Bills Digest no. 81 2015–16
PDF version [655KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Leah Ferris
Law and Bills Digest Section
2 December 2015
Contents
Purpose
of the Bill
Background to the Bill
Structure of the Bill
Commencement details
Committee consideration
Policy position of non-government parties/independents
Financial implications
Key issues and provisions
Date introduced: 12
November 2015
House: House of
Representatives
Portfolio: Prime
Minister
Commencement: Various
dates as set out in the body of the Digest.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The main purpose of the Omnibus Repeal Day (Spring 2015)
Bill 2015 (the Bill) is to repeal spent and redundant provisions in Acts, abolish
bodies considered to be obsolete and remove regulatory requirements in a range
of portfolio areas that have been judged unnecessary. The Bill forms part of a
package of repeal Bills introduced in November 2015, which includes the Amending
Acts 1990 to 1999 Repeal Bill 2015[1]
and the Statute Law Revision Bill (No. 3) 2015.[2]
These last two Bills passed both Houses of Parliament on 4 February 2016 and
await Royal Assent.
This Bill is the fourth ‘Omnibus Repeal Day Bill’ that the
Government has introduced since being elected in 2013.[3]
There has previously been some debate about the merits of such Bills and the
need for the Parliament to remain vigilant in ensuring that they are as
innocuous as they purport to be.[4]
The Explanatory Memorandum states that the Bill contains
‘a range of non-controversial measures to reduce regulatory burden for
businesses, families, individuals and the community sector’.[5]
In introducing the Bill, the Assistant Minister for Productivity, Dr Peter
Hendy argued that the Bill would help clean up the Commonwealth’s statute book,
‘making it easier for users of Commonwealth legislation to find and access
regulations’. [6]
The Opposition has argued that statute law revision is considered to be a ‘normal
government function’ and that the Government has not ‘substantiate[d] the
claims that this will make life for the community and small business, or any
sized business, any better at all’.[7]
Previous digests have noted that it is the practice in
some Australian jurisdictions for amending Acts to be automatically removed
from the statute book once their purpose has been fulfilled.[8]
Alternatively, since 2007 Victoria has included sunsetting clauses (a clause in
the Act which repeals the legislation in question once its purpose is complete
or once it cannot be completed) in all amending Acts on its statute book.[9]
While the Commonwealth has automated the process of repealing or sunsetting
legislative instruments (the Legislative Instruments Act 2003, Part 5A
(Repeal of spent legislative instruments and provisions) and Part 6 (Sunsetting
of legislative instruments)) it has yet to automate the process of removing
spent amending Acts.[10]
Dr Hendy recently wrote an opinion piece in The
Australian which outlined the Government’s new regulatory reform agenda.[11]
As part of this agenda, repeal days will be replaced with annual reports which will
assess the Government’s performance in repealing legislation and outline a
course for reform over the coming year.[12]
Dr Hendy noted that while ‘the present approach of biannual repeal days has
been useful ...its effectiveness in repealing legislation into the future will be
limited as [the Government has] now done the major work to clean up the statute
books’.[13]
The Bill has 14 Schedules reflecting amendments across the
following government portfolios:
- Agriculture
and Water Resources
- Attorney-General
- Communications
and the Arts
- Education
and Training
- Environment
- Finance
- Health
- Immigration
and Border Protection
- Industry,
Innovation and Science
- Infrastructure
and Regional Development
- Prime
Minister
- Social
Services
- Treasury
and
- Veterans’
Affairs.
This Digest examines the amendments in the Bill judged to
be material or apparently material.
