Scrutiny of Bills Alert Digest No. 15 of 1999


Scrutiny of Bills Alert Digest No. 15 of 1999

Senate Standing Committee for The Scrutiny of Bills

29 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

Aviation Noise Ombudsman Bill 1999
Border Protection Legislation Amendment Bill 1999
Choice of Superannuation Funds (Consumer Protection) Bill 1999
Diesel and Alternative Fuels Grants Scheme (Administration and Compliance) Bill 1999
Equal Opportunity for Women in the Workplace Amendment Bill 1999
Family Law Amendment Bill 1999
International Tax Agreements Amendment Bill 1999
Migration Legislation Amendment (Migration Agents) Bill 1999
National Residue Survey Levies Regulations (Validation and Commencement of Amendments) Bill 1999
Provisions imposing criminal sanctions for failure to provide information

Aviation Noise Ombudsman Bill 1999

This bill was introduced into the House of Representatives on 20 September 1999 by Mr Albanese as a Private Member's bill.

The bill proposes to establish an Aviation Noise Ombudsman to liaise between Airservices Australia and the public in relation to excessive aircraft noise, breaches of caps and curfews operating at certain airports and incidents of fuel dumping and venting.

The Committee has no comment on this bill.

Border Protection Legislation Amendment Bill 1999

This bill was introduced into the House of Representatives on 22 September 1999 by the Minister for Immigration and Multicultural Affairs. [Portfolio responsibility: Immigration and Multicultural Affairs]

The bill proposes to amend the following Acts:

Migration Act 1958 and the Customs Act 1901 to revise and strengthen existing powers of investigation and enforcement at sea to take account of Australia's rights and obligations under the United Nations Convention on the Law of the Sea and customary international law by providing for:

  • the boarding and searching of ships and aircraft, in certain circumstances, in Australia's territorial sea, Australia's contiguous zone, the High Seas, and Australia's exclusive economic zone;
  • hot pursuit of ships whose master has not complied with a request to board;
  • hot pursuits of motherships in certain circumstances; and
  • the moving and/or destroying of ships which are unseaworthy, which pose a serious risk to navigation, quarantine, safety or public health, or which pose a serious risk of damage to property or the environment; and

Customs Act 1901 to enable Customs officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances; and

Fisheries Management Act 1991 to:

  • authorise Customs officers to be officers for the purposes of the Act;
  • enable Customs officers (exercising powers as fisheries officers) to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances; and
  • enable an officer to detain and search a person who is in Australia or a Territory but who is not an Australian citizen or resident to determine whether to charge the person with an offence relating to illegal fishing; and

Migration Act 1958 to:

  • provide for automatic forfeiture (followed by seizure and possible disposal) of ships and aircraft which have been used to bring to Australia persons who have no authority to come to Australia, or have been involved in the entry or proposed entry into Australia of such persons;
  • provide a scheme by which fishermen can be taken to have held a visa immediately upon enforcement action by fisheries officers;
  • revise offence provisions relating to bringing unauthorised arrivals into Australia;
  • ensure that, where the Commonwealth arranges for or requires a person without a visa to be brought into Australia, those involved in doing so are not exposed to offences under the Act; and
  • ensure that refugee claimants who arrive unlawfully in an Australian territory are able to be brought to the mainland promptly to have those claims considered and be detained as unlawful non-citizens.

A penalty provision for a failure to answer questions or produce documents is noted on page 23 of this Digest.

Retrospective application

Subclause 2(3)

Subclause 2(3) of this bill provides that the amendment proposed in Part 5 of Schedule 1 is to be taken to have commenced on 1 September 1994. However, the Explanatory Memorandum observes that this provision makes a technical amendment which corrects a grammatical error.

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

Search and entry at sea

Proposed new subsections 245F(3) and 245G(2)

Item 2 of Schedule 1 to this bill proposes to insert a new Division 12A in Part 2 of the Migration Act 1958. This new Division, which deals with the chasing and boarding of ships and aircraft, includes proposed new subsections 245F(3) and 245G(2).

Proposed new paragraphs 245F(3)(a) and 245G(2)(a) will permit officers authorised under the Act to board and search a ship or aircraft without obtaining a judicially sanctioned warrant. In addition, proposed new paragraph 245F(3)(f) will permit an authorised officer to arrest without warrant any person whom the officer suspects of having committed an offence against the Migration Act 1958.

