Scrutiny of Bills Alert Digest No. 11 of 1999
Senate Standing Committee for The Scrutiny of Bills
11 August 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 (Taxation Laws Amendment) Bill (No.
1) 1999 |
Agriculture, Fisheries and Forestry Legislation Amendment
Bill (No. 2) 1999 |
Authorised Non-operating Holding Companies Supervisory
Levy Determination Validation Bill 1999 |
Broadcasting Services Amendment Bill (No. 1) 1999 |
Broadcasting Services Amendment Bill (No. 2) 1999 |
Crimes Amendment (Fine Enforcement) Bill 1999 |
Customs Legislation Amendment Bill (No. 2) 1999 |
Electronic Transactions Bill 1999 |
Export Finance and Insurance Corporation Amendment
Bill 1999 |
Financial Sector Reform (Amendments and Transitional
Provisions) Bill (No. 2) 1999 |
General Insurance Supervisory Levy Determination Validation
Bill 1999 |
Health Insurance Amendment (Diagnostic Imaging Services)
Bill 1999 |
Higher Education Funding Amendment Bill 1999 |
Indigenous Education (Supplementary Assistance) Amendment
Bill 1999 |
Life Insurance Supervisory Levy Determination Validation
Bill 1999 |
Parliamentary Service Bill 1999 |
Republic (Consultation on an Elected President) Bill
1999 |
Retirement Savings Account Providers Supervisory Levy
Determination Validation Bill 1999 |
Social Security Amendment (Disposal of Assets) Bill
1999 |
States Grants (Primary and Secondary Education Assistance)
Amendment Bill 1999 |
Superannuation Contributions and Termination Payments
Taxes Legislation Amendment Bill 1999 |
Superannuation Supervisory Levy Determination Validation
Bill 1999 |
Superannuation (Unclaimed Money and Lost Members) Bill
1999 |
Superannuation (Unclaimed Money and Lost Members) Consequential
and Transitional Bill 1999 |
Taxation Laws Amendment Bill (No. 8) 1999 |
Television Licence Fees Amendment Bill 1999 |
Veterans' Affairs Legislation Amendment Bill (No. 1)
1999 |
Vocational Education and Training Funding Amendment
Bill 1999 |
Workplace Relations Legislation Amendment (More Jobs,
Better Pay) Bill 1999 |
Provisions imposing criminal sanctions for failure
to provide information |
A New Tax System (Taxation Laws Amendment) Bill (No. 1) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Treasurer. [Portfolio responsibility: Treasury]
The bill proposes to amend the Taxation Administration Act 1953 to:
- introduce pay as you go arrangements (PAYG) to enable 11 existing
payment and reporting systems (pay as you earn (PAYE), prescribed payments
system (PPS), reportable payments system (RPS) and other withholding
systems) as well as the provisional tax and company instalments to be
abolished or replaced;
- effect the aligned business tax obligations of one return and one
payment by:
- extending the application of current running balance account arrangements;
- aligning the payment dates for fringe benefits tax instalments
with the quarterly remittance dates of other business taxes;
- facilitating the lodgment of a single compliance statement and
corresponding net payment or refund claim;
- enabling the Commissioner to accept voluntary payments from taxpayers
on account of future taxation debts; and
- making technical amendments to the existing running balance accounts
and general interest charge measures; and
- make transitional amendments; and
make consequential and transitional amendments to nine Acts.
The Committee has no comment on this bill.
Agriculture, Fisheries and Forestry Legislation Amendment Bill (No.
2) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio
responsibility: Agriculture, Fisheries and Forestry]
The bill proposes to amend the following Acts:
Australian Wine and Brandy Corporation Act 1980 to:
- ensure that all relevant details of the transformation of wine from
grape to retail sale are duly recorded;
- ensure that all documents and records relevant to the claims made
on wine labels can be inspected; and
- make technical amendments;
Natural Resources Management (Financial Assistance) Act 1992 to
rename the National Landcare Advisory Committee as the Australian Landcare
Council;
Plant Breeder's Rights Act 1994 to:
- provide relief to applicants affected by a reduction of the allowable
period for prior sale during the transition from the Plant
Variety Rights Act 1987 to the current Act;
- remove the requirement to maintain a copy of the Register of Plant
Varieties in each State and Territory;
- attribute costs associated with a request for a test growing;
- extend public access to information;
- clarify the payment of prescribed fees; and
- make minor technical amendments;
Primary Industry Councils Act 1991 to repeal the Schedule establishing
the Grains Industry Council (which is no longer relevant following privatisation
of the Australian Wheat Board and other changes to grain marketing arrangements);
Primary Industries Levies and Charges Collection Act 1991 to:
- clarify and update levy and export charge collection techniques used
in rural industries, including the association between producers and
intermediaries; and
- upgrade powers for authorised persons to align them with those used
by inspectors under the Export Control Act 1982;
Rural Adjustment Act 1992 to rename the Rural Adjustment Scheme
Advisory Council as the National Rural Advisory Council and to change
the role and functions of the Council; and
Australian Horticultural Corporation Act 1987, the Farm Household
Support Act 1992 and the Primary Industries and Energy Legislation
Amendment Act (No. 1) 1996 to make technical amendments.
