Scrutiny of Bills Fourteenth Report of 1999

Adelaide Airport Curfew Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 5 of 1999, in which it made various comments. Mrs Gallus MP has responded to those comments in a letter dated 15 September 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of Mrs Gallus' response are discussed below.

Extract from Alert Digest No. 5 of 1999

This bill was introduced into the House of Representatives on 22 March 1999 by Mrs Gallus as a Private Member's bill.

The bill proposes to:

establish a curfew at Adelaide Airport between 11pm and 6am and impose a penalty for breach of the curfew;
impose a penalty of up to $22,000 for breach of the curfew;
provide for certain aircraft movements during the curfew;
allow the Minister to grant dispensations in certain circumstances;
empower authorised officers to request certain information and provide for penalties in relation to false information;
allow the Minister to delegate powers to grant permissions or give dispensations;
provide for appointment of authorised persons; and
provide guidance to a court in prosecutions for an offence by a body corporate.

Appointment of “a person” as an authorised officer

Subclause 22(1)

Proposed subclause 22(1) will permit the Secretary to the Department of Transport to appoint “a person” to be an authorised officer for the purposes of the Act. However, the bill gives no indication of the qualifications or attributes that such an appointee should possess.

Since its establishment, the Committee has consistently drawn attention to legislation which allows significant and wide-ranging powers to be delegated to “a person”. Generally the Committee likes to see some limits placed on potential delegates, whether by reference to them as holders of nominated offices, or as members of the Senior Executive Service, or by reference to their possession of special qualifications or attributes. Therefore, the Committee seeks the advice of the member sponsoring the bill as to whether subclause 22(1) should provide some limit on the otherwise unfettered discretion of the Secretary in appointing authorised officers.

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

Relevant extract from the response from Mrs Gallus MP

I have examined, in consultation with the Department of Transport and Regional Services, the matter raised by the Committee in relation to the appointment of “a person” as an authorised officer under subclause 22(1) of the Bill. Whilst it was intended that such appointments be limited, I agree with the Committee's view that the Bill as drafted provides an unfettered discretion for the Secretary to the Department of Transport and Regional Services in appointing authorised officers.

Accordingly, when the Bill is considered by the Senate I will arrange for it to be amended to limit the power of the Secretary under subclause 22(1) to appoint only the following persons as authorised officers:

an officer of the Department of Transport and Regional Services, or
an employee of Airservices Australia.

This is consistent with authorisations made under the Sydney Airport Curfew Act 1995 for the performance of similar functions under that Act and with arrangements in place for the administration of curfews at other Australian airports where such curfews are in place.

Thank you for writing on this matter.

The Committee thanks Mrs Gallus for this response and for the proposed amendment.

Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 11 of 1999, in which it made various comments. The Minister for Agriculture, Fisheries and Forestry has responded to those comments in letters dated 7 September and 20 September 1999. Copies of the letters are attached to this report. An extract from the Alert Digest and relevant parts of the Minister's responses are discussed below.

Extract from Alert Digest No. 11 of 1999

This bill was introduced into the House of Representatives on 30 June 1999 by the Minister for Agriculture, Fisheries and Forestry. [Portfolio responsibility: Agriculture, Fisheries and Forestry]

The bill proposes to amend the following Acts:

Australian Wine and Brandy Corporation Act 1980 to:

ensure that all relevant details of the transformation of wine from grape to retail sale are duly recorded;
ensure that all documents and records relevant to the claims made on wine labels can be inspected; and
make technical amendments;

Natural Resources Management (Financial Assistance) Act 1992 to rename the National Landcare Advisory Committee as the Australian Landcare Council;

Plant Breeder's Rights Act 1994 to:

provide relief to applicants affected by a reduction of the allowable period for “prior sale” during the transition from the Plant Variety Rights Act 1987 to the current Act;
remove the requirement to maintain a copy of the Register of Plant Varieties in each State and Territory;
attribute costs associated with a request for a test growing;
extend public access to information;
clarify the payment of prescribed fees; and
make minor technical amendments;

Primary Industry Councils Act 1991 to repeal the Schedule establishing the Grains Industry Council (which is no longer relevant following privatisation of the Australian Wheat Board and other changes to grain marketing arrangements);

Primary Industries Levies and Charges Collection Act 1991 to:

clarify and update levy and export charge collection techniques used in rural industries, including the association between producers and intermediaries; and
upgrade powers for authorised persons to align them with those used by inspectors under the Export Control Act 1982;

Rural Adjustment Act 1992 to rename the Rural Adjustment Scheme Advisory Council as the National Rural Advisory Council and to change the role and functions of the Council; and

Australian Horticultural Corporation Act 1987, the Farm Household Support Act 1992 and the Primary Industries and Energy Legislation Amendment Act (No. 1) 1996 to make technical amendments.

Retrospective application

Subclause 2(4)

By virtue of subclause 2(4), the amendments proposed by Schedule 6 to the bill are to commence retrospectively on 1 April 1999. Schedule 6 deals with amendments to the Rural Adjustment Act 1992. The Explanatory Memorandum (at page 4) states that the amendments proposed “are relatively minor”, aimed at redefining the roles and functions of the Rural Adjustment Scheme Advisory Council in the light of the winding-down of the Rural Adjustment Scheme.