Provisions in this form are usually regarded with some concern by the Committee. The Committee is mindful of the fact that the amendments proposed by this bill are intended specifically to strengthen Australia's maritime investigatory and enforcement powers, and have been designed to fully utilise the jurisdiction derived from the United Nations Convention on the Law of the Sea. The Committee is also mindful of the fact that these particular search and entry powers are to be exercised at sea, where the opportunity to seek or obtain a warrant may be more difficult. Nevertheless, the Committee notes that warrants are usually required before search and entry powers are exercised and, in practice, may be obtained by modern technology. Whether by telephone or otherwise, modern technology enables applications for warrants to be made without undue difficulty from remote regions and from the oceans.

The Committee, therefore, seeks the Minister's advice on how these particular provisions differ from those currently available, how they differ from the usual practice in such situations, and their consistency with Australia's rights and obligations under the United Nations Convention on the Law of the Sea.

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.

Rights and liberties and the carrying of firearms

Proposed new section 189A

Item 32 of Schedule 2 to this bill proposes to insert a new section 189A in the Customs Act 1901. This new section permits authorised officers to carry firearms and other items of personal defence equipment (such as batons, capsicum sprays and anti-ballistic clothing).

Such a provision has the potential to trespass on the rights and liberties of those in relation to whom such officers may exercise their powers. The right to carry firearms is usually restricted to highly trained and accountable military or police officers. This provision now proposes to extend this right to certain civilians in circumstances where judgement about its use might need to be exercised in a context of considerable tension. There is, therefore, significant risk that a firearm or item of defence equipment might be used inappropriately. This could lead to unwarranted death or injury. (This may have the potential to cause an incident with diplomatic or international ramifications.)

The extent to which this provision departs from current practice is not apparent from the Explanatory Memorandum. It is not apparent whether customs officers to be authorised to carry firearms will receive high quality training such as, for example, police officers. It is not apparent whether there is to be any monitoring of the use of the new powers, and whether any safeguards against inappropriate use are to be put in place. The Committee, therefore, seeks the Minister's advice as to these matters.

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.

Detention on suspicion

Proposed new paragraphs 84(1)(ia) and (ic)

Among other things, item 4 of Schedule 3 to this bill proposes to insert new paragraphs 84(1)(ia) and (ic) in the Fisheries Management Act 1991. Proposed new paragraph 84(1)(ia) will permit an officer authorised under that Act to detain a person if the officer has reasonable grounds to believe that the person is not an Australian citizen or resident, and was on a foreign boat when it was used in the commission of a specified offence. Such detention is for the purposes of determining whether or not to charge the person, and, by virtue of proposed new section 84A, is limited to a maximum period of 168 hours.

Proposed new paragraph 84(1)(ic) will permit an authorised officer to search such a detainee without the sanction of a warrant. Such a search is said to be for the purpose of finding out whether the person has any concealed weapons.

The Committee usually views such provisions with some concern. While the Explanatory Memorandum observes that these powers are currently possessed by officers authorised under the Migration Act, the reasons for, and the implications of, extending them to fisheries officers are not clear. Precedence alone is not sufficient reason for pursuing a practice if it is tainted or flawed. The Committee, therefore, seeks the Minister's advice on the reasons for extending these particular powers, and whether officers authorised to exercise these powers are to receive any training or be given any guidance as to their exercise.

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.

Choice of Superannuation Funds (Consumer Protection) Bill 1999

This bill was introduced into the House of Representatives on 23 September 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to introduce a range of consumer protection initiatives for the life insurance industry:

  • life companies will be subject to a general requirement to disclose all material information that a consumer reasonably needs in order to make informed decisions;
  • advisers and brokers will be required to disclose the capacity in which they act and any benefit or advantage they receive in giving advice;
  • injunctions will be available where a life company or broker is or has contravened requirements of this legislation;
  • civil remedies will be available to persons who suffer damage because of misleading and deceptive statements made by a life insurance company, broker or adviser;
  • criminal sanctions will be available where a person suffers loss or damage as a result of a misleading statement in information produced pursuant to the life company's obligation to provide information to owners and prospective owners of life policies; and
  • instruments which regulate conduct and disclosure within the life insurance industry such as the Code of Practice, Circulars and Policy Statements can be given statutory backing through regulation-making; and

makes consequential technical amendments to the Australian Securities and Investments Commission Act 1989 and the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999. A penalty provision for a failure to provide information or produce documents is noted on page 23 of this Digest.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill provides that items 2 and 3 of Schedule 1 are to be taken to have commenced on 17 June 1999, being the date of assent to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No 1) 1999. However, these amendments are merely technical in nature, repealing provisions which the current bill has rendered redundant.

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

Abrogation of the privilege against self-incrimination

Clause 55

Clause 55 of this bill provides that a person is not excused from giving information or producing documents on the grounds that the information or documents might tend to incriminate them. However, clause 55 goes on to state that any information provided or documents produced under compulsion, and anything directly or indirectly obtained as a result, is not admissible in evidence against the person forced to incriminate themselves.

