Administrative Decisions (Effect of International Instruments) Bill 1999

This bill was introduced into the House of Representatives on 13 October 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to respond to the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh by providing a statutory indication that, by entering into a treaty, the Australian Government does not give rise to “legitimate expectations” in administrative law.

General comment

In his Second Reading Speech, the Attorney-General notes that the text of this bill is identical to a bill of the same name introduced into the House of Representatives on 26 June 1997, but which did not pass the Senate before the proroguing of the Parliament before the 1998 election.

In relation to the 1997 bill, the Committee raised issues of the parliamentary scrutiny of international instruments generally, and of the need for that bill given the effect of Joint Statements by the Attorney-General and Minister for Foreign Affairs in May 1995.

The Committee reported on the 1997 bill in its Eleventh Report of 1997, and thanked the Attorney-General for his advice which clarified the processes put in place to enable the Parliament to scrutinise international treaties, and which dealt with the legal effect of the Joint Ministerial Statements.

The Committee draws Senators' attention to its previous discussion of this bill, and makes no further comment on its provisions.

Anti-Genocide Bill 1999

This bill was introduced into the Senate on 13 October 1999 by Senator Greig as a Private Senator's bill.

The bill proposes to give effect to the Convention for the Prevention and Punishment of the Crime of Genocide to prohibit genocide in Australia.

The Committee has no comment on this bill.

Australia New Zealand Food Authority Amendment Bill 1999 [No. 2]

This bill was introduced into the House of Representatives on 14 October 1999 by the Minister for Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the Australia New Zealand Food Authority Act 1991 to:

• allow the Authority to deal with less significant applications and proposals for draft food standards and variations to standards in certain limited circumstances, with the prior approval of the Australia New Zealand Food Standards Council;
• provide that Codes of Practice developed by the Authority are developed in accordance with the assessment process applicable to food standards;
• enable the Authority to better prioritise its work of reviewing, modifying and developing the Food Standards Code; and
• enable the Authority to charge for the assessment of applications in certain circumstances and to delay application processing if such charges are not paid.

Retrospective application

Subclause 2(2) and Schedule 1, item 13

While not apparent from the Explanatory Memorandum or the Minister's Second Reading Speech, this bill is apparently identical to a bill of the same name introduced into the Senate on 31 March 1999.

In its Eleventh Report of 1999, the Committee reported on Item 13 of Schedule 1 to the earlier bill. This item inserted a provision “which enables standards to relate to particular brands of food in addition to a type of food generally”. By virtue of subclause 2(2), this item was to commence retrospectively on 30 July 1998. This provision has again been included in the present bill and is to commence retrospectively on the same date.

In its Eleventh Report of 1999, the Committee considered the Minister's advice as to the status and enforceability of ANZFA standards issued since 30 July 1998. This advice clarified any Committee concerns to do with the retrospective application of item 13.

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

Taxation Laws Amendment Bill (No. 10) 1999

This bill was introduced into the House of Representatives on 14 October 1999 by the Minister for Financial Services and Regulation. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Income Tax (Transitional Provisions) Act 1997 to provide taxation relief to certain members of managed investment schemes;

Film Licensed Investment Company Act 1998, the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 to:

• allow a Film Licensed Investment Company to make returns of concessional capital as frankable dividends; and
• make technical amendments;

Income Tax Assessment Act 1997 to:

• allow income tax deductions for gifts to The Linton Trust;
• extend the period of time within which gifts to The National Nurses' Memorial Trust will be tax deductible; and
• confine the amount of capital expenditure, which is allowable as a deduction when a mining property is disposed of, to that expenditure which is specifically allowable under the mining provisions of the Act;

Petroleum Resource Rent Tax Assessment Act 1987 to clarify that taxpayers who abandon or walk away from a petroleum resource rent tax project take with them their share of any undeducted exploration expenditures; and

amends the income tax law to:

• allow an exemption from tax for non-profit organisations which promote the development of fishing and/or aquacultural resources; and
• exempt from income tax, business recovery grants paid to eligible businesses by the Cyclones Elaine and Vance Trust Account.

Retrospective application

Subclauses 2(2) and (3), and Schedule 4, item 4

By virtue of subclauses 2(2) and (3), and item 4 of Schedule 4, the amendments proposed by Schedules 1, 2 and 4 will either commence or apply to some extent retrospectively. However, the amendments proposed in these Schedules are all beneficial to taxpayers.

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

Legislation by press release

Schedule 5, item 2

By virtue of item 2 of Schedule 5 to this bill, the amendment proposed by Schedule 5 is to apply retrospectively from 4pm on 3 December 1998.

The Minister's Second Reading Speech observes that this provision “gives effect to the Government's announcement in a Press Release of 3 December 1998 that the tax treatment on disposal of mining property is to continue to operate as it previously did prior to the decision of the Full Federal Court in Esso Australia Resources Ltd v FC of T.”

