Scrutiny of Bills Alert Digest No. 1 of 1999

A New Tax System (Aged Care Compensation Measures Legislation Amendment) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Aged Care]

One of a package of 16 bills to reform the taxation system, the bill proposes to amend the Aged Care Act 1997 to ensure that pensioners and certain non-pensioners do not pay increased residential aged care fees as a result of the pension increase.

The Committee has no comment on this bill.

A New Tax System (Australian Business Number) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to introduce the Australian Business Number (ABN) as a single business identifier. An ABN will be available to all companies registered under the Corporations Law, government and business entities and entities which require to be registered for the Goods and Services Tax, such as charitable and religious institutions.

Reversal of the onus of proof

Subclause 16(3)

Proposed clauses 14 and 15 of this bill impose an obligation to notify the Registrar of the Australian Business Register of relevant information and of changes in that information. Proposed subclause 16(1) imposes this obligation on each member of a partnership, but states that it may be discharged by any of the partners. Similarly, proposed subclause 16(2) imposes this obligation on each member of the management committee of an unincorporated association, but states that it may be discharged by any of those members.

Proposed subclause 16(3) goes on to provide a defence for persons prosecuted for such offences under section 8C of the Taxation Administration Act 1953 as members of partnerships or unincorporated associations. In general terms, subclause 16(3) reverses the onus of proof, requiring those prosecuted to prove that they were not involved or knowingly concerned in the conduct which led to the commission of the offence.

This provision has been included because section 8C of the Taxation Administration Act 1953 would otherwise impose strict criminal liability on such persons. However, a number of other matters are not clear from the structure of the legislation. For example, the bill does not canvass liability or the availability of defences where such offences are committed by other legal entities such as trusts, incorporated associations or corporations. Similarly, it is not clear whether this approach to liability and defences is characteristic of the approach taken elsewhere in the taxation legislation, or has been developed with specific reference to these offences.

In general terms, it is not clear whether those who might seek to use the proposed subsection 16(3) defences are being treated more or less favourably than, or the same as, others who commit these offences on behalf of other legal entities, or others who commit similar offences under other parts of the taxation legislation. The Committee, therefore, seeks the Treasurer's advice on these matters.

Pending the Treasurer'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.

A New Tax System (Australian Business Number Consequential Amendments) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to amend the Taxation Administration Act 1953 to:

enable any person acting as Commissioner of Taxation to exercise all the powers and functions of the Australian Business Registrar ;
enable the Commissioner to delegate powers and functions as Registrar to a Deputy Commissioner or another person; and
enable tax file numbers to be requested in connection with the proper functioning of the Australian Business Number without an offence being committed by the person making the request.

The Committee has no comment on this bill.

A New Tax System (Bonuses for Older Australians) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Family and Community Services]

One of a package of 16 bills to reform the taxation system, the bill proposes to provide for a special one-off, tax-free, lump sum payment to pensioners and self-funded retirees.

The Committee has no comment on this bill.

A New Tax System (Compensation Measures Legislation Amendment) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Family and Community Services]

One of a package of 16 bills to reform the taxation system, the bill proposes to amend the following Acts:

Social Security Act 1991 to:

provide a 4 per cent increase in the rate of social security income support payments and a 2.5 per cent increase in the income and assets test free areas applicable to social security income support payments;
double the provisional fortnightly family tax payment rate;
increase the family allowance income test free area;
reduce the 50 per cent income taper applicable to family allowance to 30 per cent; and
reduce the 50 per cent taper applicable to the pension income test to 40 per cent;

Veterans' Entitlements Act 1986 to provide for:

a 4 per cent increase for pensions and allowances paid to veterans and eligible dependants and a 2.5 per cent increase in the income and assets test free areas applicable to veterans;
a 2.5 per cent increase to seniors health card income limits and limits applicable to certain service pensioners' eligibility for a Gold Card;
a reduction of the 50 per cent taper applicable under the income test for pension payments to 40 per cent; and
limited period of adjustment to the indexation of pensions and allowances; and

National Health Act 1953 to directly align the domiciliary nursing care benefit with the rate of child disability allowance.

