Scrutiny of Bills Alert Digest No. 1 of 1999

15 FEBRUARY 1999

PART B (Bills commencing M-Z)

Migration Legislation Amendment Bill (No. 2) 1998

This bill was introduced into the Senate on 3 December 1998 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Immigration and Multicultural Affairs]

The bill proposes to amend the Migration Act 1958 to:

ensure that provisions of the Human Rights and Equal Opportunity Commission Act 1986 and the Ombudsman Act 1976 do not apply to persons who are in immigration detention, having arrived in Australia as unlawful citizens, unless such persons themselves initiate a written complaint to HREOC or orally or in writing to the Ombudsman; and

clarify the duties of the Minister and officials concerning advice relating to applications for visas and on access to legal and other advice.

Introduction

In general terms, this bill is similar in form to the Migration Legislation Amendment Bill (No 2) 1996 (“the 1996 bill”), which was introduced into the Senate on 20 June 1996, and on which the Committee reported in its Sixth Report of 1996. The following comments draw on the discussion in that report.

Background

The bill deals with the relationship between section 256 of the Migration Act 1958 and paragraphs 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 and 7(3)(b) of the Ombudsman Act 1976.

In general terms, section 256 of the Migration Act states that, where a person is in immigration detention under that Act, the person responsible for his or her detention shall, at the request of the person detained, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

The relevant provisions of the Human Rights and Equal Opportunity Commission Act and the Ombudsman Act enable a detainee to have a sealed envelope delivered to him or her.

The Explanatory Memoranda for 1996 bill and the current bill (“the 1998 bill”) both note that the legislation has been proposed in response to the decision of the Federal Court in Human Rights and Equal Opportunity Commission v Secretary of the Department of Immigration and Multicultural Affairs (the `Teal' case). In that case, the Commission successfully challenged the refusal of the Department to deliver sealed envelopes to persons in immigration detention who had not made a complaint to the Commission. The effect of such a delivery would have been to ensure that those detainees received access to legal advice despite the fact that no such advice had been requested.

The issue of the bill's retrospective effect: previous consideration

Clause 2

Clause 2 of the 1996 bill provided that the proposed amendments were to commence on the date the bill was introduced into Parliament. This meant that the bill had a limited retrospective effect. With regard to this commencement provision, the Committee observed that:

it was opposed in principle to retrospective legislation by which vested rights were taken away;
retrospective operation to any extent places departmental officers in an invidious position in situations arising between the date of retrospective effect and the date a bill is passed (assuming that it is passed) – in this case “if the custodial officers act within the rule of law and obey the law as it stands the proposed retrospective effect will be nullified. In order to give the proposed law retrospective effect the officers concerned need to break the present law”; and
“on the other side of the coin is the detainee who has a right to have [an] envelope delivered. If the envelope is not delivered, that right is taken away, not by law, but by a presently unlawful act on the dubious grounds that perhaps Parliament will pass a proposed law that will have retrospective effect to make the unlawful act lawful. This is an instance of where retrospectivity could have a very serious effect on the rights of people”.

In response to a request for advice on the obligations of officers of his department; the Minister told the Committee that:

the rights of a particular group of detainees had been clarified following orders made by the Federal Court by consent settling an appeal;
both the Human Rights Commissioner and the Commonwealth Ombudsman had given undertakings that they would act as if the bill had been passed; and
departmental officers had, therefore, not been placed in an invidious position.

In conclusion, the Committee acknowledged that the lodging and settlement of an appeal in the `Teal' case in 1996 (together with the continuance of a stay order) had averted a series of particular problems. However, the Committee noted that “should another boat arrive before the legislation is passed, the invidious position could recur”.

Retrospective effect and the current bill

Clause 2

Clause 2 of the 1998 bill provides that the proposed amendments are to commence on the date the bill was introduced into the Senate (ie 3 December 1998). In commenting on this provision, the Committee notes that, for more than 2 years between 1996 and 1998, the law was apparently administered on the basis of legislation which was said to operate retrospectively and yet was never passed by the Parliament. It is conceivable that such a situation might again arise in the case of the present bill.

It is also conceivable that the bill may ultimately be passed in an amended form. Again, this may have implications for the way the law will be administered in the period between the introduction of the bill, and its final passage through the Parliament.

The Committee reiterates that it is opposed in principle to retrospective legislation which detrimentally affects rights. The Committee considers that, in principle, legislation which changes the nature of people's access to justice should commence from the date it is passed by the Parliament rather than the date it is introduced into the Parliament. Given the experience of the 1996 bill, the Committee seeks the Minister's advice on the reasons for making this bill operative from its introduction rather than its passage, and on the implications of this for Departmental officers and administration should the bill again not be passed, or be passed in an amended form.

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.

The issue of access to justice

In its Sixth Report of 1996, the Committee stated that the substantive amendments which were proposed in the 1996 bill appeared to be based on an inaccurate view of section 256 of the Migration Act 1958 (set out above).

