Alert Digest
No. 5 of 2004
31 March 2004
ISSN 1329-668X
Members of the
Committee
Senator T Crossin
(Chair)
Senator
B Mason
(Deputy Chairman)
Senator
G Barnett
Senator
D Johnston
Senator
J McLucas
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
Agricultural and Veterinary Chemicals Legislation Amendment (Name
Change) Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Agriculture, Fisheries and Forestry]
The bill amends the Agricultural and Veterinary Chemicals Act
1994, the Agricultural and Veterinary
Chemicals (Administration) Act 1992, the Agricultural and Veterinary Chemicals Code Act 1994, the Agricultural and Veterinary Chemical
Products (Collection of Interim Levy) Act 1994 and the Agricultural and Veterinary Chemical Products (Collection of Levy) Act
1994 to change the name of the National Registration Authority for
Agricultural and Veterinary Chemicals to the Australian Pesticides and
Veterinary Medicines Authority.
The bill also amends the Agricultural and Veterinary Chemicals Code
Act 1994 to introduce measures that protect the logo of the APVMA and its
name from inappropriate use.
The Committee has no comment on this bill.
Bankruptcy (Estate Charges) Amendment Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Attorney-General]
Introduced with the Bankruptcy Legislation Amendment Bill
2004, the bill amends the Bankruptcy
(Estate Charges) Act 1997 to make consequential and technical amendments
that reflect the repeal of the three types of administrations and the proposed
introduction of personal insolvency agreements under Part X of the Bankruptcy Act 1966.
The Committee has no comment on this bill.
Bankruptcy Legislation Amendment Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Attorney-General]
The bill amends the Bankruptcy
Act 1966 to:
-
replace the three existing types of arrangements
with creditors without sequestration under Part X of the Act with a single type
of arrangement to be called a personal insolvency agreement;
-
streamline the process for setting aside and
terminating personal insolvency agreements; and
-
strengthen the post-bankruptcy compositions and
schemes of arrangement provisions of Division 6 of Part IV of the Act relating
to the disclosure obligations of debtors, creditors and trustees, so that they
mirror the proposed provisions in Part X.
The bill also amends 15 other Acts to make minor and technical amendments to
improve the operation of the Act and to correct a drafting error in the
transitional provisions contained in the Bankruptcy
Legislation Amendment Act 2002.
Retrospectivity
Schedule 7, items 1 and 2
By virtue of item 5 in the table in subclause 2(1), the
amendments proposed in items 1 and 2 of Schedule 7 to this bill would commence
retrospectively, immediately after the commencement of Schedule 1 to the Bankruptcy Legislation Amendment Act 2002,
on 5 May 2003. As a matter
of practice the Committee draws attention to any bill which seeks to have
retrospective impact and will comment adversely where such a bill has a
detrimental effect on people.
Although the Explanatory Memorandum gives a very full
explanation of the reason for these amendments, and indicates that bankruptcy
practitioners have been operating on the assumptions contained in the
amendments since 5 May 2003, there is no express assurance, either in the
Explanatory Memorandum or in the Second Reading speech, that the
retrospectivity will not operate to the detriment of any person. The Committee seeks the Attorney-General’s assurance
that no person will be adversely affected by the retrospective commencement of
these amendments.
Pending the Attorney-General’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.
Classification (Publications, Films and Computer Games) Amendment
Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Attorney-General]
The bill amends the Classification (Publications, Films and
Computer Games) Act 1995 to provide for:
-
common classification types for films and
computer games; and
-
the inclusion of age references in the names of
restricted classification types, thereby distinguishing between advisory
classifications and legally restricted classifications.
The bill also makes consequential amendments to the Broadcasting Services Act 1992 to update
references to classification types.
The bill also contains application provisions.
