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Omnibus Repeal Day (Spring 2014) Bill 2014
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2013 - 2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

OMNIBUS REPEAL DAY (SPRING 2014) BILL » 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulation with the authority of the Parliamentary Secretary to the Prime Minister,

the Hon Josh Frydenberg MP)



OMNIBUS REPEAL DAY (SPRING 2014) « BILL » 2014

Outline

The Omnibus Repeal Day (Spring 2014) « Bill » 2014 (the « Bill » ) is a whole of government initiative to amend or repeal legislation across nine portfolios. The « Bill » brings forward a range of non-controversial measures to reduce regulatory burden for business, individuals and the community sector that are not the subject of individual stand-alone bills. For example, this « Bill » :

·          Amends the requirement in the Aged Care Act 1997 for approved providers to notify the Department, within 28 days, of any changes to key personnel in circumstances that do not materially affect the approved provider’s suitability to be a provider of aged care.

·          Amends the Fuel Quality Standards Act 2000 to repeal the requirement person who produces and supplies fuel or a person who imports and supplies fuel, to provide an annual statement in similar scope to the information they already report monthly to the Bureau of Resources and Energy Economics.

The « Bill » also includes measures that repeal redundant and spent Acts and provisions in Commonwealth Acts, and complements the measures included in the Statute Law Revision « Bill » (No.2) 2014 and the Amending Acts 1970-1979 « Bill » 2014. For example, this « Bill » repeals the following Acts:

·          The « Customs » (Tariff Concessions Validations) Act 1999 validated decisions that relied on faulty delegations made in relation to Tariff Concession Orders. This Act has no operation in relation to decisions made after June 1999 and is therefore obselete.

 

·          The Home and Community Care Act 1985 was made redundant in the context of the Intergovernmental Agreement on Federal Financial Relations of 2008.

 

In total, this « Bill » , the Statute Law Revision « Bill » (No.2) 2014 and the Amending Acts

1970 -1979 « Bill » 2014 will repeal over 666 Commonwealths Acts.

Repeal of these Acts ensures regulation is easily accessible, continues to deliver on policy outcomes and only remains in force for as long as necessary. Making regulation easily accessible also means that business, individuals and community organisations spend less time trawling through regulations.

The explanatory notes mirror the « Bill » and are structured by portfolio, with the Department of Veterans’ Affairs following. A brief outline is provided for each Schedule with explanatory notes for relevant items.

 

 

Financial Impact Statements

This « Bill » has no financial implications.

Regulation Impact Statement

A Regulation Impact Statement was not required for the measures included in this « Bill » .

Statement of Compatibility with Human Rights

This « Bill » is compatible with the human rights and freedoms recognised or declared in Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » . See Statement of Compatibility with Human Rights at the « end » of this explanatory memorandum.

 



List of Abbreviations - Acts

Abbreviation

Full reference

AC Act

Aged Care Act 1997

AMLI Act

Australian Meat and Live-stock Industry Act 1997

ATSIC Act

Aboriginal and Torres Strait Islander Commission Act 1989

ATSICA Act

Aboriginal and Torres Strait Islander Commission « Amendment » Act 2005

BC Act

Broadcasting Services Act 1992

CPFCG Act

Classification (Publications, Films and Computer Games) Act 1995

CTCSV Act

« Customs » (Tariff Concessions System Validations) Act 1999

DS Act

Disability Services Act 1986

FA Act

Fisheries Administration Act 1991

FFR Act

Federal Financial Relations Act 2009

FMA Act

Financial Management and Accountability Act 1997

FQS Act

Fuel Quality Standards Act 2000

HCC Act

Home and Community Care Act 1985

HW Act

Hazardous Waste (Regulation of Exports and Imports) Act 1989

IG Act

Interactive Gambling Act 2001

INS Act

Insurance Act 1973

ITA Act 1936

Income Tax Assessment Act 1936

ITA Act 1997

Income Tax Assessment Act 1997

LI Act

Legislative Instruments Act 2003

MRC Act

« Military » Rehabilitation and Compensation Act 2004

NHTA Act

Natural Heritage Trust of Australia Act 1997

NTS Act

A New Tax System (Family Assistance) Act 1999

NTS Admin Act

A New Tax System (Family Assistance) (Administration) Act 1999

PCT Act

Patents « Amendment » (Patent Cooperation Treaty) Act 1979

PNGL Act

Papua and New Guinea Loan (International Bank) Act 1970

PS Act

Product Stewardship Act « 2011 »

PSO Act

Product Stewardship (Oil) Act 2000

RA Act

Rural Adjustment Act 1992

RC Act

Radiocommunications Act 1992

SAW Act

Skilling Australia’s Workforce Act 2005

SF Act

Stronger Futures in the Northern Territory Act 2012

SS Act

Social Security Act 1991

SSA Act

Social Security (Administration) Act 1999

TC Act

Telecommunications Act 1997

VE Act

Veterans’ Entitlements Act 1986

 

 

 

 

 

List of Abbreviations - Other

Abbreviation

Full reference

AAT

Administrative Appeals Tribunal

ACMA

Australian Communications and Media Authority

ANR

Annual National Report under the Skilling Australia’s Workforce Act 2005

ATSIC

Aboriginal and Torres Strait Islander Commission

Basel Convention

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

CDEP

Community Development Employment Projects

CRPD

Convention on the Rights of Persons with Disabilities

CTV

Community television

ETR

Education Tax Refund

FSCC

Fuel Standards Consultative Committee

HWTG

Hazardous Waste Technical Group

IBRD

International Bank for Reconstruction and Development

ICCPR

International Covenant on Civil and Political Rights

ICERD

International Convention on the Elimination of all forms of Racial Discrimination

ICESCR

International Covenant on Economic, Social and Cultural Rights

Minister

As defined by section 19A of the Act Interpretation Act 1901 in relation to the specified provision(s) of the Act

NITV Ltd

National Indigenous TV Limited

OECD

Organisation for Economic Co-operation and Development

OECD Regulations

Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996

OSAC

Oil Stewardship Advisory Council

PCT

Patent Cooperation Treaty

PSAG

Product Stewardship Advisory Group

SBS

Special Broadcasting Service Corporation

Secretary

The Secretary of the Department administered by the Minister responsible for administering the relevant Act or part of the Act

Stronger Futures NPA

National Partnership Agreement on Stronger Futures in the Northern Territory



Clause 1: Short Title

This specifies the short title of the Act as the Omnibus Repeal Day (Spring 2014) Act 2014.

Clause 2: Commencement

The table in this clause sets out when the « Bill » ’s provisions will commence. The table provides that clauses 1 to 3 (and anything else not covered in the table) would commence on the date the « Bill » receives Royal Assent.

Schedules 1 to 6, 8 and 9 will commence the day after the « Bill » receives the Royal Assent.

Schedule 7, Parts 1 and 3 will commence the day after the « Bill » receives the Royal Assent.

Schedule 7, Items 9 to 130, 132 to 145, 147 to 181, and 183 to 214 will commence the day after the « Bill » receives the Royal Assent.

Schedule 7, Item 131 will commence the later of:

(a) immediately after the commencement of the provisions covered by table  Item 6; and

(b) immediately after the commencement of  Items 5 to 7 of Schedule 5 to the Social Services and Other Legislation « Amendment » (2014 Budget Measures No. 4) Act 2014 .

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

Schedule 7, Part 2 will commence on the 28th day after the « Bill » receives the Royal Assent.

Schedule 7, Item 146 will commence the later of:

(a) immediately after the commencement of the provisions covered by table  Item 6; and

(b) immediately after the commencement of  Item 11 of Schedule 5 to the Social Services and Other Legislation « Amendment » (2014 Budget Measures No. 4) Act 2014 .

However, the provisions will not commence at all if the event mentioned in paragraph (b) does not occur.

 

Schedule 7, Item 182 will commence on the later of:

(a) immediately after the commencement of the provisions covered by table  Item 10; and

(b) immediately after the commencement of  Item 189 of Schedule 2 to the Social Services and Other Legislation « Amendment » (2014 Budget Measures No. 1) Act 2014 .

However, the provisions will not commence at all if the event mentioned in paragraph (b) does not occur.

 

Clause 3: Schedules

This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule and any other Item in a Schedule operates according to its terms.



Schedule 1—Agriculture

Outline

This Schedule will make minor amendments to Acts administered in the Agriculture portfolio to update and remove obsolete references.

Fisheries Administration Act 1991

Part 1—Abolition of Fishing Industry Policy Council

Outline

The proposed amendments to the Fisheries Administration Act 1991 (the FA Act) will repeal Part 3 of the Act, which establishes the Fishing Industry Policy Council. The council is redundant.

The Fishing Industry Policy Council is a ministerial advisory council. Its objectives are to facilitate an exchange of views between fishing industry stakeholders on matters affecting the industry and develop a unified approach to matters affecting the industry. Its functions include reporting to the Minister for Agriculture on a range of matters.

The council has not been convened since the legislation commenced in 1991. The same consultation and advice functions that the council was to provide advice on are being fulfilled by other working groups and committees. This  includes fisheries management advisory committees and ad hoc representative committees, such as that formed for the reviews of the Commonwealth harvest strategy and bycatch policy. Direct consultation is also undertaken with stakeholders and their respective bodies, including the National Seafood Industry Alliance and the Commonwealth Fisheries Association. Additionally, the Government is supporting the development of sustainable mechanisms for strong representation through a new non-statutory national commercial fishing peak body.

The proposed repeal is consistent with recommendations made by the National Commission of Audit for rationalising government bodies ( Towards Responsible Government , February 2014). The repeal was also supported by the Review of Commonwealth Fisheries: Legislation, Policy and Management (December 2012).

National and major regional industry bodies have been consulted. No comments were received as a result of stakeholder consultation.

Notes on Clauses

Item 1: Title

Item 1 will delete ‘Fishing Industry Policy Council’ from the title at the beginning of the FA Act.

 

Item 2: Section 3

Item 2 will repeal section 3 ‘Objects of Act’ and insert a new simplified outline into the FA Act. This is consistent with Parliamentary Counsel Drafting Direction 1.3A.

Item 3: Subsection 4(1) (note)

Item 3 will repeal a note that refers to Part 3. This part will be repealed by Item 4 below.

Item 4: Part 3

Item 4 will repeal Part 3 of the FA Act, which establishes the council.

Part 2—Obsolete farm support programs

Outline

The proposed amendments to the Rural Adjustment Act 1992 (the RA Act) will repeal obsolete provisions and text in the RA Act relating to the Rural Adjustment Scheme and the Farm Business Improvement Program.  In 2008-09, a national review of drought policy was undertaken. Extensive stakeholder consultation has also been undertaken over the past five years on drought program reform.

The Rural Adjustment Scheme and Farm Business Improvement Program have ceased and have been superseded by new approaches to providing farm support, such as the farm household allowance, as underpinned by the principles in the Intergovernmental Agreement on National Drought Program Reform (agreed on 3 May 2013).

Consequential amendments will be made to the Natural Heritage Trust of Australia Act 1997 as a result of the proposed amendments to the RA Act.

Notes on Clauses

Division 1—Main amendments

Rural Adjustment Act 1992

Item 5: Section 3

Item 5 will repeal section 3 ‘Objectives of this Act’ and insert a new simplified outline into the RA Act. This is consistent with Parliamentary Counsel Drafting Direction 1.3A.

Items 6 to 9: Section 4 (definitions)

Items 6 to 9 will repeal obsolete definitions from section 4.

Items 10 to 12: Paragraphs 8(b), 8(c), 8(d)

Items 10 to 12 will remove obsolete text from section 8 of the RA Act, which sets out the functions of the Council. Item 10 deletes obsolete text from paragraph 8(b). Item 11 repeals paragraph 8(c). Item 12 deletes obsolete text from paragraph 8(d).

 

Item 13: Subsection 20(1)

Item 13 will amend subsection 20(1) to remove the requirement for the National Rural Advisory Council to provide an annual report on the operations of the ceased Rural Adjustment Scheme. The effect of subsection 20(1) is that the Council is currently required to include a statement in its annual report that the Rural Adjustment Scheme has ceased.

Item 14: Parts 3 to 5

Item 14 will repeal Parts 3 to 5 of the RA Act. Parts 3 and 4 deal with the Rural Adjustment Scheme and the Farm Business Improvement Program, respectively. Part 5 provides that the conditions on payment under the RA Act for the Rural Adjustment Scheme do not limit the capacity, or place conditions on, the Commonwealth’s ability to make payments under other programs or legislation.

Item 15: Application provision

Item 15 is an application provision relating to the « amendment » to the annual report requirements in section 20. The « amendment » in Item 13 will apply in relation to a report given by the Minister on or after commencement of this Part.  

Division 2—Other amendments

Natural Heritage Trust of Australia Act 1997

Item 16: Paragraph 18(b),

Item 17: Paragraph 18(d)

Item 18: Subsections 19(7) and 20(4)

Item 19: Section 49 (heading)

Item 20: Subsections 49(4) and (5)

Items 16 to 20 will make consequential amendments to sections 18, 19, 20 and 49 of the Natural Heritage Trust of Australia Act 1997 to remove references to the RA Act and make appropriate updates to punctuation and headings arising from the removal of these references.

Item 16 will update punctuation in paragraph 18(b). Item 17 will repeal paragraph 18(d). Item 18 will repeal subsections 19(7) and 20(4), excluding the notes. Item 19 will update the heading of section 49. Item 20 will repeal subsections 49(4) and (5).