Retrospective application
Subclause 2(3)
By virtue of subclause 2(3), the amendments proposed by items 2 and 3
of Schedule 3 to the bill are to commence retrospectively on 28 June 1996.
However, the Explanatory Memorandum observes that this Schedule provides
for technical amendments to correct errors in certain Acts.
In these circumstances, the Committee makes no further comment on
these provisions.
Retrospective application
Subclause 2(4)
By virtue of subclause 2(4), the amendments proposed by Schedule 6 to
the bill are to commence retrospectively on 1 April 1999. Schedule 6 deals
with amendments to the Rural Adjustment Act 1992. The Explanatory
Memorandum (at page 4) states that the amendments proposed are relatively
minor, aimed at redefining the roles and functions of the Rural
Adjustment Scheme Advisory Council in the light of the winding-down of
the Rural Adjustment Scheme.
However, the Explanatory Memorandum (at pages 20-21) offers a more detailed
explanation of the various provisions in Schedule 6. This suggests that
the changes proposed in Schedule 6 may have already taken place in anticipation
of the passage of this legislation, and that these changes now require
retrospective validation a matter on which the Committee usually
comments. The Committee, therefore, seeks the Minister advice on
the need for making these relatively minor amendments retrospective.
Pending the Minister's advice, the Committee draws Senators' attention
to the provisions, as they may be considered to trespass unduly on personal
rights and liberties, in breach of principle 1(a)(i) of the Committee's
terms of reference.
Authorised Non-operating Holding Companies Supervisory Levy Determination
Validation Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
One of a package of five bills, this bill proposes to validate the Authorised
Non-operating Holding Companies Supervisory Levy Imposition Determination
1998. The determination was to take effect from 1 July 1998, but did not
appear in the Gazette until 13 August 1998.
Retrospective application
Clause 4
Clause 4 of this bill proposes to retrospectively validate a determination
purportedly made on 11 August 1998, notified in the Gazette on
13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the
Acts Interpretation Act 1901 provides that determinations have
no effect if they are due to take effect before the date of notification.
Retrospective validation is a matter about which the Committee often
seeks advice. In this instance, the Minister's Second Reading Speech indicates
that, while this determination was expressed to take effect from 1 July
1998, levies were not actually payable until 1 October 1998. Therefore,
whether the determination was truly retrospective is unclear. However,
the Minister goes on to observe that there is sufficient uncertainty
to warrant legislation to ensure that these determinations are valid.
In these circumstances, the Committee makes no further comment on
this provision.
Broadcasting Services Amendment Bill (No. 1) 1999
This bill was introduced into the House of Representatives on 28 June
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 following Acts:
Broadcasting Services Act 1992 to:
- impose a new licence condition on commercial television broadcasting
licensees, and impose an obligation on licensees' program suppliers
and on national broadcasters, to ensure rights acquired by them to live
television coverage of full and live free-to-air coverage of major events
(particularly sporting events) are not hoarded;
- impose restrictions on the provision of certain television broadcasting
services in regional areas by subscription television broadcasting licensees
or their related bodies corporate;
- increase the period allowed for the broadcast of sponsorship announcements
from four to five minutes per hour;
Broadcasting Services Act 1992, the Copyright Act 1968,
the National Transmission Network Sale Act 1998 and the Telecommunications
Act 1997 to:
- establish a new regime for the retransmission of radio and television
programs; and
- make transitional and consequential amendments.
The Committee has no comment on this bill.
Broadcasting Services Amendment Bill (No. 2) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Complementary to the Television Licence Fees Amendment Bill 1999, this
bill proposes to amend the Broadcasting Services Act 1992 to ensure
that the Australian Broadcasting Authority cannot fix charges for its
costs in relation to the commercial television conversion scheme (from
analog to digital) over the next three years.
The Committee has no comment on this bill.
Crimes Amendment (Fine Enforcement) Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Attorney-General. [Portfolio responsibility: Justice and Customs]
The bill proposes to amend the Crimes Act 1914 to allow State
and Territory court officers to impose certain penalties on Commonwealth
fine defaulters, subject to the laws of that State and Territory. The
penalties include garnishment of a debt, seizure of property and imprisonment
of the defaulter.
The Committee has no comment on this bill.
Customs Legislation Amendment Bill (No. 2) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister representing the Minister for Justice and Customs.
[Portfolio responsibility: Justice and Customs]
The bill proposes to amend the Customs Act 1901 to:
- introduce an Electronic Lodgement and Payments system (ELOR) for refunds
of customs duty;
- stipulate the time when payment of customs duty is required;
- provide a mechanism for the deferral of payment of customs duty by
enabling regulations to prescribe later times for the payment of such
duty;
- make changes to the Customs Brokers Licensing System to:
- extend the length of customs agents and corporate customs agents
licences from one to three years;
- change the time when licences have to be renewed from 31 December
to 30 June; and
- rename customs agents as customs brokers.
The Committee has no comment on this bill.
Electronic Transactions Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to establish a regulatory framework for the use of
electronic communications in transactions (electronic commerce) and removes
legal impediments that may prevent a person from using electronic communications
to satisfy obligations under Commonwealth law. The bill further proposes
to give business and the community the option of using electronic communications
when dealing with Government agencies.
