Scrutiny of Bills Alert Digest No. 9 of 1999

Scrutiny of Bills Alert Digest No. 9 of 1999

23 June 1999

ISSN 1329-668X

Members of the Committee

Senator B Cooney (Chairman)

Senator W Crane (Deputy Chairman)

Senator H Coonan

Senator T Crossin

Senator J Ferris

Senator A Murray

Terms of Reference

Extract from Standing Order 24

(1) (a) At the commencement of each parliament, a Standing Committee for the Scrutiny of Bills shall be appointed to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

(b) The committee, for the purpose of reporting upon the clauses of a bill when the bill has been introduced into the Senate, may consider any proposed law or other document or information available to it, notwithstanding that such proposed law, document or information has not been presented to the Senate.

TABLE OF CONTENTS

A New Tax System (Family Assistance) (Administration) Bill 1999
A New Tax System (Family Assistance)(Consequential and Related Measures)(No. 2) Bill 1999
Aged Care Amendment (Omnibus) Bill 1999
Australian Sports Commission Amendment Bill 1999
Aviation Fuel Revenues (Special Appropriation) Amendment Bill 1999
Constitution Alteration (Establishment of Republic) 1999
Copyright Amendment (Importation of Sound Recordings) Bill 1999
Customs Amendment (Warehouses) Bill 1999
Customs Tariff Amendment (Aviation Fuel Revenues) Bill 1999
Excise Tariff Amendment (Aviation Fuel Revenues) Bill 1999
Health Insurance Amendment (Professional Services Review) Bill 1999
Import Processing Charges Amendment (Warehouses) Bill 1999
National Health Amendment (Lifetime Health Cover) Bill 1999
Presidential Nominations Committee Bill 1999
Protection of Movable Cultural Heritage Amendment Bill 1999
Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999
Social Security (Administration) Bill 1999
Social Security (Family Allowance and Related Matters) Legislation Amendment Bill 1999
Social Security (International Agreements) Bill 1999
States Grants (General Purposes) Amendment Bill 1999
Stevedoring Levy (Collection) Amendment Bill 1999
Provisions imposing criminal sanctions for failure to provide information

A New Tax System (Family Assistance) (Administration) Bill 1999

This bill was introduced into the House of Representatives on 9 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the A New Tax System (Family Assistance) Bill 1999 and the A New Tax System (Family Assistance)(Consequential and Related Measures) Bill (No. 2) 1999, this bill proposes to provide the administrative, procedural and technical rules that will apply to the new family assistance payments: family tax benefit part A, family tax benefit part B and child care benefit. The bill also provides similar provisions for the maternity allowance and the maternity immunisation allowance.

Use of tax file numbers

Proposed new paragraph 7(2)(b) and clause 61

By virtue of proposed paragraph 7(2)(b) and clause 61, persons claiming family tax benefit will be required to provide their tax file numbers and/or that of their partner.

It is the Committee's practice to draw attention to new measures which make the payment of benefits dependent upon the provision of a tax file number. This is because, as its name indicates, the tax file number scheme was originally intended to ensure the integrity of the taxation system.

Under this bill, the `benefit' consists of a reduction in the beneficiary's liability to income tax. This is clearly within the scope of the scheme as originally envisaged.

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

A New Tax System (Family Assistance) (Consequential and Related Measures) Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 9 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the A New Tax System (Family Assistance) Bill 1999 and the A New Tax System (Family Assistance)(Administration) Bill 1999, this bill proposes to amend 21 Acts to:

Retrospective application

Subclauses 2(6) and 2(7)

By virtue of subclauses 2(6) and 2(7) of this bill, various provisions are to commence retrospectively. However, in each case the amendments are technical only, and make no substantive change to the law.

In these circumstances, the Committee makes no further comment

on these provisions.