Part 3—Other amendments

Australian Meat and Live-stock Industry Act 1997

Outline

The proposed amendments to the Australian Meat and Live-stock Industry Act 1997

(the AMLI Act) will repeal obsolete provisions that provide for payments to industry marketing and research bodies under several Acts (listed below) which were repealed in 1999.

Part 3, Division 3 of the AMLI Act provides for payments to industry bodies. Subsections 63(1) and 64(1) of the Act provide that payments to marketing bodies and industry research bodies are based on provisions of the following Acts:

·            Live-stock Transactions Levy Act 1997

·            Live-stock Slaughter (Processors) Levy Act 1997

·            Live-stock (Producers) Export Charges Act 1997

·            Live-stock (Exporters) Export Charge Act 1997

·            Beef Production Levy Act 1990

·            Cattle (Producers) Export Charges Act 1997

·            Cattle (Exporters) Export Charge Act 1997

·            Cattle Transactions Levy Act 1997 .

These Acts were repealed by the Primary Industries Levies and Charges (Consequential Amendments) Act 1999 and ceased to have effect on 1 July 1999. Payment of the amounts specified in the repealed Acts were finalised in 2008. There are no outstanding monies to be paid to or by the Commonwealth under these repealed Acts. Therefore, subsections 63(1) and 64(1) of the AMLI Act no longer operate and are obsolete.

Notes on Clauses

Item 21: Subsections 63(1) and 64(1)

Item 21 will repeal subsections 63(1) and 64(1).

Item 22: Subsection 65(1)

Item 23: Subsection 65(2)

Item 24: Subsection 65(2)

Item 25: Subsection 65(3)

Item 26: Subsection 65(3)

Item 27: Paragraph 66(2)(a)

Items 22 to 27 will update sections 65 and 66 to remove obsolete references arising from the repeal of subsections 63(1) and 64(1).



Schedule 2 - Communications

Outline

Schedule 2 will amend legislation in the Communications portfolio to streamline statutory consultation and publication requirements, and repeal spent provisions.

Part 1 will repeal provisions in the Broadcasting Services Act 1992 (the BC Act) that are redundant now that the Special Broadcasting Service (SBS) has assumed television production and supply activities previously undertaken by National Indigenous TV Limited (NITV).

Part 2 will repeal various provisions in the Communications portfolio legislation requiring

rule-makers to consult before making certain legislative instruments, in particular industry standards. These consultation provisions are considered unnecessary in light of the separate consultation requirements in section 17 of the Legislative Instruments Act 2003 (the LI Act), which requires a rule-maker to be satisfied that appropriate and reasonably practicable consultation has been undertaken prior to making a legislative instrument.

Part 3 will amend Communications portfolio legislation to modernise two statutory publication requirements.  This will allow the Australian Communications and Media Authority (ACMA) to notify stakeholders of certain matters via its website and other readily accessible forms.

Notes on Clauses

Part 1 - Re-transmission of programs

Outline

This Part will repeal paragraph 212(1)(c) of the BC Act and make other consequential amendments.

Notes on Clauses

Broadcasting Services Act 1992

Item 1: Subparagraph 212(1)(b)(ii)

Item 2: Paragraph 212(1)(c)

Item 3: Paragraph 212(3)(d)

Item 4: Paragraph 212(3)(e)

The retransmission scheme under section 212 of the BC Act allows self-help providers, such as local councils and community groups, to improve or extend free-to-air radio and television reception to certain communities. Under that section, services that do no more than retransmit programs previously transmitted by a national broadcasting service, a commercial broadcasting licensee, a community broadcasting licensee, or a service that transmits program material supplied by NITV; are not subject to the regulatory regime established by the BC Act.

In 2012, the SBS assumed the television program production and supply activities previously undertaken by NITV. NITV no longer supplies television programs and is under external administration under the Corporations Act 2001 .

Accordingly, Item 2 will repeal paragraph 212(1)(c) of the BC Act to remove the reference to services that do no more than transmit program material supplied by NITV. Items 1, 3 and 4 are minor technical amendments consequential to Item 2.

Part 2 - Amendments relating to consultation requirements

Outline

This Part will repeal provisions in the BC Act, the Interactive Gambling Act 2001 (the IG Act), the Radiocommunications Act 1992 (the RC Act) and the Telecommunications Act 1997 (the TC Act) requiring the ACMA to undertake consultation with specified parties before taking certain action.

These consultation provisions are considered unnecessary in light of section 17 of the LI Act, which requires a rule-maker, subject to limited exceptions, to be satisfied that appropriate and reasonably practicable consultation has been undertaken prior to making a legislative instrument.

Notes on Clauses

Broadcasting Services Act 1992

Item 5: Subsection 87A(9)

Item 5 will repeal subsection 87A(9) of the BC Act. This subsection currently requires the ACMA to seek public comment before imposing, varying or revoking a licence condition on a community television (CTV) licence under section 87A. A CTV licence is a community broadcasting licence allocated under Part 6 of the BC Act authorising a service that provides television programs (other than those targeted to remote indigenous communities). The current consultation provision is considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsection 87A(9) of the BC Act, if the ACMA has commenced public consultation in relation to imposing, varying or revoking conditions of a CTV licence, before commencement of Part 2 of the « Bill » , it will be required to complete that consultation process. This is due to the operation of the savings provision in  Item 22, which has the effect that consultation processes begun, but not concluded, before the commencement of Part 2 of Schedule 2 to the « Bill » , must be concluded as if the repeal of the relevant consultation requirements had not occurred.

Item 6: Section 126

Item 6 will repeal section 126 of the BC Act. Part 9 of the BC Act enables the ACMA to determine program standards. Section 126 requires the ACMA to seek public comment before determining, varying or revoking a program standard made under Part 9. These consultation provisions are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of section 126 of the BC Act, if the ACMA has commenced public consultation for program standards under Part 9, before commencement of this Part, it will be required to complete that consultation process due to the operation of the savings provision in Item 22.

Item 7: Subsections 130R(3), 130T(4), 130U(4), 130ZCA(5) and (6) and 130ZD(2)

Part 9B—Industry codes and industry standards

Item 7 will repeal subsections 130R(3), 130T(4) and 130U(4) of the BC Act. These provisions set out consultation requirements for the ACMA in determining industry standards under Division 5 of Part 9B of the BC Act.

Section 130R enables the ACMA to make an industry standard where a request for an industry code under section 130N is not complied with by a body or association representing a particular section of the industry. Subsection 130R(3) requires the ACMA to consult that body or association before determining the industry standard under section 130R.

Section 130T enables the ACMA to make an industry standard where an industry code is totally deficient. Subsection 130T(4) similarly requires the ACMA to consult the body or association that represents the relevant section of the industry before determining the industry standard under subsection 130T(3).

Section 130U enables the ACMA to make an industry standard where an industry code is deficient to the extent that it deals with one or more matters, but is not totally deficient for the purposes of section 130T. Subsection 130U(4) similarly requires the ACMA to consult the body or association that represents the relevant section of the industry before determining the industry standard under subsection 130U(3).

The consultation provisions contained in subsection 130R(3), 130T(4) and 130U(4) are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsections 130R(3), 130T(4) and 130U(4) of the BC Act, if the ACMA has commenced consultation for program standards under Division 5 of Part 9B before commencement of this Part, it will still be required to complete that consultation process due to the operation of the savings provision in Item 22.

 

Part 9C—Access to commercial television broadcasting services provided with the « use » of a satellite

Item 7 will also repeal subsections 130ZCA(5) and (6) and 130ZD(2) of the BC Act. These provisions set out consultation requirements for the ACMA in formulating conditional access schemes under Part 9C of the BC Act, which regulate access to services provided under a commercial television broadcasting licence allocated under section 38C (i.e. satellite services).

Subsection 130ZCA(2) enables the ACMA to formulate a conditional access scheme. Subsections 130ZCA(5) and (6) require the ACMA, before registering a conditional access scheme, to publish a draft of the scheme on its website, invite written submissions within a period not shorter than 14 days and have due regard to submissions received. The consultation provisions in subsections 130ZCA(5) and (6) are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

The repeal of subsection 130ZD(2) will be a minor « amendment » consequential to the repeal of subsections 130ZCA(5) and (6). Despite the repeal of subsections 130ZCA(5) and (6) and 130ZD(2) of the BC Act, if the ACMA, before commencement of this Part, has commenced consultation in relation to registering a conditional access scheme, it will still be required to receive submissions and give them due consideration, due to the operation of the savings provision in Item 22.

Item 8: Subclauses 68(3), 70(4) and 71(4) of Schedule 5

Item 9: Clause 77 of Schedule 5

Item 8 will repeal subclauses 68(3), 70(4) and 71(4) of Schedule 5 of the BC Act. Item 9 will repeal clause 77. These provisions set out consultation requirements for the ACMA in determining or varying industry standards under Division 5 of Part 5 of Schedule 5, which relate to the internet industry.

Clause 68 of Schedule 5 enables the ACMA to make an industry standard where a request for an industry code under subclause 63(1) is not complied with by a body or association representing a particular section of the internet industry. Subclause 68(3) requires the ACMA to consult that body or association before determining the industry standard under clause 68.

Clause 70 of Schedule 5 enables the ACMA to make an industry standard where an industry code is totally deficient. Subclause 70(4) requires the ACMA to consult the body or association that represents the relevant section of the internet industry before determining the industry standard.

Clause 71 of Schedule 5 enables the ACMA to make an industry standard where an industry code is deficient to the extent that it deals with one or more matters, but is not totally deficient for the purposes of clause 70. Subclause 71(4) requires the ACMA to consult the body or association that represents the relevant section of the internet industry before determining the industry standard.

Clause 77 of Schedule 5 requires the ACMA to consult with the designated body before determining, varying or revoking an industry standard. The Minister may, by legislative instrument under clause 58, declare a specified body or association to be the designated body.

The current consultation provisions contained in clause 77 and subclauses 68(3), 70(4) and 71(4) of Schedule 5 are considered unnecessary in light of the consultation requirements in section 17 of the LIA.

Despite the repeal of clause 77 and subclauses 68(3), 70(4) and 71(4) of Schedule 5 of the BC Act, if the ACMA, before commencement of Part 2 to the « Bill » , has commenced consultation in relation to industry standards, it will still be required to complete that consultation process due to the operation of the saving provision at item 22.

Item 10: Clause 32 of Schedule 6

Item 10 will repeal clause 32 of Schedule 6, which requires the ACMA to seek public comment before determining, varying or revoking a standard made under clause 31, which relate to datacasting. The current consultation provision contained in clause 32 is considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of clause 32 of Schedule 6 of the BC Act, if the ACMA, before commencement of this Part, has commenced public consultation for standards relating to datacasting, it will still be required to complete that consultation process due to the operation of the saving provision at item 22.

Item 11: Subclauses 91(3), 93(4) and 94(4) of Schedule 7

Item 12: Clauses 99 and 100 of Schedule 7

Item 11 will repeal subclauses 91(3), 93(4) and 94(4) of Schedule 7 of the BC Act. Item 12 will repeal clauses 99 and 100 of Schedule 7. These provisions set out consultation requirements for the ACMA in determining or varying industry standards under Division 5 of Part 4 of Schedule 7, which relate to the content industry.

Clause 91 of Schedule 7 enables the ACMA to make an industry standard if a request for an industry code under subclause 86(1) is not complied with by a body or association representing a particular section of the content industry. Subclause 91(3) requires the ACMA to consult that body or association before determining the industry standard.

Clause 93 of Schedule 7 enables the ACMA to make an industry standard where an industry code is totally deficient. Subclause 93(4) requires the ACMA to consult the body or association that represents the relevant section of the content industry before determining the industry standard.

Clause 94 of Schedule 7 enables the ACMA to make an industry standard where an industry code is deficient to the extent that it deals with one or more matters, but is not totally deficient for the purposes of clause 93. Subclause 94(4) requires the ACMA to consult the body or association that represents the relevant section of the content industry before determining the industry standard.

Clause 99 of Schedule 7 requires the ACMA to conduct public consultation before determining or varying an industry standard. This requires the ACMA to make copies of the draft standard or variation available on its website, and publish a notice on its website inviting written comments about the draft for a period of at least 30 days. The ACMA must have due regard to comments received. Consultation is not required where a variation is of a minor nature.

Clause 100 of Schedule 7 requires the ACMA to consult with the designated body before determining, varying or revoking an industry standard. The Minister may, by legislative instrument under clause 79, declare a specified body or association to be the designated body.

The current consultation provisions contained in clauses 99 and 100 and subclauses 91(3), 93(4) and 94(4) of Schedule 7 are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subclauses 91(3), 93(4) and 94(4), and sections 99 and 100 of Schedule 7 of the BC Act, if the ACMA, before commencement of this Part, has commenced consultation for industry standards under Division 5 of Part 4 of Schedule 7, it will still be required to receive submissions and give them due consideration, due to the operation of the saving provision at item 22.

Interactive Gambling Act 2001

Item 13: Subsections 44(3), 46(4) and 47(4)

Item 13 will repeal subsections 44(3), 46(4) and 47(4) of the IG Act. These provisions set out consultation requirements for the ACMA in determining industry standards under Division 5 of Part 4.

Section 44 enables the ACMA to make an industry standard where a request under subsection 39(1) to develop an industry code is not complied with by a body or association representing internet service providers. Subsection 44(3) requires the ACMA to consult that body or association before determining the industry standard.

