A New Tax System (Tax Administration) Bill 1999

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

The bill proposes to amend the following Acts:

Taxation Administration Act 1953, Income Tax Assessment Act 1936 and 15 other Acts to clarify the scope of new labour hire withholding arrangements and include rules for PAYG (Pay As You Go) withholding about:

• how much to withhold;
• voluntary declarations of tax file numbers (TFNs) by those receiving payments;
• registration;
• notifying the Commissioner when a declaration stating a TFN is not given;
• annual reporting to the Commissioner; and
• to make consequential amendments;

Taxation Administration Act 1953 and 11 other Acts to introduce standardised rules to enable the Commissioner to collect and recover certain tax-related liabilities;

Taxation Administration Act 1953 and Income Tax Assessment Act 1936 to:

• introduce an oral rulings regime and provide that an oral ruling is binding upon the Commissioner in much the same way as a written private ruling is; and
• provide for a shorter period of review for taxpayers with simple tax affairs and reduce from four to two years the period during which taxpayers may object to assessments or seek amendments to assessments;

Taxation Administration Act 1953 to establish a transaction reporting, ABN and identification verification system to be used in areas where non-compliance with taxation law is entrenched;

Income Tax Assessment Act 1997 and A New Tax System (Australian Business Number) Act 1999 to:

• require an entity seeking deductible gift recipient status to obtain an ABN and be endorsed by the Commissioner as gift deductible; and
• require any charity seeking to claim income tax exemption to obtain an ABN and be endorsed by the Commissioner as exempt from income tax;

A New Tax System (Australian Business Number) Act 1999 and four other Acts to strengthen the administration of the aligned business tax obligations of one return and one payment outlined in ANTS;

Taxation Administration Act 1953 and six other Acts to implement the next stage of the proposed PAYG income tax instalment system by:

• enabling quarterly instalment payers who choose to calculate their instalments using GDP-adjusted notional tax to vary their instalments; and
• making consequential amendments; and

Income Tax Assessment Act 1936 to ensure that the savings rebate (abolished from the 1999-2000 income year) is not taken into account in the calculation of provisional tax for that income year.

The Committee has no comment on this bill.

Convention on Climate Change (Implementation) Bill 1999

This bill was introduced into the Senate on 2 September 1999 by Senator Brown as a Private Senator's bill.

The bill proposes to implement the United Nations Framework Convention on Climate Change and the Kyoto Protocol by establishing the Greenhouse Office and providing for Greenhouse Impact Assessments and Industry Greenhouse Plans.

An uncertain offence

Clause 26

Clause 26 of this bill creates an offence of taking an action which “in the opinion of the Minister” would or might affect the achievement of targets for reducing greenhouse gas emissions. The civil penalty specified for this offence is substantial: 5,000 penalty units for an individual, or 50,000 penalty units for a body corporate.

This provision seems to create an offence that is uncertain in its nature and arbitrary in its scope. For example, under the provision a person may be penalised for doing something which the Minister considers likely to inhibit the achievement of a target. In other words, a person may be penalised for failing to correctly predict the Minister's opinion about a likelihood. The Committee therefore, seeks the advice of the Senator sponsoring the bill as to whether the conduct giving rise to this offence might be made more certain.

Pending the Senator's advice, the Committee draws Senators' attention to this 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.

No provision for merits review

Clause 30

Clause 30 of the bill provides the Minister with a discretion to approve certain applications. Specifically, the Minister may approve actions which result in excessive emissions of greenhouse gases, or which are likely to inhibit the achievement of targets for the reduction of such emissions.

While the clause confers a significant discretion on the Minister, and directly affects the interests of applicants, the clause seems to make no provision for external merits review of the exercise of that discretion – for example, by the Administrative Appeals Tribunal.

The Committee notes the recent comment from the Administrative Review Council that, as a matter of principle, administrative decisions which will, or which are likely to, affect the interests of a person should be subject to merits review. The Committee, therefore, seeks the advice of the Senator sponsoring the bill as to why the ministerial discretion under clause 30 is not subject to merits review.

Pending the Senator's response, the Committee draws Senators' attention to this provision, as it may be considered to make rights, liberties or obligations unduly dependent upon non-reviewable decisions, in breach of principle 1(a)(iii) of the Committee's terms of reference.

