Scrutiny of Bills Alert Digest No. 19 of 1999

1 December 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

Albury-Wodonga Development Amendment Bill 1999

Appropriation (East Timor) Bill 1999-2000

Child Care Legislation Amendment (High Need Regions) Bill 1999

Criminal Code Amendment (Application) Bill 1999

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999

Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999

Farm Household Support Amendment Bill 1999

Gladstone Power Station Agreement (Repeal) Bill 1999

National Crime Authority Amendment Bill 1999

New Business Tax System (Capital Gains Tax) Bill 1999

New Business Tax System (Income Tax Rates) Bill (No. 2) 1999

Superannuation (Entitlements of same sex couples) Bill 1999

Therapeutic Goods Amendment Bill 1999

Albury-Wodonga Development Amendment Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Minister for Community Services. [Portfolio responsibility: Transport and Regional Services]

The bill proposes to amend the Albury-Wodonga Development Act 1973 to simplify the structure and streamline the functions of the Albury Wodonga Development Corporation in preparation for its future abolition. The bill further proposes to facilitate the winding-up of the joint Commonwealth-State scheme under which the Commonwealth, New South Wales and Victoria agreed that a new integrated urban complex be developed in the Albury-Wodonga region. The bill also proposes to repeal the Albury-Wodonga Development (Financial Assistance) Act 1973.

Commencement by Proclamation

Subclause 2(2) and Schedule 1, Part 2

Subclause 2(2) of this bill states that Part 2 of Schedule 1 is to commence on a day to be fixed by Proclamation. In principle, the Committee is wary of provisions which enable legislation to commence in this manner. It is the Parliament, as the elected holder of Federal legislative power (rather than the Executive) which should be responsible for determining when the laws it makes are to come into force.

This view is echoed in Drafting Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel. This Drafting Instruction provides that, as a general rule, a restriction should be placed on the time within which an Act should be proclaimed. The commencement clause should fix either a period (preferably 6 months), or a date, after Royal Assent within which the Act is either to commence or be taken to be repealed. Clauses providing for commencement by Proclamation without these restrictions should be used “only in unusual circumstances, where the commencement depends on an event whose timing is uncertain (eg enactment of complementary State legislation)”.

In the case of this bill, subclauses 2(3) and 2(4), and the accompanying Explanatory Memorandum, make it clear that the application of the amendments proposed by Part 2 depends on the passing of complementary legislation in New South Wales and Victoria. Specifically, subclause 2(4) provides that if Part 2 of Schedule 1 is not proclaimed to commence within 6 months of the passing of the last of this complementary legislation then it is to commence on the first day after that period.

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

Appropriation (East Timor) Bill 1999-2000

This bill was introduced into the House of Representatives on 25 November 1999 by the Minister for Finance and Administration. [Portfolio responsibility: Finance and Administration]

The bill proposes to appropriate money ($920 million) out of the Consolidated Revenue Fund to make provision for special appropriations to the Department of Defence and the Australian Agency for International Development in relation to Australia's involvement in the East Timor region.

The Committee has no comment on this bill.

Child Care Legislation Amendment (High Need Regions) Bill 1999

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

The bill proposes to require determinations and guidelines to be made to implement needs-based planning of new child care assistance places in the calendar years 2000 and 2001.

The Committee has no comment on this bill.

Criminal Code Amendment (Application) Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Criminal Code Act 1995 to alter the application date of Chapter 2 of the Criminal Code (which contains the general principles of criminal responsibility) to 15 December 2001.

The Committee has no comment on this bill.

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Attorney-General. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the Criminal Code Act 1995 to:

provide for a range of geographical jurisdictional options to apply to all offences;
implement a scheme of theft, fraud, bribery, forgery and related offences (based on chapter 3 of the Model Criminal Code);
provide additional protection for Commonwealth public officials from violence and harassment enabling the Commonwealth to prosecute those who seek to cause them harm (based on chapter 5 of the Model Criminal Code);
provide protection of any part of the national infrastructure about which the Commonwealth has power and believes it is in the national interest to protect regardless of ownership details, including postal and communications services;

and amends 123 Acts and five regulations to repeal more than 250 offences as a consequence of amendments to the Criminal Code Act 1995.

Reversal of the onus of proof

Proposed new sections 14.1, 15.1, 15.2 and 15.3

Item 12 of this bill inserts a new set of general principles into Chapter 2 of the Criminal Code which deal with the geographical reach of Commonwealth offences. These are contained in a new Part 2.7, which contains proposed new sections 14.1, 15.1, 15.2 and 15.3. These sections are drafted to specify the geographical jurisdiction of the Criminal Code widely.

