Scrutiny of Bills Fifth Report of 1999

Customs (Anti-dumping Amendments) Bill 1998

Introduction

The Committee dealt with this bill in Alert Digest No. 1 of 1999, in which it made various comments. The Minister for Justice and Customs has responded to those comments in a letter dated 25 February 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Minister's response are discussed below.

Extract from Alert Digest No. 1 of 1999

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Customs Act 1901 to:

provide a special approach for determining normal value of allegedly dumped goods from countries that are in the process of transition to a market economy when it is established that the selling price of those goods is subject to government control;
provide a new methodology for determining the normal value of allegedly dumped goods from countries that are in the process of transition to a market economy and a raw material input into the goods which accounts for more than 10 per cent of the costs of producing or manufacturing the goods is supplied by a State owned enterprise;
clarify provisions which relate to the manner in which interim dumping and countervailing duties are collected; and
ensure consistency with amendments implemented by the Customs Legislation (Anti-dumping Amendments) Act 1998.

Retrospective effect

Subclause 2(3)

By virtue of subclause 2(3) of the bill, a number of the amendments proposed are to commence retrospectively on 1 January 1993. The Explanatory Memorandum notes that these amendments all involve “clarifying” the collection of interim dumping

and countervailing duties. An interim duty regime was introduced by the Customs Legislation (Anti-Dumping Amendments) Act 1992, which commenced on 1 January 1993. Interim duties have been collected since that date in accordance with the intention of that regime and these amendments are designed to ensure “that approximately $12 million in interim duties collected since 1 January 1993 is not subject to legal challenge”. The Explanatory Memorandum also states that the amendments “will not require importers to pay an amount of dumping duty beyond that which has previously been demanded”.

Provisions in a similar form were previously commented on by the Committee in its consideration of the Customs Legislation (Anti-Dumping) Amendment Bill 1997 (see Nineteenth Report of 1997). In response to a request from the Committee for advice, the then Minister for Customs and Consumer Affairs noted:

The amendments are intended to remove the possibility that the relevant provisions of the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 might be interpreted so as to require actual values to be ascertained before interim dumping and countervailing duties can be imposed. The possibility of such an interpretation was discovered in the general process of ongoing review of the terms of the legislation by officers of the Australian Customs Service and the Anti-Dumping Authority. The relevant provisions have not been the subject of judicial interpretation and there are no cases currently pending which would be affected by the passage of the proposed amendments.

The Committee thanked the Minister for this response. Approximately 16 months have passed since that response was received. The Committee, therefore, seeks the Minister's advice as to whether any cases have arisen since the bill was last introduced (or are pending) which might be affected by the passage of these proposed amendments.

Pending the Minister's advice, the Committee draws Senators' attention to these provisions, as they may be considered to trespass unduly on personal rights and liberties in breach of principle 1(a)(i) of the Committee's terms of reference.

Relevant extract from the response from the Minister

I refer to the Committee's comments in Alert Digest No. 1 of 1999 in relation to subclause 2(3) of the Customs (Anti-Dumping Amendments) Bill 1998 and subclause 2(1) of the Customs Tariff (Anti-Dumping) Amendment Bill (No. 2) 1998.

These provisions were also contained in the Customs Legislation (Anti-Dumping) Amendment Bill 1997 and Customs Tariff (Anti-Dumping) Amendment Bill 1997 (“the 1997 Bills”). The amendments are intended to remove the possibility that the relevant provisions of the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 might be interpreted so as to require actual values to be ascertained before interim dumping and countervailing duties can be imposed. The 1997 Bills lapsed upon prorogation of Parliament.

During 1997, the Committee sought advice on whether the relevant provisions of the 1997 Bills had been the subject of judicial interpretation, and whether there were any cases pending which would be affected by the passage of the proposed amendments. The former Minister for Customs and Consumer Affairs advised the Committee that there were no such cases.

Since it has been approximately 16 months since that reply was given, the Committee has sought my advice on whether any cases have subsequently arisen, or are pending, since the 1997 Bills were introduced, and which might be affected by the passage of these proposed amendments.