The Committee has previously been prepared to accept that a provision in this form strikes a reasonable balance between the need to obtain information and the protection of an individual's rights.

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

Diesel and Alternative Fuels Grants Scheme (Administration and Compliance) Bill 1999

This bill was introduced into the House of Representatives on 23 September 1999 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the Diesel and Alternative Fuels Grants Scheme Act 1999 to insert machinery and administrative provisions, including compliance mechanisms, relating to the Act. The bill further proposes to make consequential amendments to the Taxation Administration Act 1953 and the A New Tax System (Australian Business Number) Act 1999. A penalty provision for a failure to provide information or produce documents is noted on page 23 of this Digest.

Abrogation of the privilege against self-incrimination

Proposed new sections 42 and 52

Item 40 of Schedule 1 to this Bill proposes to insert new Parts 4 to 13 in the Diesel and Alternative Fuels Grants Scheme Act 1999. Proposed new Part 9 (which includes new section 42) deals generally with information gathering powers, and proposed new Part 12 (which includes new section 52) provides a power to stop and search vehicles.

Each of these proposed new sections will abrogate the privilege against self-incrimination. However, in each instance, any information provided or document produced under compulsion, and anything directly or indirectly obtained as a result, is not admissible in evidence against the person forced to incriminate themselves other than in proceedings under the Taxation Administration Act 1953 for making false and misleading statements.

The Committee has previously been prepared to accept that a provision in this form strikes a reasonable balance between the need to obtain information and the protection of an individual's rights.

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

Search and entry without warrant

Proposed new section 47

Among other things, item 40 of Schedule 1 to this bill proposes to include a new section 47 in the Diesel and Alternative Fuels Grants Scheme Act 1999. This section, which provides a right of access to premises, applies where an authorised officer has reason to believe that any documents or goods or other property relevant to the operation of the Act may be found on any premises.

In such circumstances, the authorised officer may at all reasonable times enter and remain on those premises, is entitled to full and free access to all documents, goods or other property, may make copies and take samples, and is entitled to receive “all reasonable facilities and assistance for the effective exercise of powers” under this provision. No provision is made for obtaining a warrant, and the only `protection' available to an occupier is to request the production of an identity card.

While provisions authorising entry without a warrant are atypical in most legislation, such provisions are common in legislation administered by the Commissioner of Taxation. Their existence is often used as a precedent for the inclusion of similar powers in new legislation which is to be administered by the Commissioner.

The Committee is presently considering the appropriateness of such provisions as part of its general inquiry into entry and search provisions in Commonwealth legislation. During the course of the inquiry, concerns have been expressed about entry powers of such character, and their inclusion in legislation simply on the basis of long-standing precedent. Precedent alone is not sufficient reason for pursuing a practice if it is tainted or flawed.

Seeking access to information is inherently intrusive. The Committee, therefore, seeks the Treasurer's advice as to why such powers are now to be included in the Diesel and Alternative Fuels Grants Scheme Act 1999, as that Act has effectively changed many of the arrangements relating to the concessional treatment of diesel fuel. In particular, the Committee would appreciate the Treasurer's advice as to:

  • the geographical zones or areas in which it will be necessary to apply these search and entry provisions;
  • which diesel and alternative fuels these provisions are to apply to; and
  • the anticipated circumstances which would require information to be gathered in this way.

The Committee also seeks the Treasurer's advice as to whether these entry powers differ from those exercised by the Tax Commissioner under other legislation, particularly in requiring an occupier to assist an officer, and whether officers using these entry powers are to be required to provide occupiers with any written information about their rights and obligations. In particular, the Committee would appreciate the Treasurer's advice as to why, in these circumstances, it is appropriate that an identity card be produced to an occupier, but not appropriate that a warrant be obtained.

Pending the Treasurer'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.

Equal Opportunity for Women in the Workplace Amendment Bill 1999

This bill was introduced into the House of Representatives on 22 September 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 Affirmative Action (Equal Employment Opportunity for Women) Act 1986 to change the short title to the Equal Opportunity for Women in the Workplace Act 1999. The bill further proposes to:

  • introduce an objects clause to clarify the objectives of the legislation for relevant employers;
  • replace the “eight step” affirmative action program with an emphasis on workplace priorities and achievements;
  • change the employer reporting period from an annual to a biennial requirement;
  • change the reporting framework to focus less on process and more on outcomes;
  • waive an employer's obligation to report for a specified period in certain circumstances;
  • enable the Equal Opportunity for Women in the Workplace Agency to request an employer to provide information concerning any aspect of the employer's workplace program, the preparation of the report, or the report itself.

The Committee has no comment on this bill.