The Committee has no comment on this bill.

A New Tax System (End of Sales Tax) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to abolish wholesale sales tax.

The Committee has no comment on this bill.

A New Tax System (Fringe Benefits Reporting) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to require that, from the 1999-2000 year of income, employers identify on group certificates the grossed-up taxable value of certain employee fringe benefits.

Retrospectivity

Schedule 3, item 2

Item 2 of Schedule 3 to the bill inserts a definition of `HEC repayment income'. In part, this definition is apparently retrospective in referring to income of a person “in relation to the year of income ending on 30 June 1996 or any preceding year of income”. However, as paragraph 1.115 of the Explanatory Memorandum observes, this proposed new definition is essentially a rewriting of existing provisions.

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

A New Tax System (Goods and Services Tax Administration) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to amend the Taxation Administration Act 1953 to:

establish who is to administer the GST law;
support the collection and recovery of GST;
set maximum penalties for breaching GST obligations;
permit entities to rely on the Commissioner's interpretation of the law;
set time limits on GST liability and on credit entitlements;
adopt existing mechanisms for the review of assessments and other GST decisions;
confer powers on the Commissioner for the gathering of information; and
protect the confidentiality of information disclosed for GST purposes.

Non-reviewable discretions?

Proposed new section 62

Item 7 of Schedule 1 to this bill adds a new Part VI to the Taxation Administration Act 1953. This Part includes proposed new section 62, which provides for the review of the exercise of many of the discretions granted to the Commissioner of taxation under the A New Tax System (Goods and Services Tax) Bill 1998 (“the GST Bill”).

Under proposed section 33-20 of the GST Bill, the Commissioner may extend the time for payment of GST-related amounts, or may allow them to be paid by instalments or on terms determined by him or her.

Under proposed section 33-25 of the GST Bill, if the Commissioner has reason to believe that a person may leave Australia before a particular GST-related payment becomes due, then that amount becomes due for payment on the day the Commissioner fixes.

Neither of these discretions is reviewable under proposed section 62 of the Administration Act. The Committee, therefore, seeks the Treasurer's advice on the reasons for excluding these discretions from review under proposed section 62.

Pending the Treasurer's advice, the Committee draws Senators' attention to the provisions, as they 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.

Search and entry

Proposed new section 66

As noted above, Item 7 of Schedule 1 to this bill adds a new Part VI to the Taxation Administration Act 1953. This Part includes proposed new section 66, which will allow an officer authorised by the Commissioner of Taxation to enter and search any premises and inspect and analyse any documents, goods and other property. No provision is made for obtaining a judicially sanctioned warrant, which is a generally accepted safeguard in such circumstances.

In addition, the clause does not attempt to limit or categorise those who might be authorised to carry out such searches – for example, by specifying certain required attributes or qualifications. Requiring such attributes or qualifications is an approach adopted in some other statutes (for example, section 258 of the Superannuation Industry (Supervision) Act 1993) and, arguably, provides some reassurance against possible abuses of a power of such width. The Explanatory Memorandum provides no information beyond that included in the clause itself. The Committee, therefore, seeks the Treasurer's advice on the reasons why proposed section 66 authorises entry onto premises without the need to obtain a warrant, and why that provision does not specify certain attributes or qualifications to be possessed by officers before they can become authorised officers.

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

A New Tax System (Goods and Services Tax) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to implement a broad based indirect goods and services tax (GST) to replace the wholesale sales tax and a number of indirect State taxes by establishing:

the basic rules for the GST;
which supplies, acquisitions and importations are GST-free or input taxed;
special rules, which modify the application of the general rules; and
miscellaneous and interpretative provisions relating to the GST.