However, the Explanatory Memorandum (at pages 20-21) offers a more detailed explanation of the various provisions in Schedule 6. This suggests that the changes proposed in Schedule 6 may have already taken place in anticipation of the passage of this legislation, and that these changes now require retrospective validation – a matter on which the Committee usually comments. The Committee, therefore, seeks the Minister advice on the need for making these relatively minor amendments retrospective.

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.

Relevant extract from the response from the Minister dated 7 September

On 30 June 1998 the Rural Adjustment Scheme (RAS) effectively ceased to operate. To address issues associated with farm competitiveness, farm family welfare and adjustment, the Government introduced the “Agriculture - Advancing Australia” package. In light of these changes, the functions and title of the Rural Adjustment Scheme Advisory Council have been reconsidered and new arrangements put forward, as set out in the portfolio's amendment Bill.

The role of the new Council, the National Rural Advisory Council (NRAC), is purely advisory. The Council will provide advice to me on exceptional circumstances issues, a range of rural adjustment matters and any other relevant matter that I request advice on. NRAC will not have any powers or capability that will decide on personal entitlements. For these reasons, the changes do not trespass on personal rights and liberties.

The amendments to the Rural Adjustment Act 1992 will therefore align legislation and the functions of the Council, making implementation effective as at 1 April 1999. It further aligns the Council's function with the new membership appointed from that date.

Thank you again for raising this matter with me.

Relevant extract from the response from the Minister dated 20 September

Further to my letter to you of 7 September 1999 I am writing to you concerning proposed amendments to the Rural Adjustment Act 1992. Following discussions this week between officers of Agriculture, Fisheries and Forestry and the Secretary of the Standing Committee for the Scrutiny of Bills, I would like to clarify the issue of alleged retrospective validation.

The Rural Adjustment Scheme Advisory Council (RASAC) has had some functions since 1992, as set out under the Act. Its functions included a management role in relation to the Rural Adjustment Scheme (RAS), as well as provision of advice to the Minister on exceptional circumstances and other matters relating to rural adjustment.

As the Rural Adjustment Scheme ceased to operate in 1997, it is necessary to amend the legislation to reflect the fact that the Council no longer has a role in relation to the RAS. The role of the Council is now purely advisory. The amendments will also change the name of the Council to the National Rural Advisory Council (NRAC).

Because Council's role will continue unchanged, other than the removal of its previous management role in relation to the RAS, it will have performed no functions that will need to be retrospectively validated. The chief intention of the proposed amendments to the Rural Adjustment Act 1992 is to ensure that the Act properly reflects the role of the Council, and aligns this with the appointment of the present Council on 1 April 1999.

Thank you again for raising this matter with me.

The Committee thanks the Minister for these responses which clarify the matter.

Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 9 of 1999. Whilst the Committee did not seek a response in relation to comments made regarding a drafting note, the Minister for Family and Community Services has, nevertheless, noted those comments in a letter dated 5 August 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 noted below.

Extract from Alert Digest No. 9 of 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (Administration) Bill 1999 and the Social Security (International Agreements) Bill 1999, this bill proposes to:

amend the repeal provisions of the Social Security Act 1991 consequential on the proposed Social Security (Administration) Act 1999 and the Social Security (International Agreements) Act 1999; and
repeal Part 9 of the proposed Social Security (Administration) Act 1999 as a consequence of the commencement of the provision of that Act which contains a single rounding provision that applies to all social security payments.

Drafting note

Subclauses 2(1), 2(2) and 2(3)

Schedule 1 to this bill contains amendments consequent on the enactment of the Social Security (Administration) Act 1999. Subclause 2(2) states that these amendments are to commence on 20 March 2000 – the date on which the Administration Act is to commence.

Schedule 2 to this bill contains amendments consequent on the enactment of the Social Security (International Agreements) Act 1999. Subclause 2(3) states that these amendments are to commence on 1 July 2000. However proposed section 2 of the International Agreements Act states that it is to commence on 20 March 2000.

Schedule 3 to this bill repeals Part 9 of the Administration Act. Subclause 2(1) would have this commencing on Royal Assent. However, proposed subsection 2(3) of the Administration Act indicates that Part 9 should cease to have effect on 1 July 2000.

It would seem more appropriate that subclause 2(2) of the Consequential Provisions Bill refer to both Schedules 1 and 2, while subclause 2(3) of that bill should refer to Schedule 3.

Other than this, the Committee makes no further comment on these provisions.

Relevant extract from the response from the Minister

I agree that a drafting error has occurred in relation subclauses 2(2) and (3). It is proposed that Government amendments will be moved in the House of Representatives so that subclause 2(2) refers to Schedules 1 and 2 while subclause 2(3) will refer to Schedule 3.

I trust I have assisted the Committee with my response.

The Committee thanks the Minister for this advice and notes that amendments will be moved in the House of Representatives to correct the drafting error.