The Committee has no comment on this bill.
Export Finance and Insurance Corporation Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Foreign Affairs. [Portfolio responsibility: Trade]
The bill proposes to amend the following Acts:
Export Finance and Insurance Corporation Act 1991 to apply a debt
neutrality charge, guarantee fee and tax-equivalent payments to EFIC's
operations in the short-term insurance contract area; and
Insurance (Agents and Brokers) Act 1984 and the Insurance Contracts
Act 1984 to remove EFIC's current exemptions in relation to such operations.
Retrospective application
Subclause 2(2)
Subclause 2(2) of this bill provides that the amendment proposed by item
4 of Schedule 1 is to commence retrospectively on 1 July 1998. However,
the effect of this amendment is to apply an aspect of the Commonwealth's
competitive neutrality policy to the Export Finance and Insurance Corporation
(EFIC) a statutory authority. Under the proposed amendment, EFIC
is required to pay tax-equivalent amounts to the Commonwealth in lieu
of tax that would, but for section 63 of the Principal Act, have been
payable. Therefore, the retrospective application of the bill does not
affect members of the public.
In these circumstances, the Committee makes no further comment on
this provision.
Commencement
Subclauses 2(3) and 2(4)
Subclause 2(3) permits the other amendments proposed in this bill to
commence on Proclamation. However, subclause 2(4) provides that these
amendments must commence by 1 July 2000 at the latest. While this is longer
than the period of 6 months after assent, which the Committee normally
accepts as complying with the requirements of Drafting Instruction
No 2 of 1989 issued by the Office of Parliamentary Counsel, it is
nevertheless a fixed end-date. As such, it ensures that these amendments
cannot commence at the discretion of the Executive.
In these circumstances, the Committee makes no further comment on
these provisions.
Financial Sector Reform (Amendments and Transitional Provisions)
Bill (No. 2) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to amend the following Acts:
Australian Prudential Regulation Authority Act 1998 to:
- exempt the Australian Prudential Regulation Authority (APRA) from
paying sales tax on the goods it purchases; and
- make technical amendments to secrecy provisions;
Banking Act 1959 to enable the Treasurer to issue disclosure guidelines
to ensure that all authorised deposit-taking institutions (ADIs) seeking
to demutualise give proper regard to members' interests and disclose adequate
information for members to make an informed decision;
Financial Corporations Act 1974 to:
- enable information to be collected from registered financial corporations
to assist the Reserve Bank of Australia (RBA) in formulation of monetary
policy;
- lift the threshold to which the Act applies, for corporations where
the value of assets of the corporation engaged in the provision of finance,
in the course of carrying on retail business of selling goods, exceeds
$25 million;
- make the Act inapplicable to a corporation and every related corporation
with assets of less than $5 million unless a lesser amount is prescribed
by regulations;
- enable the RBA to delegate the majority of its functions under the
Act to APRA, the Australian Statistician or staff members of APRA or
the Australian Bureau of Statistics;
- enable the RBA to specify, in writing, standards on the information
to be provided by corporations registered under the Act and the form
that the information should be provided in;
- specify that certain documents are only required to be delivered to
the Head Office of the RBA;
- increase the maximum penalty level for a corporation holding itself
out in the course of its business as being registered under the Act;
- repeal the provision relating to the appointment of advisory committees
by the Treasurer; and
- make technical amendments;
Financial Corporations (Transfer of Assets and Liabilities) Act 1993
to extend until 30 June 2000 the deadline for foreign ADIs operating
in Australia since 18 June 1993 to obtain a banking authority;
Financial Institutions Supervisory Levies Collection Act 1998,
the Superannuation (Financial Assistance Funding) Levy Act 1993 and
the Superannuation Industry (Supervision) Act 1993 to clarify the
circumstances in which certain superannuation funds, which suffer losses
due to fraud or theft, will be eligible for a grant of financial assistance;
Financial Laws Amendment Act 1997:
- to correct an error to the definition of newly established foreign
bank; and
- make consequential amendments;
Life Insurance Act 1995 to expand the requirements for the assignment
of an interest in an approved benefit fund of a friendly society;
Reserve Bank Act 1959 to disqualify from RBA Board membership
any person who is a director, officer or employee of an ADI;
Retirement Savings Accounts Act 1997 to make a technical amendment;
Superannuation Industry (Supervision) Act 1993 to:
- extend the range of information required under the Act that may be
submitted in electronic form;
- strengthen safeguards against misuse or fraud in relation to electronic
lodgement;
- remove the requirement for affixing a common seal to election notices;
and
- make consequential and other minor amendments;
and amends three Acts to make various miscellaneous technical amendments,
and makes transitional, saving and application provisions.
Retrospective application
Clause 2
Subclauses 2(2) to 2(5) and subclauses 2(9) and 2(10) provide that various
amendments proposed in this bill are to be taken to have commenced retrospectively.
However, in each case, the amendments are either technical, and make no
change to the substantive law, or are beneficial to persons and bodies
other than the Commonwealth.
In these circumstances, the Committee makes no further comment on
these provisions.
