Scrutiny of Bills Alert Digest No. 12 of 1999


Scrutiny of Bills Alert Digest No. 12 of 1999

Senate Standing Committee for The Scrutiny of Bills

25 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

Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 1) 1999
Constitution Alteration (Preamble) 1999
Superannuation Legislation Amendment Bill (No. 4) 1999

Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 1) 1999

This bill was introduced into the Senate on 11 August 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Aboriginal and Torres Strait Islander Affairs]

The bill proposes to amend the Aboriginal and Torres Strait Islander Commission Act 1989 to:

  • provide that when a person elected to be a zone Commissioner is subsequently elected as Commission Chairperson, the person ceases to hold office as zone Commissioner and Regional Councillor;
  • clarify that the Minister must appoint as members of the Commission the persons elected to represent the several zones;
  • provide that any vacant office of zone Commissioner and Regional Councillor (caused by election to Commission Chairperson) is filled through casual vacancy electoral processes; and
  • provide that a Commission Chairperson who resigns is taken to have also resigned as a member of the Commission.

The Committee has no comment on this bill.

Constitution Alteration (Preamble) 1999

This bill was introduced into the House of Representatives on 11 August 1999 by the Prime Minister. [Portfolio responsibility: Prime Minister]

The bill proposes to amend the Constitution to insert a preamble.

The Committee has no comment on this bill.

Superannuation Legislation Amendment Bill (No. 4) 1999

This bill was introduced into the House of Representatives on 11 August 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Treasury]

The bill proposes to amend the Superannuation Industry (Supervision) Act 1993 to:

  • provide a definition of a related party of a superannuation fund, a Part 8 associate of a member of a fund, a standard employer-sponsor of a fund, and a Part 8 associate of a standard employer-sponsor of a fund;
  • provide definitions of a Part 8 associate and of a related trust;
  • amend the coverage of in-house asset rules to include investments in, loans to, and leases and lease arrangements with, a related party of the fund. In-house investments will also include investments in a related trust;
  • provide that in-house asset rules do not cover business real property leased by a superannuation fund with less than 5 members, or investments in widely held unit trusts;
  • provide transitional arrangements for the changes to the in-house asset provisions;
  • amend provisions applicable when an investment is not an in-house asset, but has the effect of achieving an investment in an in-house asset;
  • amend provisions relating to the acquisition of assets from members and relatives, so that they apply to acquisitions from all related parties, with specified exceptions; and
  • enable superannuation funds with fewer than 5 members to use up to 100 per cent of their assets to purchase business real property.

Retrospective application

Schedule 1, item 45

Item 45 of Schedule 1 to this bill provides that most of the proposed amendments are to apply either from 12 May 1998 (the night of the 1998 Budget) or from the date on which the bill was introduced into the Parliament. The bill, therefore, has a measure of retrospective effect.

However, subitem 45(6) provides that neither the criminal sanctions nor the civil penalty sanctions of the Principal Act are to apply to conduct engaged in before the commencement of the provisions contained in the bill if that conduct would not have constituted an offence or contravention under the law as it stood before those amendments came into force.

Subitem 45(6) provides some protection against the inherent problems when legislation is made to operate retrospectively. However, the period of retrospective application in the case of this bill is approximately 15 months. The Explanatory Memorandum observes that a decision to amend the investment rules was announced in the 1998-99 Budget. A number of representations were then received, but an exposure draft bill was not released until 22 April 1999 (more than 11 months later). Various submissions were then received in response to that exposure draft.

The Committee is aware of the value of consultation in developing legislative proposals. It also notes the mitigating effect of proposed subitem 45(6) on the application of offence and penalty provisions. However a period of 11 months between the announcement of a proposal and the appearance of exposure draft legislation giving effect to that proposal seems somewhat lengthy. The Committee, therefore, seeks the Treasurer's advice on whether the consultation process was the sole reason for the delay in introducing this bill, and whether those consultations differed from the process typically followed.

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.