Apparently excessive powers

Proposed new Division 165

As noted in proposed new subsection 165-1, proposed Division 165 of this bill is intended to deter schemes to give benefits by reducing GST, increasing refunds or altering the timing of payment of GST or refunds. If the dominant purpose or a principal effect of a scheme is to give an entity such a benefit, the Commissioner may negate the benefit an entity gets from the scheme by declaring how much GST or refund would have been payable, and when it would have been payable, apart from the scheme.

In particular, under proposed new subsection 165-55, the Commissioner may, for the purposes of making such a declaration:

treat a particular event that actually happened as not having happened; and
treat a particular event that did not actually happen as having happened; and
treat a particular event that actually happened as having happened at a time different from the time it actually happened, or having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).

These are apparently wide discretionary powers. However, the Committee understands that, in general terms, these powers have been modelled on the Commissioner's existing powers in Part IVA of the Income Tax Assessment Act 1936. The Committee also notes that declarations under proposed section 165 are to be reviewable under amendments to the Taxation Administration Act 1953.

Nevertheless, the Committee would expect that the exercise of such wide powers would be subject to some guidelines or codes of practice. The Committee also expects that such powers would be used infrequently, and considers that the frequency of their use is something that should be brought to the attention of the Parliament. The Committee, therefore, seeks the Treasurer's advice as to whether any guidelines are to be issued to govern the exercise of the Commissioner's powers under Division 165. The Committee also seeks the Treasurer's advice on the feasibility of tabling, in each House of the Parliament, an annual report indicating the frequency with which the Commissioner has used these powers, and outlining in broad terms the general categories of conduct that have prompted their exercise.

Pending the Minister's advice, the Committee draws 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.

A New Tax System (Goods and Services Tax Imposition—Customs) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to impose a 10 per cent goods and services tax on importations to the extent that it is a duty of customs.

The Committee has no comment on this bill.

A New Tax System (Goods and Services Tax Imposition—Excise) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to impose a 10 per cent goods and services tax on supplies to the extent that it is a duty of excise.

The Committee has no comment on this bill.

A New Tax System (Goods and Services Tax Imposition—General) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to impose a 10 per cent goods and services tax to the extent that it is neither a duty of customs nor a duty of excise.

The Committee has no comment on this bill.

A New Tax System (Goods and Services Tax Transition) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to provide for:

arrangements to establish whether a taxpayer's entitlements and obligations will be determined under the wholesale sales tax or goods and services tax (GST) systems;
the registration of entities for GST purposes prior to the implementation date of the GST;
a special credit for wholesale sales tax embedded in certain stock on hand at the date of implementation of the GST;
a two year phase-in of input tax credits for motor vehicles; and

amends the Sales Tax Assessment Act 1992 and Sales Tax (Exemptions and Classifications) Act 1992 to reduce the wholesale sales tax rate on certain goods from 32 to 22 per cent prior to the implementation of the GST.

The Committee has no comment on this bill.

A New Tax System (Income Tax Laws Amendment) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes amend the following Acts:

Income Tax Assessment Act 1997 to:

provide that bonus payments made to certain older Australians will be exempt from income tax;
repeal the savings and investment income tax offset;

Income Tax Assessment Act 1936 to make amendments consequential on the repeal of the savings and investment income tax offset; and

Income Tax Regulations to provide for an increase in the maximum rebate available to low income aged persons and certain pensioners.

The Committee has no comment on this bill.

A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to impose a 1 per cent Medicare levy surcharge on persons whose taxable income, including reportable fringe benefits, exceed prescribed thresholds and do not have private health insurance.

The Committee has no comment on this bill.

A New Tax System (Personal Income Tax Cuts) Bill 1998

This bill was introduced into the House of Representatives on 2 December 1998 by the Treasurer. [Portfolio responsibility: Treasury]

One of a package of 16 bills to reform the taxation system, the bill proposes to amend the Income Tax Rates Act 1986 to provide for personal income tax rates and to increase the tax-free threshold for certain taxpayers with dependent children under the Family Tax Assistance scheme. The bill further proposes to amend the Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997 to make consequential amendments.