The Committee pointed out that section 256 placed a positive obligation on the person responsible for the immigration detention of a person to provide access to obtaining legal advice if the detainee requested it. However, the section did not provide that it was to be an exhaustive code of all the ways in which such a detainee may have access to legal advice. The section was not restrictive in the sense that it denied all access to legal advice except through its provisions. In this respect, the Committee took issue with the second paragraph of the Explanatory Memorandum for the 1996 Bill (also included in the Explanatory Memorandum to the 1998 bill) which asserted that section 256 established that a person in immigration detention had a right to access legal advice only when they requested it.

In response to a Committee request for advice, the Minister indicated that:

The Committee seems to be suggesting that detainees have further rights of access to legal advice sourced elsewhere in the common law or in statute. But the Committee fails to specify where these rights are to be found. However, in recent litigation Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583 an opportunity was provided to establish the existence of such rights. None were established. Furthermore, it is quite clear from that case that there is no obligation on departmental officers to inform unauthorised arrivals on entering Australia of any rights to legal advice, unless the persons have made a request for such advice.

In this Bill the Government is seeking to make absolutely clear that unauthorised arrivals have no right of access to legal advice unless they specifically request.

The Committee concluded that it was all too conscious of this declared purpose of the bill, but disagreed that the bill merely clarified the situation:

If it were true that unauthorised arrivals have no right of access to legal advice unless they request it under section 256 of the Migration Act 1958, there would be no need for this bill. Why else does the bill provide that paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 not apply to a person in immigration detention? In dealing with the implications of section 256, the committee may not have specified that paragraph 20(6)(b) of that Act and the corresponding provision in the Ombudsman Act 1976 are sources in statute that enable access to legal advice outside the Migration Act 1958.

The issue of a hierarchy of Acts

In its Sixth Report of 1996, the Committee also expressed the view that the Minister's Second Reading Speech in relation to the 1996 bill might be seen mistakenly to assume that there is a hierarchy of Acts of Parliament. That speech referred to the use of the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 to “undermine” the intention of section 256 of the Migration Act.

The Second Reading Speech for the 1998 bill similarly speaks of a need to ensure that Parliament's intention in relation to the management of unauthorised arrivals in immigration detention, cannot be “subverted” through the use of those other Acts.

In its Sixth Report of 1996 the Committee stated that:

The result of the Federal Court case that has prompted this legislation is clear proof that the intention of Parliament, as found by the only institution that can authoritatively say what that intention is, in passing the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 was to provide a method of access to legal advice alternative to that provided in the Migration Act 1958. Any impression that somehow Parliament made a mistake that now has to be fixed is quite false.

The Minister responded that it was not a question of a `hierarchy of Acts'. Rather it was a question of making the position on access to lawyers clear. The Federal Court decision in the `Teal' case had shown that there was a conflict in the law. This bill sought to resolve that conflict.

The issue of the right to knowledge

In its Sixth Report of 1996, the Committee also noted that the legal maxim that ignorance of the law is no excuse was based on an assumption that people were able to find out what the law was that affected them. The Committee expressed the view that the provisions of the 1996 bill were “clearly designed to make it as difficult as possible for the people subject to these laws to find out what rights they have in law”. The Committee rejected the notion that this was justified because it would cost money to enable those people to exercise those rights if they found out about them: “the protection of rights ought not to be governed by cost-benefit analysis”.

On this issue, the Minister responded that the bill “seeks to clarify the situation in relation to certain unauthorised arrivals and their access to legal advice. The Bill makes it clear that such persons have no right to legal advice unless they make a specific request”.

The issue of the International Covenant on Civil and Political Rights

In its Sixth Report of 1996, the Committee also pointed out that article 26 of the International Covenant on Civil and Political Rights provides that all persons are entitled without any discrimination to the equal protection of the law. The Committee questioned whether the bill discriminated against unlawful non-citizens by precluding a presently lawful means of obtaining access to legal advice.

On this issue, the Minister responded that, based on the best available legal advice, he was satisfied that the bill, taken with Australia's long-standing practices in this area, was not in breach of Australia's obligations under the Covenant.

Committee conclusions on the 1996 bill

The Committee thanked the Minister for his assistance with the 1996 bill. However it did not agree that it was a matter of resolving conflict between different laws, or clarifying the appropriate source and terms of a right of access to legal advice. In the Committee's view:

the bill will take away rights under the Human Rights and Equal Opportunity Commission Act 1986 and the Ombudsman Act 1976 which presently exist and which presently provide the only means not controlled by immigration authorities of giving advice to unauthorised arrivals of other rights that they may have under this country's laws.

For the committee, the issue is whether taking away these rights trespasses unduly on their personal rights and liberties. In the Alert Digest the committee stated it was not convinced that the reasons given in the explanatory memorandum and in the second reading speech justified the proposal. It remains unconvinced by the Minister's response …

In the committee's view, it is contrary both to international standards (as expressed in Article 26 of the ICCPR) and to the fundamental values of the common law to entrench a discriminatory rule which effectively precludes a person from finding out what rights they might have under the law.

Committee conclusions on the 1998 bill

The Second Reading Speech to the 1998 bill states that it is “largely the same” as the 1996 bill. Only two minor amendments have been made: the 1998 bill is to commence on a different date, and no longer contains a requirement that complaints to the Ombudsman must be “in writing”.

Given these similarities, the Committee reiterates the comments it made in relation to the earlier version of the bill and continues to draw Senators' attention to its 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.