Family Law Amendment Bill 1999

This bill was introduced into the House of Representatives on 22 September 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the following Acts:

Family Law Act 1975 to:

  • introduce a three stage parenting compliance regime to provide:
    • preventative measures, to improve communication between separated parents and educate parents about their respective responsibilities in relation to their children;
    • remedial measures, to enable parents to resolve issues of conflict about parenting; and
    • punitive measures, to ensure that (as a last resort) a parent is punished for deliberate disregard of a court order;
  • enable binding financial agreements to be made before or during a marriage or on marriage breakdown, setting out how the parties' property is to be divided;
  • increase the range of non-judicial dispute resolution services; and
  • make miscellaneous amendments relating to the functioning of the court, transfers of proceedings between courts, child maintenance orders, application of the location and recovery provisions to international child abduction cases, limiting the application of the separate representative provisions in international child abduction cases, and providing the court with a broader range of powers to make Rules of Court for enforcing orders about property and money; and

makes consequential amendments to the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.

Retrospective application

Subclause 2(2) and Schedule 3, item 41

Item 41 of Schedule 3 to this bill contains a proposed amendment to correct an error in subsection 46(1) of the Family Law Act 1975. Subclause 2(2) provides that this amendment is to be taken to have commenced immediately after the commencement of section 26 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988.

The Explanatory Memorandum notes that amendments to subsection 46(1) were made by two different Acts in 1987 and 1988. However, the actual order of the Proclamations which brought about the commencement of these amendments “produced an absurd result” – the current subsection is grammatically incorrect, and fails to provide for the transfer of proceedings to the Family Court or to a Supreme Court in certain cases, as was clearly intended.

The Explanatory Memorandum goes on to note that there appear to have been no repercussions from the error – practitioners are unlikely to have been disadvantaged because the error does not appear to have been picked up by the Family Law Services, and the substance of the provision does not appear to have been the subject of any court proceedings requiring written judgment.

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

International Tax Agreements Amendment Bill 1999

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

The bill proposes to amend the International Tax Agreements Act 1953 to effect Agreements for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income between the Government of Australia and the Governments of the Republic of South Africa, the Slovak Republic and the Argentine Republic. The bill also proposes to effect a Protocol, amending the Agreement between the Government of Australia and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income.

The Committee has no comment on this bill.

Migration Legislation Amendment (Migration Agents) Bill 1999

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

The bill proposes to amend the Migration Act 1958 to:

  • extend the statutory self-regulation framework of the migration advice industry until March 2003;
  • change the publication requirements relating to the suspension and cancellation of migration agents;
  • expand the powers of the Migration Agents Registration Authority (MARA) to access client files when:
    • the registration of a migration agent is cancelled or suspended;
    • a migration agent becomes incapacitated;
    • a migration agent dies or is voluntarily deregistered;
    • a migration agent's registration expires; and
  • provide copies of relevant documents to clients.

The Committee has no comment on this bill.

National Residue Survey Levies Regulations (Validation and Commencement of Amendments) Bill 1999

This bill was introduced into the House of Representatives on 22 September 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to correct an inconsistency between the starting dates of the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998 and amendments made to the regulations by Statutory Rules 1998 No. 182.

Retrospective validation

Clause 3

Subclause 3(1) of this bill provides that the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998 (Amendment) are to be taken to be valid and, despite regulation 1 of those regulations, are to be taken to have commenced on 1 August 1998.

Subclause 3(2) goes on to provide that other regulations amending the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998, whether made before or after the commencement of this bill, have the same effect as they would have had if the regulations to which subclause 3(1) applies had actually commenced on 1 April 1998.

The Explanatory Memorandum observes that the bill is intended to correct an inconsistency between the starting dates of the National Residue Survey Levy Regulations and amendments made to those regulations. As a consequence of this inconsistency, which had been identified by the Regulations and Ordinances Committee, sheep traders liable to pay a `per head' National Residue Survey levy on sheep transactions were unintentionally liable for a higher levy rate than that collected from 1 August 1998. Lamb traders were technically liable for a lower `per head' rate.

The Explanatory Memorandum goes on to note that this proposed retrospective validation will have no impact on levy payers as “revenue has been received at the rate agreed to by industry as being necessary to fund the program”.

In these circumstances, the Committee makes no further 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
Migration Act 1958

Choice of Superannuation Funds (Consumer Protection) Bill 1999

Diesel and Alternative Fuels Grants Scheme Act 1999

 Proposed new subsections 245F(3)(d) and (15)

Clause 53

Proposed new section 41

 Fail to answer questions and produce documents

Fail to provide information or produce documents

Fail to provide information or produce documents or give evidence

 100 penalty units

30 penalty units

Offence under s 8C of the Taxation Administration Act 1953