Scrutiny of Bills Alert Digest No. 13 of 1999


Scrutiny of Bills Alert Digest No. 13 of 1999

Senate Standing Committee for The Scrutiny of Bills

1 September 1999

ISSN 1329-668X

Members of the Committee

Senator B Cooney (Chairman)

Senator W Crane (Deputy Chairman)

Senator T Crossin

Senator J Ferris

Senator B Mason

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

Appropriation (Supplementary Measures) Bill (No. 1) 1999
Appropriation (Supplementary Measures) Bill (No. 2) 1999
Coal Mining Legislation Amendment (Oakdale Collieries) Bill 1999
Constitution Alteration (Proportional Representation in the Senate) 1999
Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999
Intellectual Property Laws Amendment (Border Interception) Bill 1999

Appropriation (Supplementary Measures) Bill (No. 1) 1999

This bill was introduced into the House of Representatives on 26 August 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate the Consolidated Revenue Fund for the book industry assistance plan and the Supported Accommodation Assistance Program for the years 2000-01 to 2003-2004. The bill also proposes to amend the A New Tax System (Goods and Services Tax) Act 1999 to repeal a subsection to effect a minor technical amendment.

The Committee has no comment on this bill.

Appropriation (Supplementary Measures) Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 26 August 1999 by the Parliamentary Secretary to the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate the Consolidated Revenue Fund for a number of environment initiatives, including:

  • supporting conversions to compressed natural gas or liquid petroleum gas for commercial vehicles and buses that have a gross vehicle mass equal to or greater than 3.5 tonnes, trains and ferries;
  • developing a product stewardship system for the re-use and recycling of waste oil;
  • supporting the utilisation of photovoltaic systems on residential buildings and community-use buildings;
  • supporting the development and commercialisation of renewable energy;
  • supporting the use of renewable energy for remote power generation;
  • supporting the development and implementation of in-service emissions testing capabilities for diesel and petrol vehicles, where the diesel emissions testing is in connection with the making and/or implementation of a Diesel National Environment Protection Measure; and
  • greenhouse gas abatement program.

The Committee has no comment on this bill.

Coal Mining Legislation Amendment (Oakdale Collieries) Bill 1999

This bill was introduced into the House of Representatives on 26 August 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 Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 and the Coal Mining Industry (Long Service Leave Funding) Act 1992 to provide for payment to former employees of unpaid entitlements in respect of their employment by Oakdale Collieries Pty Limited.

The Committee has no comment on this bill.

Constitution Alteration (Proportional Representation in the Senate) 1999

This bill was introduced into the Senate on 24 August 1999 by Senator Harris as a Private Senator's bill.

The bill proposes to amend the Constitution to provide that proportional representation is retained as the method of electing senators.

The Committee has no comment on this bill.

Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999

This bill was introduced into the Senate on 25 August 1999 by Senators Brown, Bolkus and Greig as a Private Senators' bill.

The bill proposes to give effect to certain human rights obligations to children under the Convention on the Rights of the Child by providing that a law of the Commonwealth or of a State or Territory must not require a court to sentence a person to imprisonment or detention for an offence committed when that person was a child.

Individual rights and self-government rights

Part 1

Legislation has been enacted in Western Australia and the Northern Territory which relates to the mandatory sentencing of juvenile offenders. This bill, which is based on Australia's obligations under the Convention on the Rights of the Child, has been introduced to override that legislation.

In general terms, the bill provides that a law of the Commonwealth or of a State or Territory must not require a court to sentence a person to imprisonment or detention for an offence committed when that person was a child (ie when under 18 years of age). Any child currently imprisoned or detained under an enactment contrary to this provision must have the remainder of their sentence reconsidered within 28 days of the commencement of the bill.

An issue such as the mandatory detention of juvenile offenders raises a number of competing principles. Some of these principles relate to the issue of mandatory detention itself. For example, this Committee might well feel it necessary to draw the Senate's attention to any Commonwealth law which proposed to require courts to imprison or detain children found guilty of certain offences. Such a law might be thought to trespass unduly on the personal rights and liberties of children.

Other principles relate to the right and power to legislate under a federal system of government. Under the Constitution, the Commonwealth Parliament has power to legislate with respect to external affairs. This power is used by the Executive to enter into international treaties, and by the Executive and the Parliament to prepare legislation which gives effect to various provisions of those treaties. This power means that the Commonwealth Parliament undoubtedly has authority to pass this bill.

However, the existence of such a power in a federation may bring about tensions in policy, practice and in the law itself. Indeed, such tensions appear to be a necessary consequence of a federal system of government.

On the one hand, State and Territory Parliaments may have the authority and power to pass laws with respect to the sentencing of offenders within their boundaries. On the other hand, the Commonwealth Parliament may take the view that particular rights and freedoms contained in international conventions should apply to all Australians. If the Commonwealth Parliament takes this view, it may validly pass laws which may override the law-making function of other democratically elected Parliaments, and so reduce the certainty which should exist for the citizens in affected States or Territories. Unless a principle for overriding those State or Territory laws is provided, there is a danger that such an overriding power may be seen to be exercised arbitrarily or capriciously. As experience shows, in the end, the power of the Commonwealth Parliament to override State or Territory legislation is subject to determination by the High Court on a case-by-case basis.

This bill, therefore, raises the tension between particular individual rights and rights of self-government in a federation.

Given this, the Committee draws Senators' attention to the bill, as it raises competing considerations within principle 1(a)(i) of the Committee's terms of reference.

Intellectual Property Laws Amendment (Border Interception) Bill 1999

This bill was introduced into the House of Representatives on 25 August 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

The bill proposes to amend the Sydney 2000 Games (Indicia and Images) Protection Act 1996 and the Trade Marks Act 1995 to require the CEO of Customs to seize all imported goods that are subject to a notice of objection and seek to ambush the Sydney 2000 Games marketing, or bear infringing trade marks, whether or not the goods meet certain requirements of the Customs Act.

The Committee has no comment on this bill.