The Committee has no comment on this bill.

A New Tax System (Trade Practices Amendment) Bill 1998

This bill was introduced into the House of Representatives on 10 December 1998 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

Consequential upon the introduction of the new taxation system, the bill proposes to amend the Trade Practices Act 1974 to prohibit price exploitation by:

enabling the Australian Consumer and Competition Council (ACCC) to monitor prices for three years from 1 July 1999;
empowering the ACCC to seek proceedings to impose penalties or injunctions against corporations or persons involved in consumer exploitation or excessive profit taking;
requiring the ACCC to publish guidelines about when a price may be regarded as being in contravention of the prohibition on price exploitation;
requiring the ACCC to report quarterly to the Minister on certain operations; and
establishing the New Tax System Price Exploitation Code which will be applied through State and Territory legislation.

The Committee has no comment on this bill.

Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the following Acts:

Agriculture and Veterinary Chemicals (Administration) Act 1992 to provide five years protection for undisclosed text and/or other data submitted to the National Registration Authority for Agricultural and Veterinary Chemicals for the evaluation of a new active constituent for an agricultural or veterinary chemical product;

Dairy Produce Act 1986 to provide for special payments from the Domestic Market Fund to manufacturers who paid manufacturing milk levy on milk disposed of at the factory and milk producers who disposed of milk on farm as a result of the Victorian gas crisis;

Export Control Act 1982 to:

clarify the power of the Secretary to approve quality assurance arrangements for the production of prescribed goods for export and to facilitate the administration of these systems to ensure that international market requirements are met; and
bring the powers of authorised officers and enforcement provisions of the Act in line with current Commonwealth legal policy;

Imported Food Control Act 1992 to:

exempt foods from inspection imported as trade samples;
make it an offence to deal with food contrary to the requirements of a Food Control Certificate;
permit the publication of information relating to all food found to be failing food whether retained or released from AQIS' control;
permit the payment of compensation for foods destroyed as a result of sampling for the purposes of inspection; and
make minor technical amendments; and

Plant Breeder's Rights Act 1994 to allow a duplication of variety names provided varieties with the same name are from a different “plant class” and are unlikely to be confused in the market place.

The Committee has no comment on this bill.

Appropriation Bill (No. 3) 1998-99

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($1,382 million) out of the Consolidated Revenue Fund, additional to those made by Appropriation Act (No. 1) 1998-99, 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. 4) 1998-99

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($255 million) out of the Consolidated Revenue Fund, additional to those made by Appropriation Act (No. 2) 1998-99, 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 (No. 2) 1998-99

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($1 million) out of the Consolidated Revenue Fund, additional to those made by Appropriation (Parliamentary Departments) Act 1998-99, to meet recurrent expenditures of the parliamentary departments for the year ending on 30 June 1999.

The Committee has no comment on this bill.

Australian Sports Drug Agency Amendment Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Sport and Tourism. [Portfolio responsibility: Sport and Tourism]

The bill proposes to amend the Australian Sports Drug Agency Act 1990 to:

remove detailed operational procedural matters and place them in either subordinate legislation or in Australian Sports Drug Agency (ASDA) operational manuals outside the legislation;
remove operational procedural matters relating to the public interest testing program and place them in the regulations as “drug testing schemes”;
enable the ASDA to apply best practice principles in complying with requests from all International Sporting Federations and other organisations in relation to sample collection, sample testing and result management;
establish an Australian Sports Drug Medical Advisory Committee (ASDMAC) within ASDA;
enable State and Territory governments to enact legislation to confer powers and functions on the ASDA to enable ASDA to undertake drug testing on State level competitors; and
enable the ASDA to receive information from the Australian Customs Service about the illegal importation of banned sport performance enhancing substances.

The Committee has no comment on this bill.