I again confirm that the relevant provisions have not been the subject of judicial interpretation since the last response was provided, and there are no cases currently pending which would be affected by the passage of the proposed amendments.

I trust this meets the concerns of the Committee.

The Committee thanks the Minister for this response.

Customs Tariff (Anti-Dumping) Amendment Bill (No. 2) 1998

Introduction

Extract from Alert Digest No. 1 of 1999

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister representing the Minister for Justice and Customs. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Customs Tariff (Anti-Dumping) Act 1975 to clarify provisions of that Act and the Customs Act 1091 relating to the manner in which interim dumping and countervailing duties are collected.

Retrospective effect

Subclause 2(1)

By virtue of subclause 2(1) of the bill, a number of the amendments proposed are to commence retrospectively on 1 January 1993. As noted above (with reference to the Customs (Anti-Dumping Amendments) Bill 1998), these amendments are said to involve “clarifying” the collection of interim dumping and countervailing duties, and ensuring that the collection of interim duties since 1 January 1993 is not potentially subject to legal challenge.

A Ministerial explanation involving provisions in a similar form was previously accepted by the Committee in its examination of the Customs Tariff (Anti-Dumping) Amendment Bill 1997 (see Nineteenth Report of 1997). Nevertheless, the Committee notes that approximately 16 months have passed since that explanation was received. The Committee, therefore, seeks the Minister's advice as to whether any cases have arisen since the bill was last introduced (or are pending) which might be affected by the passage of these proposed amendments.

Relevant extract from the response from the Minister

These provisions were also contained in the Customs Legislation (Anti-Dumping) Amendment Bill 1997 and Customs Tariff (Anti-Dumping Amendment Bill 1997 (“the 1997 Bills”). The amendments are intended to remove the possibility that the relevant provisions of the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 might be interpreted so as to require actual values to be ascertained before interim dumping and countervailing duties can be imposed. The 1997 Bills lapsed upon prorogation of Parliament.

I trust this meets the concerns of the Committee.

The Committee thanks the Minister for this response.

Health Legislation Amendment Bill (No. 4) 1998

(New citation: Health Legislation Amendment Bill (No. 2) 1999)

Introduction

The Committee dealt with this bill in Alert Digest No. 1 of 1999, in which it made various comments. The Minister for Health and Aged Care has responded to those comments in a letter dated 23 March 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Minister's response are discussed below.

Extract from Alert Digest No. 1 of 1999

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Health and Aged Care. [Portfolio responsibility: Health and Aged Care]

The bill proposes to amend the following Acts:

National Health Act 1953 to:

enable the Minister to determine the maximum percentage of discount that a health fund can offer contributors, based on the administrative savings of the health fund;
enable health funds to offer loyalty bonus schemes to contributors in recognition of the period of time over which they have paid premiums;
allow for waiting periods to be extended for certain conditions, ailments or illnesses;
allow health funds to cover the Pharmaceutical Benefits Scheme patient co-payment for prescribed pharmaceutical benefits for in-hospital treatment;
allow procedures which would otherwise have been performed in a hospital or day hospital facility to be performed in an “approved procedures facility”;
allow the Minister to specify which Medicare Benefit Schedule items are procedures facility”;
create a new class of benefit payable by health funds to cover specialist medical services;
establish separate provisions to deal with health fund rule changes which relate to changes in premium rates and all other rule changes;
enable the Minister to disallow any given rule changes on two additional grounds; and
transfer the rates of contribution rule change provisions from the Minister to the Private Health Insurance Administration Council; and

National Health Act 1953 and Health Insurance Act 1973 to make consequential amendments.

Commencement

Subclauses 2(4) and (5)

In general terms, Schedule 3 of this bill contains provisions which broaden the Minister's power to monitor changes to health fund rules relating to premiums. Items 8 to 15 of this Schedule contain provisions which, within two years, transfer the premium monitoring provisions from the Minister to the Private Health Insurance Administration Council. Items 16 to 18 of this Schedule contain provisions which “at an appropriate time” increase the independence and flexibility that health funds have with respect to premium increases.