Retrospective application

Subitem 68(2) of Schedule 10

By virtue of subitem 68(2) of Schedule 10 to this bill, the amendment proposed by item 7 of that Schedule is to apply retrospectively from 8 December 1997. However, this amendment is technical in nature, and makes no substantive change to the law.

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

Aged Care Amendment (Omnibus) Bill 1999

This bill was introduced into the House of Representatives on 10 June 1999 by the Minister for Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the following Acts:

Aged Care Act 1997 to:

Social Security Act 1991 and the Veterans' Entitlements Act 1986 to provide:

Veterans' Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 to make technical amendments; and

Aged Care (Consequential Provisions) Act 1997 to make technical amendments relating to:

Retrospective application

Subclause 2(3)

By virtue of subclause 2(3) of this bill, the amendments proposed in Schedule 4 are to commence retrospectively. However, these amendments are technical in nature, and make no substantive change to the law.

In these circumstances, the Committee makes no further comment

on these provisions.

Retrospective application

Subclause 2(4)

By virtue of subclause 2(4) of this bill, the amendments proposed by items 3 and 4 of Schedule 5 are to commence retrospectively. However, these amendments correct the unintended, and potentially harmful, consequences of earlier amendments to the Principal Act.

In these circumstances, the Committee makes no further comment

on these provisions.

Retrospective application

Schedule 2, item 13 and Schedule 3, item 21.

The amendments proposed to be made by item 13 of Schedule 2 and item 21 of Schedule 3 to this bill are to apply retrospectively to transactions entered into prior to 6 November 1997. However, these amendments are beneficial to those who entered into these transactions.

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

Australian Sports Commission Amendment Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Sport and Tourism. [Portfolio responsibility: Industry, Science and Resources]

The bill proposes to amend the Australian Sports Commission Act 1989 to provide for an exchange of information between the Australian Sports Commission and the Australian Customs Service in relation to the importation into Australia of substances that enhance sporting performance or substances that can be used to conceal the use of performance enhancing drugs.

The Committee has no comment on this bill.

Aviation Fuel Revenues (Special Appropriation) Amendment Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Transport and Regional Services]

Complementary to the Customs Tariff Amendment (Aviation Fuel Revenues) Bill 1999 and the Excise Tariff Amendment (Aviation Fuel Revenues) Bill 1999, this bill proposes to enable customs and excise duties on aviation kerosene (aviation turbine fuel or avtur) and aviation gasoline (avgas) to be appropriated to the Civil Aviation Safety Authority and Airservices Australia (Airservices). The bill further proposes that the Minister should determine the amount appropriated per litre of avgas and avtur.

Retrospective application

Schedule 1 item 6

The effect of item 6 of Schedule 1 to this bill is to apply its substantive provisions retrospectively from 12 May 1999. However, the purpose of the bill is to allow for the payment of money from Consolidated Revenue to the Civil Aviation Safety Authority. The retrospective effect of the bill will not, therefore, adversely affect any member of the public.

In addition, this bill represents a Budget measure. In general terms, the Committee is less concerned by retrospectivity in the case of Budget measures.

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

Constitution Alteration (Establishment of Republic) 1999

This bill was introduced into the House of Representatives on 10 June 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

Complementary to the Presidential Nominations Committee Bill 1999, this bill proposes to amend the Constitution to establish the Commonwealth of Australia as a republic with a President chosen by a two-thirds majority of the members of the Commonwealth Parliament. The bill further proposes to make consequential and transitional amendments.

The Committee has no comment on this bill.

Copyright Amendment (Importation of Sound Recordings) Bill 1999

This bill was introduced into the Senate on 26 May 1999 by the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Copyright Act 1968 to ensure that when ancillary copyright material is included with a sound recording (particularly music compact discs), the material does not prevent parallel importation of the sound recording.

The Committee has no comment on this bill.