Sections 1–3 commence on Royal Assent. Schedules
1–5, Part 1 of Schedule 6, Parts 1, 2, 3 and 5
of Schedule 7, Schedules 8–9 and Schedules 11–14 commence
the day after Royal Assent. Part 2 of Schedule 6 commences either
on 1 July 2016 or the day after Royal Assent, whichever occurs later. Part 4
of Schedule 7 and Schedule 10 commence on the 28th day after
Royal Assent.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
raised concerns with the provisions contained in Schedules 3 and 12 of the Bill
(these are discussed in the ‘key issues and provisions’ section of the Digest).[14]
The Scrutiny of Bills Committee also provided general commentary on the role of
‘omnibus repeal day bills’. While the Committee recognised the usefulness in
the Government engaging in a regular statute review process, it referred to
concerns raised by the Clerk of the Senate regarding the nature of the
amendments contained in omnibus and statute law revision bills and the need for
more clarity regarding their nature.[15]
The Clerk advised that parliamentary scrutiny of such bills would be assisted
by ‘a statement from the executive government about what it expects such bills
to cover and – perhaps more importantly – not cover’.[16]
This suggestion was supported by the Senate Finance and Public Administration
Legislation Committee.[17]
The Scrutiny of Bills Committee agreed:
As it now appears that ‘omnibus repeal day’ bills will be
brought before the Parliament on a regular basis, in order to assist
parliamentary scrutiny of these bills the committee requests the Assistant
Minister’s advice as to whether the government has given consideration to
developing guidelines in relation to what may be included in (and what type of
matters will be excluded from) such bills.[18]
The Assistant Minister for Productivity, Dr Peter Hendy,
advised the Committee that ‘there are no current plans for the Government to
develop guidelines in relation to what may be included (or should be excluded)
from Omnibus Bills’.[19]
He stressed the need for flexibility and argued that some ‘house-keeping
measures ... may otherwise go unaddressed if not included in an Omnibus Bill’.[20]
While noting this response, the Committee reiterated that the development of
such guidelines ‘would assist in optimising the limited resources of both
Houses’.[21]
However, in light of Dr Hendy’s announcement that the Government does not
intend to have future repeal days, the regularity of omnibus statute law
revision Bills may decline.[22]
The Scrutiny of Bills Committee also noted that the Bill
contained both new measures and measures previously contained in the Omnibus
Repeal Day (Spring 2014) Bill 2014.[23]
The Committee commented that due to the diverse range of amendments proposed by
the Bill, it would be beneficial to Senators to be able ‘to quickly determine
which measures have not yet been considered by the Parliament’.[24]
The Committee therefore sought ‘the Assistant Minister’s advice as to whether
the explanatory memorandum to the bill can be amended to specify whether items
are new or previously introduced measures’.[25]
Dr Hendy advised the Committee that ‘the inclusion of non-contentious measures
from the Omnibus Repeal Day (Spring 2014) Bill 2014 was considered appropriate
in order to expedite the implementation of those measures’.[26]
He also informed the Committee that the Government intended to table an
Addendum to the Explanatory Memorandum to outline which measures were
replicated from the earlier Bill.[27]
The Addendum was tabled in the Senate on 2 February 2016.[28]
Senate Finance and Public Administration
Legislation Committee
On 26 November 2015 the Senate referred the Omnibus Repeal
Day (Spring 2015) Bill 2015 to the Senate Finance and Public Administration
Legislation Committee for inquiry and report by 3 February 2016.[29]
Details of the inquiry are on the Committee’s website.[30]
On 3 February 2016, the Committee tabled its report which
recommended that the Bill be passed.[31]
However, the Committee ‘indicated it was supportive of the Clerk of the
Senate's suggestion that guidelines to assist parliamentary scrutiny be
developed by government’.[32]
Labor senators on the Committee provided additional comments outlining their
opposition to the amendments relating to the abolition of the National Rural
Advisory Council and recommend that these amendments be removed from the Bill.[33]
Parliamentary Joint Committee on
Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[34]
The Parliamentary Joint Committee on Human Rights raised
concerns regarding the provisions contained in Schedules 3 and 11 of the Bill