Civil Aviation Amendment Bill 1998

This bill was introduced into the House of Representatives on 9 December 1998 by the Minister for Transport and Regional Services. [Portfolio responsibility: Transport and Regional Services]

The bill proposes to amend the Civil Aviation Act 1988 to:

facilitate the introduction of a new set of regulations that are harmonised with civil aviation laws internationally;
enable the Civil Aviation Safety Authority (CASA) to issue design standards for unusual aircraft for which common design standards are not in place;
provide for new powers in relation to the retention and destruction of goods seized by CASA during the course of investigating breaches;
clarify the power of CASA to impose fees by regulation;
provide for limited late-payment penalties to be imposed; and
make a minor technical amendment.

The Committee has no comment on this bill.

Corporate Law Economic Reform Program Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to implement key elements of the Corporate Law Economic Reform Program (CLERP) in the areas of fundraising, directors' duties and corporate governance, accounting standards and takeovers.

Retrospective effect

Schedule 7, item 12

By virtue of subclause 2(4), the amendment proposed by item 12 of Schedule 7 to the bill is taken to have commenced retrospectively on the day on which the Financial Sector Reform (Consequential Amendments) Act 1998 received Royal Assent. However, the purpose of this amendment appears to be solely to correct a drafting error in earlier legislation.

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

Reversal of the onus of proof

Proposed new sections 206A, 606, 670D, 670F, 731, 732 and 733

The prosecution is normally required to prove all the elements of a criminal offence. A number of provisions proposed to be inserted by this bill require an accused person to disprove criminal liability in a variety of circumstances. These circumstances include managing a corporation while disqualified; acquiring a relevant interest in the voting shares of certain companies; making a misstatement in certain takeover and other offer documents; not proceeding with a publicly proposed bid; and making a misstatement in a prospectus or other similar document. It is not clear whether these sections simply represent a continuation of provisions currently included in the legislation, or a change to those provisions. The Committee, therefore, seeks the Minister's advice on whether these provisions represent a change in policy, and, if so, on any reasons for that change in policy.

Pending the Minister'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.

Customs (Anti-dumping Amendments) Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Customs Act 1901 to:

provide a special approach for determining normal value of allegedly dumped goods from countries that are in the process of transition to a market economy when it is established that the selling price of those goods is subject to government control;
provide a new methodology for determining the normal value of allegedly dumped goods from countries that are in the process of transition to a market economy and a raw material input into the goods which accounts for more than 10 per cent of the costs of producing or manufacturing the goods is supplied by a State owned enterprise;
clarify provisions which relate to the manner in which interim dumping and countervailing duties are collected; and
ensure consistency with amendments implemented by the Customs Legislation (Anti-dumping Amendments) Act 1998.

Retrospective effect

Subclause 2(3)

By virtue of subclause 2(3) of the bill, a number of the amendments proposed are to commence retrospectively on 1 January 1993. The Explanatory Memorandum notes that these amendments all involve “clarifying” the collection of interim dumping and countervailing duties. An interim duty regime was introduced by the Customs Legislation (Anti-Dumping Amendments) Act 1992, which commenced on 1 January 1993. Interim duties have been collected since that date in accordance with the intention of that regime and these amendments are designed to ensure “that approximately $12 million in interim duties collected since 1 January 1993 is not subject to legal challenge”. The Explanatory Memorandum also states that the amendments “will not require importers to pay an amount of dumping duty beyond that which has previously been demanded”.

Provisions in a similar form were previously commented on by the Committee in its consideration of the Customs Legislation (Anti-Dumping) Amendment Bill 1997 (see Nineteenth Report of 1997). In response to a request from the Committee for advice, the then Minister for Customs and Consumer Affairs noted:

The amendments are intended to remove the possibility that the relevant provisions of the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 might be interpreted so as to require actual values to be ascertained before interim dumping and countervailing duties can be imposed. The possibility of such an interpretation was discovered in the general process of ongoing review of the terms of the legislation by officers of the Australian Customs Service and the Anti-Dumping Authority. The relevant provisions have not been the subject of judicial interpretation and there are no cases currently pending which would be affected by the passage of the proposed amendments.

