Scrutiny of Bills Digest No. 7 of 1998

27 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

Appropriation Bill (No. 1) 1998-99

Appropriation Bill (No. 2) 1998-99

Appropriation (Parliamentary Departments) Bill 1998-99

Customs Legislation (Anti-dumping Amendments) Bill 1998

Customs Tariff (Anti-Dumping) Amendment Bill 1998

Data-matching Program (Assistance and Tax) Amendment Bill 1998

Electoral and Referendum Amendment Bill (No. 2) 1998

Employee Protection (Wage Guarantee) Bill 1998 [No. 2]

Film Licensed Investment Company Bill 1998

Financial Sector Reform (Consequential Amendments) Bill 1998

Taxation Laws Amendment (Film Licensed Investment Company) Bill 1998

Wheat Marketing Legislation Amendment Bill 1998

Appropriation Bill (No. 1) 1998-99

This bill was introduced into the House of Representatives on 12 May 1998 by the Treasurer. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($30,863 million) out of the Consolidated Revenue Fund to meet payments for the ordinary annual services of the government for the year ending on 30 June 1999.

The Committee has no comment on this bill.

Appropriation Bill (No. 2) 1998-99

This bill was introduced into the House of Representatives on 12 May 1998 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($4,171 million) out of the Consolidated Revenue Fund to meet payments for capital works and services, payments to or for the States, the Northern Territory and the Australian Capital Territory, advances and loans, and for other services for the year ending on 30 June 1999.

The Committee has no comment on this bill.

Appropriation (Parliamentary Departments) Bill 1998-99

This bill was introduced into the House of Representatives on 12 May 1997 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($138 million) out of the Consolidated Revenue Fund to meet recurrent expenditures of the parliamentary departments for the year ending on 30 June 1999.

The Committee has no comment on this bill.

Customs Legislation (Anti-dumping Amendments) Bill 1998

This bill was introduced into the House of Representatives on 14 May 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Customs and Consumer Affairs]

The bill proposes to:

abolish the Anti-Dumping Authority;
move responsibility for the conduct of anti-dumping investigations to the Australian Customs Service;
establish the Trade Measures Review Office to review dumping decisions;
standardise time limits in which reviews of anti-dumping measures, inquiries into the continuation of anti-dumping measures and duty assessments are conducted; and
make transitional arrangements.

The Committee has no comment on this bill.

Customs Tariff (Anti-Dumping) Amendment Bill 1998

This bill was introduced into the House of Representatives on 14 May 1998 by the Minister for Customs and Consumer Affairs. [Portfolio responsibility: Customs and Consumer Affairs]

The bill proposes to amend the Customs Tariff (Anti-Dumping) Act 1975 to remove provisions that impose countervailing duties on particular goods exported to Australia.

The Committee has no comment on this bill.

Data-matching Program (Assistance and Tax) Amendment Bill 1998

This bill was introduced into House of Representatives on 13 May 1998 by the Minister representing the Minister for Social Security. [Portfolio responsibility: Social Security]

The bill proposes to amend the Data-matching Program (Assistance and Tax) Act 1990 to remove the sunset clause to enable the continuation of the Data-matching Program.

The Committee has no comment on this bill.

Electoral and Referendum Amendment Bill (No. 2) 1998

This bill was introduced into the Senate on 14 May 1998 by the Parliamentary Secretary to the Treasurer. [Portfolio responsibility: Finance and Administration]

The bill proposes to amend the Commonwealth Electoral Act 1918 and Referendum (Machinery Provisions) Act 1984 to:

require new electors to produce one original form of identification at time of enrolment;
provide that a person witnessing an enrolment application must be an elector in a prescribed class of persons;
provide that all electors must notify the Australian Electoral Commission of a change of address within one month of moving;
allow for the provision of date of birth and salutation details of electors to Members, Senators and registered political parties;
provide that any person sentenced to imprisonment is not entitled to enrol or to vote;
provide that only the Presiding Officer at a polling place may assist electors in marking their ballot papers;
provide that the preliminary scrutiny of declaration votes may commence on the Monday prior to polling day;
raise from $500 to $1,500 the threshold for counting individual amounts received in regard to donations to political parties;
provide that political parties are required to disclose a total amount of $5,000 or more (currently $1,500) received from a person or organisation during a financial year; and
increase from $1,500 to $10,000 the amount above which a donor to a registered political party must furnish a return for a financial year.

Commencement

Subclause 2(3)

Under subclause 2(3) of the bill, many of the items in Schedule 1 are to commence on Proclamation. No provision is made for automatic commencement or repeal at a particular time.

With respect to commencement provisions, the Committee places much importance on Drafting Instruction No 2 of 1989, prepared by the Office of Parliamentary Counsel. This 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 notes that paragraph 6 of the Drafting Instruction 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 notes that there is no indication in the Explanatory Memorandum of the reason for adopting a provision in this form.

Accordingly, the Committee seeks the advice of the Minister on the reason for choosing the mechanism in subclause 2(3).

Pending the Minister'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.

The voting rights of prisoners

Schedule 1, Item 10

Section 93(8)(b) of the Commonwealth Electoral Act 1918 governs the circumstances in which prisoners may have their names excluded from the Commonwealth Electoral Roll. It currently provides that those serving a sentence of imprisonment of 5 years or longer are not entitled to enrol or vote at a federal election.

Item 10 of Schedule 1 to the bill proposes to extend this limitation to all prisoners. The Minister's Second Reading speech observes that this proposed amendment is based on a recommendation of the Joint Standing Committee on Electoral Matters, which, in its report on The 1996 Federal Election, stated that those “who disregard the Commonwealth or State laws to a degree sufficient to warrant imprisonment should not expect to retain the franchise”.