(these are discussed in the ‘key issues and provisions’ section of the Digest).[35]
The Deputy Manager of Opposition Business, Mr Mark
Dreyfus, raised concerns about the proposal to abolish the National Rural
Advisory Council (Schedule 1 of the Bill), the removal of consultation
requirements for the Australian Communications and Media Authority (Schedule
3 of the Bill) and the proposed amendments to the Environment Protection
and Biodiversity Conservation Act 1999 which relate to assessment
documentation and requirements to publish particular decisions (Schedule 5
of the Bill).[36]
Mr Dreyfus also noted that 19 of the measures contained in the Bill have been
carried over from the Omnibus Repeal Day (Spring 2014) Bill 2014, which the
Senate refused to pass in its original form.[37]
The Explanatory Memorandum states that the Bill will have
no financial implications for the Commonwealth.[38]
However, as part of its consolidated list of deregulation initiatives announced
as part of the 2015 Spring Repeal Day the Government has stated that four
measures contained in the Bill will achieve deregulatory savings of $6.208
million per annum.[39]
The Deputy Manager of Opposition Business, Mark Dreyfus, noted that out of the claimed
$6.2 million of savings, $1.2 million relates to measures that were originally
contained in the Omnibus Repeal Day (Spring 2014) Bill 2014.[40]
Schedule 1—Agriculture and Water
Resources
Schedule 1 of the Bill will introduce a number of
amendments across the agriculture and water resources portfolio, including:
- repealing
the Rural Adjustment Act 1992, Wool International Act 1993 and the
Wool International Privatisation Act 1999[41]
- limiting
the information that the Australian Pesticides and Veterinary Medicines
Authority (APVMA) is required to provide to Food Standards Australia New
Zealand in determining whether the Maximum Residue Limits Standard is required
to be changed[42]
- abolishing
the APVMA Advisory Board and the Fishing Industry Policy Council[43]
and
- removing
obsolete provisions from the Australian Meat and Live-stock Industry Act
1997.[44]
The Opposition has raised concerns regarding the repeal of
the Rural Adjustment Act 1992 and the decision to abolish the APVMA
Advisory Board.[45]
Abolition of the National Rural
Advisory Council
Under the Rural Adjustment Act 1992, the National
Rural Advisory Council (NRAC) ‘was established as a statutory body in December
1999 as a skills-based independent advisory council’.[46]
The role of the NRAC is to provide the Agriculture Minister with advice and
information on matters including rural adjustment, regional issues, and
training.[47]
The NRAC may consist of up to eight members which must include:
- a
chairperson
- an
officer of the Department of Agriculture, to represent the Commonwealth
- a
state or territory representative
- a
National Farmers’ Federation (NFF) representative
- members
with expertise in economics, financial administration, banking, sustainable
agriculture, regional adjustment, regional development, farm management or
training.[48]
In March 2014, the National Commission of Audit released
Phase 2 of its report, which contained a recommendation that the NRAC (along
with a number of other bodies within the Agriculture portfolio) be merged into
the Department of Agriculture.[49]
Following on from the 2014–15 Mid‑Year Economic and Fiscal Outlook as
part of the Government’s Smaller Government Reform Agenda it was
announced that the NRAC would be merged into the Agriculture Industry Advisory
Council [AIAC][50]
and ‘the positions of NRAC members were allowed to lapse or were revoked on 30
June 2015’.[51]
The Explanatory Memorandum explains that ‘information,
advice and recommendations on issues affecting Australia’s agricultural,
fishing, forestry and water sectors can now be fulfilled by the AIAC’.[52]
The AIAC was established in January 2014 and 10 members were appointed (which
has increased to 11 members), with the Minister of Agriculture to chair the
council.[53]
During the debate on the Bill in the House of Representatives the Member for
Hunter, Mr Joel Fitzgibbon, argued that the AIAC was a poor substitute for the
NRAC as it was not a statutory authority with reporting requirements and lacked
an independent chair.[54]
In its submission to the Senate Finance and Public Administration Committee,
the Department of Agriculture and Water Resources asserted that ‘the merging of
the NRAC and the AIAC reduces duplication yet maintains the quality of
information and advice provided to the Minister...on issues affecting the
portfolio’.[55]
Abolition of the APVMA Advisory
Board
Section 14 of the Agricultural and Veterinary Chemicals