Specifically, subclause 2(4) of the bill provides that the amendments proposed by items 8 to 15 are to commence on a day to be fixed by Proclamation that occurs after, but not more than 24 months after, the day on which the items referred to in subsection 2(3) commence. Subclause 2(5) provides that the amendments proposed by items 16 to 18 are to commence on a day to be fixed by proclamation that occurs after, but not more than 24 months after, the day on which the items referred to in subsection (4) commence.

In effect, these provisions are to commence at a time that is fixed by reference to the date of Assent. To that extent, their commencement is not a matter of Executive discretion, which has often been a matter of concern to the Committee. However, the Explanatory Memorandum provides no reason for the considerable length of time between Assent to the bill and the coming into force of these particular provisions (up to 48 months). In this respect, the Committee notes that Drafting Instruction No 2 of 1989, issued by the Office of Parliamentary Counsel, refers to the desirability of an explanation where a commencement period longer than 6 months after Royal Assent is chosen. The Committee, therefore, seeks the Minister's advice on the reasons for the length of time provided for before proclaiming the commencement of these provisions.

Pending the Minister's advice, the Committee draws Senators' attention to these provisions, as they may be considered to inappropriately delegate legislative power in breach of principle 1(a)(iv) of the Committee's terms of reference.

Extract from the response from the Minister

These subsections deal specifically with the commencement of provisions transferring the `rates of contribution' rule change powers at Schedule 3 from myself as Minister to the Private Health Insurance Administration Council.

As the Explanatory Memorandum explains, the intention of the provisions at Schedule 3 is to provide increased independence and flexibility to health funds with respect to their rates of contribution rule changes. These administrative changes are consistent with the overall direction of the Bill to improve the efficiency of the private health insurance industry and make private health insurance more attractive to consumers by enabling greater product flexibility. These provisions are also consistent with this Government's desire to minimise its regulatory impact on the private health insurance sector.

The transfer of these functions to PHIAC will make it's role more consistent with other government regulatory prudential organisations and regulatory bodies in general insurance. These changes in no way limit the Government's primary responsibility as policy maker.

In respect of the specific subsections in question, my Department in drafting the Bill had consideration for the following factors:

fiscal certainty for private health insurance funds;
the annual cycle for the application and consideration of rates of contribution rule changes; and
the need for significant consultation with industry prior to the transfer of the provisions.

I hope this information is of assistance to the Committee.

The Committee thanks the Minister for this response, and notes the need for fiscal certainty for health funds and consultation with the industry prior to the transfer of functions to PHIAC. However, the Minister's response does not make clear why a period of up to 48 months may be required before the legislation fully commences. The Committee, therefore, seeks the Minister's further advice on the need for this extended period of time before the bill is to fully commence.

Pending the Minister's further advice, the Committee draws Senators' attention to these provisions, as they may be considered to inappropriately delegate legislative power in breach of principle 1(a)(iv) of the Committee's terms of reference.

National Environment Protection Measures (Implementation) Act 1998

Introduction

The Committee dealt with the bill for this Act in Alert Digest No. 11 of 1998, in which it made various comments. The Minister for Environment and Heritage has responded to those comments in a letter dated 30 March 1999. It is noted that this bill received Royal Assent on 21 December 1998, however, extracts from the Alert Digest and the Minister's response are discussed below for the information of Senators. A copy of the letter is attached to this report.