Commencement on proclamation
Schedules 1 and 2
By virtue of item 2 in the table in subclause 2(1), the
amendments proposed in Schedules 1 and 2 to this bill would commence on
Proclamation, and may not commence for up to 12 months after Assent. The
Committee expects that where legislation is expressed to commence on
proclamation, the date should be no later than 6 months after the Parliament
passes the relevant measure. Where the period will be longer, the Committee expects
that the explanatory memorandum will provide an explanation for the delayed
commencement. In this case, the explanatory memorandum observes that such
delayed commencement “is necessary to allow sufficient time for complementary
amendments to State and Territory classification enforcement legislation to be
enacted.”
The Committee also notes that in this case the commencement
is nevertheless still fixed at a maximum of 12 months after Assent. The Committee
congratulates the Attorney-General for providing for a fixed time of
commencement, despite the need for the federal legislation to come into force
at the same time as complementary State and Territory legislation.
In the circumstances, the Committee makes no further comment on these
provisions.
Commonwealth Electoral Amendment (Representation in the House of
Representatives) Bill 2004
[Introduced into the
House of Representatives on 25 March 2004. Portfolio: Special Minister of State]
The bill amends the Commonwealth
Electoral Act 1918 to ensure transparency and certainty of the process for
calculating the representative entitlement for each of the states and
territories in the House of Representatives and to maintain the Northern Territory’s current representation of two
members at the next federal election.
The Committee has no comment on this bill.
Excise and Other Legislation Amendment (Compliance Measures) Bill
2004
[Introduced into the
House of Representatives on 25 March 2004. Portfolio: Treasury]
The bill amends the Excise
Act 1901 to improve compliance and administration arrangements by:
-
enabling the Commissioner of Taxation to control
the delivery of excisable goods for exportation by permissions and requiring
payment of an excise duty equivalent in certain circumstances;
-
including tobacco seed and plant in provisions
relating to permission for movement of tobacco leaf, and unlawful movement and
penalty provisions;
-
enabling immediate disposal of certain seized
forfeited goods and use of evidentiary certificates relating to those goods in
prosecutions and certain other proceedings;
-
enabling licence and certain other information
about a person to be disclosed to a second person to ensure that the second
person is able to satisfy legislative requirements; and
-
repealing a Customs Act 1901 provision
relating to exportation of excisable goods.
The Committee has no comment on this bill.
Flags Amendment (Eureka
Flag) Bill 2004
[Introduced into the
Senate on 23 March 2004 by Senator Marshall as a Private Senator’s
bill.]
The bill proposes to
amend the Flags Act 1953 to recognise
the Eureka Flag as an official flag of Australia.
The Committee has no comment on this bill.
Law and Justice Legislation Amendment Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Attorney-General]
The bill amends twenty-two Acts to correct minor drafting errors, clarify the operation of
certain provisions, update references to organisations and other Acts, and
update legislation to increase efficiencies and reflect current practices.
The bill also
contains application provisions.
Retrospective commencement
Schedule 1, items 2 and 13
By virtue of items 3
and 7 in the table in subclause 2(1), the amendments proposed in items 2 and 13
of Schedule 1 to this bill would commence on 1 January 2003 and 12 October 2001 respectively. As a matter of practice
the Committee draws attention to any bill which seeks to have retrospective
impact and will comment adversely where such a bill has a detrimental effect on
people. However, the Explanatory
Memorandum points out that in each case the amendment proposed is no more than
editorial, in that it corrects a drafting error.
In the circumstances, the Committee makes no further comment on these
provisions.
Retrospective commencement
Schedule 1, item 39
By virtue of item 10
in the table in subclause 2(1), the amendment proposed in item 39 of Schedule 1
to this bill would commence retrospectively on 31 August
1998. As a
matter of practice the Committee draws attention to any bill which seeks to
have retrospective impact and will comment adversely where such a bill has a
detrimental effect on people. However,
the Explanatory Memorandum points out that the amendment removes a reference
which became obsolete on that date.
In the circumstances, the Committee makes no further comment on this
provision.
