Scrutiny of Bills Alert Digest No. 10 of 1999

30 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

Australian Tourist Commission Amendment Bill 1999

Customs and Excise Amendment (Diesel Fuel Rebate Scheme) Bill 1999

Customs Tariff Amendment Bill (No. 2) 1999

Customs Tariff Amendment (Tradex) Bill 1999

Customs (Tariff Concession System Validations) Bill 1999

Diesel and Alternative Fuels Grants Scheme Bill 1999

Electoral Amendment (Senate Elections) Bill 1999

Federal Magistrates Bill 1999

Federal Magistrates (Consequential Amendments) Bill 1999

Ministers of State Amendment Bill 1999

Petroleum (Submerged Lands) Legislation Amendment Bill 1999

Tradex Duty Imposition Bill 1999

Tradex Scheme Bill 1999

War Crimes Amendment Bill 1999

Workplace Relations Amendment (Defence purposes leave) Bill 1999

Workplace Relations Legislation Amendment (Youth Employment) Bill 1998 [No. 2]

Provisions which impose criminal sanctions for the failure to provide information

Australian Tourist Commission Amendment Bill 1999

This bill was introduced into the House of Representatives on 23 June 1999 by the Minister for Sport and Tourism. [Portfolio responsibility: Sport and Tourism]

The bill proposes to amend the Australian Tourist Commission Act 1987 to enable the Commission's principal object to reflect its powers in the area of protecting Australia from adverse environmental and social impacts of international tourism.

The Committee has no comment on this bill.

Customs and Excise Amendment (Diesel Fuel Rebate Scheme) Bill 1999

This bill was introduced into the House of Representatives on 22 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Treasury]

Complementary to the Diesel and Alternative Fuels Grants Scheme Bill 1999, this bill proposes to amend the Customs Act 1901 and the Excise Act 1901 to:

extend the Diesel Fuel Rebate Scheme to provide a diesel fuel rebate for purchases of diesel and like fuels where the fuel is used in rail transport or for marine use in the course of carrying on an enterprise; and
extend the scheme from 1 July 2000 until 30 June 2002.

The Committee has no comment on this bill.

Customs Tariff Amendment Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 24 June 1999 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the Customs Tariff Act 1995 to:

reduce the customs duty on aviation gasoline by 2.6 cents per litre (from 25 May 1998) and a further reduction of 13.092 cents per litre (from 1 July 1998);
remove customs duty from inputs to the manufacture of information industry equipment and create a free rate of duty for certain inputs to the manufacture of information industry equipment;
create a free rate of duty for certain medical and scientific equipment currently subject to a tariff of five per cent;
create a free rate of duty for certain parts of machine tools and robots; and
make technical amendments.

Retrospective application

Subclauses 2(6) and 2(7)

By virtue of subclauses 2(2) to 2(7) of this bill, many of the amendments proposed are to commence retrospectively. However, the Explanatory Memorandum observes that the most significant of these amendments have been contained in Tariff Proposals which have been tabled in the Parliament prior to their coming into effect. In these circumstances, as measures involving taxation, the Committee is usually prepared to accept some retrospectivity in their application. In addition, all of these amendments seem to be either technical in nature, making no substantive change to the law, or are beneficial to those liable to pay customs duties.

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

Customs Tariff Amendment (Tradex) Bill 1999

This bill was introduced into the House of Representatives on 24 June 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Justice and Customs]

One of a package of three bills to implement the Tradex Scheme, this bill proposes to amend the Customs Tariff Act 1995 to allow for the importation, without payment of customs duty, goods included in a “tradex order”, where those goods are imported by the holder of the order.

The Committee has no comment on this bill.

Customs (Tariff Concession System Validations) Bill 1999

This bill was introduced into the Senate on 23 June 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Justice and Customs]

The bill proposes to validate decisions made by Customs officers between 15 July 1996 and 31 May 1999 purporting to exercise powers delegated by the Chief Executive Officer of Customs for the purposes of the Tariff Concession System.

Retrospective validation

Clauses 5 and 6

This bill retrospectively validates certain instruments of delegation and certain decisions made under those instruments. The Explanatory Memorandum states that the purpose of the bill “is to remove any doubt about the validity of decisions made by officers of Customs between 15 July 1996 and 31 May 1999 purporting to exercise powers delegated by the Chief Executive Officer of Customs (“the CEO”) for the purposes of the Tariff Concession System (“the TCS”)”.

The Explanatory Memorandum states that doubts about the validity of an existing delegation were raised during an AAT matter in Melbourne. The sufficiency of the delegation was questioned on the basis that new powers had been subsequently added to those delegated, but no new delegation had been issued covering those additional powers.

While such a retrospective validation would ordinarily be of concern to the Committee, clause 6 of the bill states that any person who has already taken the point that the validations were not valid – either before the AAT or in applying to Customs for a refund of duty – will not be affected by this retrospectivity.