Extract from Alert Digest No. 11 of 1998

This bill was introduced into the Senate on 25 November 1998 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Environment and Heritage]

The bill proposes to provide for the implementation of national environment protection measures (NEPMs) in respect of certain activities by or on behalf of the Commonwealth and Commonwealth authorities by:

extending the application of certain provisions of applied State laws to Commonwealth activities in Commonwealth places;
extending the application of certain provisions of States or Territory laws to Commonwealth activities;
making regulations;
implementing environmental audits and environment management plans;
providing for Administrative Appeals Tribunal review of any reviewable decisions made under an applied provision of an applied State law or applied provision of a State or Territory law;
providing that certain persons must not disclose information obtained during their presence while searching premises occupied by the Commonwealth or a Commonwealth authority;
providing that regulations may declare premises to be exempt premises in relation to premises the Environment Minister considers to be of national interest and to which access into, or search of, should be restricted or prohibited;
enabling the Commonwealth or a Commonwealth authority to pay a fee or charge to a State or Territory or a State or Territory authority in certain circumstances;
enabling the Environment Minister to make an arrangement with an appropriate Minister of a State or Territory in relation to the exercise of a power, or the performance of a duty or function by a State or Territory, a State or Territory authority or by one of their officers;
requiring the preparation and tabling of an annual report on the implementation of NEPMs; and
applying the Criminal Code to certain provisions.

Insufficient parliamentary scrutiny

Subclauses 11(2), 12(2), 16(2) and 17(2)

By virtue of subclauses 11(2), 12(2), 16(2) and 17(2), the Environment Minister may enable provisions of State and Territory law to apply, or not apply, to the Commonwealth or its authorities following notification in the Gazette. The exercise of this power by the Minister is essentially legislative in that a Gazette notice will determine whether or not the Commonwealth is subject to the legislative provisions of a State or Territory.

The exercise by a Minister of what appears to be a legislative power would ordinarily be carried out by a disallowable instrument rather than by Gazette notice. The Explanatory Memorandum makes no further reference to the matter. The Committee, therefore, seeks the Minister's advice on the reasons why declarations under subclauses 11(2), 12(2), 16(2) and 17(2) are not disallowable.

Pending the Minister's advice, the Committee draws Senators' attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee's terms of reference.

Relevant extract from the response from the Minister

During passage through the Senate, several amendments were made. Included in those amendments were clauses brought to our attention through your letter.

Relevant amendments were:

Subclauses 11(2), 12(2) and 16(2) were amended to include an additional subclause stating:

“Within 15 sitting days after making a declaration for the purposes of subsection (1), the Minister must cause a copy of the declaration to be tabled in each House of Parliament.”

The effect of these amendments will be to allow Parliamentary Scrutiny of any decision made by the Minister in relation to these subclauses.

In relation to clause 11, exemption from the application of NEPMs to Commonwealth activities in Commonwealth places can only occur if an alternative Commonwealth regime is already in place which will achieve the environmental outcomes specified in the NEPM. Further, exemptions will only occur either because the activity involves a specified matter of national interest or for reasons of administrative efficiency.
Clause 12 has additional requirements under subclauses (4) and (5) for regulations to be made and for relevant State officers to be involved in the preparation of those regulations. Regulations are, of course, disallowable, and would fulfil the committee's requirements in this matter.
In relation to subclause 17(2) no additional subclause was added. Discussion in the Senate at the time of the Second Reading focussed on the range of public documentation available, including the tabling of National Environment Protection Council Annual Reports, which would make public the decisions of the Minister in making declarations that State or Territory law implementing NEPMs is to apply to the Commonwealth and its authorities.

Inadmissible audit report

Clause 28

Clause 28 of the bill provides that a report of an environmental audit, and any information obtained as a direct or indirect result of the making of that report, is not admissible in evidence in any civil or criminal proceedings against the Commonwealth or its authorities if the audit relates to activities carried on or to be carried on by the Commonwealth or the authority. The Explanatory Memorandum provides no reason for the inclusion of this provision. The Committee, therefore, seeks the Minister's advice on the reasons why an environmental audit report should not be admissible in proceedings against the Commonwealth.
Pending the Minister's advice, 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.

Relevant extract from the response from the Minister

Clause 28 was deleted in full.

I apologise for the delay in responding to the Standing Committee for the Scrutiny of Bills.

The Committee thanks the Minister for this response and for his advice regarding the amendments moved.