(Administration) Act 1992 established the APVMA Advisory Board,
whose role is:
...to provide advice and make recommendations to the CEO in
relation to the performance of a function or the exercise of a power of the
APVMA. The advisory board does not have decision-making power, but assists to
inform the CEO on strategic matters and provides an expert consultative
mechanism. The CEO is responsible for the governance and management of the
authority, including the performance of its functions and the exercise of its
powers.[56]
The APVMA Advisory Board may
consist of up to nine part-time members. When appointing members the Minister
of Agriculture must ensure that:
- two Board members have experience in the regulation, under state or territory
law, of chemical products
- one Board member has experience in the agricultural chemical industry
- one Board member has experience in the veterinary chemical industry
- one Board member has experience in primary production
- one Board member has experience in environmental toxicology, including
knowledge of the effect of chemicals in ecosystems
- one Board member has experience in protecting consumer interests
- one Board member has experience in public health and occupational
health and safety and
- if the Minister considers it necessary—one Board member has experience
in a field relevant to the APVMA’s functions.[57]
As part of its goal to rationalise government bodies, the
National Commission of Audit recommended that the APVMA Advisory Board be
abolished.[58]
The Government agreed with this recommendation, arguing that other consultative
mechanisms available under the APVMA’s legislation would be ‘more responsive
and cost-effective’ than the continuation of the Advisory Board.[59] The Explanatory Memorandum notes that the APVMA
will still ‘have a range of communication mechanisms in place that allow
stakeholders to present their views on matters of chemical regulation’.[60]
Mr Fitzgibbon has criticised the decision to abolish the
Board, describing it as ‘another blow to Australia’s effort to protect its
reputation as a provider of clean, green, safe and high quality food’.[61]
However, the Chief Executive of Animal Medicines Australia, Duncan Bremner has
argued that the APVMA Advisory Board ‘had been redundant since its governance
role was transferred to the minister several years ago’ and that government
funding was better spent ‘employing direct expert engagement when required’.[62]
Schedule 3—Communications
Schedule 3 of the Bill proposes a number of
amendments across the Communications portfolio.[63]
The most significant amendments are set out in Part 2 of Schedule 3
and relate to the repeal of the consultation requirements in the Broadcasting
Services Act 1992, the Interactive Gambling Act 2001, the Radiocommunications
Act 1992 and the Telecommunications Act 1997.[64]
These amendments are identical to those contained in Part 2 of Schedule 2 to
the Omnibus Repeal Day (Spring 2014) Bill 2014.[65]
Items 5–22 of Schedule 3 will remove the
specific legislative requirements for consultation from the nominated Acts. For
example, item 7 repeals subsections 130R(3), 130T(4), 130U(4), 130ZCA(5)
and (6) and 130ZD(2) of the Broadcasting Services Act 1992. These
provisions relate to industry codes and standards and require the Australian
Communications Media Authority (ACMA) to consult with bodies or associations
that represent relevant sections of the industry before making a determination.
The Explanatory Memorandum provides that ‘these consultation provisions are
considered unnecessary in light of the separate consultation requirements in
Section 17 of the Legislative Instruments Act 2003 (LI Act).[66]
Section 17 of the LI Act sets out detailed
requirements that rule-makers must comply with before making a legislative
instrument, such as being satisfied that the consultation was appropriate and
has been undertaken, having regard to any relevant matter including the extent
to which the consultation drew on the knowledge of persons with expertise and
ensuring that persons likely to be affected had opportunity to comment. The
form of consultation could also involve notifying bodies or organisations
representing persons who are likely to be affected by the proposed instrument
and inviting submissions to be made to the rule-maker as well. In addition,
subsection 26(1A) of the LI Act requires a description to be included in
the explanatory statement to the instrument setting out the details of the
consultation process. However, section 19 of the LI Act provides that
failure to consult ‘does not affect the validity or enforceability of a
legislative instrument’.