Section 46 enables the ACMA to make an industry standard where an industry code is totally deficient. Subsection 46(4) requires the ACMA to consult the body or association that represents internet service providers before determining the industry standard.

Section 47 enables the ACMA to make an industry standard where an industry code is deficient to the extent that it deals with one or more matters, but is not totally deficient for the purposes of section 46. Subsection 47(4) requires the ACMA to consult the body or association that represents internet service providers before determining the industry standard.

The consultation provisions contained in subsection 44(3), 46(4) and 47(4) are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsections 44(3), 46(4), and 47(4) of the IG Act, if the ACMA, before commencement of this Part, has commenced consultation with the relevant body or association for an industry standard, it will still be required to complete those consultation processes, due to the operation of the saving provision at item 22.

Radiocommunications Act 1992

Item 14: Subsections 44A(5) and (7)

Item 14 will repeal subsections 44A(5) and 44A(7) of the RC Act, which respectively require that before preparing or varying a digital radio channel plan under subsection 44A(1) or 44A(6), the ACMA must publish a draft of the plan or variation on its website, invite members of the public to make submissions within a period of at least 30 days, and consider any submissions received. These current consultation provisions are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsections 44A(5) and 44A(7) of the RC Act, if the ACMA, before commencement of this Part, has published a draft on its website and commenced public consultation, it will still be required to receive submissions and give them due consideration, due to the operation of the saving provision at item 22.

Telecommunications Act 1997

Item 15: Subsections 123(3), 125(4), 125AA(3), 125A(3) and 125B(3)

Item 15 will repeal subsections 123(3), 125(4), 125AA(3), 125A(3) and 125B(3) of the

TC Act. These provisions set out consultation requirements for the ACMA in determining industry standards under Division 5 of Part 6.

Section 123 enables the ACMA to make an industry standard where a request under subsection 118(1) to develop an industry code is not complied with by a body or association representing a particular section of the telecommunications, e-marketing, telemarketing or fax marketing industry. Subsection 123(3) requires the ACMA to consult that body or association before determining the industry standard.

Section 125 enables the ACMA to make an industry standard where an industry code is deficient. Subsection 125(4) requires the ACMA to consult the body or association that represents the relevant section of the industry before determining the industry standard.

Section 125AA requires the ACMA to make an industry standard applying to a particular section of the telecommunications industry when directed to do so by the Minister. Subsection 125AA(3) requires the ACMA to consult the body or association that represents the relevant section of the industry before determining the industry standard.

Section 125A requires the ACMA to make certain industry standards relating to the telemarketing industry. Subsection 125A(3) requires the ACMA to consult a body or association that represents the relevant section of the industry before determining an industry standard.

Section 125B enables the ACMA to make certain industry standards relating to the fax marketing industry. Subsection 125B(3) requires the ACMA to consult a body or association that represents the relevant section of the industry before determining an industry standard.

The consultation provisions set out in subsections 123(3), 125(4), 125AA(3), 125A(3) and 125B(3) are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsections 123(3), 125(4), 125AA(3), 125A(3) and 125B(3) of the

TC Act, if the ACMA, before commencement of Part 2 of Schedule 2 to the « Bill » , has commenced public consultation for an industry standard under the relevant subclauses, it will be required to complete those consultation processes, due to the operation of the savings provision at item 22.

Item 16: Sections 132 and 135

Part 6—Industry codes and industry standards

Item 16 will repeal sections 132 and 135 of the TC Act, which set out consultation requirements for the ACMA in determining or varying industry standards under Division 5 of Part 6 of the TC Act.

Section 132 requires the ACMA to conduct public consultation, including to make copies of the draft standard or variation available for inspection, and cause a notice to be published in newspapers in each state inviting written comments about the draft for a period of at least

30 days. The ACMA must have due regard to comments received. Consultation is not required where a variation is of a minor nature.

Section 135 of the TC Act requires the ACMA to consult at least one body or association that represents the interests of consumers before determining, varying or revoking an industry standard.

The consultation provisions set out in sections 132 and 135 are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of sections 132 and 135 of the TC Act, if the ACMA, before commencement of this Part, has caused a notice to be published and commenced consultation for an industry standard, it will still be required to receive these submissions and give them due consideration,  due to the operation of the saving provision at item 22.

 

 

Item 17: Subsections 378(1) and (5)

Item 18: Section 379

Item 19: Subsections 382(1) and (5), 386(1) and (5), 405(1) and (5), 422(1) and (5)

Part 21—Technical regulations

Items 17 to 19 will repeal subsections 378(1) and (5), section 379, subsections 382(1) and (5), 386(1) and (5), 405(1) and (5), and 422(1) and (5) of the TC Act. These provisions set out public consultation requirements for the ACMA in making standards or rules for technical regulation.

The provisions to be repealed require the ACMA, before making a technical standard under section 376, a technical standard under section 376, a disability standard under section 380, a technical standard under section 384, connection rules under section 404 or cabling provider rules under section 421, to try to ensure that interested persons have an adequate opportunity (of at least 60 days) to make representations about the proposed standard, and to give due consideration to any representations so made.

The current requirements are considered unnecessary in light of the consultation requirements in section 17 of the LI Act, which provides a separate statutory mechanism for those with an interest in standards to comment on those standards. For example, it is anticipated that the views of persons with disabilities will still be appropriately considered by the ACMA in making disability standards.

Section 379 of the TC Act exempts the ACMA from complying with subsection 378(1) in cases of urgency. The repeal of section 379, by item 18, is consequential to the repeal of subsection 378(1) by item 17.

Despite the repeal of subsections 378(1) and (5), section 379, subsections 382(1) and (5), 386(1) and (5), 405(1) and (5), and 422(1) and (5) of the TC Act, if the ACMA, before commencement of this Part, has commenced consultation for standards or rules for technical regulation, it will still be required to receive submissions and give them due consideration due to the operation of the saving provision at item 22.

Item 20: Sections 460 and 464

Part 22—Numbering of carriage services and regulation of electronic addressing

Item 20 will repeal sections 460 and 464 of the TC Act, which set out consultation requirements for the ACMA before making or varying a numbering plan under section 455, or before determining or varying an allocation system under section 463.  The numbering plan, made by the ACMA, sets out which numbers may be used in connection with the supply of carriage services to the public in Australia, including rules about the allocation, transfer, surrender, withdrawal, portability and « use » of numbers.

Section 460 requires the ACMA to conduct public consultation before determining or varying a numbering plan under section 455.

Section 464 of the TC Act requires the ACMA to conduct public consultation before determining or varying an allocation system under section 463 (which allocates specified numbers to carriage service providers).

The current consultation provisions set out in sections 460 and 464 are considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of sections 460 and 464 of the TC Act, if the ACMA, before commencement of this Part, has commenced consultation for a numbering plan or an allocation system, it will still be required to receive submissions and give them due consideration, due to the operation of the saving provision at item 22.

Item 21: Subsection 572E(8)

Item 21 will repeal subsection 572E(8) of the TC Act, which sets out consultation requirements for the ACMA before declaring a listed infringement notice provision under subsection 572E(7).

Subsection 572E(7) enables the ACMA to declare specified provisions in the TC Act to be listed infringement notice provisions, enabling the ACMA to then issue infringement notices where such provisions are breached. Subsection 572E(8) requires the ACMA to conduct public consultation before making or varying a declaration under section 572E(7).

The current consultation provision is considered unnecessary in light of the consultation requirements in section 17 of the LI Act.

Despite the repeal of subsection 572E(8) of the TC Act, if the ACMA, before commencement of this Part, has caused a notice to be published and commenced consultation on an infringement notice, it will still be required to receive submissions and give them due consideration, due to the operation of the saving provision at item 22.

Item 22

Item 22 is a savings provisions with the effect that consultation processes begun, but not concluded, before the commencement of Part 2 of Schedule 2 to the « Bill » , must be concluded as if the repeal of the relevant consultation requirements had not occurred.

Part 3 - Amendments relating to publication requirements

Outline

This Part will amend two notice provisions in the BC Act to modernise publication requirements by providing the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

 

Notes on Clauses

Division 1 - Amendments

Broadcasting Services Act 1992

Item 23: Section 127

Item 24: Section 127

Item 25: Paragraph 127(b)

Item 26: At the « end » of section 127

Items 23 to 26 will amend section 127 of the BC Act. Currently, section 127 requires the ACMA to publish a notice in the Commonwealth Gazette when determining, varying or revoking a program standard made under Part 9.

Items 23 to 26 will amend section 127 to provide that the ACMA must instead publish a notice both “on the ACMA’s website” and “in one or more forms that are readily accessible to the public” (such as in a newspaper or another website). Item 25 has the effect that the notice must state where copies of the standard (or variation/revocation) may be accessed, rather than where they may be purchased. Notices under section 127 are intended to alert stakeholders to regulatory change, and the amendments will provide the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

Item 27: Clause 33 of Schedule 6

Item 28: Clause 33 of Schedule 6

Item 29: Paragraph 33(b) of Schedule 6

Item 30: At the « end » of clause 33 of Schedule 6

Items 27 to 30 will amend clause 33 of Schedule 6 of the BC Act. Currently, clause 33 requires the ACMA to publish a notice in the Commonwealth Gazette when determining, varying or revoking a standard made under clause 31, which relate to datacasting. Items 27 to 30 provide that the ACMA must instead publish a notice both on the ACMA’s website and in one or more forms that are readily accessible to the public (such as in a newspaper or another website). Notices under clause 33 are intended to alert stakeholders to regulatory change. The amendments will provide the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

 

 

 

Division 2 - Application Provisions

Broadcasting Services Act 1992

Item 31: Application of amendments—section 127 of the Broadcasting Services Act 1992

Item 32: Application of amendments—clause 33 of Schedule 6 to the Broadcasting Services Act 1992

Items 31 and 32 ensure that the amendments to section 127 and clause 33 of Schedule 6 to the BC Act, made by items 23 to 30 above, do not apply in relation to a determination, variation or revocation about which a notice was published in the Commonwealth Gazette prior to the commencement of item 31 or 32, as applicable.

 



Schedule 3 - Environment

Outline

This Schedule will amend and repeal provisions in Acts administered in the Environment Portfolio, making minor technical amendments to streamline regulatory arrangements.

 

Notes on Clauses

Part 1 - Abolition of the Product Stewardship Advisory Group

Outline

Part 1 will abolish the Product Stewardship Advisory Group (the PSAG). The Department of the Environment will engage with stakeholders on an “as needs” basis on the preparation of the list of classes of products to be considered for some form of accreditation or regulation. For example, the 2014-2015 Product List includes products such as « end » -of-life batteries (less than 5kg in weight), « end » -of-life air conditioners and refrigerators with small gas charges, waste architectural and decorative paint, and packaging as classes of products that may be suitable for some form of accreditation or regulation under the Product Stewardship Act « 2011 » (the PS Act). Consequently, the ongoing establishment of a permanent statutory body to perform this function is no longer justified.

Notes on Clauses

Product Stewardship Act « 2011 »

Item 1: Section 6 (definition of Advisory Group )

Item 2: Section 108B

Item 3: Schedule 1

The PSAG is established by subsection 108B(1) of the PS Act. The PSAG’s functions are to provide advice to the Minister in relation to the performance of the Minister’s function of preparing an annual list of classes of products that are to be considered for some form of accreditation or regulation under the PS Act in the following financial year; and the performance of other ministerial functions under the PS Act (see subsection 108B(2)).

As the Department of the Environment will engage with stakeholders on an “as needs” basis on the preparation of the list of classes of products to be considered for some form of accreditation or regulation, the ongoing maintenance of a permanent statutory body to perform this function is no longer justified.

Item 2 will repeal section 108B of the PS Act. At the commencement of this Item, the PSAG, and positions for its members, will cease to exist. Items 1 and 3 are required as a consequence of Item 2. These will repeal the definition of Advisory Group in section 6 of the PS Act and repeal Schedule 1 of the PS Act, which sets out the mechanical provisions for the operation of the PSAG.

Part 2 - Abolition of the Oil Stewardship Advisory Council

Outline

Part 2 will abolish the Oil Stewardship Advisory Council (the OSAC). This will not preclude the Department of the Environment from engaging with industry experts on an “as needs” basis to gather advice and guidance on review processes and other matters relating to the administration of the Product Stewardship (Oil) Act 2000 (the PSO Act).

Notes on Clauses

Product Stewardship (Oil) Act 2000

Item 4: Subsection 6(1) (definition of Advisory Council )

Item 5: Subsection 6(1) (definition of voting member )

Item 6: Subsection 10(4)

Item 7: Part 3

Part 3 (sections 11 - 32) of the PSO Act establishes the OSAC and contains provisions regarding the operation of the OSAC. The functions of the OSAC are to provide advice to the Minister on matters related to the Product Stewardship for Oil Scheme. This includes advice on the product stewardship arrangements for oils, the recovery and recycling of used oils, the amount of product stewardship benefits and the state of the oil production and oil recycling industries (see section 12 of the PSO Act).

The OSAC is required to meet at least once every 12 months (subsection 22(2) of the

PSO Act). In the past, the OSAC has provided input into the reviews of the PSO Act. However, these reviews occur at intervals of four years (see section 36 of the PSO Act). The frequency of the OSAC meetings and the review process is not sufficient to justify the ongoing maintenance of a permanent statutory advisory body. This is particularly so given the Product Stewardship for Oil Scheme is now well established, with over ten years of operation. Moreover, the Department of the Environment will not be precluded from engaging with industry experts on an “as needs” basis to gather advice and guidance on the review processes and other matters relating to the administration of the PSO Act.