Quarantine Amendment Bill 1998

Introduction

The Committee dealt with this bill in Alert Digest No. 1 of 1999, in which it made various comments. The Minister for Agriculture, Fisheries and Forestry has responded to those comments in a letter dated 10 March 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Minister's response are discussed below.

Extract from Alert Digest No. 1 of 1999

This bill was introduced into the House of Representatives on 3 December 1998 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the Quarantine Act 1908 to:

extend the scope of quarantine to the environment and economic activities;
require consultation with the Minister for Environment in certain circumstances;
amend provisions relating to the managed risk approach;
clarify pre-arrival reporting obligations;
provide greater flexibility in relation to where a vessel is to perform quarantine;
bring the detail of the Quarantine (Plants) Regulations into the Act and allow for the destruction of plants grown from plants that have been ordered into quarantine;
provide that quarantine officers may be accompanied by animals and use the animal to assist them in the exercise of certain powers;
enable an emergency response not only in relation to diseases that have been declared by proclamation to be quarantinable diseases, but also to unproclaimed diseases or pests;
provide that offending goods can be required to be exported from Australia in order to encourage compliance with Australia's quarantine requirements and to keep quarantine issues off-shore;
introduce a system of rectification enabling importers to rectify deficiencies that might otherwise cause their goods to be seized and disposed of;
enable a consistent approach in relation to the special risks associated with overseas vessels and aircraft travelling in the Special Quarantine Zone and the Protected Zone;
provide a framework for the issuing, revoking and suspension of approvals for commercial quarantine premises
clarify that compliance agreements can be entered into in relation to procedures under the Act, regulations, proclamations, conditions on permits or approvals and in connection with activities carried out in the performance of functions related to quarantine;
redraft offence provisions so elements of an offence are distinguished and the rules in relation to mental and fault elements, the burden of proof and evidentiary provisions apply; and
make miscellaneous and technical amendments.

Non-reviewable subordinate legislation

Schedule 1, items 51, 60, 110 and 141

Schedule 1 to this bill extensively amends the Quarantine Act 1908. Item 51 amends the Act to define a quarantinable pest as any pest declared by the Governor-General, by Proclamation, to be so declared. Item 60 amends the Act to enable the Minister to declare Special Quarantine Zones. Item 110 refers to Proclamations exempting certain animals or plants from import prohibitions. Item 141 inserts two new provisions dealing with entry by air from certain proclaimed places, and aircraft subject to quarantine landing at unauthorised places.

Each of these instruments is apparently legislative in character, and yet no provision seems to have been made for Parliamentary scrutiny of them. Therefore, the Committee seeks the Minister's advice on the reasons for exempting the above subordinate legislation from Parliamentary scrutiny. The Committee also seeks the Minister's advice on the feasibility of tabling, in each House of the Parliament, an annual report indicating the frequency with which such Proclamations and Declarations have been made, and outlining in broad terms the circumstances which have prompted their use.

Pending the Minister's advice, the Committee draws Senators' attention to these provisions, as they may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee's terms of reference.

Relevant extract from the response from the Minister

I appreciate the opportunity to provide advice to your Committee on the concerns raised on a number of items in Schedule 1 of the Quarantine Amendment Bill 1998.

In relation to the Committee's concerns about non-reviewable subordinate legislation I would like to assure the Committee that, although proclamations under the Quarantine Act 1908 are not disallowable instruments, my Department tables proclamations and accompanying explanatory statements as a matter of courtesy. I undertake that the Department will continue this practice. In addition, my Department will provide details in its Annual Report of any Quarantine Proclamations made, and of any declarations of Special Quarantine Zones made by the Minister during the period covered by each Report.

I understand that, based on the advice of the Attorney-General's Department, the strict liability offences identified by the Committee are declaratory of the existing law. I confirm that the reason for including an express specification is to bring the offences into conformity with the Criminal Code. I consider it necessary to continue to impose strict criminal liability in these situations in order to maintain the integrity of the barrier controls which are so important to Australia's quarantine security.