General Insurance Supervisory Levy Determination Validation Bill
1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
One of a package of five bills, this bill proposes to validate the General
Insurance Supervisory Levy Imposition Determination 1998. The determination
was to take effect from 1 July 1998, but did not appear in the Gazette
until 13 August 1998.
Retrospective application
Clause 4
Clause 4 of this bill proposes to retrospectively validate a determination
purportedly made on 11 August 1998, notified in the Gazette on
13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the
Acts Interpretation Act 1901 provides that determinations have
no effect if they are due to take effect before the date of notification.
Retrospective validation is a matter about which the Committee often
seeks advice. However, as noted in relation to the Authorised Non-operating
Companies Supervisory Levy Determination Validation Bill 1999 (discussed
above), with which this bill is complementary, there is doubt about whether
the determinations in issue were actually retrospective, but sufficient
uncertainty to warrant ensuring that they are valid.
In these circumstances, the Committee makes no further comment on
this provision.
Health Insurance Amendment (Diagnostic Imaging Services) Bill 1999
This bill was introduced into the House of Representatives on 30 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 in relation
to diagnostic imaging services provided by medical practitioners under
either the remote area or pre-existing diagnostic imaging practices' exemptions
of the Act to:
- require that these practitioners must be enrolled and participating
in an approved continuing medical education and quality assurance program
in the field of diagnostic imaging (in order for a Medicare benefit
to be paid for their services);
- make provision for the Minister to issue a disallowable instrument
prescribing the relevant approved continuing medical education and quality
assurance program; and
- establish a register maintained by the Health Insurance Commission
to record medical practitioners participating in a continuing medical
education and quality assurance program.
The Committee has no comment on this bill.
Higher Education Funding Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the Higher Education Funding Act 1988
to:
- set the maximum grant amount for operating purposes for higher education
institutions for the funding years 1999, 2000 and 2001;
- vary the maximum total financial assistance payable to higher education
institutions for superannuation expenditure for the funding year 2000
and set the maximum total amount of financial assistance for the funding
year 2001;
- vary the maximum aggregate amount of financial assistance which may
be granted to open learning organisations for the funding year 2000
and set the maximum aggregate amount of financial assistance for the
funding year 2001;
- vary the limit on total funds available for higher education institutions
for certain grants under the Act in respect of the funding years 1999
and 2000 and set the limit on total funds for the funding year 2001;
- vary the maximum aggregate amount of financial assistance which may
be granted to higher education institutions in respect of their teaching
hospitals for the 2000 funding year and set the maximum aggregate amount
of financial assistance for the 2001 funding year;
- vary the maximum aggregate amount which may be granted to higher education
institutions for approved special capital projects for the 2000 funding
year and set the maximum aggregate amount for the 2001 funding year;
- set the maximum funding level for expenditure on the international
marketing and promotion of Australian education and training services
by Australian Education International for the 2001 funding year;
- provide for the funding of 60 medical places at James Cook University
for the 2001 funding year;
- provide for an additional $4.9 million in the 2000 funding year and
$9.8 million in the 2001 funding year for science lectureships;
- provide for an increase of $36.8 million in each of the 2000 and 2001
funding years for higher education research infrastructure;
- reflect reductions to the Higher Education Innovation Program for
projects of national priority in each of the 2000 and 2001 funding years;
and
- reflect savings of $7.8 million in the 2000 funding year and $10.4
million in the 2001 funding year resulting from the phasing out of Merit
Equity Scholarships.
The Committee has no comment on this bill.
Indigenous Education (Supplementary Assistance) Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the following Acts:
Indigenous Education (Supplementary Assistance) Act 1989 to:
- provide for the continuation of the Indigenous Education Strategic
Initiatives Program for the period 1 January 2000 to 30 June 2001 including
the application of cost supplementation to these new funds; and
- provide for the continuation of the mixed mode delivery away-from-base
element of the ABSTUDY scheme; and
Student Assistance Act 1973 to make a consequential amendment
transferring the appropriation of the away-from-base element of the ABSTUDY
scheme to the Indigenous Education (Supplementary Assistance) Act 1989.
The Committee has no comment on this bill.
Life Insurance Supervisory Levy Determination Validation Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
One of a package of five bills, this bill proposes to validate the Life
Insurance Supervisory Levy Imposition Determination 1998. The determination
was to take effect from 1 July 1998, but did not appear in the Gazette
until 13 August 1998.
Retrospective application
Clause 4
Clause 4 of this bill proposes to retrospectively validate a determination
purportedly made on 11 August 1998, notified in the Gazette on
13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the
Acts Interpretation Act 1901 provides that determinations have
no effect if they are due to take effect before the date of notification.
Retrospective validation is a matter about which the Committee often
seeks advice. However, as noted in relation to the Authorised Non-operating
Companies Supervisory Levy Determination Validation Bill 1999 (discussed
above), with which this bill is complementary, there is doubt about whether
the determinations in issue were actually retrospective, but sufficient
uncertainty to warrant ensuring that they are valid.
In these circumstances, the Committee makes no further comment on
this provision.