Item 7 will repeal Part 3 of the PSO Act. The OSAC, and positions for its members, will cease to exist at the commencement of this Item. Items 4, 5 and 6 are required as a consequence of Item 7, and repeal definitions relating to the OSAC, and references to the OSAC, in the PSO Act.

 

Item 8: Saving provision - protection from civil actions

Section 31 of the PSO Act provides that a member of the OSAC is not liable for an action or other proceedings for damages for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power, of the OSAC.

Item 8 is a saving provision, which provides that despite the repeal of Part 3 of the PSO Act, section 31 will continue to apply after the repeal in relation to any acts done or omitted to be done by a member of the OSAC before the commencement of the repeal of Part 3.

  Part 3 - Fuel Quality Standards amendments

Outline

Part 3 will amend the Fuel Quality Standards Act 2000 (the FQS Act) to abolish the Fuel Standards Consultative Committee (the FSCC). The amendments will insert a new public consultation process that applies to the grant and variation of approvals to vary fuel standards and remove the requirement to publish notices made under the FQS Act in the Commonwealth Gazette . The amendments will also remove the requirement on fuel suppliers to provide an annual report to the Department of the Environment.

Notes on Clauses

Fuel Quality Standards Act 2000

Item 9: Subsection 4(1) (definition of Fuel Standards Consultative Committee)

Item 10: Section 11

Item 11: Subsection 13(2) (note)

Item 12: Subsection 13(5)

Item 20: Subsection 17F(1) (note)

Item 22: Sections 24 - 29

Section 24 of the FQS Act establishes the FSCC. Whilst the FSCC may consist of such members as the Minister for the Environment determines, the Minister must ensure that the membership includes representatives from each State, the Australian Capital Territory, the Northern Territory and the Commonwealth, and a person representing each of the following: fuel producers; a non-government body with an interest in the protection of the environment; and consumers.

Section 24A of the FQS Act requires the Minister for the Environment to consult with the FSCC before granting, varying or revoking an approval under section 13, before making a determination under sections 21 or 22A, before making a decision under subsection 35(2) and in the preparation of guidelines under section 22.

Item 22 will repeal sections 24 - 29 which establish the FSCC and set out the circumstances in which the Minister must consult the FSCC. The advisory role of the FSCC will be undertaken by the Department of the Environment. In undertaking this role, the Department of the Environment will be able to consult with the bodies currently represented on the FSCC and more broadly to ensure that relevant expertise and knowledge is captured, without the requirement to maintain a permanent statutory body. Items 13 and 18 (see below) will insert an alternative public consultation mechanism into the FQS Act that will apply to the granting and variation of approvals to vary fuel standards.

Items 9, 11, 12 and 20 will remove various references to the FSCC in the FQS Act and are required as a consequence of Item 22. Item 10 will omit the reference to “In some cases, notification, rather than consultation, is required”, from section 11, and is required as a result of the repeal of section 24C by Item 22 (section 24C imposes an obligation on the Minister for the Environment to notify, rather than consult with, the FSCC before the grant of an emergency approval).

Item 13: Subsection 14(3)

Item 15: At the « end » of subsection 17C(1)

Item 16: At the « end » of subsection 17D(1)

Item 18: After section 17D

Subsection 14(3) of the FQS Act currently specifies the process if the Minister is required to consult with the FSCC before granting an approval to vary a fuel standard. Item 13 will repeal this subsection as a consequence of the repeal of the FSCC (see Item 22 above), and replace it with a new public consultation process for the granting of an approval for the variation of a fuel standard (other than an emergency approval).

Item 13 will require the Minister to publish a notice on the Department of the Environment’s website specifying certain particulars regarding the application and inviting public submissions on the application. The notice must specify how submissions are to be made, and the period within which submissions must be made. In deciding whether to grant an approval, the Minister must consider any submission received within the timeframe specified in the notice.

Item 18 will insert section 17DA into the FQS Act, which is a similar provision requiring public consultation on applications to vary an approval under section 17C (Variation of approval - general) and section 17D (Variation of approval - Secretary’s initiative).

The new public consultation process will not apply to a minor variation done under section 17D or to the granting of an emergency approval done under section 13. This is consistent with section 24C of the FQS Act which currently requires the Minister to notify, rather than consult, the FSCC on the granting of an emergency approval or the variation of an approval that is of a minor nature. In addition, the new public consultation process will not apply to the variation of an emergency approval under section 17F. An emergency approval remains in force for a maximum period of 14 days, and can be extended for an additional maximum period of 14 days (see section 13A of the FQS Act). Given the length of time during which an emergency approval remains in force, there would be insufficient time to undertake a public consultation process prior to making a decision to extend the period of effect of an emergency approval.

Items 15 and 16 will insert notes into the FQS Act to direct the reader’s attention to the consultation requirements in section 17DA for the variation of an approval.

Item 14: Section 17A

Item 17: Paragraph 17D(2)(b)

Item 19: Subsection 17E(3)

Item 21: Subsection 17F(5)

Item 23: Subsection 33(1)

Items 14, 17, 19, 21 and 23 will amend various sections of the FQS Act to remove the requirement to publish information in the Commonwealth Gazette and instead require this information to be published on the Department of the Environment’s website. This will simplify the process of providing this information to the public and make it more accessible.

Item 24: Section 67

Item 24 will repeal section 67 of the FQS Act. Section 67 of the FQS Act requires a person who produces and supplies fuel or a person who imports and supplies fuel, to provide an annual statement in certain circumstances. Information provided in these annual statements is similar in scope to information that fuel producers and importers provide on a monthly basis to the Bureau of Resources and Energy Economics for the compilation of the Australian Petroleum Statistics (APS). The APS provides monthly national and state petroleum statistical information for the following categories: sales of petroleum products; exports and imports of petroleum products and crude oil; production of crude oil and condensate; refinery input and output; and stocks of petroleum products. Therefore, the requirement to provide this information under the FQS Act is duplicative of information reported to the Bureau of Resources and Energy Economics, and is therefore not necessary.

Item 25: Application and saving provisions

Item 25 provides the application and transitional provisions and describes when these will apply.

 

 

 

Part 4 - Hazardous waste amendments

Outline

Part 4 will amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989

(the HW Act) to streamline and simplify the permit application and decision processes, reduce delay costs to businesses, and reduce the complexity of the HW Act.

Notes on Clauses

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Item 26: Section 4 (definition of Basel Convention )

Item 27: Section 4 (at the « end » of the definition of Basel Convention)

Item 38: Subsection 62(1)

Item 39: Subsection 62(2)

Item 40: Schedule

The Schedule to the HW Act contains the English text of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention). Duplicating the text of the Basel Convention in the HW Act requires amendments to the HW Act each time the Basel Convention is amended to ensure that the Schedule remains contemporaneous (see section 62(2) of the HW Act, which enables the regulations to amend the Schedule). The inclusion of the text of the Basel Convention also adds unnecessary length to the HW Act.

Item 40 will repeal the Schedule to the HW Act to remove the full text of the Basel Convention. Instead, Item 27 will insert a note at the « end » of the definition of the Basel Convention in section 4 of the HW Act to direct readers to the website where the Convention can be viewed.

Items 26, 38 and 39 are required as a consequence of Item 40. Item 26 will remove reference to the Schedule in the definition of the Basel Convention in section 4 of the HW Act. Item 39 will repeal subsection 62(2), which enables the regulations to amend the Schedule to ensure that the Schedule correctly sets out the English text of the Basel Convention as in force from time to time. Item 38 is required as a consequence of the repeal of subsection 62(2) to reflect the fact that section 62 will no longer have any subsections.

 

 

 

 

Item 28: At the « end » of subsection 13A(1)

Item 34: Subsection 40A(1)

Item 35: At the « end » of section 40A

Section 40A of the HW Act makes it an offence for a person to bring hazardous waste into Australia in the course of carrying out a transit proposal, unless the person is the holder of a transit permit authorising the person to bring the waste into Australia.

The Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (the OECD Regulations) implement the decision of the Council of the Organisation for Economic Cooperation and Development (OECD) concerning the control of transboundary movements of wastes destined for recovery operations (Decision C(2001)107/FINAL).

For a transit proposal that is subject to the OECD Decision, the competent authority of an exporting country and/or the exporter is required to provide written notification to the competent authorities of the countries concerned (including all transit countries and the importing country). The competent authorities of the countries concerned then have a period of 30 days to object to the proposed transboundary movement of waste. Those competent authorities may either consent or object to the transboundary movement of hazardous waste. If no objection is received within the 30 days of the date of acknowledging notification, the competent authority is taken to have consented (tacit consent) to the movement. This is part of the Amber Control Procedure, established under the OECD Decision.

The OECD Regulations require a person proposing a transit proposal involving the transit of hazardous waste through Australia to hold an Australian transit permit. This requirement is additional to the export and import permitting approvals that are required by the competent authorities of the exporting and importing countries for that movement. However, as Australia is already required to provide its consent to the transit proposal as part of the Amber Control Procedure, the additional requirement for an Australian transit permit can impose an unnecessary burden and cost to business.

Item 34 will repeal and replace subsection 40A(1) of the HW Act to provide that a person must not bring hazardous waste into Australia in the course of carrying out a transit proposal unless: the person is the holder of a transit permit; or the carrying out of the transit proposal is in connection with the movement of hazardous waste from one OECD country to another OECD country and the Minister has notified the person in writing that a transit permit is not needed for that proposal. The new subsection 40(1A) specifies the matters the Minister must be satisfied of before providing such a notice to a person, and includes whether the transit proposal will pose a significant risk of injury or damage to human beings or the environment, and any other matters prescribed by the regulations. This new process aligns with the practices of other OECD countries in the region, for example New Zealand. Item 35 will insert subsection 40A(6) into the HW Act, which defines OECD country for the purposes of section 40A.

Item 28 will add a note at the « end » of subsection 13A(1) to direct a reader’s attention to

paragraph 40A(1)(b) of the HW Act (section 13A deals with applicants for transit permits).

Item 29: Subsection 18A(2)

Paragraph 18A(2)(a) of the HW Act requires particulars of an application to export hazardous waste for final disposal to be specified in the regulations before the Minister may grant a Basel export permit. This provision was intended to ensure that particulars of an application for a Basel export permit for final disposal are clearly set out prior to the grant of a permit. However, this intent is achieved by the requirement in section 33 for particulars of applications to be published in the Commonwealth Gazette (see Item 33 below which will amend section 33 to enable this information to be published on the Department of the Environment’s website rather than in the Commonwealth Gazette ). In addition, paragraph 18A(2)(a) has the potential to impose unnecessary delay on businesses, as a decision cannot be made to grant a Basel export permit for final disposal until the particulars of the application are specified in the regulations.

Item 29 will repeal subsection 18A(2) of the HW Act and substitute a new subsection 18A(2) which removes the requirement for the particulars of the export application to be specified in the regulations before a decision is made to grant a Basel export permit for final disposal. The requirement for the particulars of an application to be published under section 33 will remain, thereby ensuring that the public is made aware of the details of an application for a Basel export permit for final disposal before a decision is made to grant a permit.

Item 30: Subsection 20(1)

Item 31: Subsection 21(1)

Sections 20 and 21 of the HW Act set out the matters that must be specified in a Basel import permit and a Basel export permit. These matters include the method of transport by which the hazardous waste is to be imported/exported, the place to which the hazardous waste is to be imported/exported, the way in which the hazardous waste is to be dealt with after the import/export, and if the hazardous waste is to be disposed of after the import/export - the facility to be used in the disposal and the process (if any) involved in the disposal.

The requirement to specify this level of detail in Basel import and export permits has resulted in situations where a permit holder is required to apply for a variation to their permit due to changes in circumstances after the permit has been granted (for example, changes in the method of transport from road to rail, or a change in the port to which the hazardous waste is to be shipped to due to changes in shipping routes).

Items 30 and 31 will reduce the matters that must be included in Basel import and export permits. Reducing the matters specified in import and export permits will minimise the number of instances where permit variations are needed, and therefore remove unnecessary burden on business. Subsections 20(3) and 21(3) allow Basel import and export permits to include such other information as the Minister considers appropriate.

Item 32: Section 33 (heading)

Item 33: Subsection 33(1)

Item 33 will amend section 33(1) of the HW Act to remove the requirement to publish information regarding permit applications and decisions in the Commonwealth  Gazette , and instead require this information to be published on the Department of Environment’s website. This will provide the public with more timely information that is easier to access. Item 32 will amend the heading to section 33, and is required as a consequence of Item 33.

Item 36: After subsection 58E(2)

Item 36 will add a new subsection 58E(2A) to clarify that the maximum period a member of the Hazardous Waste Technical Working Group can hold office is three years. As members are appointed based on their expertise, this « amendment » will ensure that the expertise is current.

Item 37: At the « end » of section 60

Item 37 will amend section 60 to extend the Minister’s ability to delegate any or all of the Minister’s functions and powers under the HW Act to an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department. This will enable an Executive Level 2 officer to exercise the Minister’s functions and powers under the

HW Act where administrative necessity dictates that decisions be made at that level. This may include, but is not limited to, providing notifications and acknowledgements under the HW Act, and making non-controversial permit decisions (non-controversial decisions may include decisions on applications that are of a routine nature where the applicant has an established history under the HW Act). This will ensure that permit processing and decisions can be made more efficiently and effectively, and reduce any delay costs to businesses.