The Minister goes on to observe that the effect of the Esso decision is that capital expenditure that was not previously deductible under the capital allowance provisions while a mine was operating can now become deductible under the balancing adjustment provisions in the income year in which the mine is disposed of.

Where a bill amending taxation law is introduced to give effect to a proposal previously announced by way of a press release, the Committee often draws attention to the Senate Resolution of 8 November 1988. This resolution states that, where such a bill is not introduced or made available by way of a draft bill within 6 months of the date of the announcement then, subject to any further resolution, the Senate shall amend the bill so that it commences no earlier than the date the bill is introduced into the Parliament, or the date of publication of the draft bill.

This bill has not been introduced within the 6 month period referred to in the above resolution. However, the `6 month rule' is directed at vices such as retrospectivity and uncertainty. The effect of this provision is not retrospectively to impose a further burden of tax on any person or group of people, but simply to ensure the continued operation of an aspect of tax law as it applied prior to a judgment which changed that operation.

In addition, the detail of legislation which gives effect to a press release often differs from what had been indicated in that release, leaving the law and those subject to it in a state of uncertainty. No question of uncertainty arises in the case of this provision.

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

Tradex Duty Imposition (Customs) Bill 1999

This bill was introduced into the House of Representatives on 14 October 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

One of a package of four bills to implement the Tradex Scheme, this bill proposes to impose the liability for tradex duty in so far as the tax is a duty of customs.

The Committee has no comment on this bill.

Tradex Duty Imposition (Excise) Bill 1999

This bill was introduced into the House of Representatives on 14 October 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

One of a package of four bills to implement the Tradex Scheme, this bill proposes to impose the liability for tradex duty in so far as the tax is a duty of excise.

The Committee has no comment on this bill.

Tradex Duty Imposition (General) Bill 1999

This bill was introduced into the House of Representatives on 14 October 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

One of a package of four bills to implement the Tradex Scheme, this bill proposes to impose the liability for tradex duty in so far as the tax is neither a duty of customs nor a duty of excise.

The Committee has no comment on this bill.

Tradex Scheme Bill 1999 [No. 2]

This bill was introduced into the House of Representatives on 14 October 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

One of a package of four bills to implement the Tradex Scheme, this bill proposes to establish the Tradex Scheme and provide for the administration of the scheme. The objective of the Tradex Scheme is to allow for the importation of goods, without payment of customs duty or other taxes, provided the goods are subsequently exported or incorporated in other goods that are exported. Penalty provisions for a failure to provide information or produce documents are noted on page 22 of this Digest.

Background

While not apparent from the Explanatory Memorandum or the Minister's Second Reading Speech, this bill is apparently identical to a bill of the same name introduced into the House of Representatives on 24 June 1999, and on which the Committee commented in Alert Digest No 10 of 1999. The Minister responded to the Committee's comments in a letter dated 2 August 1999 (copy attached to this Digest).

The earlier Tradex Scheme Bill was not introduced into the Senate, and was subsequently discharged from the House of Representatives Notice Paper on 14 October 1999.

The following discussion in relation to this bill draws on the Committee's previous comments in Alert Digest No 10 of 1999, and the Minister's letter in response.

Strict liability offence

Subclause 28(2)

Subclause 28(1) of this bill creates an offence of a failure to pay tradex duty. Subclause 28(2) states that this is an offence of strict liability. Under such a provision, a person might be convicted of the offence even though he or she did not intend to commit it.

However, the Explanatory Memorandum indicates that the penalty for this offence is merely an amount equal to the amount of unpaid duty. In certain circumstances, an offender may be offered the option of paying an administrative penalty, which amounts to only one-fifth of the unpaid duty.

The Explanatory Memorandum also indicates that a sanctions regime of strict liability offences accompanied by relatively low-level `administrative penalty' provisions is “crucial to the compliance aspect of the scheme”, which confers an advantage on holders of tradex orders. These holders no longer have to apply for a concession every time certain goods are imported. Such a sanctions regime is intended to support an approach to compliance based on audits or check-ups after an importation has occurred in which the benefit or duty concession has been realised.

Given this detailed explanation, the Committee makes no further comment on this provision.

Abrogation of the privilege against self-incrimination

Subclauses 30(2) and (3)

In a similar manner to the earlier bill, subclause 30(1) of this bill creates an offence of failing to comply with a requirement (relating to documents or record keeping) made by an authorised officer. Subclause 30(2) states that self-incrimination is not a ground for refusing to answer a question or produce documents. However, subclause 30(3) states that any document or information directly or indirectly produced under compulsion is inadmissible except in proceedings for making a false and misleading statement. The Committee has accepted that such a provision strikes a reasonable balance between the competing interests of obtaining information and protecting rights.

In these circumstances, the Committee makes no further comment

on this provision.

Appointment of `a person'

Subclause 45(1)

In a similar manner to the earlier Tradex Scheme bill, subclause 45(1) of this bill enables the Secretary, by writing, to “appoint persons to be authorised officers for the purposes of this Act”. The bill makes no reference to any qualifications or attributes which such persons must have as a condition of being authorised, and the Explanatory Memorandum does not elaborate further on this provision.