Parliamentary Service Bill 1999
This bill was introduced into the House of Representatives on 28 June
1999 by the Speaker. This bill is similar to the Parliamentary Service
Bill 1997, as amended and passed by the House of Representatives on 30
October 1997. [Portfolio responsibility: Prime Minister]
The bill proposes to provide for the establishment and administration
of the Australian Parliamentary Service.
The Committee has no comment on this bill.
Republic (Consultation on an Elected President) Bill 1999
This bill was introduced into the Senate on 30 June 1999 by Senator Murray
as a Private Senator's bill.
The bill proposes to provide that, at the same time as electors vote
on the Constitution Alteration (Establishment of Republic) 1999, they
may determine whether the president should be directly elected. If there
is a preference for an elected president, the bill further provides for
an elected convention to consider and report to Parliament on options
for an elected president and for Presiding Officers to prepare draft constitutional
amendments to effect options canvassed in the convention report, including
any option recommended by the convention.
The Committee has no comment on this bill.
Retirement Savings Account Providers Supervisory Levy Determination
Validation Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister representing the Minister for Financial Services
and Regulation. [Portfolio responsibility: Treasury]
One of a package of five bills, this bill proposes to validate the Retirement
Savings Account Providers Supervisory Levy Imposition Determination 1998.
The determination was to take effect from 1 July 1998, but did not appear
in the Gazette until 13 August 1998.
Retrospective application
Clause 4
Clause 4 of this bill proposes to retrospectively validate a determination
purportedly made on 11 August 1998, notified in the Gazette on
13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the
Acts Interpretation Act 1901 provides that determinations have
no effect if they are due to take effect before the date of notification.
Retrospective validation is a matter about which the Committee often
seeks advice. However, as noted in relation to the Authorised Non-operating
Companies Supervisory Levy Determination Validation Bill 1999 (discussed
above), with which this bill is complementary, there is doubt about whether
the determinations in issue were actually retrospective, but sufficient
uncertainty to warrant ensuring that they are valid.
In these circumstances, the Committee makes no further comment on
this provision.
Social Security Amendment (Disposal of Assets) Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Community Services. [Portfolio responsibility:
Family and Community Services]
The bill proposes to amend the Social Security Act 1991 to:
- reduce from $10,000 to $5,000 the free area that a person
or couple may gift before that gift begins to impact on the level of
assistance provided to them; and
- change the basis of the concession from pension year to
financial year.
Retrospective application
Clause 2
Clause 2 of this bill provides that, to some extent, it is to commence
retrospectively, on 1 July 1999. Further, the bill will adversely affect
recipients of social security benefits by reducing the value of assets
of which they may dispose in any year without affecting their entitlement
to those benefits.
However, item 20 of the Schedule proposes to protect social security
beneficiaries from those adverse effects where they dispose of assets
between 1 July 1999 and the date on which the bill is assented to. The
Explanatory Memorandum observes that the effect of this item is that amounts
paid prior to the Royal Assent under the existing disposal rules are protected
from recovery insofar as the provisions of this Act are concerned.
While the bill is expressed to apply retrospectively, this item seems
to reverse the effect of that retrospectivity. Given this, it is not clear
why retrospectivity is thought necessary. It is also not clear whether
this protection provided by item 20 will be available to all social security
beneficiaries, or only a particular class of beneficiaries. The Committee,
therefore, seeks the Minister's advice to clarify why the bill
has taken this approach to retrospectivity, and whether any particular
group of social security beneficiaries may be disadvantaged by the approach
taken.
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.
States Grants (Primary and Secondary Education Assistance) Amendment
Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the States Grants (Primary and Secondary
Education Assistance) Act 1996 to:
- provide $36.3 million for 2000 for funding under the Literacy and
Numeracy Program to be allocated to the Support for the National Literacy
and Numeracy Plan and strategies to improve literacy and numeracy in
the middle years of schooling;
- provide $26.4 million for 2000 to fund the National Asian Languages
and Studies in Australian Schools (NALSAS) strategy;
- provide an additional $10.1 million for the program years 2000-2003
for the non-government component of the Capital Grants Program;
- provide an additional $1.9 million for Short Term Emergency Assistance
(STEA) for 2000 during the transitional period to the new SES funding
model for non-government schools; and
- make a minor technical amendment to change the name of the Literacy
Program to the Literacy and Numeracy Program.
The Committee has no comment on this bill.
Superannuation Contributions and Termination Payments Taxes Legislation
Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Parliamentary Secretary to the Minister for Finance and Administration.