Item 41: Application and transitional provisions

Item 41 will provide for the application and transitional provisions, describe when the amendments contained in this Part will apply and transitional provisions for the relevant amendments.



Schedule 4 - Immigration and Border Protection

Outline

This Schedule will repeal a redundant Act administered in the Immigration and Border Protection portfolio and provide for transitional arrangement consequential to that repeal.

Notes on Clauses

Part 1 - Repeal of Act

« Customs » (Tariff Concession System Validations) Act 1999

Outline

The « Customs » (Tariff Concessions System Validations) Act 1999 (the CTCSV Act ) was enacted in November 1999. Its purpose was to validate decisions in relation to the making of tariff concession orders that were based on incorrect delegations or the lack of appropriate delegations. The decisions were made during the period between  15 July 1996 and 31 May 1999.

 

Item 1: The whole of the act

Item 1 will repeal the stand-alone CTCSV Act which relates to decisions with a discrete 3 year timeframe. As the Act is now 15 years old, it is now obsolete.

 

Part 2 - Saving provisions

Outline

Part 2 contains consequential savings provisions.

Item 2: Savings Provisions

Item 2 is a savings provision to ensure the continued operation of the CTCSV Act’s validation function.



Schedule 5 - Industry

Outline

This Schedule will repeal redundant Acts administered in the Industry portfolio and make consequential amendments to the Social Security Act 1991 .

Notes on Clauses

Part 1 - Repeal of Acts

Outline

Part 1 will repeal redundant Acts from the Industry portfolio.

Patents « Amendment » (Patent Cooperation Treaty) Act 1979

Item 1: The whole of the Act

Item 1 repeals the Patents « Amendment » (Patent Cooperation Treaty) Act 1979 (thePCT Act) as it is spent. The PCT Act amended the Patents Act 1952 to implement Australia’s domestic legal obligations under the Patent Cooperation Treaty (the PCT) of 19 June 1970 ([1980] ATS 6) . The amending Act was spent once it amended the principal Act. Furthermore, the Patents Act 1952 has since been repealed and replaced by the Patents Act 1990 , which has specific provisions implementing Australia’s obligations under the PCT.

Skilling Australia’s Workforce Act 2005

Item 2: The whole of the Act

Item 2 repeals the Skilling Australia’s Workforce Act 2005 (the SAW Act). The SAW Act was the vehicle for the then Government’s National Training Arrangements for the funding period 2005-2008. As this function has now been superseded by the National Agreements for Skills and Workforce Development and all payments under the SAW Act have been made with no further financial actions needed to be undertaken, the Act is now redundant and suitable for repeal.

The SAW Act requires the tabling in the Parliament of an Annual National Report (ANR) on vocational education and training. Performance data contained in the ANR is first published by the National Centre for Vocational Research. Therefore, the ANR is no longer regarded by the sector as being fit for purpose.

Part 2 - Other amendments

Outline

Part 2 contains consequential amendments to the Social Security Act 1991 to those made by Part 1.

Notes on Clauses

Social Security Act 1991

Item 3: Subsection 23(1) (definition of VET provider)

Item 3 amends subsection 23(1) to remove the reference to the SAW Act in the current definition of VET provider. Thisamendment is consequential to the repeal of the SAW Act by Item 2 of this Schedule.

 



Schedule 6 - Prime Minister and Cabinet

Outline

This Schedule makes minor amendments and repeals provisions in Acts administered in the Prime Minister and Cabinet portfolio.

Notes on Clauses

Aboriginal and Torres Strait Islander Commission « Amendment » Act 2005

Before its abolition in 2005, the Aboriginal and Torres Strait Islander Commission (ATSIC) had powers under the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) to:

·                 make certain grants (including grants of money and interests in land), or to make a loan of money, to individuals or bodies (ATSIC Act, section 14); and

·                 guarantee due payment of a loan made to individuals or bodies (ATSIC Act, section 15)

for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.

ATSIC exercised these powers to assist organisations to acquire an interest in land for a broad range of activities (eg, pastoral services, health services, housing, and business development). In practice, ATSIC assisted organisations, typically Indigenous community organisations, rather than individuals.

An organisation that acquired an interest in land with ATSIC assistance could not dispose of the interest without ATSIC’s consent (ATSIC Act, section 21). Following ATSIC’s abolition, the Aboriginal and Torres Strait Islander Commission « Amendment » Act 2005 (ATSICA Act) vested ATSIC’s statutory consent power in the ‘appropriate consenting authority’ (the Commonwealth, Indigenous Business Australia, or the Indigenous Land Corporation, depending on the nature of the interest) (ATSICA Act, Schedule 1, subitem 200(2)).

Item 1: After subitem 200(1) of Schedule 1

Item 1 will insert new subitem 200(1A) into Schedule 1 of the ATSICA Act. This will enable the appropriate consenting authority to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required.

As with a decision under subitem 200(2), the appropriate consenting authority will have the flexibility to consider a broad range of factors when deciding whether to remove the consent requirement in a particular case.

Item 2: Subitem 200(2) of Schedule 1

Item 3: Subitem 200(5) of Schedule 1

Item 4: Subitem 200(12) of Schedule 1

Item 5: Subitem 200(13) of Schedule 1 (paragraphs (b) and (c) of the definition of appropriate consenting authority)

Items 2-5 will make consequential amendments to Item 200 of Schedule 1 of the

ATSICA Act, as a result of new subitem 200(1A).

Item 4 is included to make it clear that any notice provided by the appropriate consenting authority under subitem 200(1A) would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (the LI Act).

Classification (Publications, Films and Computer Games) Act 1995

Item 6: Section 114

Item 6 will repeal section 114 of the Classification (Publications, Films and Computer Games) Act 1995 (the CPFCG Act).

Section 114 of the CPFCG Act provides for an independent review of the operation of the ‘prohibited material’ measure in Part 10 of the CPFCG Act. Part 10 makes it an offence to possess or control prohibited material in a prohibited material area, or to supply (or prepare, transport, guard, conceal or possess with intention to supply) prohibited material in, or to, a prohibited area. Prohibited material includes material that is pornographic or excessively violent.

The prohibited material measure in Part 10 of the CPFCG Act is part of a package of legislative measures related to the National Partnership Agreement on Stronger Futures in the Northern Territory (Stronger Futures NPA).

The Commonwealth Government, in collaboration with the Northern Territory Government, is currently conducting a formal revision of the Stronger Futures NPA. The revision aims to better align the Stronger Futures package with Government priorities and ensure funding is used to its greatest effect. The revision includes an assessment of the effectiveness of Stronger Futures measures.

Given these developments, section 114 is no longer required.

Stronger Futures in the Northern Territory Act 2012

Items 7-13 will repeal various provisions of the Stronger Futures in the Northern Territory Act 2012 (SF Act) dealing with the ‘tackling alcohol abuse’ measure in Part 2 and review of the Stronger Futures Act.

The SF Act contains several legislative measures supporting the Stronger Futures NPA.

Item 7: Section 3

Item 8: Section 3

Item 9: Section 6

Item 10: Section 6

Items 7-10 will make consequential amendments to the guide to the SF Act and Part 2, as a result of the repeal of Divisions 5 and 8 of Part 2 and section 117.

Item 11: Divisions 5 and 8 of Part 2

Item 11 will repeal Divisions 5 and 8 of Part 2 of the SF Act.

Division 5 of Part 2

Division 5 gives the Minister the power to request the Northern Territory Minister to appoint an assessor to conduct an assessment in relation to licensed premises in certain circumstances. The Minister does not have any power to enforce a request.

The Northern Territory Minister and the Northern Territory Licensing Commission are responsible for monitoring and regulating the activities of licensed premises in the

Northern Territory under Northern Territory laws, including the Liquor Act (NT) and the

Northern Territory Licensing Commission Act (NT).

Given the Minister cannot enforce a request, Division 5 is of limited impact. Repeal of Division 5 will also remove an unnecessary administrative process and Commonwealth interference in Northern Territory regulatory processes and policy.

Division 8 of Part 2

Division 8 requires the Minister, and the Northern Territory Minister, to cause an independent review to be undertaken of the operation of Commonwealth and

Northern Territory laws relating to alcohol.

The Commonwealth Government, in collaboration with the Northern Territory Government, is currently conducting a formal review of the Stronger Futures NPA. The review aims to better align the Stronger Futures package with government priorities and ensure funding is used to its greatest effect. Thereview includes an assessment of the effectiveness of Stronger Futures measures.

In addition, the House of Representatives Standing Committee on Indigenous Affairs recently completed an inquiry into the harmful « use » of alcohol in Aboriginal and Torres Strait Islander communities. Submissions specifically relating to Northern Territory alcohol laws were provided for the inquiry’s consideration by the Northern Territory Government, private individuals and a range of stakeholder groups.

Given these developments, Division 8 is no longer required. The repeal of Division 8 will also avoid unnecessary interference with Northern Territory laws.

Items 12: Section 111

Item 12 makes a consequential « amendment » to the guide to Part 5 of the SF Act as a result of the repeal of section 117.

Item 13: Section 117

Item 13 will repeal section 117 of the SF Act . Section 117 requires the Minister to cause an independent review of the first 3 years of the operation of the SF Act. The Commonwealth’s revision of the Stronger Futures NPA means the review requirement under section 117 is no longer required.

 



Schedule 7 - Social Services

Outline

This Schedule makes minor amendments and repeals provisions in Acts administered in the Social Services portfolio.

Part 1- Repeal of Acts

Home and Community Care Act 1985

Outline

This Part will repeal the Home and Community Care Act 1985 (the HCC Act) in its entirety.

The HCC Act was made redundant when the bilateral Home and Community Care Program (HACC) Review Agreements between the Commonwealth and each of the state and territory governments were deemed National Partnership Agreements in the context of the Intergovernmental Agreement on Federal Financial Relations of 2008, made under the Federal Financial Relations Act 2009 (the FFR Act). Since then, there has been a separation of roles and responsibilities in relation to HACC in all states and territories, except Victoria and Western Australia. Negotiations in these states continue. Repealing this legislation would be consistent with the Government’s commitment to remove redundant legislation. This will not impact on the requirements of the Victorian and Western Australian Governments and HACC providers in these states, which remain governed by the HACC Review Agreement.

Notes on Clauses

Item 1: The whole of the Act

Item 1 will repeal the HCC Act. This Act was made redundant when the bilateral HACC Review Agreements between the Commonwealth and each of the state and territory governments were deemed National Partnerships in the context of the Intergovernmental Agreement on Federal Financial Relations of 2008, made under the FFR Act.

Part 2- Approved provider obligations

Aged Care Act 1997

Outline

This Part will amend the obligations in the Aged Care Act 1997 (the AC Act) for approved providers to notify the Secretary of certain changes to any of their key personnel.

A number of amendments are required to the AC Act to enact policy decisions relating to the cessation of the requirement for providers to notify the Department, within 28 days, of any changes to key personnel.

 

Notes on Clauses

Item 2: Subsection 9-1(1)

Item 3: Subsection 9-1(3)

Item 4: Subsection 9-1(3A)(a)

Item 5: Subsections 9-1(6), (7) and (8)

Item 6: Application provision

Currently an approved aged care provider must notify the Department of Social Services of any changes in key personnel within 28 days of the change occurring. Items 2 to 6 amend or repeal sections of the AC Act that impose a regulatory duty on approved providers of aged care to notify the Department of any changes in Key Personnel. This « amendment » will contribute to the reduction of red tape for providers.

Part 3 - « Use » or disclosure of protected information

Outline

This part makes an addition to paragraph 202(2)(e) to allow a person to disclose (or further « use » or record) protected information that has been disclosed to them under

subsection 202(2C) for the purpose of research, statistical analysis or policy development, where it is consistent with the purpose of the initial disclosure. This eliminates the burden on researchers having to seek permission to do so, and enhances the social and economic value of public sector information.

Notes on Clauses

Social Security (Administration) Act 1999

Item 7: Paragraph 202(2)(e)

Item 7 will insert a reference to subsection 202(2C) in paragraph 202(2)(e).

Subsection 202(2C) provides that a person may obtain, record, disclose or « use » protected information if the Secretary believes that it is reasonably necessary for the purposes of research, statistical analysis or policy development. Paragraph 202(2)(e) provides that a person may further disclose, « use » or record protected information if the further disclosure, recording or « use » , is made for the purpose for which the information was originally disclosed to the person under subsection 202(2C) of the Social Security (Administration) Act 1999 (the SSA Act).

The purpose of this « amendment » is to allow a person to disclose (or further « use » or record) protected information that has been disclosed to them under subsection 202(2C) for the purposes of research, statistical analysis or policy development.

Further disclosure, « use » or recording is currently permitted if the disclosure is made under a public interest certificate for a public interest purpose. This proposal would align research disclosures with the treatment of information disclosed under a public interest certificate and aims to allow researchers to do with protected information what is necessary to conduct their research project.

Item 8: Application provision

Item 8 will provide that the « amendment » made by this part will apply in relation to protected information originally disclosed to a person under subsection 202(2C) for research, statistical analysis or policy development purposes, on or after the commencement of this item.

