to impose a charge on broadcasters who provide datacasting services, and to set this charge at a level which will be “competitively neutral”.

Complementary amendments proposed in the Television Broadcasting Services (Digital Conversion) Bill 1998 indicate that the Australian Communications Authority cannot specify an initial level of charge without first reporting to the Minister, who will be obliged to table that report in the Parliament.

However no reference is made to the appropriateness or desirability of imposing an upper limit on such a charge in the Bill. Accordingly, the Committee seeks the advice of the Minister on why the legislation places no upper limit on the power to set a rate of levy by regulation.

Excise Tariff Amendment Bill (No. 1) 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Customs and Consumer Affairs]

This bill proposes to amend the Excise Tariff Act 1921 to:

reduce the rate of duty on aviation gasoline from 3 July 1997; and
make technical amendments in relation to fuel substitution minimisation legislation.

Retrospective application

Clause 2

The various subclauses of clause 2 will permit most of the substantive amendments proposed by the bill to commence retrospectively. However, the Committee notes that these amendments are either beneficial to payers of excise duty, or are technical in nature and make no substantive change to the law.

In these circumstances, the Committee makes no further comment on this Bill.

Fisheries Legislation Amendment Bill (No. 1) 1998

This bill was introduced into the Senate on 8 April 1998 by the Parliamentary Secretary to the Treasurer. [Portfolio responsibility: Primary Industries and Energy]

The bill proposes to:

amend the Fisheries Management Act 1991 to prohibit the commercial taking of black marlin and blue marlin in the Australian fishing zone; and
repeal the Prawn Boat Levy Act 1995 and the Prawn Export Charge Act 1995 (to take effect three years after Royal Assent) to effect the abolition of the prawn boat levy and prawn export charge from 1 January 1998.

Retrospective application

Subclauses 2(2) and 2(3)

Under subclause 2(2), some of the amendments proposed in this bill are to commence retrospectively on 1 July 1997. However, the Committee notes that these amendments are beneficial to payers of prawn boat levy.

Under subclause 2(3), the remaining provisions of the bill are to commence three years after Assent. While this period is longer than the preferred period of six months referred to in paragraph 4 of Office of Parliamentary Counsel Drafting Instruction No 2 of 1989, it is nevertheless a fixed commencement date, and therefore meets the concern of an unfettered discretion which is addressed by that Drafting Instruction.

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

Human Rights Legislation Amendment Bill (No. 2) 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to provide for the reorganisation of the Human Rights and Equal Opportunity Commission (HREOC) by:

renaming HREOC as the Human Rights and Responsibilities Commission (HRRC);
providing for an executive structure consisting of a President and three Deputy Presidents;
making education, dissemination of information on human rights and assistance to business and the general community central functions of the HRRC;
creating an Office of the Privacy Commissioner as a separate statutory authority;
enabling the Attorney-General to approve an intervention by the new Commission in court proceedings which involve human rights or discrimination issues;
abolishing the Community Relations Council and providing for the establishment of advisory committees;
removing from the HRRC powers of delegation under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 – these powers will be repealed and consolidated into a single delegation provision in the renamed Human Rights and Responsibilities Commission Act 1986;
removing from the HRRC any power to recommend the payment of damages or compensation following inquiries into certain types of complaints under the renamed Act;
enabling the appointment of a person aged over 65 years as a member of the HRRC or for such a person's term to extend beyond their 65th birthday;
and makes consequential amendments.

The Committee has no comment on this bill.

Income Tax (Untainting Tax) Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio responsibility: Treasury]

The bill proposes to impose a liability to untainting tax in certain circumstances where a company elects to untaint its share capital account.

The Committee has no comment on this bill.

National Measurement Amendment Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Industry, Science and Tourism]

The bill proposes to amend the National Measurement Act 1960 to:

allow the appointment of existing certifying bodies by the National Standards Commission both for the certification of certified measuring instruments and for the certification of certified reference materials; and
remove the requirement for the Executive Director of the National Standards Commission to retire upon reaching the age of 65.

The Committee has no comment on this bill.