[Portfolio responsibility: Treasury]
The bill proposes to amend the following Acts:
Superannuation Contributions Tax (Assessment and Collection) Act 1997
to:
- remove the requirement for the Commissioner to determine an advance
instalment if superannuation contributions surcharge is payable for
a member for a financial year; and
- provide for a system of self assessment for specified superannuation
funds;
Superannuation Contributions Tax (Assessment and Collection) Act 1997
and Superannuation Contributions Tax (Members of Constitutionally
Protected Superannuation Funds) Assessment and Collection Act 1997 to:
- clarify what surchargeable contributions are and how they are to be
calculated;
- clarify the identify of the holder of the surchargeable contributions
of a member for a particular financial year who is to pay the surcharge
liability;
- provide a means for members of constitutionally protected schemes
who transfer benefits to another fund to direct the transferee provider
to pay the surcharge liability from the benefits transferred;
- ensure that members of all superannuation funds who commute part of
a pension to pay a surcharge liability are treated equitably;
- provide alternative reporting requirements for superannuation providers
to reduce administration costs incurred in reporting surcharge information
to all members; and
- clarify what is to be reported to the Commissioner in respect of surchargeable
contributions and contributed amounts; and
Superannuation Contributions Tax (Assessment and Collection) Act 1997,
Superannuation Contributions Tax (Members of Constitutionally Protected
Superannuation Funds) Assessment and Collection Act 1997 and Termination
Payments Tax (Assessment and Collection) Act 1997 to:
- distinguish between the making of an assessment and the assessment
notice;
- support the making and electronic transmission of assessments;
- provide that the validity of an assessment (and determination of advance
instalment where appropriate) is not affected by any non-compliance;
- limit the time in which the Commissioner can amend an assessment;
and
- expand the objection provisions and remove current limits on the rights
of members and providers to object against surcharge assessments; and
Income Tax Assessment Act 1936, the Superannuation Industry
(Supervision) Act 1993 and the Taxation Laws Amendment Act (No.
3) 1997 to make technical amendments.
Retrospective application
Subclauses 2(2) and 2(3)
Subclause 2(2) of the bill provides that the substantive provisions in
Schedule 1 are taken to have commenced retrospectively on 5 June
1997. Similarly, subclause 2(3) provides that the substantive provisions
in Schedule 2 are taken to have commenced retrospectively on 7 December
1997. The Explanatory Memorandum simply notes that Some of the amendments
will apply retrospectively to ensure the surcharge measure applies equitably
to both defined benefit fund members and to members of funds other than
defined benefit funds.
In addition, item 28 of Schedule 1 to the bill proposes to insert a new
subsection 42(2) in the Superannuation Contributions Tax (Assessment
and Collection) Act 1997. This will allow for the making of regulations
with retrospective effect, contrary to subsection 48(2) of the Acts
Interpretation Act 1901. The Committee seeks the Treasurer's advice
as to why so many of the provisions proposed by this bill are to operate
retrospectively; why the bill is to apply retrospectively for a period
as long as 2 years; whether this retrospective application will detrimentally
affect anyone; and why the bill authorises the making of regulations with
retrospective effect.
Pending the Treasurer's advice, the Committee draws Senators' attention
to the provisions, as they may be considered to trespass unduly on personal
rights and liberties, in breach of principle 1(a)(i) of the Committee's
terms of reference.
Retrospective application
Subclause 2(4)
Subclause 2(4) of the bill provides that the amendments proposed by Schedule 6
are to be taken to have commenced retrospectively from 14 October 1997.
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.
Superannuation Supervisory Levy Determination Validation Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
One of a package of five bills, this bill proposes to validate the Superannuation
Supervisory Levy Imposition Determination 1998. The determination was
to take effect from 1 July 1998, but did not appear in the Gazette
until 13 August 1998.
Retrospective application
Clause 4
Clause 4 of this bill proposes to retrospectively validate a determination
purportedly made on 11 August 1998, notified in the Gazette on
13 August 1998, but taking effect from 1 July 1998. Section 48(2) of the
Acts Interpretation Act 1901 provides that determinations have
no effect if they are due to take effect before the date of notification.
Retrospective validation is a matter about which the Committee often
seeks advice. However, as noted in relation to the Authorised Non-operating
Companies Supervisory Levy Determination Validation Bill 1999 (discussed
above), with which this bill is complementary, there is doubt about whether
the determinations in issue were actually retrospective, but sufficient
uncertainty to warrant ensuring that they are valid.
In these circumstances, the Committee makes no further comment on
this provision.
Superannuation (Unclaimed Money and Lost Members) Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to establish a scheme to enable superannuation members
who have lost contact with their fund to have a comprehensive register
to check where their superannuation is held.
Search and entry provisions
Clause 46
Proposed clause 46 of the bill will permit authorised officers, having
the written authority of the Commissioner, to enter and search any premises
without first obtaining a judicially sanctioned warrant. The Explanatory
Memorandum states that the access and entry provisions in the bill are
similar to those found in other legislation administered by the Commissioner
(for example, section 263 of the Income Tax Assessment Act 1936)
and are necessary to ensure compliance with the Act.
The Committee is currently inquiring into search and entry provisions
in Commonwealth legislation. The inquiry has so far demonstrated that
provisions which authorise entry to premises without a judicially sanctioned
warrant are common throughout the tax legislation, but are much less common
elsewhere. While the Committee has as yet formed no view on the desirability
of their inclusion in the tax legislation, it nevertheless draws the
attention of the Senate to the anomalous nature of these powers.
Other than this, the Committee makes no further comment on these provisions
at this time.
Superannuation (Unclaimed Money and Lost Members) Consequential and
Transitional Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Financial Services and Regulation. [Portfolio
responsibility: Treasury]
The bill proposes to make consequential amendments to nine Acts and sets
out transitional provisions applicable to the Superannuation (Unclaimed
Money and Lost Members) Bill 1999.