Part 4 - Removal of spent social security payments

Outline

This part will repeal redundant provisions related to various ‘spent social security payments’. They include the:

·          various one-off payments to the aged, older Australians and carers;

·          economic security strategy payments;

·          training and learning bonus;

·          farmers hardship bonus;

·          mature age allowances;

·          special needs age pension and special needs wife pension;

·          Northern Territory Community Development Employment Projects (CDEP) transition payment; and

·          Clean energy advance.

Removing these redundant provisions will simplify the social security legislation and make it more accessible.

One-off payments to aged and older Australians

Various one-off payments to the aged and older Australians will be repealed. Qualification for these payments was linked to circumstances on a test day in 2001, 2006, 2007 and 2008. No person has been able to qualify for these payments since the 2008 test day.

One-off payments to carers eligible for carer payment or carer allowance

Various one-off payments to carers eligible for carer payment or carer allowance will be repealed. Qualification for these payments was linked to circumstances on a test day in 2004, 2005, 2006, 2007 and 2008. No person has been able to qualify for these payments since the 2008 test day.

Economic security strategy payments

Various economic security strategy payments will be repealed. Qualification for this lump sum payment was linked to a test day of 14 October 2008. No person is able to qualify for these payments since the 2008 test day.

Training and learning bonus and farmers hardship bonus

The training and learning bonus and farmers hardship bonus will be repealed. These payments were linked to a test day of 3 February 2009. No person is able to qualify for these payments since the 2009 test day.

Mature age allowances and mature age partner allowance

The mature age allowance was introduced in 1994 as an interim measure to assist older unemployed people facing difficulties obtaining work in a tight labour market. From 1 July 1996, mature age allowance was modified and became a permanent payment. Recipients of mature age allowance as at 30 June 1996 continued to receive the pension under savings provisions. New grants of mature age allowance between 1 July 1996 and

19 September 2003 were assessed under the allowance income and assets tests. There have been no new grants of mature age allowance since 20 September 2003.

Special Needs Age Pension and Special Needs Wife Pension

Special needs pension was closed to new claimants with no new claims possible after

30 June 1995 (special needs wife pension) or 20 September 2000 (for other special needs pensions). There are no longer any recipients of special needs age pension and special needs wife pension.

Northern Territory CDEP transition payment

The Northern Territory CDEP transition payment will be repealed. This payment was no longer payable from 1 July 2008.

Clean Energy Advance

The clean energy advance will be repealed. This payment ceased on 31 December 2013.

Notes on Clauses

Division 1 - Main Amendments

Social Security Act 1991

Item 9: Subsection 4(6A) (table item 7)

Item 9 will repeal subsection 4(6A) (table Item 7) which refers to the mature age allowance, as people can no longer qualify for this allowance and no person continues to receive it.

 

Item 10: Paragraph 8(8)(jab)

Item 10 will repeal paragraph 8(8)(jab) which refers to spent one-off payments to families and carers that people can no longer qualify for or continue to receive.

Item 11: Paragraphs 8(8)(jac) to (jaf)

Item 12: Paragraphs 8(8)(ya), (yc), (ye), (yg), (yi) and (yj)

Item 11 and 12 will remove references to spent social security payments that people can no longer qualify for or continue to receive.

Item 13: Subsection 12C(5) (paragraph (ca) of the definition of couple’s assets deeming provisions)

Item 13 will repeal paragraph (ca) of subsection 12C(5) from the definition of couple’s assets deeming provisions . This « amendment » is consequential to the removal of Part 2.12B (mature age allowance).

Item 14: Paragraphs 16A(3)(b) and (4)(b)

Item 14 will omit “mature age allowance under Part 2.12B”, as  people can no longer qualify for this allowance and no person continues to receive it.

Item 15: Subsection 17(1) (paragraphs (h), (i) and (j) of the definition of compensation affected payment)

Item 15 will repeal paragraphs (h), (i) and (j) of subsection 17(1) relating to the special needs disability support wife pension, the mature age allowance and the mature age partner allowance from the definition of compensation affected payment, as  people can no longer qualify for these allowances and no person continues to receive them.

Item 16: Subsection 17(1) (definition of special needs disability support wife pension )

Item 16 will repeal the definition of special needs disability support wife pension from subsection 17(1), as  people can no longer qualify for this pension and no person continues to receive it.

Item 17: Paragraphs 19C(2)(c) and (3)(c)

Item 17 will repeal paragraphs 19C(2)(c) and (3)(c) as they both relate to the mature age allowance, as people can no longer qualify for or continue to receive.

Item 18: Paragraph 19C(8)(d)

Item 18 will omit “, partner allowance and mature age allowance under Part 2.12B”, and substitute with “or partner allowance” as  people can no longer qualify for the mature age allowance and no person continues to receive it.



Item 19: Subsection 19D(5) (subparagraph (f)(v) of the definition of maximum payment rate)

Item 20: Subsection 19D(5) (paragraphs (g) and (j) of the definition of maximum payment rate)

Items 19 and 20 will remove references to the mature age allowance from the definition of maximum payment rate, as people can no longer qualify for this allowance and no person continues to receive it.

Item 21: Subsection 21(1) (definition of partner bereavement payment )

Item 22: Subsection 23(1) (definition of advance qualification day )

Item 23: Subsection 23(1) (definition of clean energy advance )

Item 24: Subsection 23(1) (definition of clean energy advance daily rate )

Item 25: Subsection 23(1) (definition of clean energy advance period )

Item 26: Subsection 23(1) (paragraph (a) of the definition of clean energy bonus )

Item 27: Subsection 23(1) (paragraph (a) of the definition of clean energy payment )

Item 28: Subsection 23(1) (definition of clean energy qualifying payment )

Item 29: Subsection 23(1) (definition of mature age allowance )

Item 30: Subsection 23(1) (paragraph (d) of the definition of newly arrived resident’s waiting period)

Item 31: Subsection 23(1) (definition of Northern Territory CDEP transition payment )

Item 32: Subsection 23(1) (definition of number of advance days )

Item 33: Subsection 23(1) (paragraph (ea) of the definition of social security benefit )

Item 34: Subsection 23(1) (paragraph (j) of the definition of social security entitlement )

Item 35: Subsection 23(1) (paragraphs (k) and (l) of the definition of social security entitlement)

Item 36: Subsection 23(1) (paragraph (i) of the definition of social security pension )

Item 37: Subsection 23(1) (paragraphs (d) and (e) of the definition of special employment advance qualifying entitlement)

Item 38: Subsection 23(1) (definition of transition day )

Item 39: Subsection 23(1) (paragraph (ff) of the definition of waiting period )

Items 21 to 39 will make amendments consequential to the repeal of the spent social security payments, by repealing references to the spent payments in the definitions in subsection 23(1).

Item 40: Part 2.2B

Item 40 will repeal P art 2.2B which sets out qualification requirements for various lump sum payments to aged and older Australians that people can no longer qualify for or continue to receive.

Item 41: Part 2.5A

Item 41 will repeal Part 2.5A which sets out qualification requirements for one-off payments to carers eligible for carer payment that people can no longer qualify for or continue to receive.

Item 42: Section 573A (table item 5)

Item 42 will omit “Part 2.12A or 2.12B”, and substitute with “former Part 2.12A or 2.12B”.

Item 43: Parts 2.12A and 2.12B

Item 43 will repeal Parts 2.12A, which provides for mature age allowances before

1 July 1996, and Part 2.12B, which provides for the mature age allowance after 1 July 1996, as people can no longer qualify for this allowance and no person continues to receive it.

Item 44: Subparagraph 771HA(1)(c)(i)

Item 45: Paragraph 771NU(1)(e)

Items 44 and 45 will omit “mature age allowance,” as people can no longer qualify for this allowance and no person continues to receive it.

Item 46: Paragraph 771NU(3)(e)

Item 47: Subsection 771NX(1) (method statement, step 4, note)

Item 48: Subsection 771NX(6)

Items 46, 47 and 48 will omit “disability support pension or mature age allowance”, and substitute with “or disability support pension”, as people can no longer qualify for the mature age allowance and no person continues to receive it.

Item 49: Division 1A of Part 2.16

Item 49 will repeal Division 1A of Part 2.16 relating to the time limit on granting of the special needs wife pension, as people can no longer qualify for this pension and no person continues to receive it.

Item 50: Section 771PA

Item 50 will omit “a special needs age pension,” from Section 771PA, as people can no longer qualify for this pension and no person continues to receive it.

Item 51: Sections 772 and 774

Item 51 will repeal Sections 772 and 774 relating to the qualification requirements for the special needs age pension and the special needs wife pension, as people can no longer qualify for these pensions and no person continues to receive it.

Item 52: Paragraphs 796(1)(a) and (c)

Item 52 will repeal paragraphs 796(1)(a) and (c) as they relate to the special needs age pension and the special needs wife pension, which people can no longer qualify for or continue to receive.

Item 53: Subsection 796(4)

Item 53 removes a reference to special needs sole parent pension from subsection 796(4), as people can no longer qualify for this pension and no person continues to receive it.

Item 54: Point 796-B5 (heading)

Item 55: Paragraph 796-B5(a)

Item 56: Paragraph 796-B5(c)

Item 57: Point 796-B6 (heading)

Item 58: Paragraph 796-B6(a)

Item 59: Subparagraphs 796-B6(d)(i) and (ii)

Items 54 to 59 will remove references to the special needs age pension, as people can no longer qualify for this pension and no person continues to receive it.

Item 60: Point 796-B7

Item 60 will repeal point 796-B7, which relates to the special needs wife pension, as people can no longer qualify for this pension and no person continues to receive it.

Item 61: Point 796-B8 (heading)

Item 61 will repeal the heading Australian working life residence (recipient of special needs sole parent pension or widow B pension) , and substitute with Australian working life residence (recipient of special needs widow B pension) , as people can no longer qualify for the special needs sole parent pension and no person continues to receive it.

Item 62: Paragraph 822(1)(a)

Item 62 will omit “age,” from paragraph 822(1)(a), as people can no longer qualify for the special needs age pension and no person continues to receive it.

Item 63: Paragraph 822(1)(a)

Item 63 will omit “or wife” from paragraph 822(1)(a), as people can no longer qualify for the special needs wife pension and no person continues to receive it.

Item 64: Parts 2.17 and 2.18

Item 64 will repeal Parts 2.17 and 2.18. These parts outline the qualifications for the economic security strategy payment and the training and learning bonus, as well as the amount of economic security strategy payment and the training and learning bonus individuals are eligible for. People can no longer qualify for these payments and no person continues to receive them.

Item 65: Division 1 of Part 2.18A

Item 65 will repeal Division 1 of Part 2.18A, which relates to the necessary qualifications for the clean energy advance and the amount paid. People can no longer qualify for this payment and no person continues to receive it.

Item 66: Part 2.19A

Item 66 will repeal Part 2.19A, which outlines eligibility and amounts payable for one-off payments to carers eligible for carer allowance. People can no longer qualify for this payment and no person continues to receive it.

Item 67: Section 1047 (paragraph (b) of the definition of designated social security payment)

Item 67 will repeal paragraph (b) relating to the mature age allowance from the definition of designated social security payment , as people can no longer qualify for this allowance and no person continues to receive it.

Item 68: Subsection 1061EE(1)

Item 68 will omit “, mature age allowance under Part 2.12B” from subsection 1061EE(1), as people can no longer qualify for this payment and no person continues to receive it.

Item 69: Subsection 1061EE(3) (heading)

Item 69 will repeal the heading Formula for maximum amount of advance: widow allowance and mature age allowance , and substitute with Formula for maximum amount of advance: widow allowance, as people can no longer qualify for the mature age allowance and no person continues to receive it.

Item 70: Subsection 1061EE(3)

Item 71: Subsection 1061EE(6) (paragraph (b) of the definition of fortnightly payment rate)

Items 70 and 71 will omit references to the mature age allowance as people can no longer qualify for this payment and no person continues to receive it.

Item 72: Subsection 1061EN(2)

Item 73: Subsection 1061EX(7)

Items 72 and 73 will omit “, 660YCH” as it relates to the mature age allowance, which people can no longer qualify for and no person continues to receive.

Item 74: Subsection 1061JU(4) (subparagraph (f)(v) of the definition of maximum basic rate)

Item 75: Subsection 1061JU(4) (paragraphs (g) and (j) of the definition of maximum basic rate)

Items 74 and 75 will repeal the paragraphs relating to the mature age allowance and the mature age partner allowance, which people can no longer qualify for and no person continues to receive.

Item 76: Subsection 1061Q(3B)

Item 76 will repeal subsection 1061Q(3B). This subsection relates to the mature age allowance, which people can no longer qualify for and no person continues to receive.

Item 77: Paragraph 1061Q(3C)(a)

Item 78: Paragraph 1061Q(3C)(b)

Item 79: Paragraph 1061Q(3C)(e)

Item 80: Paragraph 1061Q(3C)(e)

Items 77 to 80 will remove references to the mature age allowance in relation to qualification for telephone allowance, as people can no longer qualify for the mature age allowance and no person continues to receive it.

Item 81: Subparagraph 1061T(1)(a)(ii)

Item 81 will omit “a mature age allowance,” from Subparagraph 1061T(1)(a)(ii) as people can no longer qualify for this payment and no person continues to receive it.

Item 82: Part 2.27

Item 82 will repeal Part 2.27. This Part outlines qualification for, payability of, and rate of Northern Territory CDEP Transition Payment. People can no longer qualify for this payment and no person continues to receive it.