Migration Amendment (Judicial Review) Bill 2004
[Introduced into the
House of Representatives on 25 March 2004. Portfolio: Immigration and Multicultural and
Indigenous Affairs]
The bill amends the Migration
Act 1958 to redefine the meaning of ‘privative clause decision’ to extend the definition of that term to include
a purported decision which was subject to jurisdictional error. This
amendment will restore the original procedural intent of the migration judicial
review scheme in relation to:
-
time limits on judicial review applications;
-
exclusive jurisdiction of the High Court,
Federal Court and Federal Magistrates Court to hear judicial review of
migration applications; and
-
restrictions on judicial review of decisions
where merits review of primary decisions is available.
The bill also makes a consequential amendment to the Administrative Decisions (Judicial Review)
Act 1997 to reflect the redefinition of a ‘privative clause decision’.
The bill also contains application provisions.
Limited right of review or appeal
Schedule 1, item 2
The new definition
of privative
clause decision to be inserted by item 2 of Schedule 1 to this bill
would extend the definition of that term to include a purported decision which
was subject to jurisdictional error. The amendment therefore increases the
range of decisions concerning migrants in relation to which there is only a
limited right of review or appeal. To
that extent, this amendment may be regarded as trespassing on personal rights
and liberties. The Committee, however,
leaves for the Senate as a whole to decide whether the amendment trespasses unduly on those rights and liberties.
The Committee draws Senators’ attention to the 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.
Surveillance Devices Bill 2004
[Introduced into the
House of Representatives on 24 March 2004. Portfolio: Attorney-General]
The bill consolidates and modernises current surveillance
device laws and provides law enforcement agencies with access to the
surveillance tools necessary to protect Australians and to investigate crime.
The bill includes provisions that:
-
establish a structured process for the use of
surveillance devices both in Australia and overseas;
-
extend the issue of surveillance device warrants
in certain circumstances; and
-
include a range of strong accountability
measures relating to information obtained from surveillance activities.
The bill also makes consequential, transitional and savings
amendments to the Australian Federal
Police Act 1979, the Criminal Code
Act 1995, the Customs Act 1901
and the Mutual Assistance in Criminal
Matters Act 1987.
The bill also contains a regulation-making power.
The Committee has no comment on this bill.
Veterans’ Entitlements Amendment (Direct Deductions and Other
Measures) Bill 2004
[Introduced into the
House of Representatives on 25 March 2004. Portfolio: Veterans’ Affairs]
The bill amends the Veterans’ Entitlements Act 1986 to give
effect to a range of minor policy measures that will enhance services to
veterans and their dependants, correct minor policy flaws or align the Act with
the social security law.
The bill also contains
application and transitional provisions.
Retrospective commencement
Schedule 1, items 38, 39, 40 and 42
By virtue of items 9 and 11 in the table in subclause 2(1),
the amendments proposed in items 38, 39, 40 and 42 of Schedule 1 to this bill
would commence retrospectively on 1
July 1995. As a matter of practice the Committee draws attention to
any bill which seeks to have retrospective impact and will comment adversely
where such a bill has a detrimental effect on people.
In this case, the Explanatory Memorandum points out the
purpose of these amendments is to “align the income and assets test treatment
of ATO small superannuation accounts and private rental income” in the Veterans’ Entitlements Act 1986 with
that in the Social Security Act 1991.
However, neither in the Explanatory Memorandum nor in the Second Reading speech
is there any indication of whether the retrospectivity of these amendments
would detrimentally affect any person. The Committee seeks the Minister’s advice as to whether any person would be
adversely affected by the retrospective commencement of these amendments.
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.
Provisions of bills which impose criminal sanctions for a 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
|
|
Surveillance Devices Bill 2004
|
Clause 56
|
Fail to provide information to a public authority
|
Imprisonment for 6 months
|
Parliamentary amendments and the committees terms of reference
Amendments in the Senate
(22 to 25 March 2004)
Migration Legislation Amendment (Migration Agents
Integrity Measures) Bill 2003: The
Senate amended this bill on 23 March 2004. The amendments raise no issues within the
Committee’s terms of reference.