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

Diesel and Alternative Fuels Grants Scheme Bill 1999

This bill was introduced into the House of Representatives on 22 June 1999 by the Minister for Transport and Regional Services. [Portfolio responsibility: Treasury]

Complementary to the Customs and Excise Amendment (Diesel Fuel Rebate Scheme) Bill 1999, this bill introduces a grant which will be available from 1 July 2000 to 30 June 2002. The grant will be available for the use of diesel fuel for certain road transport, and for the use of other fuels as alternatives to diesel fuel.

Commencement

Clause 2

Clause 2 of this bill provides that, subject to subsections (2) and (5), the bill is to commence on 1 July 2000, unless the Diesel and Alternative Fuels Grants Scheme (Administration and Compliance) Act 1999 commences after 1 July 2000, in which case it is to commence on the commencement of the Administration Act.

However, proposed subclause 2(2) states that the bill is not to commence until certain specified motor vehicle emission standards are determined and come into effect in relation to certain specified technical requirements.

Proposed subclause 2(5) states that the bill is not to commence until the day on which one or more Acts have appropriated specified amounts of money for certain specified programs.

Such contingent commencement runs similar risks to provisions which permit legislation to commence on proclamation – a matter about which the Committee often comments. Where the commencement of legislation is indeterminate, the Committee usually refers to Drafting Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel. This requires that an explanation for such commencement provisions be included in the Explanatory Memorandum. The Explanatory Memorandum for this bill does not indicate why the bill's commencement should be contingent on the development of emission standards and the appropriation of moneys. The Committee, therefore, seeks the Minister advice on these matters.

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

Electoral Amendment (Senate Elections) Bill 1999

This bill was introduced into the Senate on 22 June 1999 by Senator Colston as a Private Senator's bill.

The bill proposes to amend the Commonwealth Electoral Act 1918 to provide for the division of States into Wards for the purpose of choosing senators and makes consequential amendments and transitional arrangements.

The Committee has no comment on this bill.

Federal Magistrates Bill 1999

This bill was introduced into the House of Representatives on 24 June 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to establish the Federal Magistrates Court, also to be known as the Federal Magistrates Service, as a court under Chapter III of the Constitution.

The Committee has no comment on this bill.

Federal Magistrates (Consequential Amendments) Bill 1999

This bill was introduced into the House of Representatives on 24 June 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

Consequent upon the Federal Magistrates Bill 1999, this bill proposes to amend various Acts to:

make consequential amendments to give the Federal Magistrates Court concurrent jurisdiction with either the Federal Court of Australia or the Family Court of Australia; and
make consequential amendments.

The Committee has no comment on this bill.

Ministers of State Amendment Bill 1999

This bill was introduced into the House of Representatives on 23 June 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Special Minister of State]

The bill proposes to amend the Ministers of State Act 1952 to increase from $1.64 million to $1.78 million the limit on the sum appropriated from the Commonwealth Consolidated Revenue Fund for Ministers' salaries.

The Committee has no comment on this bill.

Petroleum (Submerged Lands) Legislation Amendment Bill 1999

The bill proposes to amend the Petroleum (Submerged Lands) Act 1967 principally to:

introduce infrastructure licences to cater for at-sea operations that do not strictly fall within the ambit of current protection or pipeline licences;
introduce an option for the use of supplementary bids to decide between exploration permit bids that are ranked equal;
introduce a right by submitters of information under the Act to make a declaration which, unless challenged by the Designated Authority, will determine whether and when the information may be publicly released;
create an offence relating to deliberately interfering with offshore petroleum operations or installations;
repeal provisions relating to:
- the Joint Authority's discretion to fix the number of blocks for renewals of exploration permits at 16;
- the fragmentation constraints on areas covered by permits being renewed; and
- the 21 year term of pipeline licences;
modify the halving rule for permit renewals when consideration is given to renewing an expiring permit covering six blocks or less;
ensure that the withdrawal of an applicant before the awarding of an exploration permit creates fewer complications for the process;
make minor machinery amendments; and
make a consequential amendment to the Petroleum (Submerged Lands) Fees Act 1994.

The Committee has no comment on this bill.

Tradex Duty Imposition Bill 1999

One of a package of three bills to implement the Tradex Scheme, this bill proposes to provide for the imposition of Tradex Duty which is an amount equal to the customs duty that would have been payable if goods are not imported under the provisions of the Tradex Scheme.

The Committee has no comment on this bill.

Tradex Scheme Bill 1999

One of a package of three bills to implement the Tradex Scheme, this bill proposes to establish the Tradex Scheme and provide for the administration of the scheme. The objective of the Tradex Scheme is to allow for the importation of goods, without payment of customs duty or other taxes, provided the goods are subsequently exported or incorporated in other goods that are exported.