When examining the amendments contained in Part 2 of
Schedule 2 to the Omnibus Repeal Day (Spring 2014) Bill 2014, the Scrutiny of
Bills Committee raised some concerns about whether these changes amounted to an
inappropriate delegation of legislative power.[67]
Specifically, the Scrutiny of Bills Committee sought advice from the
Parliamentary Secretary on whether the consultation requirements in section 17
of the LI Act coincide with those currently set out in the legislation:
The committee notes that while repealing the current
consultation requirements in favour of the general consultation requirements in
the LI Act may allow for increased flexibility, the LI Act requirements are not
identical to the current consultation requirements. Furthermore, the committee
notes that the ‘no invalidity’ clause in section 19 of the LI Act will now
apply to consultation undertaken in relation to these provisions and therefore
failure to consult will not affect the validity or enforceability of the
legislative instruments.[68]
The Committee noted that the same concerns exist with
respect to the identical provisions contained in this Bill.[69]
In his response to the Committee, the Assistant Minister argued that the
consultation requirements in section 17 of the LI Act are for practical
purposes the same as those currently prescribed.[70]
He also reasoned that if the Parliament was ‘dissatisfied with the level of
consultation taken’, Part 5 of the LI Act provides that the instrument
can be disallowed.[71]
The Parliamentary Joint Committee on Human Rights also
raised concerns over the proposed amendments. In particular, the Committee
examined the removal of the requirement for ACMA to consult with interested
persons when changing disability standards.[72]
The Committee noted that the Government must demonstrate that section 17 of the
LI Act ‘provides for as much, if not more, requirements to consult when
any changes are made to disability standards’ as those currently specified
under the legislation.[73]
The Committee found that ‘the removal of this requirement engages and limits
the right to equality and non-discrimination and the rights of persons with
disabilities’ and that ‘the statement of compatibility does not sufficiently
justify that limitation for the purposes of international human rights law’.[74]
Consequently, the Committee sought advice from the Assistant Minister for
Productivity on whether the measures could be justified.[75]
At the time of writing this Digest, a response from the Assistant Minister had
not been published.
Schedule 5—Environment
Schedule 5 of the Bill proposes to amend the Carbon
Credits (Carbon Farming Initiative) Act 2011 and the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act)[76]
to ‘streamline and clarify regulatory arrangements’.[77]
In his second reading speech Mr Dreyfus stated that Labor had some concerns in
relation to Parts 3 and 4 of Schedule 5, which deal with
the definition of assessment documentation and the removal of the requirement
to publish certain decisions.[78]
In particular, Part 4 of the Schedule, which repeals
subsection 74A(4) of the EPBC Act raises some issues. The Explanatory
Memorandum provides that the purpose of this amendment is to ‘remove redundant
and inaccurate publishing and notice requirements’.[79]
Under the EPBC Act, a person proposing to take an
action may refer the proposed action to the Minister for his or her decision as
to whether or not the action is a ‘controlled action’.[80]
A ‘controlled action’ is an action that requires approval under Part 9 of the EPBC
Act — for example, an action that will have or is likely to have a
significant impact on a ‘matter of national environmental significance’.[81]
Referrals are required to be published on the internet for public comment ‘as
soon as practicable’ after their receipt.[82]
Section 74A provides that, if a referred action is
component of a larger action, the Minister may decide not to accept the
referral. The idea behind section 74A is to prevent projects being split into
smaller referrals, or referred in stages, in order to circumvent the
requirements of the EPBC Act. These are known as ‘split referrals’.[83]
If the Minister decides not to accept a ‘split referral’,
under subsection 74A(2) the Minister must give written notice of the decision
to the person who referred the proposal and to the person who is proposing to
take the action. The Minister may also request that the larger action be referred.[84]
Currently subsection 74A(4) provides that if the Minister
decides to accept the referral the Minister must give written notice to the
person who referred the proposal and publish, in accordance with the
regulations (if any), a copy or summary of the decision. The Environment Protection
and Biodiversity Conservation Regulations 2000 do not currently
prescribe any publication requirements for subsection 74A(4).[85]
The Explanatory Memorandum argues that as there is no
obligation under section 74A for the Minister to make a decision to accept a
referral, subsection 74A(4) is therefore redundant and inaccurate.[86]
This subsection also appears to duplicate the requirements under subsection
74(3) of the EPBC Act, which require referrals to be published on the
internet. While subsection 74A(4) as drafted does seem redundant and to
duplicate existing provisions, perhaps it was intended to provide some public
scrutiny of situations where the Minister has considered whether or not to
accept a ‘split referral’ and has decided to accept that referral as is, rather
than requesting that a larger action be referred. Instead of repealing
subsection 74A(4), parliament may wish to consider whether the drafting of subsection
74A(4) could instead be clarified to improve the transparency of
decision-making under section 74A.