The Committee thanked the Minister for this response. Approximately 16 months have passed since that response was received. The Committee, therefore, seeks the Minister's advice as to whether any cases have arisen since the bill was last introduced (or are pending) which might be affected by the passage of these proposed amendments.

Retrospective effect

Subclause 2(4)

By virtue of subclause 2(4) of the bill, a number of the amendments proposed are to commence retrospectively on 24 July 1998. However, the Explanatory Memorandum notes that these are simply technical amendments intended to ensure “that the new terms `preliminary affirmative determination' and `Dumping Duty Act' are used consistently throughout the Customs Act” as from that date.

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

Customs Tariff (Anti-Dumping) Amendment Bill (No. 2) 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Customs Tariff (Anti-Dumping) Act 1975 to clarify provisions of that Act and the Customs Act 1091 relating to the manner in which interim dumping and countervailing duties are collected.

Retrospective effect

Subclause 2(1)

By virtue of subclause 2(1) of the bill, a number of the amendments proposed are to commence retrospectively on 1 January 1993. As noted above (with reference to the Customs (Anti-Dumping Amendments) Bill 1998), these amendments are said to involve “clarifying” the collection of interim dumping and countervailing duties, and ensuring that the collection of interim duties since 1 January 1993 is not potentially subject to legal challenge.

A Ministerial explanation involving provisions in a similar form was previously accepted by the Committee in its examination of the Customs Tariff (Anti-Dumping) Amendment Bill 1997 (see Nineteenth Report of 1997). Nevertheless, the Committee notes that approximately 16 months have passed since that explanation was received. The Committee, therefore, seeks the Minister's advice as to whether any cases have arisen since the bill was last introduced (or are pending) which might be affected by the passage of these proposed amendments.

Environmental Reform (Consequential Provisions) Bill 1998

This bill was introduced into the Senate on 10 December 1998 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Environment and Heritage]

Consequent upon the Environment Protection and Biodiversity Conservation Bill 1998, the bill proposes to:

repeal the five Acts replaced by the Environment Protection and Biodiversity Conservation Bill 1998: the Endangered Species Protection Act 1992, the Environment Protection (Impact of Proposals) Act 1974, the National Parks and Wildlife Conservation Act 1975, the Whale Protection Act 1980 and the World Heritage Properties Conservation Act 1983;
provide savings and transitional arrangements;
make consequential amendments to Acts affected by the repeal of the five Acts above and to Acts affected by the Environment Protection and Biodiversity Conservation Bill 1998.

Retrospective effect

Subclauses 2(3) and (4)

By virtue of subclause 2(3) and (4) of the bill, two of the amendments proposed in Schedule 7 would have retrospective effect. The Explanatory Memorandum states that these amendments correct minor drafting errors in the Hazardous Waste (Regulation of Exports and Imports) Amendment Act 1996, and the Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1995.

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

General Interest Charge (Imposition) Bill 1998

This bill was introduced into the House of Representatives on 10 December 1998 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

Complementary to the Taxation Laws Amendment Bill (No.5) 1998, the bill proposes to impose the new general interest charge (applied to outstanding tax debts) as a tax to the extent to which the charge cannot validly be imposed as a penalty.

The Committee has no comment on this bill.