Migration Legislation Amendment (Judicial Review) Bill 1998

This bill was introduced into the Senate on 2 December 1998 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Immigration and Multicultural Affairs]

The bill proposes to amend the Migration Act 1958 and Administrative Decisions (Judicial Review) Act 1977 to:

introduce a new judicial review scheme;
apply the new judicial review scheme to both the Federal Court and the High Court; and
allow specified decisions to be reviewable under the Administrative Decisions (Judicial Review) Act 1977.

Introduction

In general terms, this bill is similar in form to the Migration Legislation Amendment Bill (No 5) 1997 (“the 1997 bill”), which was introduced as a separate bill in the House of Representatives on 3 September 1997. The provisions of the Bill were originally included in Migration Legislation Amendment Bill (No 4) 1997 as Schedule 4, and were reported on by the Committee at pages 295-297 of its Thirteenth Report of 1997. The following comments draw on the discussion in that report.

Ousting of judicial review

Proposed new Part 8

Item 7 of Schedule 1 to the bill proposes to repeal Part 8 of the Migration Act 1958, which deals with the review of decisions by the Federal Court, and replace it with a new Part 8 covering judicial review. This new Part 8 would impose substantial limitations on the ability of those affected by various decisions to seek judicial review of those decisions.

Proposed new subsection 474(2) introduces the concept of a `privative clause decision'. This is defined as a decision of an administrative character made, proposed to be made or required to be made under the Migration Act or its regulations, or other instruments made under that Act, with the exception of some decisions made under certain specified provisions.

Proposed new subsection 474(1) states that privative clause decisions are “final and conclusive”; “must not be challenged, appealed against, reviewed, quashed or called in question in any court”; and are “not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account”.

The Explanatory Memorandum notes that a privative clause is a provision which “on its face purports to oust all judicial review”. However, such provisions in operation, by altering the substantive law, effectively limit review by the courts to certain grounds.

Such a clause was discussed by Dixon J in R v Hickman; Ex parte Fox and Clinton. (1945) 70 CLR 598 at 615 in the following terms:

[Privative clauses] are not interpreted as meaning to set at large the courts or other judicial bodies to whose decisions they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.

The matter has been expressed in somewhat different ways. In Baxter v New South Wales Clickers' Association, O'Connor J said that such a provision should be construed as freeing the court or authority from the control or supervision of the superior court in all cases where the proceedings of the former show on the face of them that they have relation to the subject matter over which the statute has given it jurisdiction.

The effect of including such a clause is to give decision-makers wider lawful operation for their decisions and to narrow the grounds on which those decisions can be challenged. In practice, a decision will be lawful and not challengeable provided the decision-maker:

acted in good faith;
had been given the authority to make the decision concerned (for example, had the authority delegated to him or her by the Minister, or had been properly appointed as a tribunal member); and
did not exceed constitutional limits.

The effect of including this clause in the Migration Act will be to prevent judicial review of decisions taken during the process of reviewing, on the merits, decisions affecting visas and refugee status as well as putting a 28 day time limit on the right to apply for mandamus and the other prerogative writs in respect of certain other decisions.

In its Thirteenth Report of 1997, the Committee stated that the ousting of judicial review was not a matter to be undertaken lightly by the Parliament. It had the potential to upset the delicate arrangement of checks and balances on which our constitutional democracy was based. It is the function of courts in our society to ensure that executive action affecting those subject to Australian law is carried out according to law. Therefore, it was cause for the utmost caution when one arm of government (in this case, the Executive) sought the approval of the second arm of government (the Parliament) to exclude the third arm or government (the Judiciary) from its legitimate role whatever the alleged efficiency, expediency or integrity of programs is put forward in justification.

The Committee sought the advice of the Minister on this issue. In response, the Minister stated that:

the current scheme for judicial review had been introduced by the previous Government on 1 September 1994 with the intention of reducing Federal Court litigation, since that scheme required merits review rights to be exhausted before Federal Court review was possible, and restricted the grounds of review available before that Court;
the current scheme had not reduced the volume of cases before the courts (applications to the Federal and High Courts had grown from nearly 400 in 1994-95, to approximately 600 in 1995-96, to 749 in 1996-97, with an expected 850 in 1997-98);
in migration cases, litigation can be an end in itself – there is a “high incentive” for refused applicants to delay their removal from Australia in order to establish ties in Australia which they hoped would entitle them to a visa through another pathway;
the Government's election immigration policy stated that access to the courts for review beyond the established two tiered system “should be restricted in all but exceptional circumstances”;
the consensus of expert legal advice was that, because of the constitutional guarantee of access to the High Court, the only practical option to implement this policy was the imposition of a privative clause;
as well as meeting the Government's policy objective, the proposed new judicial review scheme would also consolidate the existing two review schemes for visa decisions into primarily one scheme; and
the Government remained committed to preserving an open and credible migration program, and a balance between the `rights' of the individual and the interests of the wider Australian community – the use of a privative clause was appropriate in the area of immigration decision-making where there was an entitlement to the grant of a visa if an applicant met the legal criteria and extensive access to independent merits review, and where unrestricted access to the courts was an incentive for certain individuals to delay resolution of their claims.