Customs Amendment (Warehouses) Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Justice and Customs]

Complementary to the Import Processing Charges Amendment (Warehouses) Bill 1999, this bill proposes to amend the Customs Act 1901 to remove the requirement for people operating “Manufacturing in Bond” warehouses to pay the warehoused goods entry fee when goods are exported.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill provides that most of the amendments proposed in the bill are to commence retrospectively on 29 April 1999. However, the Explanatory Memorandum indicates that these amendments are beneficial to those people who operate “Manufacturing in Bond” warehouses.

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

Customs Tariff Amendment (Aviation Fuel Revenues) Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Justice and Customs]

Complementary to the Aviation Fuel Revenues (Special Appropriation) Amendment Bill 1999 and the Excise Tariff Amendment (Aviation Fuel Revenues) Bill 1999, this bill proposes to amend the Customs Tariff Act 1995 to increase the rate of customs duty on aviation kerosene (aviation turbine fuel or avtur) and aviation gasoline (avgas) to $0.0271/L from 12 May 1999.

Retrospective application

Subclause 2(2)

By virtue of subclause 2(2), the amendments proposed in this bill are to commence retrospectively on 12 May 1999. However, the Explanatory Memorandum states that these amendments are intended to implement a Budget decision to increase the duty payable on aviation fuels.

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

Excise Tariff Amendment (Aviation Fuel Revenues) Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Treasury]

Complementary to the Aviation Fuel Revenues (Special Appropriation) Amendment Bill 1999 and the Customs Tariff Amendment (Aviation Fuel Revenues) Bill 1999, this bill proposes to amend the Excise Tariff Act 1921 to increase the rate of excise duty on aviation kerosene (aviation turbine fuel or avtur) and aviation gasoline (avgas) to $0.0271/L from 12 May 1999.

Retrospective application

Subclause 2(2)

By virtue of subclause 2(2), the amendments proposed in this bill are to commence retrospectively on 12 May 1999. However, the Explanatory Memorandum states that these amendments are intended to implement a Budget decision to increase the duty payable on aviation fuels.

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

Health Insurance Amendment (Professional Services Review) Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the Health Insurance Act 1973 to implement changes to the Professional Services Review (PSR) Scheme as a result of a review of the Scheme. The PSR Scheme provides for a system of peer review to determine whether a practitioner has inappropriately rendered or initiated services which attract a Medicare benefit, or has inappropriately prescribed under the Pharmaceutical Benefits Scheme, and to apply sanctions to those who practise inappropriately.

Abrogating the right to silence and patient privacy

Proposed new section 106ZPQ

Among other things, this bill proposes to insert a new section 106ZPQ in the Health Insurance Act 1973. This provision states that a person must produce documents for inspection even though those documents may tend to incriminate that person. The Explanatory Memorandum states that this section “mirrors subsection 105A(6) of the current Act”.

Under proposed section 89B and 105A, the documents to be produced may include clinical or practice records of services rendered not only by the person under review, but also by practitioners employed by that person, or by practitioners employed by a body corporate of which the person under review is an officer. These documents must be produced to a Committee member or his or her nominee (mirroring the existing legislation) and also to the Director or his or her nominee.

Proposed new section 106ZPQ goes on to limit the use that may be made of any documents or information produced. Under proposed subsection 106ZPQ(2) such documents or information are not admissible against the person producing them in civil or criminal proceedings (other than proceedings for providing false or misleading information, or proceedings before a Committee or the Determining Authority).

The Committee notes that proposed new section 106ZPQ attempts to strike a balance between the need to obtain information and the need to protect rights. However, some aspects of its operation remain unclear. Therefore, the Committee seeks the Minister's advice on the following matters:

Pending the Minister'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.

Import Processing Charges Amendment (Warehouses) Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Justice and Customs]

Complementary to the Customs Amendment (Warehouses) Bill 1999, this bill proposes to amend the Import Processing Charges Act 1997 to remove the requirement for people operating “Manufacturing in Bond” warehouses to pay the import processing charge when goods are exported.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill provides that most of the amendments proposed in the bill are to commence retrospectively on 29 April 1999. However, the Explanatory Memorandum indicates that these amendments are beneficial to those people who operate “Manufacturing in Bond” warehouses.