One Minority Report argued that the current provision represented “a reasonable balance between conflicting concepts” and suggested that the new provision “would be even harsher than those provided in 1902”. Another Minority Report stated that this issue should be addressed when it took legislative form.

Consideration of the issue in 1994 and before

Section 93(8)(b) of the Act has been subject to considerable debate in recent years. Prior to 1983, the Act denied the franchise to all those serving sentences for offences punishable by imprisonment for 1 year or more. On the passage of the Commonwealth Electoral Legislation Amendment Act 1983, the franchise was extended to those serving sentences for offences punishable by imprisonment for less than 5 years – in effect, prisoners were then denied a vote where they were convicted of an offence having a potential maximum penalty of 5 years imprisonment.

In a submission to the Joint Standing Committee on Electoral Matters, the Australian Electoral Commission (AEC) noted that this provision had led to difficulties both in practice and in principle. In practice, it was difficult to establish, with certainty, every case in which the potential maximum sentence was imprisonment for 5 years or more. And in principle, such a provision was potentially inequitable – “a person serving an actual sentence of one month could be excluded from enrolment, while a person on a sentence of 59 months could be eligible, depending on the potential maximum sentence in each case”.

Therefore, the AEC submitted that a person should be denied a vote only where they were actually serving a sentence of 5 years or more. This approach was ultimately included in the Act (see item 5 of Schedule 1 to the Electoral and Referendum Amendment Act 1995), and is currently the law.

However, the approach advocated by a majority of the Joint Standing Committee in 1994 went somewhat further than the AEC's proposal. In its Report on The 1993 Federal Election, the Committee noted that it had previously recommended that enrolment and voting rights be granted to all prisoners, regardless of their sentence (unless convicted of treason or treachery):

an offender once punished under the law should not incur the additional penalty of loss of the franchise. We also note that a principal aim of the modern criminal law is to rehabilitate offenders and orient them positively toward the society they will re-enter on their release. We consider that this process is assisted by a policy of encouraging offenders to observe their civil and political obligations.

In a dissenting report, then Opposition members stated:

As our coalition colleagues on the committee in the 34th Parliament said when this proposal was last mooted, the concept of imprisonment – apart from any rehabilitation aspects – is one of deterrence, seeking by the denial of a wide range of freedoms to provide a disincentive to crime. A person having committed an offence against society is denied the privileges and freedoms of society of which one important one is the right to vote. The Committee's recommendation is therefore driven by a philosophical position with which we strongly disagree.

The Committee notes the continuing debate and draws the attention of Senators to the various views that have informed it.

The Committee also notes that it currently has before it an inquiry into the appropriate basis for including certain penalty provisions - particularly imprisonment - in legislation. It is possible that people may be imprisoned - perhaps on weekend detention - for relatively minor offences such as failing to provide information or traffic infringements or conscientiously objecting to certain matters. As a consequence, under the bill such people may be denied a vote. While conscious of the continuing debate on philosophical grounds, the Committee would nevertheless appreciate the Minister's advice as to whether consequences such as those noted above are inadvertent or intended.

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

Employee Protection (Wage Guarantee) Bill 1998 [No. 2]

This bill was introduced into the Senate on 14 May 1998 by Senator Forshaw as a Private Senator's bill.

The bill proposes to protect workers in the event of their employer's insolvency by:

establishing a scheme of wage protection insurance;
requiring employers to insure their workforces under the scheme; and
providing for the determination and enforcement of claims under the scheme.

The Committee has no comment on this bill.

Film Licensed Investment Company Bill 1998

This bill was introduced into the House of Representatives on 14 May 1998 by the Minister representing the Minister for Communications, the Information Economy and the Arts. [Portfolio responsibility: Communications, the Information Economy and the Arts]

Together with the Taxation Laws Amendment (Film Licensed Investment Company) Bill 1998, the bill proposes to provide for the establishment of a pilot scheme for the delivery of tax concessions to investors in the film industry by means of concessional investment in Film Licensed Investment Companies.

The Committee has no comment on this bill.

Financial Sector Reform (Consequential Amendments) Bill 1998

This bill was introduced into the Senate on 14 May 1998 by the Parliamentary Secretary to the Treasurer. [Portfolio responsibility: Treasury]

Consequent on the package of bills which effect the introduction of the new regulatory framework for the financial system, the bill proposes to make consequential amendments to change references and rename some financial sector levy Acts.

The Committee has no comment on this bill.

Taxation Laws Amendment (Film Licensed Investment Company) Bill 1998

Together with the Film Licensed Investment Company Bill 1998, the bill proposes to provide a tax deduction for amounts paid to subscribe for shares in a Film Licensed Investment Company (FLIC) during the period the FLIC is licensed to raise share capital which will qualify for the deduction.

The Committee has no comment on this bill.

Wheat Marketing Legislation Amendment Bill 1998

This bill was introduced into the House of Representatives on 14 May 1998 by the Minister for Primary Industries and Energy. [Portfolio responsibility: Primary Industries and Energy]

To implement the final phase to restructure the Australian Wheat Board from a statutory marketing authority to a grower owned company, the bill proposes to amend the Wheat Marketing Act 1989 and the Wheat Marketing Amendment Act 1997 to:

establish the Wheat Export Authority with functions to control exports of wheat and to monitor and report to Parliament;
delete redundant provisions of the Wheat Marketing Act 1989;
complete the transfer of assets, liabilities and staff from the Australian Wheat Board to its wholly owned holding company prior to 1 July 1999; and
continue Government underwriting for pool borrowings outstanding as at 30 June 1999, until these borrowings are repaid.

The Committee has no comment on this bill.