I enclose a detailed item by item consideration of the issues raised in the Alert Digest for your Committee's attention.

I hope that this response is of assistance to the Committee in allaying its concerns.

Item 51

(a) Reasons for exempting Item 51 from Parliamentary Scrutiny.

This item reflects an existing premise of the Quarantine Act 1908 (the Act) which is that the Governor General can proclaim diseases of humans, animals and plants. The relevant existing provisions are in sub-section 5(1) of the Act. They are:

“Disease" in relation to animals, means glanders, farcy, pleuro-pneumonia contagious, foot and mouth disease, rinderpest, anthrax, Texas or tick fever, hog cholera, swine plague, mange, scab, surra, dourine, rabies, tuberculosis, actinomycosis, variola ovina, or any disease, parasite or pest declared by the Governor-General by proclamation to be a disease affecting animals;

"Disease", in relation to plants, means any disease, pest or plant declared by the Governor-General by proclamation, or by the Minister by notice published in the Gazette, to be a disease or pest affecting plants or a noxious plant;

"Quarantinable disease" means plague, cholera, yellow fever, typhus fever, or leprosy, or any disease declared by the Governor-General, by proclamation, to be a quarantinable disease;

The Quarantine Amendment Bill 1998 (the Bill) (Items 16, 17, 49, 51 and 94)) seeks to both reflect modern practices in regard to, and simplify the way the Act deals with, quarantinable diseases, diseases in relation to animals and diseases in relation to plants. The Bill reduces the definitions from three to two: quarantinable pest will apply to plants, and quarantinable disease will apply to animals and humans. In addition, the Bill provides that the only mechanism by which these diseases and pests may be declared is by proclamation. Currently the Act allows for three possible mechanisms: by the Act itself which lists, inter alia, farcy, foot and mouth disease, mange, plaque, yellow fever; by notice in the Gazette for plant diseases, and by proclamation. In practice, pests and diseases are declared by proclamation.

(b) Feasibility of tabling in each House of Parliament, an annual report indicating the frequency with which such Proclamations and Declarations have been made, outlining in broad terms the circumstances which have prompted the use.

My Department tables proclamations and accompanying explanatory statements as a matter of courtesy and I undertake that my Department will continue to do this. My Department will also detail in its Annual Report all proclamations made during the period covered by the Report.

Item 60.

(a) Reasons for exempting Item 60 from Parliamentary Scrutiny.

Item 60 has been introduced a light-handed alternative to the existing powers of the Governor General under sub-section 13(1) of the Act. Under sub-section 13(1) the Governor-General may, by proclamation:

(h) declare any part of the Commonwealth or of the Cocos Islands in which any quarantinable disease or any disease or pest affecting animals or plants exists, or is suspected to exist, to be a quarantine area; or

(i) declare that any vessel, persons, animals, plants, or goods in any quarantine area, or in any part of the Commonwealth or of the Cocos Islands in which any quarantinable disease, or any disease or pest affecting plants or animals, exists, or is suspected to exist, shall be subject to quarantine.

The Governor-General has proclaimed an area between the Torres Strait Protected Zone and Australia to be a quarantine area to enable appropriate measures to be taken to protect Australia from pest and disease incursions, such as papaya fruit fly and melon fly, from the Torres Strait. The use of these powers in relation to the Torres Strait is considered to be appropriate to provide protection against the possible introduction of pests and diseases affecting humans, animals or plants which may be carried into Australia from the Protected Zone.

However, there may be occasions when an area needs to be targetted for special quarantine attention in circumstances which do not warrant the full range of controls applicable if the Governor-General makes declarations under paragraphs 13(1)(h) and (i) of the Act. In order to accommodate this situation, the Quarantine Amendment Bill 1998 introduces the concept of a Special Quarantine Zone. The declaring of a Special Quarantine Zone attracts only limited barrier controls under the Act, such as the requirement to produce arrival reports and to answer questions, and the power to examine goods (Items 159 and 242).