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

National Health Amendment (Lifetime Health Cover) Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the National Health Act 1953 to require private health insurance funds to introduce Lifetime Health Cover by setting different premiums for members dependent on the age at which a member first takes hospital cover with a fund.

The Committee has no comment on this bill.

Presidential Nominations Committee Bill 1999

This bill was introduced into the House of Representatives on 10 June 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

Complementary to the Constitution Alteration (Establishment of Republic) 1999, this bill proposes to establish a Presidential Nominations Committee to invite and consider nominations for appointment as President of the Commonwealth of Australia and report on the nominations to the Prime Minister.

The Committee has no comment on this bill.

Protection of Movable Cultural Heritage Amendment Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for the Arts and the Centenary of Federation. [Portfolio responsibility: Communications, Information Technology and the Arts]

The bill proposes to amend the Protection of Movable Cultural Heritage Act 1986 to replace the National Cultural Heritage Fund with the National Cultural Heritage Account, a Special Account which will be subject to the accounting and reporting requirements of the Financial Management and Accountability Act 1997 and to make minor consequential amendments.

The Committee has no comment on this bill.

Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (Administration) Bill 1999 and the Social Security (International Agreements) Bill 1999, this bill proposes to:

Drafting note

Subclauses 2(1), 2(2) and 2(3)

Schedule 1 to this bill contains amendments consequent on the enactment of the Social Security (Administration) Act 1999. Subclause 2(2) states that these amendments are to commence on 20 March 2000 – the date on which the Administration Act is to commence.

Schedule 2 to this bill contains amendments consequent on the enactment of the Social Security (International Agreements) Act 1999. Subclause 2(3) states that these amendments are to commence on 1 July 2000. However proposed section 2 of the International Agreements Act states that it is to commence on 20 March 2000.

Schedule 3 to this bill repeals Part 9 of the Administration Act. Subclause 2(1) would have this commencing on Royal Assent. However, proposed subsection 2(3) of the Administration Act indicates that Part 9 should cease to have effect on 1 July 2000.

It would seem more appropriate that subclause 2(2) of the Consequential Provisions Bill refer to both Schedules 1 and 2, while subclause 2(3) of that bill should refer to Schedule 3.

Other than this, the Committee makes no further comment on these provisions.

Social Security (Administration) Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (International Agreements) Bill 1999 and the Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999, this bill proposes to consolidate all the machinery and most of the administrative provisions relating to social security.

Use of tax file numbers

Clauses 74, 75 and 76

Proposed clause 74 of this bill provides that the Secretary may request, but not compel, a claimant for, or a recipient of, social security payments to provide his or her tax file number or that of their partner. Proposed clauses 75 and 76 set out the effect of a failure to satisfy such a request.

The Committee has previously drawn attention to the statements that accompanied the proposed introduction of the tax file number scheme in May 1988 (see, for example, pages 16 and 17 of Alert Digest No 2 of 1999). The scheme was originally intended for “the exclusive and limited use of the Tax Office”. However, since its inception it has gradually been extended to many other areas of Commonwealth activity, including in relation to payments made under the social security legislation.

The Committee recognises that clauses 74 to 76 of this bill are not new, and have been included to minimise the opportunity for fraud against the Commonwealth. Nevertheless, the Committee remains mindful of the constant expansion of the tax file number scheme, and draws Senators' attention to the comments of the Senate Standing Committee on Legal and Constitutional Affairs in December 1990, in its Report on The Proposed Tax File Number Provisions and Data-Matching Program, that any extension of the scheme “should only proceed for the most compelling of reasons”.