Proposed new subsections 14.1(3), 15.1(2), 15.2(2) and 15.3(2) then allow for a defence to the liability imposed by the preceding provisions in each section. For example, proposed subsection 14.1(3) states that a person is not guilty of a relevant offence if the conduct constituting the alleged offence occurs wholly in a foreign country (but not on board an Australian aircraft or ship) and in the foreign country where the conduct took place there is no law that creates a corresponding offence. The defendant bears an evidential burden in relation to these matters, and the other comparable defences contained in subsections 14.1(3), 15.1(2), 15.2(2) and 15.3(2).

With regard to proposed subsection 14.1(3), the Explanatory Memorandum states that it “provides the possibility of a defence” and that this defence is “that there was no offence in the place where the conduct occurred … the inquiry is not into whether the particular conduct alleged would have amounted to an offence of some kind or other under the law of [country] X … the inquiry is into whether [country] X has in its law a corresponding offence.”

While significant, these words provide no explanation for the adoption of this form of drafting, nor do they seek to justify the imposition of an evidential burden on a defendant to raise issues of the content of foreign law.

Further, the relationship between proposed subsection 14.1(2) and 14.1(3) is not clear. Under subsection 14.1(2) the prosecution would bear the onus of proving that the conduct constituting the offence occurs partly or wholly in Australia. Under proposed subsection 14.1(3) the defendant bears an evidential burden of showing that the conduct constituting the offence occurred wholly in a foreign country. It is not clear how the two burdens are to relate in practice. The Committee, therefore, seeks the Minister's advice as to why these provisions have been drafted in this way, and why the defendant should bear an evidential burden in relation to the defences contained in subsections 14.1(3), 15.1(2), 15.2(2) and 15.3(2).

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.

Imposition of absolute liability

Proposed new subsections 131.1(3), 132.4(8), 132.6(2), 134.1(2) and 134.2(2)

A number of provisions to be inserted in the Criminal Code by this bill state that absolute liability is to apply to particular elements of certain offences. This means that the prosecution need not prove any element of fault or knowledge in relation to that element.

One example of such a provision is new section 131.1. This creates an offence of theft where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property, and the property belongs to a Commonwealth entity. Proposed subsection 131.1(3) states that absolute liability applies to the element of Commonwealth ownership.

The Explanatory Memorandum observes that the effect of this provision is that “the prosecution is not required to prove the person knew the person/organisation who owned the property was a Commonwealth entity”. This simply continues the existing law, but makes it more transparent as the Criminal Code “requires laws that create offences to be very clear about anything that does not need to be proved, otherwise fault must be proved in accordance with section 5.6”.

Another example of this approach is new section 132.4, which creates an offence of burglary. One element of this offence involves burglary of “a building owned or occupied by the Commonwealth”. Applying absolute liability to this element means that the prosecution need not prove that the offender knew that the building was owned or occupied by the Commonwealth. The Explanatory Memorandum justifies this provision by noting that “many people do not have an appreciation of the differences between Commonwealth, State and Territory functions and legislative responsibilities”.

New subsections 132.6(2), 134.1(2) and 134.2(2) make provision in a similar manner.

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

Imposition of absolute liability

Proposed new subsections 135.1(6) and 135.4(6)

Proposed new subsection 135.1(5) of the Criminal Code creates an offence of knowingly and dishonestly causing a loss to a Commonwealth entity. Proposed subsection 135.1(6) excludes the requirement that the prosecution prove that the offender knew that a Commonwealth entity was involved. The Explanatory Memorandum notes this fact but gives no reason for the inclusion of the provision.

Similarly, proposed new subsection 135.4(5) creates an offence of conspiracy to dishonestly cause a loss to a Commonwealth entity. Again, proposed subsection 135.4(6) excludes the requirement that the prosecution prove that the offender knew that a Commonwealth entity was involved. The Explanatory Memorandum makes no reference to the need for this provision.

The Committee, therefore, seeks the Minister's advice as to the reasons for applying absolute liability in relation to each of these provisions.

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.

Reversal of the onus of proof

Proposed new subsections 136.1(2), (3), (5) and (6); 137.1(2) and (3) and 137.2(2)

Proposed new subsection 136.1(1) creates an offence of making a false and misleading statement in an application for a licence, permit, authority, registration or a claim for benefit. One of the elements of this offence is that the person makes the statement knowing that it is false or misleading, or knowing that the statement omits any matter or thing without which it is misleading.