Strict liability offence

Subclause 28(2)

Subclause 28(1) of this bill creates an offence of a failure to pay tradex duty. Subclause 28(2) states that this is to be an offence of strict liability. Under such a provision, a person might be convicted of the offence even though he or she did not intend to commit it. The Explanatory Memorandum does not indicate why this offence should involve strict liability. The Committee, therefore, seeks the Minister advice on the reasons for making this a strict liability offence.

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.

Abrogation of the privilege against self-incrimination

Subclauses 30(2) and (3)

Subclause 30(1) of this bill creates an offence of failure to comply with a requirement (relating to documents or record keeping) made by an authorised officer. Subclause 30(2) states that self-incrimination is not a ground for refusing to answer a question or produce documents. However, subclause 30(3) states that any document or information directly or indirectly produced under compulsion is inadmissible except in proceedings for making a false and misleading statement. This Committee has accepted that such a provision strikes a reasonable balance between the competing interests of obtaining information and protecting rights.

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

Appointment of `a person'

Subclause 45(1)

Subclause 45(1) of this bill enables the Secretary, by writing, to “appoint persons to be authorised officers for the purposes of this Act”. The bill makes no reference to any qualifications or attributes which such persons must have as a condition of being authorised.

The Committee often draws attention to provisions which delegate power to anyone who fits the all-embracing description of `a person'. As a general rule, the Committee prefers to see some limits placed either on the powers which can be delegated or on the class of potential delegates. Similar considerations apply to the appointment of officers authorised for the purposes of an Act of Parliament. As a general rule, the Committee would prefer that potential appointees be required to have some qualifications or attributes before they are eligible for appointment. The Committee, therefore, seeks the Minister's advice on why the unfettered discretion to appoint authorised officers ought not be limited in some way, for example, by reference to qualifications or attributes which appointees should possess.

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

Excessively wide delegation

Clause 48

Clause 48 of this bill permits the Secretary, by writing, to “delegate to an officer of, or a person employed in, the Department all or any of the Secretary's functions and powers under this Act”.

The Act authorises the Secretary to exercise functions and powers that are wide in scope. These include suspending a tradex order, causing infringement notices to be served, reconsidering various decisions made under the legislation, extending certain time periods and providing certificates which have evidentiary force.

Given the scope and variety of these powers, the Committee seeks the Minister's advice on why some limit should not be placed on potential delegates – for example, by limiting the class of potential delegates to officers in the Senior Executive Service.

War Crimes Amendment Bill 1999

The bill proposes to amend the War Crimes Act 1945 to facilitate extradition proceedings with former Soviet Bloc countries, particularly the Baltic States.

The Committee has no comment on this bill.

Workplace Relations Amendment (Defence purposes leave) Bill 1999

This bill was introduced into the House of Representatives on 21 June 1999 by Mr Bevis as a Private Member's bill.

The bill proposes to amend the Workplace Relations Act 1996 to enable the Australian Industrial Relations Commission to include in industrial awards leave for workers to participate in activities as members of the Australian Defence Force.

The Committee has no comment on this bill.

Workplace Relations Legislation Amendment (Youth Employment) Bill 1998 [No. 2]

This bill was introduced into the House of Representatives on 24 June 1999 by the Minister for Employment, Workplace Relations and Small Business. [Portfolio responsibility: Employment, Workplace Relations and Small Business].

The bill proposes to amend the following Acts:

Workplace Relations Act 1996 to:

include in the principal object of the Act and the objects of Part VI of the Act the protection of the competitive position of young people in the labour market, the promotion of youth employment and the reduction of youth unemployment;
permanently exempt junior rates of pay from the provisions of the Act intended to prevent and eliminate age discrimination in awards and agreements; and
promote the inclusion of junior rates of pay in awards and agreements; and

Workplace Relations and Other Legislation Amendment Act 1996 to:

permanently exempt junior rates of pay from the provisions of the Act intended to prevent and eliminate age discrimination in awards; and
promote the inclusion of junior rates of pay in awards.

General comment

Schedule 1, item 4

Item 4 of Schedule 1 to this bill provides, in part, that “junior wage provisions are not to be treated as constituting discrimination by reason of age”. This provision is in the same form as a provision in a bill of the same name which was introduced in the House of Representatives on 26 November 1998, and on which the Committee commented in its Second Report of 1999.

In that Report, the Committee accepted advice from the Minister that this provision did “not seek to exempt junior wage provisions in awards from anti-discrimination law generally, or to prevent a party from seeking a remedy under such laws”.

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

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
Tradex Scheme Bill 1999	26 30(1) 32	Fail to notify of change in registered particulars Fail to make available documents or demonstrate record keeping system Knowingly provide false or misleading information	30 penalty units 60 penalty units 12 months

Bill/Act

Section/Subsection

Offence

Penalty

Tradex Scheme Bill 1999

30(1)

Fail to notify of change in registered particulars

Fail to make available documents or demonstrate record keeping system

Knowingly provide false or misleading information

30 penalty units

60 penalty units

12 months