The Committee noted the Minister's statement about preserving a balance between the `rights' of individuals and the interests of the wider Australian community. Whether the proposed use of this privative clause struck the appropriate balance was a matter which the Committee believed should be left for ultimate resolution by debate in the Chamber.

The Committee reiterates this view and continues to draw Senators' attention to its 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.

Migration (Visa Application) Charge Amendment Bill 1998

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

The bill proposes to amend the Migration (Visa Application) Charge Act 1997 to:

provide that only the index numbers published in terms of the most recently published reference base for the Consumer Price Index are used to calculate the visa application charge limit; and
provide that calculations disregard index numbers that are published in substitution for previously published index numbers, except where the substituted numbers are published to take account of changes in the reference base; and
make minor technical amendments.

Retrospective effect

Clause 2

By virtue of clause 2, the bill is to be taken to have commenced immediately after the commencement of the Migration (Visa Application) Charge Act 1997. The Explanatory Memorandum states that this date is necessary to ensure that the visa application charge limit is updated from the time that the visa application charge commenced.

The amendments included in the bill appear to do no more than correct drafting errors, and make no substantive change to the law.

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

Motor Vehicle Standards Amendment Bill 1998

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

The bill proposes to amend the Motor Vehicle Standards Act 1989 to:

enable the development of a standard for model specific fuel consumption labelling;
create a position of Associate Administrator; and
make minor technical amendments.

The Committee has no comment on this bill.

National Measurement Amendment (Utility Meters) 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 National Measurement Act 1960 to provide a national system for metrological control of specified utility meters comprising mandatory national pattern approval and verification systems harmonised to international standards.

The Committee has no comment on this bill.

National Residue Survey (Customs) Levy Amendment Bill 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 National Residue Survey (Customs) Levy Act 1998 to make consequential changes following the repeal of various levies and charges Acts and the enactment of the proposed Primary Industries (Customs) Charges Act 1998 and the Primary Industries (Excise) Levies Act 1998.

The Committee has no comment on this bill.

National Residue Survey (Excise) Levy Amendment Bill 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 National Residue Survey (Excise) Levy Act 1998 to:

make consequential changes following the repeal of various levies and charges Acts and the enactment of the proposed Primary Industries (Customs) Charges Act 1998 and the Primary Industries (Excise) Levies Act 1998; and
remove the 1 July 2000 sunset clause applicable to National Residue Survey dairy levies.

The Committee has no comment on this bill.

Navigation Amendment (Employment of Seafarers) 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 following Acts:

Navigation Act 1912 to abolish the Marine Council and remove provisions relating to:

prohibiting the demand or receipt of fees for the supply of seamen (“crimping”);
prohibiting the use of a crew engaged in overseas voyages for handling cargo or ballast while the ship is in an Australian port;
requirements to enter into a prescribed form of “articles of agreement” covering conditions of employment;
certain procedures in relation to the discharge of seamen from ship service and methods for wage payment; and

Navigation Act 1912 and Occupational Health and Safety (Maritime Industry) Act 1993 to make consequential amendments.

The Committee has no comment on this bill.

Ozone Protection Amendment Bill 1998

This bill was introduced into the Senate on 9 December 1998 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Environment and Heritage]

The bill proposes to amend the Ozone Protection Act 1989 to effect Australia's obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer in relation to the importation, manufacture and export of hydrochlorofluorocarbons and methyl bromide.

The Committee has no comment on this bill.

Primary Industries (Customs) Charges Bill 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:

replace provisions for the imposition of export charges made on produce of primary industry contained in 13 primary industries charge Acts;
enable the Governor-General, on the advice of the Minister, to set the operative charge rate on primary industry products; and
make minor technical amendments.

Setting a rate of levy by regulation

Schedule 14

Schedule 14 to this bill provides that primary industries charges may be imposed by regulation. This is a matter to which the Committee has often drawn attention, as there is a risk that a levy may in fact become a tax, and it is for the Parliament to set rates of taxation, not the makers of subordinate legislation.

Where a rate of levy needs to be changed frequently and expeditiously, the question arises as to whether this can best be done by subordinate legislation rather than by statute. Where a compelling case can be made out for the rate to be set by subordinate legislation, the Committee seeks to have the enabling Act prescribe a maximum figure, or a formula by which it can be set.

This bill does provide for a maximum amount of any charge.

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

Primary Industries (Excise) Levies Bill 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:

replace provisions for the imposition of excise levies made on produce of primary industry contained in 27 primary industries levy Acts;
enable the Governor-General, on the advice of the Minister, to set the operative levy rate on primary industry products; and
make minor technical amendments.

Setting a rate of levy by regulation

Schedule 27

Schedule 27 to this bill provides that primary industries levies may be imposed by regulation. For the reasons noted above in relation to the Primary Industries (Customs) Charges Bill 1998, this is a matter to which the Committee has often drawn attention. However, again, this bill provides for a maximum amount of any levy.

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

Primary Industries Levies and Charges (Consequential Amendments) Bill 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:

repeal 40 charge and levy Acts;
make amendments consequential on the repeal of those charge and levy Acts and enactment of the new charge and levy bills;
provide transitional arrangements from the old to the new charge and levy bills; and
make minor technical amendments.