Social Security (Administration) Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 9 of 1999, in which it made various comments. The Minister for Family and Community Services has responded to those comments in a letter dated 5 August 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. 9 of 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (International Agreements) Bill 1999 and the Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999, this bill proposes to consolidate all the machinery and most of the administrative provisions relating to social security.

Non reviewable decisions

Clause 144

Proposed clause 144 of this bill lists a number of decisions which are not reviewable by the Social Security Appeals Tribunal. This clause appears to be unexceptionable in that the decisions referred to are either currently listed in section 1250 of the Social Security Act 1991, or are otherwise inappropriate for such review. However, in setting out the intended effect of clause 144, the Explanatory Memorandum simply states that “this clause provides that the SSAT may not review certain decisions. The clause sets out what those decisions are”.

Accordingly, the Committee seeks the Minister's confirmation that this clause does not change the existing law.

Pending the Minister's confirmation, the Committee draws Senators' attention to this provision, as it may be considered to make rights, liberties or obligations unduly dependent upon non-reviewable decisions, in breach of principle 1(a)(iii) of the Committee's terms of reference.

Relevant extract from the response from the Minister

As stated in the Explanatory Memorandum, clause 144 of the Social Security (Administration) Bill 1999 provides that the Social Security Appeals Tribunal (SSAT) may not review certain decisions. While clause 144 essentially replicates the existing law there some minor differences to the rights to external review under the Bill. The differences are as follows:

(a) Rights of review have been provided in relation to all relevant provisions of the Health Insurance Act 1973.

(b) Rights of review have been provided in relation to section 603AA of the Social Security Act 1991 to the extent that they are currently limited by the combined operation of paragraph 1239(2) and subsections 1240(1) and 1247(1) of that Act because there is no equivalent to paragraph 1239(2)(b) in the Social Security (Administration) Bill. This has the effect of making the rights of review in relation to newstart allowance the same as for youth allowance.

(c) Rights of review have been excluded in relation to clauses 57 and 58 (which reflect the current law) because those clauses exclude further Commonwealth liability where a payment has been made. If the Secretary refuses to pay an amount at all, external review continues to be available.

(d) Paragraph 144(1) of the Social Security (Administration) Bill is a new provision that relates to subparagraph 127(2)(i) that has been inserted to remove any doubt as to the extent that a party has to be informed of the details of an application in relation to a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 without providing information that may endanger the applicant, such as providing the applicant's address, telephone number or place of employment.

I agree that clause 144 is unexceptional because additional rights of review have been provided in the Social Security (Administration) Bill and rights of review expressly limited by clause 144 where external review is inappropriate.

The Committee thanks the Minister for this considered response.

Social Security (International Agreements) Bill 1999

Introduction

Extract from Alert Digest No. 9 of 1999

This bill was introduced into the House of Representatives on 3 June 1999 by the Minister for Community Services. [Portfolio responsibility: Family and Community Services]

Complementary to the Social Security (Administration) Bill 1999 and the Social Security (Administration and International Agreements)(Consequential Amendments) Bill 1999, this bill proposes to provide for:

the consolidation of existing social security international agreements;
new social security international agreements to be added by regulation; and
existing social security international agreements to be varied by way of regulation.

Henry VIII clauses

Clauses 7, 8 and 9

As noted above, this bill provides for the consolidation of existing international social security agreements into a separate Act. These agreements, which are set out in 11 Schedules to the bill, provide for international reciprocity in the provision of social security benefits.

Proposed clause 7 of the bill authorises the text of these Schedules to be amended by regulation. Proposed clause 8 authorises the addition of new scheduled international agreements by regulation, and proposed clause 9 authorises the repeal of a Schedule by regulation.

While this is clearly a delegation of legislative power, the Committee has no means of ascertaining whether or not it is appropriate. Neither the Explanatory Memorandum nor the Second Reading Speech clarifies the need for authorising amendment by regulation in these circumstances. The Committee therefore seeks the Minister's advice as to why it is appropriate that the provisions of the bill be amended by regulation, and whether these regulations are to be disallowable.

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

Relevant extract from the response from the Minister

I do not agree that clauses 7, 8 and 9 involve inappropriate delegation of legislative power because they do not operate to remove Parliamentary scrutiny of the delegated legislative powers in those clauses.

The use of regulation making powers to change domestic law where an international convention or treaty is involved is unexceptional. Precedents for the legislative approach adopted in the Social Security (International Agreements) Bill 1999 are to be found in the Chemical Weapons (Prohibition) Act 1994 (see the definition of “Convention” in section 7), the Anti-Personnel Mines Convention Act 1998 (see the definition of “Convention” in section 4) and the Mutual Assistance in Criminal Matters Act 1987 (see subsection 7(2)).

The use of regulation making powers in the Social Security (International Agreements) Bill will mean that changes to the law to give effect to new international social security agreements with foreign countries, and changes to existing international social security agreements, can be made more quickly because such changes will not be dependent on the Government's legislative programme or Parliamentary Sittings. This result can be achieved without any diminution in Parliamentary scrutiny because the regulations will be disallowable and subject to the scrutiny of the Senate Committee on Regulations and Ordinances.

The Committee thanks the Minister for this response which addresses its concerns.

Barney Cooney

Chairman