Retrospective application
Subclause 2(5)
Subclause 2(5) of the bill provides that the amendments proposed by Part
1 of Schedule 3 are to be taken to have commenced retrospectively. However,
the purpose of these amendments is to correct an earlier drafting error,
and clause 9 protects from criminal liability any person who relied
on the relevant provisions as they originally stood.
In these circumstances, the Committee makes no further comment on
these provisions.
Taxation Laws Amendment Bill (No. 8) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Parliamentary Secretary to the Minister for Finance and Administration.
[Portfolio responsibility: Treasury]
The bill proposes to amend the following Acts:
Income Tax Assessment Act 1936 to remove anomalies preventing
the intended Australian taxation of capital gains arising on deemed disposals
of tainted assets of a controlled foreign company (CFC) where that CFC
ceases to be a member of a group and has previously benefited from capital
gains tax roll-over relief;
Income Tax Assessment Act 1936 and Income Tax Assessment Act
1997 to:
- exempt from income tax post-judgment interest received in personal
injury compensation cases;
- allow an income tax deduction to certain funds, authorities and institutions
and to political parties for a gift of property worth more than $5,000,
regardless of when or how the property was acquired;
- provide a capital gains tax (CGT) exemption for testamentary gifts
of property to certain funds, authorities and institutions and to political
parties unless the property is reacquired by the estate, a beneficiary
of the estate or an associate;
- provide a CGT exemption for gifts of property made under the Cultural
Gifts Program unless the property is reacquired for less than market
value by the donor or an associate;
- allow concessional taxation treatment for specified private funds
which will not be required to seek donations from the public but will
be subject to the other requirements applying to public funds;
- allow the apportionment of deductions for donations made under the
Cultural Gifts Program over a period of up to five income years; and
- extend to companies two concessional tracing rules which are available
to trusts under trust loss measures;
Income Tax Assessment Act 1936 and the Taxation Laws Amendment
Act (No. 3) 1998 to:
- allow a deduction where franking rebates exceed the ceiling imposed
under the benchmark portfolio ceiling method;
- treat shares and interests in shares held by a bare trust as if they
were held by the beneficiaries of the trust;
- remove the restrictions on exempting credits for dividends paid by
former exempting companies for natural persons where all the shares
are owned by natural persons and there has been no change in ownership
of the company; and
- extend the scope of a transitional concession for the general anti-avoidance
rule and the specific anti-streaming rule;
Income Tax Assessment Act 1997 to:
- disallow a deduction for bribes made to foreign public officials;
and
- make technical amendments;
Taxation (Deficit Reduction) Act (No.2) 1993 to maintain the rate
of tax imposed on the eligible insurance business of friendly societies
and other registered organisations at 33% for the 1999-2000 income year;
Income Tax Assessment Act 1936, the Income Tax Assessment
Act 1997 and the Taxation Administration Act 1953 to:
- provide machinery provisions to collect untainting tax;
- ensure that distributions from share premium accounts are within the
ambit of the capital streaming and dividend substitution rules;
- ensure that bonus shares deemed to be a dividend have a cost base
of the dividend amount where the shares are held on revenue account;
and
- make minor technical changes;
Income Tax Assessment Act 1936 and the Taxation Laws Amendment
(Trust Loss and Other Deductions) Act 1997 to allow an extended period
for making family trust elections and interposed entity elections.
Retrospective application
Subclauses 2(3) to 2(7)
By virtue of subclauses 2(3) to 2(7), the various amendments proposed
by Schedule 3 to the bill are to be taken to have commenced retrospectively.
However, these amendments do no more than correct earlier drafting errors,
and make no substantive change to the law.
In these circumstances, the Committee makes no further comment on
these provisions.
Retrospective application
Schedule 1, Part 1
The amendments proposed by Part 1 of Schedule 1 are to apply from 13
May 1997 the date of the 1997 Budget. While the Committee generally
accepts the need for Budget announcements to apply from the date of the
Budget, on this occasion it seems to have taken more than 2 years for
these changes to take legislative form. The Committee, therefore, seeks
the Treasurer's advice as to the reasons for such retrospectivity
in these circumstances, and which taxpayers or categories of taxpayers
will be disadvantaged by that retrospectivity.
Pending the Treasurer's advice, the Committee draws Senators' attention
to the provisions, as they may be considered to trespass unduly on personal
rights and liberties, in breach of principle 1(a)(i) of the Committee's
terms of reference.
Retrospective application
Schedule 2
The amendments proposed by Schedule 2 to the bill are to apply from the
1992-93 year of income. These amendments exempt from income tax any post-judgment
interest received as part of an award of compensation in a personal injury
case where that interest relates to delays that have occurred while avenues
of appeal are being pursued. The amendments are beneficial to taxpayers
and, as such, would usually attract no further comment from the Committee.
However, given that the amendments are to apply from the 1992-93 income
year the Committee seeks the Treasurer's advice on any action proposed
to be taken to inform taxpayers of this legislation to enable them to
apply for the amendment of assessments going back over 7 years. Without
such action, amendments which set out to be beneficial to all taxpayers
in a particular category may end up, somewhat capriciously, benefiting
only some of those taxpayers.