Copyright Amendment (Digital Agenda) Bill 1999

This bill was introduced into the House of Representatives on 2 September 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Copyright Act 1968 to:

• introduce a technology-neutral right of communication to the public to replace the technology-specific broadcasting right (which applies only to “wireless” broadcasts) and the cable diffusion right;
• provide for exceptions to the technology-neutral right of communication;
• extend existing exceptions for libraries and archives to the reproduction and communication of copyright material in electronic form;
• extend existing statutory licences for copying by educational institutions to the reproduction and communication of copyright material in electronic form;
• provide criminal sanctions and civil remedies against:
  • persons who manufacture, deal in, import, distribute or make available online devices, or provide services, for the circumvention of technological protection measures designated to inhibit the infringement of copyright;
  • international tampering or removal of electronic rights management information (RMI); and
  • persons who manufacture, deal in, import, distribute or make available online devices for the unauthorised reception of encoded subscription broadcasts;
• limit and clarify the liability of carriers and Internet Service Providers in relation to both direct and authorisation liability; and
• provide a statutory licence scheme for the payment of equitable remuneration to underlying rights holders whose works are used in retransmitted broadcasts.

Reversal of the onus of proof

Proposed new subsections 116A(6), 116B(3) and 116C(3)

Item 98 of Schedule 1 to this bill proposes to insert a new Division 2A in the Copyright Act 1968. This Division provides civil remedies in relation to circumvention devices and electronic rights management information. The Explanatory Memorandum states that these new provisions are intended to “provide appropriate measures for the enforcement of copyright in the digital environment”.

Division 2A includes proposed new subsections 116A(6), 116B(3) and 116C(3). Each of these provisions will reverse the onus of proof, and require the defendant to prove that his or her state of knowledge was not that which the subsections otherwise presume it to be.

The Committee usually comments adversely on a bill which reverses the onus of proof in relation to criminal proceedings. However, the reversals of that onus in Division 2A of this bill arise only in civil proceedings by the owner or licensee of copyright when seeking damages against another individual.

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

Reversal of the onus of proof

Proposed new subsections 132(5F), (5G), (5H) and (5K) and 135AS(2) and (3)

Item 100 of Schedule 1 to this bill creates a number of new criminal offences in relation to circumvention services and devices, and electronic rights management information. Proposed new subsections 132(5F), (5G) and (5H) provide some specific exemptions from these offences in certain circumstances (for example, actions lawfully done for the purposes of law enforcement or national security).

Proposed new subsection 132(5K) states that the only burden of proof that a defendant bears under these new subsections is an evidential one – “the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act or matter in question was done or existed”.

The Explanatory Memorandum states that the reason for imposing an evidential burden in these circumstances is that “it is believed that the matters referred to in those subsections will be peculiarly within the knowledge of the defendant and will be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish”.

Similar reasoning applies to proposed new subsections 135AS(2) and (3), which are concerned with offences involving the manufacture, dealing in or making available of online broadcast decoding devices.

In principle, the growing tendency to reverse the onus of proof in legislation remains a matter of continuing concern. However, the Committee has, on occasion, accepted the imposition of an evidential burden on a defendant to a criminal prosecution in circumstances such as those referred to in the Explanatory Memorandum – where matters are peculiarly within the defendant's knowledge.

To determine whether the imposition of an evidential burden is appropriate in this case, the Committee seeks the Attorney-General's advice on why it is believed that the matters referred to in proposed new subsections 132(5F), (5G), (5H) and (5K) and 135AS(2) and (3) are peculiarly within the defendant's knowledge, and would be more difficult and costly for the prosecution to disprove than for the defendant to establish.

Pending the Attorney's response, the Committee draws Senators' attention to these 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.

Fair Prices and Better Access for All (Petroleum) Bill 1999

This bill was introduced into the House of Representatives on 30 August 1999 by Mr Fitzgibbon as a Private Member's bill.

The bill proposes to provide that franchisees in the petroleum sector are able to purchase fuels for re-sale from a variety of sources.

The bill also proposes to make a consequential amendment to the Trade Practices Act 1974. This amendment will provide that all fuel supply agreements entered into after the commencement of the Trade Practices (Industry Codes – Oilcode) Regulations will be deemed to substantially lessen competition unless those agreements provide that a franchisee may purchase up to 50% of their fuel from suppliers other than their primary supplier.

Rights and liberties and contracts and compensation

Clauses 5 and 8 and Schedule 1

This bill is intended to secure improved competition in the wholesale petroleum market, and to help create an environment of fairer pricing and better access to fuel supplies in the retail petroleum market. The bill seeks to achieve this by authorising petrol station franchisees to buy up to half of their fuel from suppliers other than those nominated in their franchise agreement.