Proposed new subsection 136.1(2) states that subsection (1) does not apply “if the statement is not false or misleading in a material particular”. Proposed new subsection (3) states that subsection (1) does not apply “if the statement did not omit any matter or thing without which the statement is misleading in a material particular”. In each instance, the defendant bears an evidential burden in relation to these matters.

Proposed subsections 136.1(5) and (6) provide that a defendant bears an evidential burden in relation to similar matters where the alleged offence is recklessly making a false or misleading statement. Proposed subsections 137.1(2) and (3) provide that a defendant bears an evidential burden in relation to similar matters where the alleged offence is providing false or misleading information and proposed section 137.2(2) imposes a similar evidential burden on a defendant where the offence is producing a false or misleading document.

The Explanatory Memorandum states that this approach has been chosen because “it would be too onerous to require the prosecution to prove that the defendant knew or was reckless as to materiality”. However, including the proposed defence “should ensure that materiality is taken into account”.

The Committee has previously accepted that it may be appropriate to impose an evidential burden on a defendant to raise an issue where it would be too onerous to require the prosecution to disprove it (see for example, the discussion of Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999 in the Committee's Seventh Report of 1999).

However, it is not clear whether the provisions as drafted require the prosecution to prove materiality and the defendant to raise the issue of lack of knowledge of materiality, or whether materiality will only become an issue if the defendant raises it. In addition, these provisions seem part of a large number of provisions which seek to impose an evidential burden on a defendant. It is not clear whether these provisions simply make explicit the existing law, or whether they are imposing new burdens on defendants. The Committee, therefore, seeks the Minister's advice on these issues.

Reversal of the onus of proof

Proposed new subsections 141.1(2); 142.1(2); 144.1(2), (4), (6) and (8); 145.1(2), (4), (6) and (8); and 145.2(2), (4), (6) and (8)

The bill inserts a new Part 7.6 in the Criminal Code which deals with bribery and related offences. In a series of provisions in this new Part, it is an element of the offence that the person bribed is a Commonwealth public official, or that the document forged is a Commonwealth public document. However, in each case, it is further provided that the prosecution need not prove that the defendant knew that this was the case.

For example, with regard to proposed subsection 141.1(2), the Explanatory Memorandum observes that some in the community cannot distinguish between the functions of the Commonwealth and State Governments. “It would therefore be too onerous to require the prosecution to prove the defendant knew the person they were bribing was a Commonwealth public official and that it was with the intention of influencing the person in relation to Commonwealth duties.” Subsection 141.1(2) makes it clear that it is not necessary to prove that the defendant knew these things. Similar reasoning applies to the other equivalent provisions. The Committee has commented above in relation to similar reasoning concerning proposed subsection 131.1(3).

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

Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the following Acts:

Australian Postal Corporation Act 1989 to provide Customs officers with the power to open international postal articles reasonably believed to consist of, or contain, drugs or certain other chemical compounds;

Customs Act 1901 to:

provide for increased penalties for certain import and export offences;
enable new technology to be used for personal searches (eg. bodyscan
x-ray, particle detectors, thermal imaging and swabbing kits) as alternatives to removing articles of clothing and enable the use of photos and videotapes;
extend the power of arrest for new offences;
enable Customs to retain evidential material and/or seized goods for 180 days (currently 60 days); and
amend provisions relating to the disposal of abandoned goods; and

Customs Administration Act 1985 to allow for the appointment of the Chief Executive Officer of Customs for periods up to five years.

The Committee has no comment on this bill.

Farm Household Support Amendment Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the Farm Household Support Act 1992 to remove the current 30 November 1999 closing date for the Farm Family Restart Scheme re-establishment grants.

Retrospective application

Subclause 2(2)

Subclause 2(2) states that the substantive provisions of this bill are to commence on 1 December 1999. It is likely, therefore, that the bill's commencement will, at least to some extent, be retrospective. However, the purpose of the bill is to extend the current deadline for the closing date for support to farm households – a purpose that is beneficial to those affected.

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

Gladstone Power Station Agreement (Repeal) Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Parliamentary Secretary to the Minister for Industry, Science and Resources. [Portfolio responsibility: Industry, Science and Resources]

The bill proposes to repeal the Gladstone Power Station Agreement Act 1970 because all legal obligations under the Act have been extinguished.

The Committee has no comment on this bill.

