Scrutiny of Bills Alert Digest No. 3 of 1999

Assistance for Carers Legislation Amendment Bill 1999

This bill was introduced into the House of Representatives on 17 February 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the Social Security Act 1991 to extend the carer payment to people who are caring for an adult with a level of disability that is not sufficient to qualify their carer for income support. Further, the bill proposes to combine the child disability allowance and domiciliary nursing care benefit to provide a single income supplement for carers of adults and children (the carer allowance). Consequential and technical amendments are made to nine other Acts.

Retrospective effect

Subclauses 2(3) and (4)

By virtue of subclauses 2(3) and (4), some provisions of this bill are to commence retrospectively. However, the Explanatory Memorandum notes that the amendments referred to in subclause 2(3) are technical in nature, and make no substantive change to the law, while the amendments referred to in subclause 2(4) are beneficial to taxpayers.

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

Australian Capital Territory (Planning and Land Management) Amendment Bill 1999

This bill was introduced into the Senate on 17 February 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Regional Services, Territories and Local Government]

The bill proposes to amend the Australian Capital Territory (Planning and Land Management) Act 1988 to extend the maximum term of an Australian Capital Territory estate to 999 years and remove the requirement for prescribing periods longer than the current 99 years.

The Committee has no comment on this bill.

Human Rights Legislation Amendment Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 17 February 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

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

renaming HREOC as the Human Rights and Responsibilities Commission (HRRC);
providing for an executive structure consisting of a President and three Deputy Presidents;
making education, dissemination of information on human rights and assistance to business and the general community central functions of the HRRC;
creating an Office of the Privacy Commissioner as a separate statutory authority;
enabling the Attorney-General to approve an intervention by the HRRC in court proceedings which involve human rights or discrimination issues;
abolishing the Community Relations Council and providing for the establishment of advisory committees;
providing for the repeal and consolidation into one delegation provision in the renamed Act for the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984;
not allowing the HRRC to recommend the payment of damages or compensation following inquiries into certain types of complaints under the renamed Act;
enabling the appointment of a person aged over 65 years as a member of the HRRC or for such a person's term to extend beyond their 65th birthday; and
makes consequential amendments.

The Committee has no comment on this bill.

National Health Amendment Bill (No. 1) 1999

The bill proposes to amend the National Health Act 1953 to prevent drugs supplied under the Pharmaceutical Benefits Scheme (PBS) from being inappropriately carried out of or exported from Australia. Further, the bill proposes to allow a person (the exporter) to take a reasonable quantity of PBS drugs overseas for the personal treatment of the exporter or another person, such as a child or elderly relative, accompanying the exporter.

The Committee has no comment on this bill.

Radiocommunications Legislation Amendment Bill 1999

This bill was introduced into the House of Representatives on 18 February 1999 by the Minister representing the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Communications, Information Technology and the Arts]

The bill proposes to amend the Radiocommunications Act 1992 and the Radiocommunications Taxes Collection Act 1983 to:

allow the Australian Communications Authority (ACA) to regulate communications with space objects;
enable the ACA to regulate reflectors as radiocommunications transmitters or radiocommunications receivers;
enable the ACA and the Australian Broadcasting Authority to make an agreement allowing the ACA to issue radiocommunications licences in the broadcasting services bands;
allow the Minister to direct the ACA to limit to zero the amount of spectrum that a specified person may acquire;
require the ACA to include a condition in spectrum licences which ensures that Australian tax applies to income, profits or gains which are attributable to a spectrum licence;
require that a frequency assignment certificate states that correct frequency coordination procedures have been followed before the issue of apparatus licenses;
enable the ACA to delegate the power to issue certificates of proficiency to persons who have become qualified operators of transmitters;
ensure that when a licence is renewed it commences from the time of expiry;
enable the ACA to make conditions relating to matters existing or arising at, before or after the time of accreditation;
require that all relevant documents relating to products' standards are inspected when the ACA audits compliance documentation assembled by manufacturers or importers;
enable the ACA to determine that bodies conducting approved examinations, issuing certificates of proficiency, and performing accreditation and approving functions under the Act may charge for the services they provide to users of radiocommunications services;
simplify and reduce the penalties payable in lieu of prosecution for offences committed under the Act and allow a penalty in lieu of prosecution to be imposed on a manufacturer or importer who fails to meet requirements including retaining appropriate records concerning a device covered by mandatory ACA standards; and
ensure that apparatus licence tax imposed on the anniversary of the day on which the instrument came into force is payable on that anniversary.