The bill, therefore, proposes to intervene in legally binding contractual arrangements between franchisors and franchisees. The only circumstance in which provision is made for compensation involves persons who suffer loss or damage through a contravention of the bill – no provision is made for compensation as a result of the operation of the bill and its effect on rights under those existing contractual arrangements.

Finally, by deeming certain conduct to have breached section 47 of the Trade Practices Act 1974, and thus be the subject of the penalties provided by the Act, the bill may, in effect, require a defendant to prove certain matters and so reverse the onus of proof in penalty proceedings.

The Committee is concerned that, under the bill, facts may be deemed in such a way that a person is liable to pay a statutory penalty, even though this is a matter which a court would normally decide. The Committee would appreciate advice as to whether the member sponsoring the bill has any concerns that its deeming provision may intrude on the exercise of the judicial function.

In summary, while the bill expressly confers rights on franchisees, it may also affect the rights and liberties of franchisors. Given these considerations, the Committee seeks the advice of the Member sponsoring the bill as to the reason for intervening in existing franchise contracts; whether compensation should be made available to those who suffer loss as a result of that intervention; and whether the bill will require a defendant to affirmatively prove certain matters if he or she wishes to avoid a statutory penalty.

Pending the Member's advice, the Committee draws Senators' attention to these 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.

 

Family and Community Services Legislation Amendment (1999 Budget and Other Measures) Bill 1999

This bill was introduced into the House of Representatives on 2 September 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

The bill proposes to amend the following Acts:

Social Security Act 1991 to:

• provide for income earned from employment in a family business or farm to be excluded for the purposes of the youth allowance Family Actual Means Test (FAMT), up to the existing allowable level;
• amend provisions relating to income support arrangements for people sharing the care of children;
• extend the category of people who can be eligible for a Student Financial Supplement Scheme (SFSS) loan; and
• remove the complex formula currently applied when calculating the concession available for families where a sibling is an isolated boarder or a secondary student boarder;

A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999 to provide for the sharing of information between the joint venture agencies comprising the Family Assistance Office for the purposes of the transition to, and operation of, the new family assistance arrangements as well as the administration of the Bonuses for Older Australians measure; and

A New Tax System (Bonuses for Older Australians) Act 1999 to:

• provide for the sharing of information between the joint venture agencies comprising the Family Assistance Office for the purposes of establishing the bonus payment scheme for older Australians; and
• prevent breaches of the Information Privacy Principles (contained in the Privacy Act 1988) when information is shared between the agencies.

The Committee has no comment on this bill.

Fisheries Legislation Amendment Bill (No. 1) 1999

This bill was introduced into the House of Representatives on 1 September 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the following Acts:

Fisheries Management Act 1991 to introduce new forfeiture and enforcement powers to enable more effective fisheries surveillance and enforcement within the Australian fishing zone; and

Fisheries Management Act 1991 and the Fisheries Administration Act 1991 to provide for the implementation of principles, rights and obligations associated with the Agreement for the Implementation of the Provisions of the United Nations Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Stocks.

Strict liability offences

Schedule 1, items 9, 11, 12 and 14

Items 9, 11, 12 and 14 of Schedule 1 to this bill amend the Fisheries Management Act 1991. These amendments explicitly provide that particular offences are offences of strict liability.

It appears that these amendments do no more than confirm the effect of the existing provisions. It appears that they have become necessary because the Criminal Code, which is to apply to the Fisheries Management Act 1991 from next year, would otherwise change these offences to fault-based offences, requiring the prosecution to prove the defendant's state of mind before a conviction could be obtained. However the Explanatory Memorandum does not make this clear. The Committee, therefore, seeks the Minister's confirmation that these amendments do no more than continue the effect of the existing provisions, and have been prompted by the application of the Criminal Code.

Pending the Minister's confirmation, the Committee draws Senators' attention to these 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.

Reversal of the onus of proof

Proposed new subsections 100A(4) and (5), 101A(4) and (5), 103(1B) and (1E), 105B(3) and (4), 105C(3) and (4), and 105F(3) and (4)

Among the amendments to the Fisheries Management Act 1991 to be made by this bill are a number of provisions which impose an evidential burden of proof on a defendant to criminal proceedings. For example, proposed new section 100A, to be inserted by item 13 of Schedule 1, creates an offence of using a foreign boat for fishing in the Australian fishing zone. Proposed subsections 100A(4) and (5) provide an exemption for boats having a foreign fishing licence or a Treaty licence. The defendant bears an evidential burden in relation to this exemption (ie the burden of “adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed”).