The Committee has no comment on this bill.

Privacy Amendment (Office of the Privacy Commissioner) Bill 1998

This bill was introduced into the House of Representatives on 9 December 1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to separate the Privacy Commissioner from the Human Rights and Equal Opportunity Commission and create a statutory Office of the Privacy Commissioner.

The Committee has no comment on this bill.

Quarantine Amendment Bill 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 Quarantine Act 1908 to:

extend the scope of quarantine to the environment and economic activities;
require consultation with the Minister for Environment in certain circumstances;
amend provisions relating to the managed risk approach;
clarify pre-arrival reporting obligations;
provide greater flexibility in relation to where a vessel is to perform quarantine;
bring the detail of the Quarantine (Plants) Regulations into the Act and allow for the destruction of plants grown from plants that have been ordered into quarantine;
provide that quarantine officers may be accompanied by animals and use the animal to assist them in the exercise of certain powers;
enable an emergency response not only in relation to diseases that have been declared by proclamation to be quarantinable diseases, but also to unproclaimed diseases or pests;
provide that offending goods can be required to be exported from Australia in order to encourage compliance with Australia's quarantine requirements and to keep quarantine issues off-shore;
introduce a system of rectification enabling importers to rectify deficiencies that might otherwise cause their goods to be seized and disposed of;
enable a consistent approach in relation to the special risks associated with overseas vessels and aircraft travelling in the Special Quarantine Zone and the Protected Zone;
provide a framework for the issuing, revoking and suspension of approvals for commercial quarantine premises
clarify that compliance agreements can be entered into in relation to procedures under the Act, regulations, proclamations, conditions on permits or approvals and in connection with activities carried out in the performance of functions related to quarantine;
redraft offence provisions so elements of an offence are distinguished and the rules in relation to mental and fault elements, the burden of proof and evidentiary provisions apply; and
make miscellaneous and technical amendments.

Non-reviewable subordinate legislation

Schedule 1, items 51, 60, 110 and 141

Schedule 1 to this bill extensively amends the Quarantine Act 1908. Item 51 amends the Act to define a quarantinable pest as any pest declared by the Governor-General, by Proclamation, to be so declared. Item 60 amends the Act to enable the Minister to declare Special Quarantine Zones. Item 110 refers to Proclamations exempting certain animals or plants from import prohibitions. Item 141 inserts two new provisions dealing with entry by air from certain proclaimed places, and aircraft subject to quarantine landing at unauthorised places.

Each of these instruments is apparently legislative in character, and yet no provision seems to have been made for Parliamentary scrutiny of them. Therefore, the Committee seeks the Minister's advice on the reasons for exempting the above subordinate legislation from Parliamentary scrutiny. The Committee also seeks the Minister's advice on the feasibility of tabling, in each House of the Parliament, an annual report indicating the frequency with which such Proclamations and Declarations have been made, and outlining in broad terms the circumstances which have prompted their use.

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

Strict liability offences

Schedule 1, items 145, 153, 183, 242, 259, 263, 267 and 269

Items 145, 153, 183, 242, 259, 263, 267 and 269 of Schedule 1 to the bill specify that offences are to be offences of strict liability. While the Committee normally seeks advice about the creation of such offences, in each of the cases referred to above it appears that the specification of the offence as one of strict liability is simply declaratory of the existing law. The reason for including an express specification would seem to be that item 312 of Schedule 1 applies Chapter 2 of Criminal Code to all offences against the Principal Act. Chapter 2 provides that offences are of strict liability only when expressly specified.

Nevertheless, the Committee seeks the Minister's assurance that the amendments noted above are no more than declaratory of the existing law. If so, the Committee also seeks the Minister's advice on why it is thought necessary to continue to impose strict criminal liability in the situations referred to above.

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.

Abrogation of the privilege against self-incrimination

Proposed new section 79A

Items 295 proposes to insert a new section 79A in the Principal Act. This provision excludes the privilege against self-incrimination in certain circumstances, but provides that derivative use immunity applies to information or documents obtained as a result. The Committee has been prepared to accept that such an approach strikes a reasonable balance between the requirements of law enforcement and the protection of individual rights.

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

Sales Tax Legislation Amendment Bill (No. 1) 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 amend the following acts:

Sales Tax Assessment Act 1992 and Sales Tax (Exemptions and Classifications) Act 1992 to provide exemptions from sales tax for:

satellites, space launch vehicles and other commercial space equipment; and
certain goods imported by, or on behalf of, non-Australian Sydney 2000 Olympic and Paralympic Family Members and delegations and participants in the Sydney 2000 Olympics, Paralympic and associated events; and

Sales Tax Assessment Act 1992 to:

change the sales tax rules for the computer industry; and
provide that goods imported into Australia under a temporary importation exemption, used in Australia, exported and then re-imported are subject to sales tax at the time of the later importation.

Indeterminate commencement

Subclause 2(2)

Subclause 2(2) provides that a number of items in Schedule 2 are to commence on a day to be fixed by Proclamation, with no further time fixed for automatic commencement or repeal.