Delegation of power to “a body”

Proposed new subsection 122A(1)

Item 13 of Schedule 2 to this bill proposes to insert a new subsection 122A(1) in the Radiocommunications Act 1992. This provision will allow the Australian Communications Authority (ACA) to delegate the power to issue a certificate of proficiency in the operation of a specified class of transmitters to “a body or organisation”. Neither the proposed new section, nor the existing subsection 122(2) to which it refers, specifies any qualifications or attributes that such a body or organisation should possess, other than that it be approved by the ACA.

The Explanatory Memorandum observes that this new power to delegate “significantly reduces the administrative burden on the ACA”. It also notes that, under proposed new subsection 122A(2), the delegate “is not entitled to make a final decision in refusing to issue a certificate of proficiency” – where the delegate decides not to issue a certificate, he or she must refer the application to the ACA for decision. This is intended to ensure that “any person who is refused a certificate can avail themselves of the review rights in Part 5.6 of the Act”.

The Committee has frequently drawn attention to provisions which delegate powers to “a person”, with no further limit on the categories of potential delegates. Similar considerations apply where powers are delegated to “a body or organisation”. In this regard, the Committee draws attention to the fact that this delegated body may also be permitted, by virtue of proposed new section 298A (to be inserted by item 21), to charge fees for conducting approved examinations and issuing certificates of proficiency.

There are a number of possible approaches to limiting administrative powers of such apparent width. One approach that the Committee has noted in the past has been to make approval of the delegated body or organisation subject to Parliamentary scrutiny – for example, by including it in a disallowable instrument to be tabled in each House of the Parliament. The Committee, therefore, seeks the Minister's advice as to why the appointment of a body delegated to issue certificates of proficiency under section 122A is not further defined or qualified in some way, and whether such an appointment should be subject to Parliamentary scrutiny.

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

Legislation by press release

Schedule 3, item 1

By virtue of item 1 of Schedule 3 to the bill, the amendments to be made by items 8 and 9 of Schedule 2 are to apply from 11 March 1998. This is the date the Treasurer issued a press release setting out measures to ensure that Australia was able to assert its taxing rights over income from the use of spectrum licences owned by non-residents.

These amendments will obviously widen the scope of persons who may be liable to Australian tax. As such, they are examples of `legislation by press release' which fall within the resolution of the Senate of 8 November 1988. This resolution, which deals specifically with tax legislation states that “where the Government has announced, by press release, its intention to introduce a Bill to amend taxation law, and that Bill has not been introduced into the Parliament or made available by way of publication of a draft Bill within 6 calendar months after the date of the announcement, the Senate shall, subject to any further resolution, amend the Bill to provide that the commencement date of the Bill shall be a date that is no earlier than either the date of introduction of the Bill into the Parliament or the date of publication of the draft Bill”.

As more than 6 months have elapsed between the date of the announcement and the introduction of the bill, and as the Committee is not aware of any publication of a draft bill within that period, the Committee draws these provisions to the attention of Senators and seeks the Minister's advice on the matter.

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 3, item 3

The amendments referred to in item 3 of Schedule 3 will, by virtue of that item, have some retrospective effect. However, the effect of these amendments is to reduce the level of various penalties.

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

Radiocommunications (Receiver Licence Tax) Amendment Bill 1999

The bill proposes to amend the Radiocommunications (Receiver Licence Tax) Act 1983 to provide that licence tax instalments are due on the date the licence commenced, rather than the anniversary of the date of issue of the licence.

The Committee has no comment on this bill.

Radiocommunications (Transmitter Licence Tax) Amendment Bill 1999

The bill proposes to amend the Radiocommunications (Transmitter Licence Tax) Act 1983 to provide that licence tax instalments are due on the date the licence commenced, rather than the anniversary of the date of issue of the licence.

The Committee has no comment on this bill.