Schedule 11—Prime Minister
Schedule 11 of the Bill repeals the Council for
Aboriginal Reconciliation Act 1991[87]
and amends the Aboriginal and Torres Strait Islander Commission Amendment
Act 2005, the Classification (Publications, Films and Computer Games)
Act 1995 and the Stronger Futures in the Northern Territory Act 2012 (Stronger
Futures Act).[88]
The proposed amendments to the Aboriginal and Torres
Strait Islander Commission Amendment Act 2005 and the Stronger Futures Act
are identical to those contained in Schedule 6 to the Omnibus Repeal Day
(Spring 2014) Bill 2014.[89]
Item 200 of Schedule 1 of the Aboriginal and Torres
Strait Islander Commission Amendment Act 2005 provides that where an
individual or body has acquired an interest in land, and the interest was
acquired in certain circumstances set out in paragraphs 200(1)(a), (b) or (c),[90]
then the individual or body cannot dispose of that interest unless the
appropriate consenting authority had given written consent to that disposal. Item 4 of Schedule 11 inserts new
subitem 200(1A) whereby the appropriate consenting authority can give
written notice that consent in not required.[91]
No rationale is in the explanatory material, but if the consenting authority
does have discretion to decide that it need not consent, then this divestment
of statutory restraint may provide simpler processes and procedures.
Section 15 of the Stronger Futures Act allows the
federal Minister to request the Northern Territory Minister to appoint an
assessor to conduct an assessment of particular licensed premises if the
federal Minister has a reasonable belief that the sale of alcohol from the
premises is causing substantial alcohol-related harm to the community. Item 14 of Schedule 11 will
repeal section 15. The rationale for the repeal is two-fold, namely that the
Minister cannot enforce the request so it is of limited impact, and secondly
the repeal:
...will clarify and clean up the legislation and reduce Commonwealth
interference in Northern Territory regulatory processes and policy.[92]
Item 14 of Schedule 11 of the Bill will also
repeal section 28 of the Stronger Futures Act, which requires the
Commonwealth and Northern Territory Ministers to facilitate an independent
review of the operation of various Commonwealth and Northern Territory liquor
laws, which is to be completed no later than three years after the commencement
of the Stronger Futures Act.[93]
While the Government has previously considered this review provision to be
‘redundant and unnecessary’, it has been forced by the time limits in the
legislation to undertake such a review.[94]
The final report of the review under section 28 was tabled on 16 September
2015.[95]
The Explanatory Memorandum notes that in 2014–15 the
Government, in collaboration with the Northern Territory Government, ‘undertook
a formal revision of the Stronger Futures National Partnership Agreement’,
which the Explanatory Memorandum says provided ‘equivalent levels of scrutiny’
as those set out in section 28.[96]
Section 117 of the Stronger Futures Act provides
that the Minister must also cause an independent review to be undertaken of the
first three years operation of the Act. The review is to be completed and a
report prepared before 16 July 2016. Section 117 will be repealed by item 16
of Schedule 11. This will mean that there will be no independent
statutory reviews of the Stronger Futures Act.[97]
The Explanatory Memorandum argues that due to the review previously undertaken
of the Stronger Futures National Partnership Agreement any additional review
would be ‘unnecessary and duplicative’.[98]
Reference was also made to the fact that the Government is currently
negotiating a new National Partnership Agreement which would contain specific
review points of the operation of those measures [underpinned by the Stronger
Futures Act] with an equivalent level of scrutiny.[99]
The Parliamentary Joint Committee on Human Rights
questioned the Government’s claim that such a review would be redundant and
duplicative, especially as the new National Partnership Agreement has not yet
been finalised.[100]
The Committee also concluded that the proposed review process to be contained
in the new National Partnership Agreement would not provide an equivalent
review process to the legislated requirement prescribed under section 117 of
the Stronger Futures Act and therefore any measures contained in the