Declaration of a Special Quarantine Zone by the Minister, rather than by the Governor General, is considered to be an appropriate way to provide the flexibility to deal with a situation which requires an immediate but relatively low level response.

(b) Feasibility of tabling in each House of Parliament, an annual report indicating the frequency with which such proclamations and declarations have been made, outlining in broad terms the circumstances which have prompted the use.

My Department will indicate in its annual report whether any such declarations are made, and outline in broad terms the circumstances which have prompted the use.

Item 110

(a) Reasons for exempting Item 110 from Parliamentary Scrutiny.

This item applies the same mechanism to exempt traditional inhabitants from prohibitions on the removal of goods from an area as the mechanism which currently applies in the Quarantine Act 1908 (the Act) to impose the removal prohibition; that is, by proclamation. This item is also consistent with existing provisions under section 13 of the Act which allow for the imposition of prohibitions on importations and for the exemption of traditional inhabitants from prohibitions on importations by proclamation.

Item 141

(a) Reasons for exempting Item 141 from Parliamentary Scrutiny.

Item 141 substantially reflects the existing section 20B, and 20C of the Quarantine Act 1908 (the Act). In relation to the new section 20B the key differences are that it is drafted in a more modern style, takes account of the new definition of aircraft, commander and operator and sets out the offence and penalty provision in accordance with current Commonwealth policy.

In relation to new section 20C, the key differences are that it is drafted in a more modern style, takes account of the new definition of aircraft and provides that the Director of Quarantine may give directions as to how an aircraft, a person, an animal, a plant or other goods that have been landed at a place that is not a landing place, are to be dealt with rather than providing for detailed prescription in regulations.

Subsection 20C(3) specifies to whom the direction may be given and subsection 20(5) provides that it is an offence not to comply with a direction. The section does not apply where a person has been granted permission under section 20AA of the Act as long as any condition attached to such a permission has been complied with.

Section 20C is an enabling provision to empower the Director of Quarantine to give directions to an individual person. The administrative nature of the power in section 20C is highlighted by sub-section 20C(3) which specifies the person to whom the direction may be given as follows:

(3) A direction under subsection (2) may be given, as appropriate, to:

(a) the operator or commander of the aircraft; or

(b) any person who is on board the aircraft or was on board it when it landed; or

© the importer of, or any person in control of, the animal, plant or other goods.

I believe that a direction under new section 20C would be an administrative, not a legislative activity. In relation to new section 20B, my Department tables proclamations and accompanying explanatory statements as a matter of courtesy and I undertake that my Department will continue to do this. My Department will also detail in its Annual Report all proclamations made during the period covered by the Report.

The Committee thanks the Minister for this comprehensive response.

Strict liability offences

Schedule 1, items 145, 153, 183, 242, 259, 263, 267 and 269

Items 145, 153, 183, 242, 259, 263, 267 and 269 of Schedule 1 to the bill specify that offences are to be offences of strict liability. While the Committee normally seeks advice about the creation of such offences, in each of the cases referred to above it appears that the specification of the offence as one of strict liability is simply declaratory of the existing law. The reason for including an express specification would seem to be that item 312 of Schedule 1 applies Chapter 2 of Criminal Code to all offences against the Principal Act. Chapter 2 provides that offences are of strict liability only when expressly specified.

Nevertheless, the Committee seeks the Minister's assurance that the amendments noted above are no more than declaratory of the existing law. If so, the Committee also seeks the Minister's advice on why it is thought necessary to continue to impose strict criminal liability in the situations referred to above.

Pending the Minister's advice, the Committee draws Senators' attention to these provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

Relevant extract from the response from the Minister

Item 145

(a) Is the amendment is no more than declaratory of existing law?

The form of offences in the current Quarantine Act 1908 (the Act) makes it difficult to determine with absolute certainty whether they were intended to be strict liability or fault element offences. However, the advice of the Attorney-General's Department) is that the existing section 21 of the Quarantine Act 1908 can be considered to be a strict liability offence. On the basis of this advice, I am of the view that Item 145 is declaratory of existing law.