A similar approach is taken in:

• proposed new subsections 101A(4) and (5), which concern the offence of having a foreign boat equipped for fishing;
• proposed new subsections 103(1B) and (1E), which concern the offence of landing or transhipping fish from a foreign boat in Australia;
• proposed new subsections 105B(3) and (4), which concern the offence of possessing an Australian-flagged boat on the high seas equipped for fishing;
• proposed new subsections 105C(3) and (4), which concern the offence of using an Australian-flagged boat for fishing in foreign waters; and
• proposed new subsections 105F(3) and (4), which concern the offence of using an FSA boat for fishing on the high seas without the authority of a flag state.

With regard to these provisions, the Explanatory Memorandum observes either that they create new fault element offences as required by Commonwealth criminal law policy where penalties reach a substantial level, or that they implement Australia's obligations as a flag-State under the Fish Stocks Agreement. However, it is not clear why it is thought appropriate that an evidential burden be imposed on the defendant in each case (for example, it may be that the matters in issue are peculiarly within the defendant's knowledge, or the prosecution may face evidentiary difficulties in cases of offences involving foreign boats).

The Committee therefore, seeks the Minister's advice as to why the defendant bears an evidential burden of proof under these subsections.

Pending the Minister's advice, the Committee draws Senators' attention to these 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.

Law Enforcement Committee Bill 1999

This bill was introduced into the House of Representatives on 30 August 1999 by Mr Kerr as a Private Member's bill.

The bill proposes to establish the Parliamentary Joint Committee on Commonwealth Law Enforcement. The bill further proposes to amend the National Crime Authority Act 1984 to abolish the Parliamentary Joint Committee on the National Crime Authority.

The Committee has no comment on this bill.

Taxation Laws Amendment Bill (No. 9) 1999

This bill was introduced into the House of Representatives on 2 September 1999 by the Minister for Forestry and Conservation. [Portfolio responsibility: Treasury]

The bill proposes to amend the Customs Act 1901 and the Excise Act 1901 to align the diesel rebate rate for forestry use with the rebate rate for agriculture.

The Committee has no comment on this bill.

Telecommunications (Interception) Amendment Bill 1999

This bill was introduced into the House of Representatives on 2 September 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Telecommunications (Interception) Act 1979 and the Telecommunications (Interception) and Listening Device Amendment Act 1997 to permit the Anti-Corruption Commission of Western Australia (ACC) and the Queensland Crime Commission (QCC) to:

• receive intercepted information originally obtained by another agency where that information appears to relate to conduct that the ACC or QCC may investigate;
• use intercepted information for an investigation it is undertaking in relation to its functions;
• obtain warrants to intercept information, provided the Attorney-General first issues a declaration under section 34 of the Interception Act; and
• permit the Minister to continue to nominate specified members of the AAT to issue interception warrants for law enforcement.

General comment

This bill proposes to further increase the number of agencies entitled to receive and use information gained from the interception of tele-communications.

The core provision of the Telecommunications (Interception) Act 1979 is section 7. This section prohibits the interception of communications passing over a telecommunications system. The balance of the Act as originally passed set out certain specified exceptions to this provision in “special circumstances”. These exceptions were intended to achieve the objects of the bill, which was introduced as part of a legislative package to reform the powers of ASIO, and to facilitate the investigation of narcotics offences (see Senate, Hansard, 8 March 1979, pp 646-649).

The Act has since been amended to widen the number of exceptions to section 7, and to increase the range of “special circumstances”. For example, in 1992 there were four exceptions in the balance of section 7. By 1998, these exceptions had grown to eight.

In Alert Digest No 7 of 1997, this Committee considered the Tele-communications (Interception) and Listening Devices Amendment Bill 1997. In discussing that bill, the Committee expressed its concern at the proposed extension to the Police Integrity Commission of access to the telecommunications interception powers. The Committee observed that that bill was “again an extension of an intrusive power and, as such, a fresh example of legislative creep”.

This bill now seeks to extend access to the telecommunications interception powers to the Anti-Corruption Commission of Western Australia and the Queensland Crime Commission. It is yet another “fresh example of legislative creep”.

While conscious of the need to adequately investigate “corruption by public officials, paedophilia and organised crime”, which is the explanation for the latest extensions, and while remaining conscious of the safeguards contained elsewhere in the Act, the Committee seeks the Attorney-General's advice as to the reasons for the continuous weakening of the prohibition contained in section 7 of the Principal Act, and the continuous extension of access to the Act's exceptional powers.

Pending the Attorney's advice, the Committee draws Senators' attention to these 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.