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

Non reviewable decisions

Clause 144

Proposed clause 144 of this bill lists a number of decisions which are not reviewable by the Social Security Appeals Tribunal. This clause appears to be unexceptionable in that the decisions referred to are either currently listed in section 1250 of the Social Security Act 1991, or are otherwise inappropriate for such review. However, in setting out the intended effect of clause 144, the Explanatory Memorandum simply states that “this clause provides that the SSAT may not review certain decisions. The clause sets out what those decisions are”.

Accordingly, the Committee seeks the Minister's confirmation that this clause does not change the existing law.

Pending the Minister's confirmation, the Committee draws Senators' attention to this provision, as it 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.

Social Security (Family Allowance and Related Matters) Legislation Amendment Bill 1999

This bill was introduced into the House of Representatives on 9 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the following Acts:

Social Security Act 1991 to:

Health Insurance Act 1973 to make consequential amendments in relation to provision of a health care card to certain young persons.

The Committee has no comment on this bill.

Social Security (International Agreements) Bill 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (Administration) Bill 1999 and the Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999, this bill proposes to provide for:

Henry VIII clauses

Clauses 7, 8 and 9

As noted above, this bill provides for the consolidation of existing international social security agreements into a separate Act. These agreements, which are set out in 11 Schedules to the bill, provide for international reciprocity in the provision of social security benefits.

Proposed clause 7 of the bill authorises the text of these Schedules to be amended by regulation. Proposed clause 8 authorises the addition of new scheduled international agreements by regulation, and proposed clause 9 authorises the repeal of a Schedule by regulation.

While this is clearly a delegation of legislative power, the Committee has no means of ascertaining whether or not it is appropriate. Neither the Explanatory Memorandum nor the Second Reading Speech clarifies the need for authorising amendment by regulation in these circumstances. The Committee therefore seeks the Minister's advice as to why it is appropriate that the provisions of the bill be amended by regulation, and whether these regulations are to be disallowable.

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

States Grants (General Purposes) Amendment Bill 1999

This bill was introduced into the House of Representatives on 10 June 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to amend the States Grants (General Purposes) Act 1994 to:

The Committee has no comment on this bill.

Stevedoring Levy (Collection) Amendment Bill 1999

This bill was introduced into the House of Representatives on 2 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Transport and Regional Services]

The bill proposes to amend the Stevedoring Levy (Collection) Act 1998 to increase the amount that may be authorised by the Minister in connection with Stevedoring industry reform from $250 million to $350 million. Complementary to the Social Security (International Agreements) Bill 1999 and the Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999, this bill proposes to consolidate all the machinery and most of the administrative provisions relating to social security.

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. In that Report, the Committee recommended that the Attorney-General develop more detailed criteria to ensure that the penalties imposed for such offences were “more consistent, more appropriate, and make greater use of a wider range of non-custodial penalties”. The Committee also recommended that such criteria be made available to Ministers, drafters and to the Parliament.

The Government responded to that Report on 14 December 1998. In that response, the Minister for Justice referred to the ongoing development of the Commonwealth Criminal Code, which would include rationalising penalty provisions for “administration of justice offences”. The Minister undertook to provide further information when the review of penalty levels and applicable principles had taken place.

For information, the following Table sets out penalties for `information-related' offences in the legislation covered in this Digest. The Committee notes that imprisonment is still prescribed as a penalty for some such offences.

TABLE

Bill/Act Section/Subsection Offence Penalty
Health Insurance Amendment (Professional Services Review) Bill 1999 106ZPN Person not under review fail to produce documents or give information 20 penalty units
Health Insurance Amendment (Professional Services Review) Bill 1999 106ZPO and
106ZPP
Provide false or misleading answers or documents 12 months
Social Security (Administration) Bill 1999 198 Fail to comply with requirement to provide information or documents 12 months
A New Tax System (Family Assistance)(Administration) Bill 1999 64

65

160

Fail to provide relevant child care statement

Fail to provide relevant child care statement

Fail to provide information or produce document

60 penalty units

20 penalty units

12 months