agreement may not be appropriately evaluated.[101]
The Committee also commented that the removal of the legislated requirement for
independent review of the Stronger Futures measures ‘may affect the
proportionality of any limitations on rights posed by the Stronger Future
measures and impact on whether such measures can be considered to justifiably
limit human rights’.[102]
The shifts of responsibility between the Commonwealth and the Northern
Territory have been contentious and these are documented in the digests for the
legislation that introduced the Northern Territory Emergency Response.[103]
There is currently other legislation before the Parliament dealing with other
aspects of the intervention and its history.[104]
Schedule 12—Social Services
Schedule 12 of the Bill introduces a number of
amendments in relation to the Social Services Portfolio. The Scrutiny of Bills Committee
has drawn attention to the amendments contained in Part 1 of Schedule
12 of the Bill, which relate to the use or disclosure of a person’s
personal information.[105]
Item 1 of Schedule 12 of the Bill amends paragraph 202(2)(e) of
the Social Security (Administration) Act 1999[106]
‘to allow a person to disclose (or further use or record) protected information
that has been disclosed to them under subsection 202(2C) of the Act for the
purposes of research, statistical analysis or policy development’.[107]
This can only occur where the recording, disclosure or use of the information
is made for the same purpose for which it was originally disclosed to the
person under subsection 202(2C).[108]
The Scrutiny of Bills Committee accepted the Government’s detailed
justification for these amendments, noting that ‘safeguards are in place which
will ensure that disclosures under this provision will not constitute arbitrary
interferences with a person’s privacy’.[109]
For example, persons who handle protected information will need to enter into
deeds of confidentiality and researchers will need to enter into contracts/Memoranda
of Understanding which set out their obligations when using such information.[110]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Amending
Acts 1990 to 1999 Repeal Bill 2015 homepage’, Australian Parliament
website, accessed 5 February 2016. See also C Petrie, Amending
Acts 1990 to 1999 Repeal Bill 2015, Bills digest, 57, 2015–16,
Parliamentary Library, Canberra, 2015, accessed 3 February 2016.
[2]. Parliament
of Australia, ‘Statute
Law Revision Bill (No. 3) 2015 homepage’, Australian Parliament website,
accessed 5 February 2016. See also M Coombs, Statute
Law Revision Bill (No. 3) 2015, Bills digest, 58, 2015–16,
Parliamentary Library, Canberra, 2015, accessed 3 February 2016.
[3]. Bills
Digests have been prepared with respect to each Bill: D Spooner and J Chowns, Omnibus
Repeal Day (Autumn 2014) Bill 2014, Bills digest, 67, 2013–14,
Parliamentary Library, Canberra, 2014; D Spooner, Omnibus
Repeal Day (Spring 2014) Bill 2014, Bills digest, 62, 2014–15,
Parliamentary Library, Canberra, 2014; T Fox, Omnibus
Repeal Day (Autumn 2015) Bill 2015, Bills digest, 97, 2014–15,
Parliamentary Library, Canberra, 2015.
[4]. D
Spooner and J Chowns, Omnibus
Repeal Day (Autumn 2014) Bill 2014, op. cit., p. 2.
[5]. Explanatory
Memorandum, Omnibus Repeal Day (Spring 2015) Bill 2015, p. 1, accessed 22
January 2015.
[6]. P
Hendy, ‘Second
reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of
Representatives, Debates, 12 November 2015,
p. 13016, accessed 21 January 2015.
[7]. T
Zappia, ‘Second
reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of
Representatives, Debates, 2 December 2015,
p. 14477, accessed 21 January 2015.
[8]. Both
the ACT (section 89 (Automatic repeal of certain laws and provisions), Legislation Act 2001
(ACT)) and Queensland (section 22C (Automatic repeal of amending Act) Acts
Interpretation Act 1954 (Qld)) have such legislative provisions: K
Magarey, Amending
Acts 1980 to 1989 Repeal Bill 2015, Bills digest, 103, 2014–15,
Parliamentary Library, Canberra, 2015, p. 3, accessed
16 February 2016.
[9]. Ibid.
See, for example, section 10 of the Corrections
Amendment (Further Parole Reform) Act 2014 (Vic), accessed 17
February 2016.
[10]. Legislative Instruments
Act 2003, accessed 16 February 2016.
[11]. P
Hendy, ‘Spent
rules have no place in innovation nation’, The Australian, 4
February 2016, p. 12, accessed 9 February 2016.