The Committee has frequently commented on such provisions in the context of Drafting Instruction No 2 of 1989 issued by the Office of Parliamentary Counsel. This Drafting Instruction states that, as a general rule, a restriction should be placed on the time within which an Act should be proclaimed. The commencement clause should fix either a period or a date after Royal Assent, together with a provision stating that, if no proclamation has been made, the Act either commences at the fixed time, or is to taken to be repealed at that time. The Drafting Instruction concludes that clauses providing for commencement by proclamation without the restrictions mentioned above should be used “only in unusual circumstances, where the commencement depends on an event whose timing is uncertain”.

Paragraph 3.13 of the Explanatory Memorandum to this bill states that the new rules for exported goods will start from a date to be prescribed “to give exporters time to apply for accreditation”. If exporters were given a fixed time after Assent within which to apply for accreditation, then the amendments referred to in subclause 2(2) would commence as suggested within the Drafting Instruction. The Committee, therefore, seeks the Minister's advice as to why this commencement provision cannot be made more certain by fixing a time for exporters to apply for accreditation.

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

Superannuation (Entitlements of same sex couples) Bill 1998

This bill was introduced into the House of Representatives on 7 December 1998 by Mr Albanese as a Private Member's bill.

The bill proposes to amend the Superannuation Industry (Supervision) Act 1993 to enable same sex couples to receive the same superannuation benefits as heterosexual couples.

The Committee has no comment on this bill.

Superannuation Legislation Amendment 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 amend the following Acts:

Bankruptcy Act 1966 to ensure that members of exempt public sector superannuation schemes within the meaning of the Superannuation Industry (Supervision) Act are afforded the same protection in respect of their superannuation entitlement as members of regulated superannuation funds from creditors;

Superannuation Industry (Supervision) Act 1993 to:

include various arrangements outlined in the Bankruptcy Act 1966 in the definition of insolvent under administration;
insert a definition of invest;
amend the definition of governing rules;
permit a trustee of a superannuation fund to amend the governing rules of the fund to enable the acceptance of binding death benefit nominations from certain members;
apply the `in-house asset' rules to individual sub-funds;
treat unrelated groups of associated employer-sponsors separately for the purposes of the `in-house asset' rules;
apply alternative `in-house asset' rules to certain defined benefit funds with large accumulated surpluses;
improve the operation of gazettal requirements for orders disqualifying a person from being an approved auditor under the Act;
remove an anomaly with the operation of the trust account provisions;
clarify to whom contributions should be refunded when a member withdraws from a public offer fund during the cooling-off period;
extend from 5 June 1997 to 5 June 1998 the transitional period during which tax file numbers already quoted for superannuation purposes may be taken to have also been quoted for surcharge purposes;
enable the Insurance and Superannuation Commissioner (now the Australian Prudential Regulation Authority (APRA)) to revoke an approval of a trustee without ministerial approval where the revocation is requested by the trustee;
enable superannuation benefits to be recovered under the Australian Federal Police Act 1979 and the Crimes (Superannuation Benefits) Act 1989;
improve the operation of APRA's and the Australian Securities and Investment Commission's monitoring and investigative powers;
remove the right of a body corporate to claim privilege against self-incrimination in respects of certain issued notices; and

Superannuation (Resolution of Complaints) Act 1993 to:

enable the Superannuation Complaints Tribunal to be constituted by one, two or three members and to confer responsibility for the operation and administration for the Tribunal on the Tribunal Chairperson;
ensure that certain provisions apply to complaints about trustees decisions to admit persons to life policies made prior to 12 December 1995; and
clarify the scope of a trustee, insurer or RSA provider's duty to notify potential persons who may have an interest in the payment of death benefits and to reduce the penalty for failure to provide notification.

Retrospective effect

Subclause 2(3) and Schedule 2, Part 3

By virtue of subclause 2(3), the amendments proposed by Part 3 of Schedule 2 to this bill are to commence retrospectively on 5 June 1997. However, paragraphs 98 and 99 of the Explanatory Memorandum note that the amendments are beneficial to employees as members of superannuation funds.

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

Taxation Laws Amendment Bill (No. 4) 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 was first introduced into Parliament on 2 July 1998 as Schedule 3 to the Taxation Laws Amendment Bill (No 5) 1998, but lapsed when Parliament was prorogued for the election.

The bill proposes to amend the following Acts:

Income Tax Assessment Act 1936 to:

widen the interest withholding tax (IWT) exemption provided by removing, for debentures issued by companies, the present requirements that they be issued outside Australia and that the interest be paid outside Australia;
allow the issue of debentures or interests in debentures to Australia residents and allow the IWT exemption;
extend the definition of company to include a company acting in the capacity of a resident trustee, provided the trust is not a charitable trust and the beneficiaries of the trust are companies;
make a consequential amendment relating to the issue of bearer debentures to residents operating a business offshore;
extend the range of entities eligible to register as offshore banking units;
provide a tax exemption for income and capital gains of overseas charitable institutions managed by an offshore banking unit;
extend the range of eligible offshore banking unit activities;
remove an anti-avoidance measure preventing Australia being used as a conduit to channel loans to other countries;
reduce the capital gains tax liability where non-residents dispose of interests in offshore banking unit offshore investment trusts;
provide a foreign tax credit for foreign tax paid by Australian resident offshore banking units regardless of whether a double tax agreement applies;
remove the requirement that offshore banking units maintain separate nostro and vostro accounts for transactions;
reduce the rate of offshore banking unit withholding penalty tax for breaches of the IWT concession from 300 per cent to 75 per cent;
enable Australian subsidiaries of a foreign bank to raise certain ITW exempt funds and on-lend those funds to a related Australian branch without affecting the subsidiary's thin capitalisation position;
provide an exemption from the foreign investment fund (FIF) measures for interests in certain US;
change the calculation method in FIF measures; and
make consequential amendments to provisions relating to taxing trusts;
require that the forgiven amount of a debt be applied, where relevant, to reduce unrecouped net capital losses in respect of all years of income before the forgiveness year of income, rather than the immediately preceding year of income;
require that where a taxpayer incurs a net capital loss in a year of income earlier than the forgiveness year of income, and the loss is reduced by the operation of the debt forgiveness provisions, the loss will also be reduced for the purposes of the capital gains tax provisions;
prevent franking credit trading and misuse of the intercorporate dividend rebate by denying the franking benefit or intercorporate dividend rate from a dividend where the taxpayer does not satisfy certain rules;
limit the source of franking credits available for trading by introducing a new rule; and
prevent franking credit trading and misuse of the intercorporate dividend rebate by denying the franking benefit or intercorporate dividend rate from a trust or partnership distribution attributable to a dividend where the distribution is equivalent to interest;

Income Tax Assessment Act 1997 to:

set a common base for the depreciation deductions for plant that can be claimed by exempt entities which become taxable and by taxable entities which purchase plant from an exempt entity in connection with the acquisition of a business; and
allow deductions for gifts of $2 or more made to the Menzies Research Centre Public Fund.

Retrospective effect

Subclause 2(2) and Schedule 4, item 24

By virtue of subclause 2(2), item 24 of Schedule 4 is to commence retrospectively on 16 April 1998. This item modifies the definition of a family trust in Schedule 2F to the Income Tax Assessment Act 1936 “to include a category of trust where the only group able to benefit under the trust are family members” (whether or not they are able to control the trustee). The Explanatory Memorandum gives no indication of the reason for retrospectivity in this instance. The Committee, therefore, seeks the Treasurer's advice as to the reasons for retrospectivity in this instance.

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.

Retrospective effect

Schedule 1, items 39 and 46

Schedule 1 to the bill, which deals with amendments concerning the interest withholding tax exemption, the offshore banking unit regime, the foreign investment fund measures and the thin capitalisation provisions of the Act, is to apply from 2 July 1998 (see items 39 and 46). However, the amendments proposed by this Schedule are beneficial to taxpayers.

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

Retrospective effect

Schedule 5

Schedule 5 to the bill is to apply from 13 May 1997 (being the date of the 1997 Budget). The provisions in this Schedule are identical with those in Schedule 13 of Taxation Laws Amendment Bill (No 4) 1998, which was introduced into the House of Representatives on 1 April 1998, and on which the Committee commented in Alert Digest No 5 of 1998. Those comments focussed on that bill as apparently in breach of the `6 month rule'.

The Assistant Treasurer responded to those comments in a letter dated 11 August 1998 (copy appended to this Digest). In that letter, the Assistant Treasurer stated that:

the delay in introducing the bill into the Parliament was caused, in part, by lengthy consultations with taxpayer groups in relation to the franking credit trading measure generally, and also by the need to give priority to other related measures (such as the anti-streaming, general anti-avoidance and 45 day rules);
the extensive consultation held with key groups including the tax profession, industry groups and the International Banks and Securities Association between May 1997 and March 1998 enabled concerns relating to the operation of the measure to be assessed leading to a number of changes;
on 8 August 1997, the Treasurer, in a Press Release, announced 3 major changes to the measure, and further consultations led the Government to extend the period of time that companies could be held by non-residents from 6 months to 12 months before franking credits were cancelled; and
should the date of effect be moved forward, companies that had so far complied with the rules could be unfairly prejudiced, and unfairness would be created regarding the commencement date of other franking credit measures which applied from 13 May 1997.

Given this explanation, the Committee makes no further comment on this provision.

Retrospective effect

Schedule 6

Schedule 6 to the bill, which amends the Act to allow income tax deductions for gifts of $2 or more made to the Menzies Research Centre Public Fund, will apply from 2 April 1998. The Explanatory Memorandum states that this was the date after which this measure was intended to operate when it was first introduced into the previous Parliament. Elsewhere, the Explanatory Memorandum notes that this proposal was first announced by the Treasurer's in his Press Release No 102, dated 10 October 1996.

The measure included in Schedule 6 is clearly beneficial to taxpayers, and would not normally be the subject of further comment from the Committee. However, the significant lapse of time between the date of announcement and the date of effect of this measure prompts the Committee to seek the Treasurer's advice as to whether proposed changes to the tax laws which are beneficial to taxpayers ought not to be applied from the date of their announcement in the same manner as occurs with changes to the taxation laws which seek to increase revenue.

While seeking the Treasurer's advice, the Committee makes no further comment on this provision.