National Crime Authority Amendment Bill 1999

This bill was introduced into the House of Representatives on 24 November 1999 by the Attorney-General. [Portfolio responsibility: Justice and Customs]

The bill proposes to amend the National Crime Authority Act 1984 to clarify that States and Territories may confer powers, functions and duties on the National Crime Authority in relation to the Authority's investigation of relevant criminal activity.

Retrospective application

Subclause 2(2)

Subclause 2(2) of this bill states that the amendments proposed in the bill are to have commenced on 1 July 1984. The substantive amendments proposed are to omit the words “being a power, function or duty that is also conferred or imposed by this Act” from subsection 55A(1)(a) of the Principal Act, and to omit the word “similar” from subsection 55A(2) of the Principal Act.

The Explanatory Memorandum simply notes that the bill “clarifies the nature of the State and Commonwealth legislative framework that supports the National Crime Authority” (NCA). The bill does this by making clear “that States and Territories may confer powers, functions and duties on the National Crime Authority in relation to the Authority's investigation of relevant criminal activity”.

The Minister's Second Reading Speech provides some additional information. It observes that the States confer powers, duties and functions on the NCA in relation to a variety of State investigative laws including laws for the use of assumed identities, controlled operations and electronic surveillance. “This amendment makes clear that the States can confer such powers, duties and functions without the need for the National Crime Authority Act to specifically contain similar provisions”.

It seems that the amendments proposed in the bill are simply declaratory of the intended operation of the Principal Act. However, neither the Explanatory Memorandum nor the Minister's Second Reading Speech fully explains the effect of the changes being made, or why such changes are necessary, and why those changes should operate retrospectively from 1984.

As indicated by its name, an Explanatory Memorandum should explain what is being proposed. It should enable a reader of legislation to understand the reason for its introduction, the changes it proposes to make and the anticipated effect of those changes.

In the case of this bill, it is unclear whether it is simply attempting to remedy a long-standing drafting error, or addressing a factual situation that has developed, or is seeking to validate something that has taken place. It is unclear whether the bill has been introduced in response to a judgment, or in anticipation of litigation, or is totally unconnected with either. The Committee, therefore, seeks the Minister's advice as to the effect of the changes proposed in this bill, why such changes are necessary, and why the changes are to operate retrospectively from 1984.

New Business Tax System (Capital Gains Tax) Bill 1999

This bill was introduced into the House of Representatives on 25 November 1999 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the following Acts:

Income Tax Assessment Act 1997 and Income Tax Assessment Act 1936 to streamline and simplify the current small business CGT concessions and to provide further concessions in relation to retirement from carrying on business by disregarding certain capital gains made by small business entities from the disposal of active assets;

Income Tax Assessment Act 1997 to allow CGT roll-over when original interests in one entity are exchanged for interests in another entity, typically because of a takeover; and

Income Tax Assessment Act 1997 and Pooled Development Funds Act 1992 to allow certain non-resident, tax exempt pension funds exemption from tax on gains made on the disposal of their Australian venture capital investments.

Legislation by press release

Schedule 1, Part 3

Part 3 of Schedule 1 to this bill provides that the amendments proposed in Parts 1 and 2 are to apply from 21 September 1999 – this being the date of a press release issued by the Treasurer. However, the amendments proposed are beneficial to those operating small businesses, and the changes have been introduced well within the six-months referred to in the Senate Resolution of
8 November 1988.

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

New Business Tax System (Income Tax Rates) Bill (No. 2) 1999

This bill was introduced into the House of Representatives on 25 November 1999 by the Treasurer. [Portfolio responsibility: Treasury]

The bill proposes to amend the Income Tax Rates Act 1986 to remove the CGT averaging concession from the 1999-2000 income year.

The Committee has no comment on this bill.

Superannuation (Entitlements of same sex couples) Bill 1999

This bill was introduced into the House of Representatives on 22 November 1999 by Mr Albanese as a Private Member's bill.

The bill proposes to amend the Superannuation Industry (Supervision) Act 1993 to enable same sex couples to receive the same superannuation benefits as heterosexual couples.

The Committee has no comment on this bill.

Therapeutic Goods Amendment Bill 1999

This bill was introduced into the House of Representatives on 25 November 1999 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the Therapeutic Goods Act 1989 to extend the regime of the Australia-European Community Mutual Recognition Agreement to incorporate three European Free Trade Association member states: Norway, Liechtenstein and Iceland.

The Committee has no comment on this bill.