Item 83: Subsection 1061ZA(1)

Item 84: Subsection 1061ZA(1A)

Items 83 and 84 will remove references to the mature age allowance in relation to qualification for the pensioner concession card, as people can no longer qualify for the mature age allowance allowance and no person continues to receive it.

Item 85: Section 1061ZB

Item 85 will repeal Section 1061ZB, which outlines the extended qualification rule for former recipients of mature age allowance, as people can no longer qualify for this allowance and no person continues to receive it.

Item 86: Subsection 1061ZC(3)

Item 87: Subsection 1061ZD(5)

Item 88: Subsection 1061ZE(5)

Item 89: Subsection 1061ZEA(4)

Items 86 to 89 will omit “or a mature age allowance under Part 2.12B”, as people can no longer qualify for this allowance and no person continues to receive it.

Item 90: Subparagraph 1061ZUC(1)(a)(i)

Item 90 is consequential to the removal of section 1061ZB.

Item 91: Paragraph 1064(1)(d)

Item 91 will omit “and” from paragraph 1064(1)(d).

Item 92: Paragraphs 1064(1)(f) and (g)

Item 92 will repeal paragraphs 1064(1)(f) and (g), which relate to the mature age allowance and the mature age partner allowance, as people can no longer qualify for these allowances and no person continues to receive them.

Item 93: Subparagraphs 1064(5)(b)(v) and (7)(b)(v)

Item 93 will repeal subparagraphs 1064(5)(b)(v) and (7)(b)(v) which relate to the mature age allowance, as people can no longer qualify for this allowance and no person continues to receive it.

Item 94: Paragraph 1064-E3(a)

Item 94 will omit “, carer pension, mature age allowance under Part 2.12A or mature age partner allowance”, and substitute with “or carer pension” from paragraph 1064-E3(a), as people can no longer qualify for the mature age allowance or the mature age partner allowance and no person continues to receive them.

Item 95: Point 1066-A1 (note 3)

Item 95 is consequential to the removal of Part 2.5A (One-off payments to carers eligible for carer payment).

Item 96: Section 1067G (table items 8 and 9 in Module L of the Youth Allowance Rate Calculator)

Item 96 will repeal table Items 8 and 9 in Module L of the Youth Allowance Rate Calculator from section 1067G, thereby removing references to the mature age allowance and mature age partner allowance, as people can no longer qualify for these allowances and no person continues to receive them.

Item 97: Section 1068 (heading)

Item 98: Paragraph 1068(1)(ca)

Item 99: Subsection 1068(3) (note 1)

Item 100: Point 1068-B1

Item 101: Point 1068-B1 (table item 5A)

Item 102: Point 1068-B1B

Item 103: Subparagraph 1068-D1(c)(ia)

Item 104: Paragraph 1068-G8A(a)

Item 105: Paragraph 1070(e)

Item 106: Section 1070H (heading)

Item 107: Section 1070Q (heading)

Item 108: Paragraph 1073(2)(f)

Item 109: Subsection 1161(4)

Items 97 to 109 will remove references to the mature age allowance, as people can no longer qualify for this allowance and no person continues to receive it.

Item 110: Subsection 1161(7)

Item 110 will repeal subsection 1161(7), and substitute with:

             (7)  Despite subsection (1), Division 4 does not apply to a disability support wife pension received by a person if:

                     (a)  the compensation was received by the person on or after 1 May 1987 but before 1 January 1994; and

                     (b)  the claim for the pension was made on or after 1 May 1987 but before 1 January 1994.

This will remove reference to a special needs disability support wife pension, as people can no longer qualify for this pension and no person continues to receive it.

Item 111: Subsection 1185(5) (paragraph (b) of the definition of dependency-based payment)

Item 111 will repeal paragraph (b) of subsection 1185(5) relating to the mature age allowance from the definition of dependency-based payment , as people can no longer qualify for this allowance and no person continues to receive it.

Item 112: Subparagraph 1187(1)(a)(vi)

Item 113: Subparagraphs 1187(1)(a)(vii) and (viii)

Item 114: Subparagraph 1187(1A)(a)(iva)

Item 115: Subparagraph 1187(1A)(a)(va)

Item 116: Subparagraph 1187(2)(a)(i)

Item 117: Subparagraph 1187(2)(a)(iii)

Item 118: Subparagraph 1187(2)(c)(ii)

Item 119: Subparagraph 1187(2)(c)(iii)

Item 120: Subparagraphs 1188C(1)(a)(x) and (xi)

Item 121: Subparagraph 1188C(3)(a)(vi)

Item 122: Subsection 1188C(5) (table items 13, 14, 15, 29 and 30)

Item 123: Subparagraphs 1188D(2)(a)(ix) and (x)

Item 124: Subparagraph 1188F(2)(a)(vi)

Item 125: Subparagraph 1188F(2)(a)(vii)

Item 126: Subparagraphs 1188F(2)(b)(ix) and (x)

Item 127: Section 1190 (table item 28, column 4)

Item 128: Section 1217 (table items 16 and 17)

Item 129: Subsection 1218A(1)

Items 112 to 129 will remove references to the mature age allowance and mature age partner allowance, as people can no longer qualify for these allowances and no person continues to receive them.

Item 130: Sections 1223ABAA, 1223ABA and 1223ABAAA

Item 130 will repeal sections 1223ABAA, 1223ABA and 1223ABAAA. This will remove references to redundant one-off payments to older Australians, redundant one-off payments to carers, and debts arising in respect of redundant economic security strategy payments.

Item 131: Section 1223ABAAB

Item 131 will repeal section 1223ABAAB. This will remove references to the training and learning bonuses, as people can no longer qualify for these bonuses and no person continues to receive them.

Item 132: Section 1224

Item 132 will repeal section 1224 which relates to debts associated with the clean energy advance. People can no longer qualify for this advance and no person continues to receive it.

Item 133: Paragraph 1231(1AA)(b)

Item 133 will omit “an economic security strategy payment,” from paragraph 1231(1AA)(b), as people can no longer qualify for this payment and no person continues to receive it.

Social Security (Administration) Act 1999

Item 134: Sections 12A, 12AAA, 12AA, 12AB and 12K

Item 134 will repeal sections 12A, 12AAA, 12AA, 12AB and 12K. This will remove references to redundant one-off payments to the aged, redundant one-off payments to older Australians, redundant one-off payments to carers, the redundant economic security strategy payment or training and learning bonus, and the redundant clean energy advance.

Item 135: Paragraphs 37(4)(a) and (b)

Item 135 will repeal paragraphs 37(4)(a) and (b) to remove references to mature age allowance, as people can no longer qualify for this allowance and no person continues to receive it.

Item 136: Subsection 47(1) (paragraphs (g), (ga), (gb) and (gc) of the definition of lump sum benefit)

Item 137: Subsection 47(1) (paragraphs (h) to (hs), (ht), (hu) and (k) of the definition of lump sum benefit)

Item 138: Sections 47A, 47AA, 47B, 47C and 47D

Items 136 to 138 will remove references to redundant one-off payments.

Item 139: Paragraphs 52(1)(e) and (f)

Item 139 will repeal paragraphs 52(1)(e) and (f) to remove the references to the mature age allowance and mature age partner allowance, as people can no longer qualify for these allowances and no person continues to receive them.

Item 140: Paragraph 52(1)(k)

Item 141: Paragraph 52(1)(l)

Items 140 and 141 will repeal paragraph 52(1)(l) to remove a reference to the Northern Territory CDEP transition payment, as people can no longer qualify for this payment and no person continues to receive it.

Item 142: Paragraphs 66(1)(f) and (i)

Item 142 will repeal paragraphs 66(1)(f) and (i) to remove references to the special needs age pension and the special needs wife pension, as people can no longer qualify for these pensions and no person continues to receive them.

Item 143: Section 123TC (paragraph (r) of the definition of category I welfare payment )

Item 144: Section 123TC (paragraph (a) of the definition of clean energy income-managed payment)

Item 145: Section 123TC (definition of economic security strategy payment )

Item 146: Section 123TC (definition of household stimulus payment )

Item 147: Section 123TC (paragraph (k) of the definition of social security bereavement payment)

Items 143 to 147 will make amendments consequential to the repeal of the spent social security payments, by repealing references to spent payments in the definitions in section 123TC.

Item 148: Subdivision DB of Division 5 of Part 3B

Item 148 will repeal Subdivision DB of Division 5 of Part 3B, removing the reference to redundant economic security strategy payments and household stimulus payments as people can no longer qualify for these payments and no person  continues to receive them .

Item 149: Paragraph 144(daa)

Item 149 will repeal Paragraph 144(daa) to remove the reference to the Northern Territory CDEP transition payment, as people can no longer qualify for this payment and no person continues to receive it.

Item 150: Subclause 1(1) of Schedule 1 (paragraph (j) of the definition of social security periodic payment)

Item 150 will repeal subclause 1(1) of Schedule 1 (paragraph (j) of the definition of social security periodic payment ), to remove reference to the Northern Territory CDEP transition payment, as people can no longer qualify for this payment and no person continues to receive it.

Division 2 - Other amendments

Income Tax Assessment Act 1936

Items 151: Subsection 160AAA(1) (paragraph (a) of the definition of rebatable benefit )

Items 152: Subsection 160AAA(1) (paragraph (d) of the definition of rebatable benefit )

Items 151 and 152 will make amendments consequential to the removal of the mature age allowance and the Northern Territory CDEP transition payment. These amendments are required as the provisions in the Income Tax Assessment Act 1936 providing that the mature age allowance and the Northern Territory CDEP transition payment are a rebatable benefit and are now redundant.

Income Tax Assessment Act 1997

Item 153: Section 11-15 (table item headed “social security or like payments”)

Item 154: Section 11-15 (table item headed “social security or like payments”)

Item 155: Section 11-15 (table item headed “social security or like payments”)

Item 156: Section 11-15 (table item headed “social security or like payments”)

Item 157: Section 11-15 (table item headed “social security or like payments”)

Item 158: Section 11-15 (table item headed “social security or like payments”)

Item 159: Paragraphs 52-10(1)(ba) to (w)

Item 160: Paragraphs 52-10(1)(x) and (y)

Item 161: Subsections 52-10(1CA) to 1E)

Item 162: Subsections 52-10(1F) and (1G)

Item 163: Subsections 52-10(table items 15.1, 16.1, 17.1, 26.1 and 30.1 to 30.4)

Item 164: Section 52-15 (table item 1)

Item 165: Section 52-15 (table item 1)

Item 166: Subsection 52-20(3) (table items 7 and 8)

Item 167: Subsection 52-25(1) (table)

Item 168: Subsection 52-25(1) (table)

Item 169: Subsection 52-30(1) (table)

Item 170: Section 52-40 (table items 15, 16, 17, 26 and 30)

Item 171: Sections 52-160 and 52-165

Items 153 to 171 will make amendments consequential to the removal of the spent social security payments. These amendments are required as there is no longer a need to give special tax treatment to these redundant payments.

Veterans’ Entitlements Act 1986

Item 172: Paragraph 5H(8)(pab)

Item 173: Subsection 118ND(4) (paragraph (k) of the definition of bereavement payment provisions)

Items 172 and 173 will make amendments consequential to the removal of spent one-off payments to carers eligible for carer payment or carer allowance, and mature age allowances and mature age partner allowance.

Division 3 - Saving provisions

Item 174: Saving provisions

Subitem 174(1) provides that chapter 5 of the SS Act (which provides for overpayments and debt recovery) will continue to apply in relation to the following payments:

·          one-off payments to the aged and older Australians,

·          one-off payments to carers eligible for carer payment and carer allowance,

·          economic security strategy payment,

·          training and learning bonus;

·          farmers hardship bonus,

·          mature age allowances,

·          special needs age pension and special needs wife pension,

 

·          Northern Territory CDEP transition payment; and

·          clean energy advance.

This is intended to ensure that the capacity to recover and waive debts in relation to people who may owe debts relating to these spent payments is preserved.

Subitem 174(2) provides that Subdivision DE of Division 5 of Part 3B of the SSA Act

(which provides for income management deductions from clean energy payments) continues to apply. Clean energy payment may be payable on or after the commencement of this Part only in the situation where a customer sought review of an original decision regarding the clean energy advance that was made before commencement. If such a review resulted in a decision favourable to the customer, the ability to make a clean energy advance on or after commencement is preserved.

This is to preserve the capacity to make deductions under the income management regime in relation to clean energy advance payments.

Subitem 174(3) provides that Part 3B of the SSA Act (which provides for income management of social security payments) continues to apply in relation to the following payments:

·          an economic security strategy payment;

·          a household stimulus payment; and

·          a Northern Territory CDEP transition payment;

that was made before the commencement of this item.

This is to preserve the capacity for income management to apply in relation to these payments, if the payments were made before commencement.

Subitem 174(4) provides that Part 4 of the SSA Act (which provides for review of decisions) continues to apply in relation to a decision made by the Secretary relating to the payment to a person of clean energy advance, where the decision is made before the commencement of this item.

This is to preserve the right of a person to seek a review of a decision in relation to the payment of clean energy advance, if the decision was made before the commencement of this Item.

Subitem 174(5) provides that section 47D (which provides for payment of clean energy advance) of the SSA Act continues in effect in relation to a decision made by the Secretary relating to the payment to a person of clean energy advance, if the decision is made on or after the commencement of this Item.