Legislation by press release

Schedules 3, 4 and 7

By virtue of subitem 33(1), Schedule 3 to the bill (which deals with the way in which depreciation is to be calculated on plant owned by a previously exempt entity) will, in general terms apply from 4 August 1997. This date has been chosen as the date on which the Treasurer issued a Press Release on the matters covered by this Schedule.

By virtue of item 25, Schedule 4 to the bill (which seeks to prevent franking credit trading and misuse of the intercorporate dividend rebate) will, in general terms, apply from 1 July 1997. Some provisions are to apply from 13 May 1997 (the night of the 1997 Budget) and others from 31 December 1997 (being the date on which the Assistant Treasurer issued an amending Press Release).

Schedule 7 to the bill (which seeks to ensure that certain trust or partnership distributions which consist of dividends, but which are effectively in the nature of interest, do not carry franking benefits or receive the intercorporate dividend rebate) will also commence on 13 May 1997 – the night of the 1997 Budget.

In each case the legislation may effectively be regarded as `legislation by press release'. In each case, the application date is well outside the 6 months referred to in the Senate resolution of 8 November 1988. The Committee, therefore, seeks the Treasurer's advice as to why it has taken between 16 and 19 months from the date of the Treasurer's announcements for the introduction of legislation giving effect to those announcements.

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.

Taxation Laws Amendment Bill (No. 5) 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]

The bill proposes to:

amend the Income Tax Assessment Act 1936 to:

align the remittance dates for medium and small PAYE, PPS and RPS payers from the 7th to the 21st of the month;
enable anti-avoidance provisions to apply to schemes designed to acquire or generate foreign tax credits; and
ensure that penalties applicable to anti-avoidance schemes will apply to foreign tax credit schemes; and

amend various Acts to:

replace the existing late payment penalty provisions with a tax deductible general interest charge on outstanding tax debts;
introduce a penalty for failing to notify the Commissioner of an obligation to remit a source deduction or sales tax;
introduce a penalty for failing to give the Commissioner an annual reconciliation statement of source deductions made; and
make other consequential amendments in relation to the above measures; and
introduce a system of running balance style accounts to account for and administer debts under the sales tax, PAYE, PPS and RPS arrangements for the year commencing 1 July 1999.

Retrospective effect

Subclauses 2(5) to (7) and Schedule 3, items 3 to 8

By virtue of subclauses 2(5) to (7), items 3 to 8 in Schedule 3 to the bill will have some retrospective effect. However, in each case, the amendments proposed by those items merely correct drafting errors in earlier legislation, and make no substantive changes to the law.

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

Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998

The bill proposes to amend the Wildlife Protection (Regulation of Export and Imports) Act 1982 to implement Australia's obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora by strengthening controls on the illegal import, export and possession of products that contain endangered species in their ingredients.

The Committee has no comment on this bill.

Workplace Relations and Other Legislation Amendment (Superannuation) Bill 1998

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Employment, Workplace Relations and Small Business. [Portfolio responsibility: Employment, Workplace Relations and Small Business]

The bill proposes to amend the Workplace Relations Act 1996 and the Superannuation Guarantee (Administration) Act 1992 to:

provide that the Australian Industrial Relations Commission (AIRC) will not be permitted to deal with disputes about superannuation by arbitration;
provide that the AIRC will not be permitted to prevent or settle disputes about superannuation by making awards or orders to maintain the settlement of such disputes by varying awards or orders;
provide that the AIRC will be precluded from making an “exceptional matters order” about superannuation;
make transitional and consequential amendments.

The Committee has no comment on this bill.

Provisions imposing criminal sanctions for failure to provide information

The Committee's Eighth Report of 1998 dealt with the appropriate basis for penalty provisions for offences involving the giving or withholding of information. The following Table sets out the penalties for such offences in the legislation covered in this Digest.

TABLE

Act	Section/Subsection	Offence	Penalty
Taxation Administration Act 1953	65(1)	Fail to provide information, give evidence or produce documents	$2000 (first offence); $4000 (second offence); $5000 and/or 12 months (subsequent offence)
Trade Practices Act 1974	75AY(4)	Fail to provide information or produce documents; intentionally or recklessly provide false or misleading information or documents	20 penalty units
Export Control Act 1982	11P(4) 11Q(3)	Fail to provide information or produce documents Fail to provide information or produce documents relating to the export of prescribed goods	30 penalty units 12 months
Human Rights and Equal Opportunity Commission Act 1986	46PM	Fail to provide information or produce documents	10 penalty units
National Measurement Act 1960	18ZR(3) 18ZR(5)	Fail to answer questions or produce documents Knowingly give false or misleading information	200 penalty units 12 months
Quarantine Act 1908	28(5), (6) and (7) 28(8) and(9) 28(10) 70A(3) 70A(4) 74C(1) 74C(2) 74C(3) 74C(4)	Fail to answer question; fail to verify an answer by written declaration Knowingly give false or misleading answer Fail to correct an incorrect answer Fail to answer question re searched goods Knowingly provide false or misleading answer re searched goods Fail to answer question or produce document Fail to deliver a sample Knowingly provide false or misleading answer Knowingly produce false or misleading document	50 penalty units 5 years 50 penalty units 60 penalty units 2 years 1 year 1 year 2 years 2 years