Health Legislation Amendment Bill (No. 4) 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the following Acts:

National Health Act 1953 to:

enable the Minister to determine the maximum percentage of discount that a health fund can offer contributors, based on the administrative savings of the health fund;
enable health funds to offer loyalty bonus schemes to contributors in recognition of the period of time over which they have paid premiums;
allow for waiting periods to be extended for certain conditions, ailments or illnesses;
allow health funds to cover the Pharmaceutical Benefits Scheme patient co-payment for prescribed pharmaceutical benefits for in-hospital treatment;
allow procedures which would otherwise have been performed in a hospital or day hospital facility to be performed in an “approved procedures facility”;
allow the Minister to specify which Medicare Benefit Schedule items are appropriate to be performed as “out-of-hospital procedure” and in an “approved procedures facility”;
create a new class of benefit payable by health funds to cover specialist medical services;
establish separate provisions to deal with health fund rule changes which relate to changes in premium rates and all other rule changes;
enable the Minister to disallow any given rule changes on two additional grounds; and
transfer the rates of contribution rule change provisions from the Minister to the Private Health Insurance Administration Council; and

National Health Act 1953 and Health Insurance Act 1973 to make consequential amendments.

Commencement

Subclauses 2(4) and (5)

In general terms, Schedule 3 of this bill contains provisions which broaden the Minister's power to monitor changes to health fund rules relating to premiums. Items 8 to 15 of this Schedule contain provisions which, within two years, transfer the premium monitoring provisions from the Minister to the Private Health Insurance Administration Council. Items 16 to 18 of this Schedule contain provisions which “at an appropriate time” increase the independence and flexibility that health funds have with respect to premium increases.

Specifically, subclause 2(4) of the bill provides that the amendments proposed by items 8 to 15 are to commence on a day to be fixed by Proclamation that occurs after, but not more than 24 months after, the day on which the items referred to in subsection 2(3) commence. Subclause 2(5) provides that the amendments proposed by items 16 to 18 are to commence on a day to be fixed by proclamation that occurs after, but not more than 24 months after, the day on which the items referred to in subsection (4) commence.

In effect, these provisions are to commence at a time that is fixed by reference to the date of Assent. To that extent, their commencement is not a matter of Executive discretion, which has often been a matter of concern to the Committee. However, the Explanatory Memorandum provides no reason for the considerable length of time between Assent to the bill and the coming into force of these particular provisions (up to 48 months). In this respect, the Committee notes that Drafting Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel, refers to the desirability of an explanation where a commencement period longer than 6 months after Royal Assent is chosen. The Committee, therefore, seeks the Minister's advice on the reasons for the length of time provided for before proclaiming the commencement of these provisions.

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

Human Rights Legislation Amendment Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend anti-discrimination legislation to:

confer on the President of the Human Rights and Equal Opportunity Commission (HREOC) the role and functions of Chief Executive Officer;
centralise complaint investigation and conciliation in the office of the President;
implement common definitions and procedural provisions for complaint handling in the one Act;
make substantial changes to the Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984 to remove provisions dealing with complaints;
simplify dispute resolution procedures by eliminating the second tier of review in HREOC;
provide that matters which cannot be conciliated will be dealt with in the Federal Court of Australia;
provide that the Federal Court will not be bound by technicalities or legal forms in considering proceedings brought before it under this legislation;
enable Federal Court Judges to delegate some functions in this area to Judicial Registrars;
make provision for transitional arrangements; and
make consequential amendments to five Commonwealth Acts.

The Committee has no comment on this bill.

Industry Research and Development Amendment Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

The bill proposes to amend the Industry Research and Development Act 1986 to:

allow companies a longer period for the lodgement of registration applications;
allow the Industry Research and Development Board to require different levels of information from different classes of applicant;
allow the Board a limited discretion to accept late applications to correct minor errors in registrations;
make the effective date of certification for offshore research and development the date on which the application was received, rather than the date of the Board decision;
clarify the Board's powers regarding the exploitation of results of research and development activities and overseas expenditure on research and development; and
make minor administrative changes relating to communications, Board and committee appointments; recruitment of consultants, and the Registered Research Agency scheme.

The Committee has no comment on this bill.

Judiciary Amendment Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Judiciary Act 1903 to establish the Australian Government Solicitor as a separate statutory authority to provide legal and related services for government purposes, and makes transitional provisions and consequential amendments to 10 Acts.