[12]. Ibid.
[13]. Ibid.
[14]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 13, 2015, The Senate, 25 November 2015, pp. 30–32 (PDF version),
accessed 27 November 2015.
[15]. Ibid.,
p. 30.
[16]. Ibid.
[17]. Ibid.,
p. 31.
[18]. Ibid.
[19]. Senate
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[20]. Ibid.
[21]. Ibid.,
p. 34.
[22]. P
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rules have no place in innovation nation’, op. cit.
[23]. Ibid.,
pp. 31–32. Parliament of Australia, ‘Omnibus
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[24]. Ibid.,
p. 32.
[25]. Ibid.
[26]. Senate
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1, op. cit., p. 35.
[27]. Ibid.
[28]. M
Cash, ‘Second
reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, Senate, Debates,
2 February 2016,
p. 79; Addendum
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[29]. Senate
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[30]. Senate
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[31]. Senate
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[32]. Ibid.,
p. 6.
[33]. Ibid.,
p. 7.
[34]. The
Statement of Compatibility with Human Rights can be found at pages 88–101 of
the Explanatory Memorandum to the Bill.
[35]. Parliamentary
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report of the 44th Parliament, November 2015, pp. 4–11.
[36]. M
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[37]. Ibid.,
pp. 14374–75.
[38]. Explanatory
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[39]. These
savings relate to the provisions in Schedules 7 and 12 of the Bill: Department
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[40]. M
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[41]. Items
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[42]. Items
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[43]. Items
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Council, were included in the Omnibus Repeal Day (Spring 2014) Bill 2014 (at
items 1 to 4 of Schedule 1 of that Bill) and are discussed in the corresponding
Bills Digest:
D Spooner, Omnibus
Repeal Day (Spring 2014) Bill 2014, op. cit., p. 3. Items 12–21
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[44]. Items
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[45]. J
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[46]. Explanatory
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[47]. National
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[48]. Ibid.
[49]. National
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[51]. Explanatory
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[52]. Ibid.
[53]. Department
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[54]. J
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[55]. Department
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[56]. Australian
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[57]. Subsection
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[58]. National
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[59]. PM&C,
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[60]. More
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[61]. A
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[62]. Ibid.
[63]. A
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[64]. Broadcasting Services
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[65]. The
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[66]. Explanatory
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[67]. Senate
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[68]. Ibid.,
p. 37.
[69]. Ibid.,
p. 32.
[70]. Senate
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[71]. Ibid.
[72]. Parliamentary
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[73]. Ibid.,
p. 6.
[74]. Ibid.,
p. 8.
[75]. Ibid.
[76]. Carbon Credits (Carbon
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[79]. Explanatory
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[80]. EPBC
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[81]. EPBC
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[82]. EPBC
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[86]. Explanatory
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[87]. Council for Aboriginal
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for Aboriginal Reconciliation Act 1991 provides that the Act ceases to be
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[88]. Aboriginal and Torres
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[89]. The
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[90]. The
circumstances are that the interest was acquired as a result of a grant (of
money or land) from, or a loan that was guaranteed by, the Aboriginal and
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[91]. Subitem
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Act 2005 sets out the definition of ‘appropriate consenting authority’.
[92]. Explanatory
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[93]. The
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on 16 July 2012.
[94]. Explanatory
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[95]. Ibid.
Minter Ellison, Stronger
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[96]. Ibid.,
p. 54.
[97]. Ibid.
[98]. Ibid.,
p. 55.
[99]. Ibid.,
p. 95.
[100]. Parliamentary
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[101]. Ibid.
[102]. Ibid.,
pp. 10–11.
[103]. M
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[105]. Senate
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[106]. Social Security
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[107]. Explanatory
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[108]. Subsection
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protected information where the Secretary believes, on reasonable grounds, that
it is necessary for research into matters of relevance to a Department that is
administering any part of the social security law, statistical analysis of
matters of relevance to a Department that is administering any part of the
social security law or policy development.
[109]. Senate
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[110]. The
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will also continue to apply: Explanatory Memorandum, op. cit., p. 97.
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