Therapeutic Goods Legislation Amendment Bill 1999

The bill proposes to provide a new framework for the regulation and management of complementary medicines by amending the Therapeutic Goods Act 1989 and the Therapeutic Goods Amendment Act 1997 to:

amend key definitions to delineate between foods, complementary medicines and other medicines such as over the counter and prescription medicines;
establish the existing Complementary Medicines Evaluation Committee as a statutory committee;
enable sponsors of relatively low-risk products to market those products without delay by enabling the efficient listing of the products on the Register;
ensure that all sponsors of listable goods must hold evidence to substantiate therapeutic claims made in the market place;
describe offences and penalties in relation to the publication of certain advertisements in print media; and
establish a statutory body, the National Drugs and Poisons Schedule Committee.

Retrospective effect

Subclauses 2(3)

By virtue of subclause 2(3), the amendment proposed by Schedule 2 will commence retrospectively, immediately after the commencement of some earlier amending legislation. However, this amendment is technical in nature, its purpose being simply to correct a drafting error.

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

Insufficient Parliamentary scrutiny

Proposed new subsections 17(5) and (6)

Item 10 of Schedule 1 to the bill proposes to insert a new subsection 17(5) in the Therapeutic Goods Act 1989. This subsection enables the Minister, by publishing a Gazette notice, to add to the Register of listed goods. Proposed new subsection 17(6) then provides for such a notice to cease to have effect if the regulations are amended to include those goods as either listed or registered goods. The Explanatory Memorandum notes that these amendments should “reduce delays in the marketing of low-risk products by allowing these to be included in the Register as listed goods, rather than registered goods”.

However, it appears that one effect of proposed new subsection 17(5) is that it may enable additions to the Register of listed goods to be made without the need to include them in regulations. If so, this may avoid Parliamentary scrutiny of such additions. The Committee, therefore, seeks the Minister's advice on whether additions to the Register for listed therapeutic goods under proposed subclause 17(5) will be subject to parliamentary scrutiny.

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

Definitions and interpretation

Proposed new Part 4A

Item 12 of Schedule 1 to the bill proposes to insert a new Part 4A in the Therapeutic Goods Act 1989. This new Part, which previously resided in the Therapeutic Goods Regulations, deals with the advertising of designated therapeutic goods.

As a general observation, the Committee notes that it is difficult to understand the meaning of many of these provisions unless the reader has a set of the Therapeutic Goods Regulations close at hand.

Secondly, proposed new section 42B, which contains relevant definitions, defines mainstream media as “any magazine or newspaper for consumers containing a range of news, public interest items, advertorials, advertisements or competitions”. The Committee notes that, in some respects, this definition is broad – possibly extending to magazines containing a range of competitions – and yet does not refer to other common means of advertising therapeutic goods, such as on the Internet.

The definition also refers to “consumers” with no further indication of the products or services likely to be consumed. The definition also includes the word “advertorial”, with no further explanation of its meaning. While this term is apparently referred to in guidelines for Advertising Therapeutic Goods to the Public, it is appropriate that it should be more formally defined or referred to in the legislation itself.

The Committee is aware of some previous correspondence on these issues between the Senate Standing Committee on Regulations and Ordinances and the Parliamentary Secretary to the Minister for Health and Family Services as incorporated in the Senate Hansard on 13 May 1998. However, the Committee seeks the Minister's advice on why these drafting issues have not been clarified in introducing this legislation.

Strict liability and other offences

Proposed new sections 42C and 42D

Proposed new section 42C deals with offences relating to the publication of non-approved advertisements for therapeutic goods. Proposed subsection 42C(7) provides that these are strict liability offences. However, the Explanatory Memorandum provides no guidance as to the need for imposing strict liability in these circumstances.

Proposed subsection 42C(1) states that section 42C “does not apply to a publisher in respect of an advertisement received by the publisher for publication or insertion in the ordinary course of business”. Publishers are instead subject to proposed new section 42D, which creates an offence of `knowingly or recklessly publishing or inserting a non-approved advertisement'. A publisher is defined as “a person whose business it is to publish or insert, or to arrange for the publication or insertion of, advertisements in any publication”.

Given that publishers are not subject to section 42C, it is not entirely clear to whom that section is intended to apply. For example, an advertising agency is, arguably, within the definition of a publisher (being in the business of arranging for the publication of advertisements) and so outside the scope of section 42C. Individuals may publish advertisements, but these are likely to be classified advertisements only.

The Committee therefore, seeks the Minister's advice on why proposed section 42C creates offences of strict liability, and on those persons who are likely to be subject to those offences.