Insufficient Parliamentary scrutiny

Proposed new Part VIIIC

This bill is, in all material respects, identical to a bill of the same name which was introduced into the House of Representatives on 20 November 1997 and on which the Committee commented in Alert Digest No 17 of 1997 and in its First Report of 1998.

As the Committee previously noted, the bill proposes to insert a new Part VIIIC in the Judiciary Act. This new Part enables the Attorney-General to issue Legal Services Directions which must be complied with by a variety of persons or bodies, not all of whom are otherwise under the control of the Commonwealth.

It appeared to the Committee that, while these Directions might be legislative in character, the bill made no provision for them to be disallowable instruments for the purposes of the Acts Interpretation Act 1901.

The Attorney-General advised the Committee that Legal Services Directions would be capable of applying either generally to Commonwealth legal work, or to specific legal work being performed in relation to a particular matter. The Government considered it appropriate for Legal Services Directions that were legislative in character (these are most likely to be Directions of general application) to be subject to Parliamentary scrutiny. The most effective process for subjecting such Directions to such scrutiny was under the Legislative Instruments Bill.

In response, the Committee expressed the view that, as an interim measure, until the Legislative Instruments Bill became law, alternative provision should be made for Parliamentary scrutiny of such Directions.

The Committee notes that the Legislative Instruments Bill still has not been passed, and reaffirms its view as to the desirability of Parliamentary scrutiny under the Acts Interpretation Act 1901 as an interim measure. The Committee, therefore, seeks the Attorney's advice on how Legal Services Directions that are legislative in character are to be scrutinised by the Parliament if issued prior to the passage of the Legislative Instruments Bill.

Pending the Attorney's advice, the Committee draws Senators' attention to these provisions, as they may be considered insufficiently to subject the exercise of legislative power to parliamentary scrutiny in breach of principle 1(a)(v) of the Committee's terms of reference.

Law and Justice Legislation Amendment Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the following Acts:

Administrative Appeals Tribunal Act 1975 to implement certain recommendations made by the Senate Legal and Constitutional Legislation Committee report entitled “Role and Function of the Administrative Review Council” and Australian Law Reform Commission (Repeal, Transitional and Miscellaneous) Act 1996 to make consequential amendments;

Australian Protective Service Act 1987 to enable the Director of the Protective Service to charge non-Commonwealth persons and bodies for services;

Evidence Act 1995 to:

enable a party to give evidence of the contents of a document that is not available to it by adducing evidence from a witness in oral or written form;
effect regulations which provide for a certificate or other document to have evidentiary effect;
enable evidence of a Commonwealth document to be given in proceedings in all Australian courts without having to a call a witness; and
make minor drafting corrections;

Federal Court of Australia Act 1976 to:

allow additional judges of the Supreme Court of the Australian Capital Territory to be included on the Full Court of the Federal Court;
provide that the Registrar of the Court may authorise officers or employees of the Court to administer oaths and witness affidavits; and
insert a regulation making power;

High Court of Australia Act 1979 to insert a regulation making power;

Judges' Pensions Act 1968 to include service as a judge of the Supreme Court of the Australian Capital Territory in the definition of “prior judicial service”;

Judiciary Act 1903 to:

expressly exclude the conferral of criminal jurisdiction upon the Federal Court except where that jurisdiction is conferred on the Court by other Commonwealth legislation;
provide that the restriction that a superior court is not invested with federal jurisdiction over a summary offence against the Commonwealth is confined to the exercise of federal criminal jurisdiction by courts of summary jurisdiction; and

eight other Acts to correct minor drafting errors.

Retrospective effect

Subclauses 2(2) to (9)

By virtue of subclauses 2(2) to (9) of the bill, various proposed amendments will have retrospective effect. However, as noted in the Explanatory Memorandum, in all cases these amendments do no more than correct minor drafting errors and make no substantive change to the law.

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