In commenting on this provision in the earlier bill, the Committee observed that it often drew attention to provisions which delegated power to anyone who fitted the all-embracing description of `a person'. As a general rule, the Committee preferred to see some limit placed either on the powers to be delegated or on the class of potential delegates. Similar considerations applied to the appointment of officers authorised for the purposes of an Act of Parliament. As a general rule, the Committee preferred that potential appointees be required to possess some qualifications or attributes before they were eligible for appointment. The Committee sought the Minister's advice on these matters.

In responding, the Minister agreed that `authorised officers' should possess specific attributes and qualifications, but suggested that this particular bill was not the appropriate place that these be specified. In the case of public service officials who were appointed as authorised officers under the Act, “their qualities or characteristics are set out in the relevant legislation which deals with their employment status”.

In addition, the Minister averred that the provisions as drafted “retain flexibility for this and future Governments to continue to ensure better outcomes in the delivery of Government services”.

The Committee thanks the Minister for this response in relation to the earlier bill, which remains relevant to this provision. Given the Minister's agreement that `authorised officers' should possess specific attributes and qualifications, the question becomes whether this bill is the appropriate place to specify those attributes and qualifications.

While the qualities or characteristics of public servants who are made `authorised officers' under the bill may be set out in the legislation dealing with their employment status, that legislation does not apply to non-public servants who may be authorised under the bill. In addition, that legislation deals only with the attributes and qualifications expected of public servants generally, and not with the attributes and qualifications expected of those officials who may be appointed to undertake specific functions under a specific bill.

There seems to be a continuing trend toward authorising `persons' to exercise powers and functions under specific legislation. Such provisions are usually included in the interests of administrative flexibility. However, the powers exercisable by these authorised persons are often wide in scope, and it is implicitly recognised that such persons will need specialised skills or training before exercising those powers. A bill which provides for appointments of such width should similarly make some explicit reference to these skills, attributes or qualifications.

The Committee, therefore, continues to draw Senators' attention to this provision, as it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference.

Excessively wide delegation

Clause 48

In a similar manner to the earlier Tradex Scheme bill, clause 48 of this bill permits the Secretary, by writing, to “delegate to an officer of, or a person employed in, the Department all or any of the Secretary's functions and powers under this Act”.

In commenting on this provision in the earlier bill, the Committee observed that the bill authorised the Secretary to exercise functions and powers that were wide in scope. These included suspending a tradex order, causing infringement notices to be served, reconsidering various decisions made under the legislation, extending certain time periods and providing certificates which had evidentiary force.

Given the scope and variety of these powers, the Committee sought the Minister's advice on why some limit should not be placed on potential delegates – for example, by limiting the class of potential delegates to officers in the Senior Executive Service.

In responding, the Minister acknowledged that, while no limits were placed on the power to delegate, “it is expected that the Secretary would, in the interests of good administration, exercise due diligence and care in determining that only officers who occupy sufficiently senior positions in the Department would exercise those functions and powers as his delegates”.

The Committee thanks the Minister for this response in relation to the earlier bill, which remains relevant to this provision, and notes his expectation that the Secretary's functions and powers will be delegated only to officers with appropriate seniority, expertise and relevant responsibilities.

However, given the apparent width of the functions and powers that are available for delegation, this issue should be more than simply a matter of reasonable expectation – it should be addressed in the provisions of the bill. It is appropriate that the bill itself or a related publicly available document restrict the class of potential delegates to officers of relevant seniority and expertise. The Committee, therefore, seeks the Minister's further advice as to why the appropriate delegation of the Secretary's functions and powers should be a matter of “reasonable expectation” with no legislative effect.

Pending the Minister's further advice, the Committee continues to draw Senators' attention to this provision, as it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference.

Workplace Relations Amendment (Australian Defence Force Service and Training) Bill 1999

This bill was introduced into the House of Representatives on 11 October 1999 by Mr Beazley as a Private Member's bill.

The bill proposes to amend the Workplace Relations Act 1996 to ensure that leave for service and training as a member of the Australian Defence Force Reserves is an allowable award matter for the purposes of the Act.

The Committee has no comment on this bill.

Workplace Relations Amendment (Australian Defence Force Service and Training) Bill 1999 (No. 2)

This bill was introduced into the Senate on 13 October 1999 by Senator Collins as a Private Senator's bill.

The bill proposes to amend the Workplace Relations Act 1996 to ensure that leave for service and training as a member of the Australian Defence Force Reserves is an allowable award matter for the purposes of the Act.

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
Tradex Scheme Bill 1999 [No. 2]	26 30(1) 32	Fail to notify change in registered particulars Fail to make available documents or demonstrate record keeping system Knowingly provide false or misleading information	30 penalty units 60 penalty units 12 months