Other than this, the Committee makes no further comment on these provisions.
Retrospective application
Schedule 9, Parts 1 and 3
The amendments proposed by Parts 1 and 3 of Schedule 9 to the bill are
to apply from the 1996-97 year of income. However, these amendments are
beneficial to taxpayers.
In these circumstances, the Committee makes no further comment on
these provisions.
Television Licence Fees Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister representing the Minister for Communications, Information
Technology and the Arts. [Portfolio responsibility: Communications, Information
Technology and the Arts]
Complementary to the Broadcasting Services Amendment Bill (No. 2) 1999,
this bill proposes to amend the Television Licence Fees Act 1964
to impose a requirement on commercial television broadcasting licensees
to pay an additional $3.41 million in annual licence fees over the next
three years.
The Committee has no comment on this bill.
Veterans' Affairs Legislation Amendment Bill (No. 1) 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Veterans' Affairs. [Portfolio responsibility:
Veterans' Affairs]
The bill proposes to amend the following Acts:
Veterans' Entitlements Act 1986 to:
- change the eligibility criteria for invalidity service pension and
income support supplement, on the grounds of permanent incapacity, and
provide for associated administrative processes;
- enable approximately 63,000 persons with limited treatment eligibility
(white card holders) to access the Home Front program;
- extend eligibility for the Veterans' Children Education Scheme to
certain children of living veterans and members of the Forces and members
of a Peacekeeping Force;
- allow the Minister to declare, by gazettal, a Peacekeeping Force as
a Peacekeeping Force for the purposes of the Act;
Defence Service Homes Act 1918 to provide a new home support advance
of up to $10,000;
Defence Service Homes Act 1918 and the Veterans' Entitlements
Act 1986 to make technical amendments.
Retrospective application
Subclauses 2(3) to 2(6)
Subclauses 2(3) and (4) provide that some of the amendments proposed
by this bill are to commence retrospectively. However, these amendments
are beneficial to recipients under the Principal Act.
Further, subclauses 2(5) and (6) provide that other proposed amendments
are also 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.
Vocational Education and Training Funding Amendment Bill 1999
This bill was introduced into the House of Representatives on 30 June
1999 by the Minister for Education, Training and Youth Affairs. [Portfolio
responsibility: Education, Training and Youth Affairs]
The bill proposes to amend the Vocational Education and Training Funding
Act 1992 to:
- supplement 1999 funding by $14.208 million in line with real price
movements reflected in Treasury indices; and
- appropriate $918.352 million for general vocational education and
training funding for the Australian National Training Authority for
the year 2000.
The Committee has no comment on this bill.
Workplace Relations Legislation Amendment (More Jobs, Better Pay)
Bill 1999
This bill was introduced into the House of Representatives on 30 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:
- amend the object of the Act to emphasise the basic safety net role
of awards, choice as to jurisdiction, and the role of the courts and
Commission in stopping or preventing unprotected industrial action;
- change the name of the Australian Industrial Relations Commission
to the Australian Workplace Relations Commission and revise its structure;
- change the name of the Australian Industrial Registry to the Australian
Workplace Relations Registry;
- establish a distinction between compulsory and voluntary conciliation
by the Commission;
- provide for the voluntary use of mediation in industrial disputes
as an alternative or supplement to the processes of the Commission;
- provide for a national accreditation scheme for workplace relations
mediators;
- create the role of Mediation Adviser to oversee and facilitate the
use of mediation to resolve workplace disputes;
- provide for further simplification of awards;
- set out new requirements in relation to logs of claims;
- widen the circumstances in which the commission is required to cease
dealing with an industrial dispute;
- widen the range of agreements that will displace the operation of
a federal award;
- provide for the acceleration of the process of cancelling obsolete
awards;
- reinforce disincentives to speculative and unmeritorious unfair dismissal
claims;
- expand the Commission's powers in relation to unfair dismissal applications;
- streamline requirements for certification of agreements;
- simplify the processes for the making and approval of AWAs;
- clarify rights and responsibilities relating to industrial action;
- further distinguish between protected and unprotected industrial action
and provide mechanisms for dealing with unprotected industrial action;
- introduce new preconditions for the taking or organising of protected
industrial action by employees and organisations of employees;
- introduce new requirements for entry to premises by union officials
and employees;
- broaden freedom of association provisions;
- preserve aspects of the previous Victorian system and provide for
the expanded operation in Victoria of provisions contained in other
parts of the Act;
- repeal the provisions that allow the Federal Court to vary or set
aside contracts made with independent contractors; and
- make consequential amendments;
and makes consequential amendments to 25 Acts as result of the renaming
of the Commission and the Registry.
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 |
Reform (Amendments
and Transitional Provisions) Bill (No. 2) 1999 |
Section 13 |
Fail to comply with
requirements of a standard |
200 penalty units |
Superannuation Contributions and
Termination Payments Taxes legislation Amendment Bill 1999 |
Subitem 43(2) of
Schedule 1 |
Fail to provide
corrective statements |
60 penalty units |
Superannuation (Unclaimed Money
and Lost Members) Bill 1999 |
Subsection 16(5) |
Fail to provide an
approved statement of unclaimed money |
100 penalty units |