National Road Transport Commission Amendment Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Transport and Regional Development. [Portfolio responsibility: Transport and Regional Development]

The bill proposes to amend the following Acts:

National Road Transport Commission Act 1991 to:
- extend the sunset of the Act for another five years, to 14 January 2004;
- enable regular review of the Act and related legislation;
- replace the Ministerial Council for Road Transport with the Australian Transport Council as the responsible Ministerial Council;
- allow New Zealand involvement in deciding trans-Tasman road vehicle standards;
- allow Defence Force exemptions from road transport regulation under certain circumstances;
- enable the involvement of the National Environment Protection Council in the joint development of motor vehicle noise and emission standards; and
Road Transport Reform (Dangerous Goods) Act 1995, the Road Transport Reform (Heavy Vehicles Registration) Act 1997 and the Road Transport Reform (Vehicles and Traffic) Act 1993 to remove provisions linking these Acts to the sunset provision of the National Road Transport Commission Act 1991 and making them subject to review by the Australian Transport Council at least every six years.

The Committee has no comment on this bill.

Stevedoring Levy (Collection) Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Workplace Relations and Small Business. [Portfolio responsibility: Workplace Relations and Small Business]

The bill proposes to provide for the collection of the levy imposed by the Stevedoring Levy (Imposition) Bill 1998 on the loading and unloading of containers and vehicles in Australia. The bill also provides for the lodgement of levy returns, penalty payments, distribution of surplus levy, appointment of inspectors to carry out functions relating to levy collection and allows the Minister to authorise payments directly or indirectly in relation to restructuring or reform of the stevedoring industry.

The Committee has no comment on this bill.

Stevedoring Levy (Imposition) Bill 1998

The bill proposes to impose a levy on the loading and unloading of shipping containers and vehicles in Australia.

The Committee has no comment on this bill.

Sydney Airports Bill 1998

This bill was introduced into the House of Representatives on 6 April 1998 by Mr Zammit as a Private Member's bill.

The bill proposes to establish the Sydney Airports Authority as an independent authority to make planning decisions in relation to flight path locations around Sydney and the location and operation of any second major airport.

Commencement

Subclause 2(1)

Subclause 2(1) states that the bill is to commence “on a day to be fixed by Proclamation”, with no further time specified within which the bill either must come into force or be repealed. The Committee notes that paragraph 6 of Office of Parliamentary Counsel Drafting Instruction No 2 of 1989 suggests that such an approach should be used only in unusual circumstances, where commencement depends on an event whose timing is uncertain.

Accordingly, the Committee seeks the advice of the Member on the reason for choosing the mechanism in subclause 2(1).

Pending the Member's advice, the Committee draws Senators' attention to the provision, as it may be considered to delegate legislative power inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

Taxation Laws Amendment (Company Law Review) Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Parliamentary Secretary (Cabinet) to the Prime Minister. [Portfolio responsibility: Treasury]

The bill proposes to amend the Income Tax Assessment Act 1936 and associated tax laws to prevent dividend substitution and capital streaming arrangements and to make consequential amendments to tax laws. The bill also proposes to introduce a tainting rule that treats distributions from a tainted share capital account as unfrankable and unrebateable dividends in the hands of shareholders.

Indeterminate application

Schedule 1, Item 3

By virtue of item 3 of Schedule 1, the amendments proposed by that Schedule are to apply to the provision of bonus shares or capital benefits occurring on or after a day to be fixed by Proclamation. Therefore, the amendments proposed by this Schedule contravene the spirit of Office of Parliamentary Counsel Drafting Instruction No 2 of 1989. This 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 Explanatory Memorandum apparently provides no indication of the need for such an open-ended application provision. Accordingly, the Committee seeks the advice of the Treasurer on the reason for adopting such a provision.

Pending the Treasurer's advice, the Committee draws Senators' attention to the provision, as it may be considered to delegate legislative power inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

Television Broadcasting Services (Digital Conversion) Bill 1998

The bill proposes to provide a regulatory regime for digital television broadcasting for free to air commercial and national broadcasters.

The Committee has no comment on this bill.

Trade Practices Amendment (Country of Origin Representations) Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Customs and Consumer Affairs]

The bill proposes to amend the Trade Practices Act 1974 to:

establish minimum criteria for unqualified country of origin representations;
include consideration of small business experience in the appointment of Commissioners to the Australian Competition and Consumer Commission (ACCC);
expand the ability of the ACCC to take representative actions in relation to restrictive trade practices; and
make technical amendments.

Retrospective application

Schedule 2, Item 5

Item 5 of Schedule 2 to the Bill will allow the amendment proposed to be made by item 3 of that Schedule to apply to anti-competitive conduct even though that conduct occurred before the commencement of the item. Item 5 therefore seems to permit the retrospective application of the amendment proposed by item 3. However, this amendment grants the ACCC a power to take representative actions for alleged contraventions of Part IV of the Act, which deals with restrictive trade practices. Arguably, this may be regarded as beneficial to the forces of competition.

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