Subitem 174(6) provides that subsection 52-10 of the Income Tax Assessment Act 1997 (which provides that clean energy advances are exempt from the income test) continues to apply in relation to a payment of clean energy advance.

Subitem 174(7) provides that Subdivision B of Division 17 of Part III of the Income Tax Assessment Act 1936 (which relates to tax rebate) continues to apply in relation to a payment of mature age allowance and the Northern Territory CDEP transition made before the commencement of this Item.

Part 5 - Removal of spent family assistance payments

Outline

This part repeals provisions in relation to the following spent family assistance payments:

·          one-off payment to families;

·          economic security strategy payment to families;

·          back to school bonus and single income family bonus;

·          Education Tax Refund (ETR) payment; and

·          clean energy advance.

Notes on Clauses

Division 1 - Main Amendments

A New Tax System (Family Assistance) Act 1999

Item 175: Subsection 3(1) (definition of back to school bonus)

Item 176: Subsection 3(1) (definition of clean energy advance)

Item 177: Subsection 3(1) (definition of economic security strategy payment to families)

Item 178: Subsection 3(1) (definition of ETR payment)

Item 179: Subsection 3(1) (definition of one-off payment to families)

Item 180: Subsection 3(1) (definition of single income family bonus)

Items 175 to180 make amendments consequential to the repeal of the spent family assistance payments, by repealing references to the spent payments in the definitions in subsection 3(1).

 

 

 

 

Item 181: Parts 5 to 8

Item 181 repeals Part 5 to Part 8 of the Family Assistance Act, which sets out the qualification criteria, rate calculation and other provisions relating to the following spent family assistance payments:

·          one-off payment to families (Part 5);

·          economic security strategy payment to families (Part 6);

·          back to school bonus and single income family bonus (Part 7);

·          ETR payment (Part 7A); and

·          clean energy advances (Part 8).

A New Tax System (Family Assistance) (Administration) Act 1999

Item 182: Subsection 32A(3)

Item 182 removes references to spent clean energy advances relating to Family Tax Benefit reconciliation in subsection 32A(3).

Item 183: Divisions 4A, 4B, 4C, 4CA and 4D of Part 3

Item 183 repeals the following Divisions of Part 3, which provide for the payment of spent family assistance payments:

·          Division 4A - one-off payment to families,

·          Division 4B - economic security strategy payment to families,

·          Division 4C - back to school bonus and single income family bonus,

·          Division 4CA - ETR payment, and

·          Division 4D - clean energy advances

Item 184: Paragraph 66(1)(fb)

Item 185: Paragraphs 66(1)(g) to (k)

Items 184 and 185 remove references to the spent family assistance payments in relation to inalienability of payments in subsection 66(1).

Item 186: Section 70

Item 187: Section 70

Item 188: Sections 71I, 71J, 71K, 71L and 71M

Item 189: Paragraph 74(a)

Item 190: Subsection 82(3) (paragraph (a) of the definition of debt)

Item 191: Subsection 93A(6) (paragraph (bf) of the definition of family assistance payment)

Item 192: Subsection 93A(6) (paragraphs (c) to (g) of the definition of family assistance payment)

Items 186 to 192 remove references to the spent family assistance payments in relation to debts in sections 70, 71I, 71J, 71K, 71L and 71M, paragraph 74(a) and subsections 82(3) and 93A(6).

Item 193: Subsection 106(3)

Item 194: Subsection 109D(4)

Item 195: Paragraph 109D(5)(a)

Items 193 to 195 remove references to the spent family assistance payments in relation to review of decisions in subsections 106(3) and 109D(4) and paragraph 109D(5)(a).

Item 196: Section 219TA (paragraph (hb) of the definition of relevant benefit)

Item 197: Section 219TA (paragraphs (i) to (m) of the definition of relevant benefit)

Items 196 to 197 remove references to the spent family assistance payments in relation to payment nominees in section 219TA.

Division 2 - Other Amendments

Income Tax Assessment Act 1997

Item 198: Section 11-15 (table item headed “family assistance”)

Item 199: Section 11-15 (table item headed “family assistance”)

Item 200: Section 11-15 (table item headed “family assistance”)

Item 201: Section 11-15 (table item headed “family assistance”)

Item 202: Section 11-15 (table item headed “social security or like payments”)

Item 203: Section 52-150

Item 204: Section 52-162

Items 198 to 204 make amendments consequential to the removal of spent family assistance payments. These amendments are required as the various provisions in the Income Tax Assessment Act 1997 giving special tax treatment to the spent family assistance payments are now redundant.

 

Social Security Act 1991

Item 205: Paragraph 8(8)(jaa)

Item 206: Paragraph 8(8)(jaba)

Item 207: Paragraph 916D(5)(b)

Items 205 to 207 remove references to the spent family assistance payments from the list of amounts that are excluded from the concept of income in subsection 8(8) and paragraph 916D(5)(b).

Social Security (Administration) Act 1999

Item 208: Section 123TC (paragraph (c) of the definition of clean energy income-managed payment)

Item 209: Section 123TC (definition of ETR income-managed payment)

Items 208 and 209 remove references to clean energy advances and ETR payments in definitions relating to income management in section 123TC.

Item 210: Subdivision DF of Division 5 of Part 3B

Item 210 repeals subdivision DF of Division 5 of Part 3B, which provides for deductions from ETR income-managed payments.

Veterans’ Entitlements Act 1986

Item 211: Paragraph 5H(8)(paa)

Item 212: Paragraph 5H(8)(zzb)

Item 213: Paragraph 5H(8)(zzh)

Items 211 to 213 make amendments consequential to the removal of spent family assistance payments, by removing references to the spent family assistance payments from the list of amounts that are excluded from the concept of income.

Division 3 - Saving provisions

Item 214: Saving provisions

Subitem 214(1) provides that Divisions 4CA and 4D of Part 3 (child care rebate) and Part 8B (nominees) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the NTS Admin Act) continue to apply for the purposes of any payment of clean energy advance or ETR payment.

 

Subitem 214(2) provides that Part 4 of the NTS Admin Act (overpayment and debt recovery) continues to apply in relation to a payment of one-off payment to families, economic security strategy payment to families, back to school bonus and single income family bonus, ETR payment or clean energy advance.

This is to ensure the capacity to recover and waive debts in relation to people who owe debts relating to these payments is preserved.

Subitem 214(3) provides that Part 5 of the NTS Admin Act (review of decisions) continues to apply in relation to a decision relating to the payment to a person of clean energy advance or ETR payment.

This is to preserve the right of a person to seek a review of a decision in relation to the payment of clean energy advance or ETR payment.

Subitem 214(4) provides that sections 52-150 and 52-162 of the Income Tax Assessment Act 1997 continue to apply in relation to a payment of clean energy advance or schoolkids bonus.

The effect of this savings provision is to preserve the exemption from income tax of the clean energy advance and the schoolkids bonus.

Subitem 214(5) provides that paragraphs 8(8)(jaa) and (jaba) of the SS Act continue to apply in relation to a payment of clean energy advance or ETR payment or the schoolkids bonus, made before, on or after commencement. That is, these payments will continue to be excluded from the definition of ‘income’ for the purposes of the SS Act.

Subitem 214(6) provides that paragraph 916D(5)(b) of the SS Act (which is about the excluded payment requirement under the qualification for low income supplement) continues to apply in relation to a day occurring before commencement.

Subitem 214(7) provides that subdivision DE of Division 5 of Part 3B of the SSA Act

(which provides for deductions from clean energy income-managed payments) continues to apply in relation to a clean energy advance.

This is to preserve the capacity to make deductions under the income management regime in relation to clean energy advance payments.

Subitem 214(8) provides that subdivision of DF of Division 5 of Part 3B of the SSA Act (which provides for deductions from ETR income managed payments) continues to apply in relation to an ETR income-managed payment.

This is to preserve the capacity to make deductions under the income management regime in relation to ETR income-managed payments.

Subitem 214(9) provides that paragraphs 5H(8)(paa) and (zzh) of the Veterans’ Entitlements Act 1986  (the VE Act) continue to apply in relation to a payment of clean energy advance or ETR payment or the schoolkids bonus. The effect is that these payments will continue to be excluded from the definition of ‘income’ for the purposes of the VE Act.



Schedule 8—Treasury

Outline

Schedule 8 will repeal inoperative Acts and provisions and make a number of consequential amendments to other Acts so as to remove references to those inoperative Acts.

Notes on Clauses

Part 1 - Repeals of Acts

Notes on Clauses

Papua and New Guinea Loan (International Bank) Act 1970

Item 1 - The whole of the Act

Outline

Item 1 will repeal the Papua and New Guinea Loan (International Bank) Act 1970 |

(the PNGL Act) in its entirety.

The PNGL Act approved a Commonwealth guarantee of US$4.5 million on a loan made to Papua New Guinea by the International Bank for Reconstruction and Development (IBRD), and came into effect on 31 December 1973.

The PNGL Act prescribes the terms of the guarantee agreement between the Australian Government and the IBRD, as well as the terms of the loan agreement between Papua New Guinea and the IBRD (both signed on 24 June 1970). Under the loan amortisation schedule, the longest dated loan covered under the loan agreement was scheduled to mature on

15 June 1994. The IBRD has confirmed that the loan has been repaid in full.

Notes on Clauses

Termination Payments Tax (Assessment and Collection) Act 1997

Items 2: The whole of the Act

Termination Payments Tax Imposition Act 1997

Item 3: The whole of the Act

Items 2 and 3 will repeal the Termination Payments Tax (Assessment and Collection) Act 1997 and the Termination Payments Tax Imposition Act 1997 .

The termination payments tax was introduced in 1997 and formed part of a package of legislation designed to provide a framework for the introduction of a superannuation contributions surcharge for high income earners.

The termination payment tax applied to termination payments made after 7:30pm, by legal time in the Australian Capital Territory, on 20 August 1996 and before 1 July 2005.

A termination payment is generally the taxable component of certain types of employment termination payments.

It has almost been ten years since the last termination payment subject to the tax was made. Relevant assessments have been issued and the general « amendment » period has expired for almost all taxpayers. The termination payments tax Acts have become inoperative and are therefore being repealed.

Division 2 - Amendments consequential on repeal of Termination Payments Tax legislation

First Home Saver Accounts Act 2008

Item 4: Section 18 (paragraph (e) of the definition of Superannuation Acts)

Item 5: Section 18 (paragraph (f) of the definition of Superannuation Acts)

Income Tax Assessment Act 1936

Item 6: Paragraph 202(l)

Item 7: Subsection 202DH(1)

Item 8: Subsection 202DJ(1

Income Tax Assessment Act 1997

Item 9: Section 12-5 (table  Item headed “termination payments surcharge”)

Item 10: Section 26-65

Item 11: Subsection 995-1(1) (table  Item 30 in the definition of assessment )

Retirement Savings Accounts Act 1997

Item 12: Section 16 (paragraph (d) of the definition of Superannuation Acts)

Item 13: Section 16 (paragraph (8) of the definition of Superannuation Acts)

Item 14: Section 16 (definition of Surcharge Acts )

Item 15: Subsection 136(1)

Item 16: Subsections 147A(2) and (3)

 

 

Superannuation Industry (Supervision) Act 1993

Item 17: Section 299W (paragraph (d) of the definition of Superannuation Acts)

Item 18: Section 299W (paragraph (e) of the definition of Superannuation Acts)

Item 19: Section 299W (paragraph (b) of the definition of Surcharge Acts)

Item 20: Section (paragraph (c) of the definition of Surcharge Acts)

Taxation Administration Act 1953

Item 21: Subsection 8AAB(4) (table Items 50 and 51)

Item 22: Subsection 250-10(2) in Schedule 1 (table  Item 145)

Taxation (Interest on Overpayments and Early Payments) Act 1983

Item 23: Part IID

Items 4 to 23 will amend various taxation and superannuation Acts to remove references to the repealed termination payments tax.

Division 3 - Savings provisions relating to repeal of Termination Payments Tax legislation

Item 24: Object

Item 25: Making and amending assessments, and doing other things, in relation to past matters

Item 26: Saving of provisions about effect of assessments

Item 27: Saving of provisions about general interest charge, failure to notify penalty or late reconciliation statement penalty

Item 28: Repeals disregarded for the purposes of dependent provisions

Item 29: Division does not limit operation of section 7 of the Acts Interpretation Act 1901

Items 24 to 29 will provide for transitional and savings provisions. The transitional and savings provisions applying to the repeal of the termination payments tax ensure that the administration, collection and recovery of liabilities under those provisions relating to past tax years can still occur despite the repeal of those provisions. They also preserve the rights and obligations of taxpayers relating to past years and of the Commissioner of Taxation in relation to those past years.

 

 

Part 2 - Other amendments

Outline

This part will repeal standing appropriation in subsection 92Q(5) of the Insurance Act 1973 (the INS Act) which is redundant.

Notes on Clauses

Insurance Act 1973

Item 30: Subsection 92Q(5)

Under section 92Q of the INS Act, Lloyd's, or a company nominated by Lloyd’s, is required to make a security deposit of A$2 million with the Australian Prudential Regulation Authority. The deposit is intended to meet administrative costs in administering the judicial trusteeship of security trust funds.  

Section 92Q also requires the return of any interest on the A$2 million security deposit on application by Lloyd’s. This requirement to pay interest is intended to maintain equality of treatment between Lloyd’s and other corporate insurers who under the INS Act are free to invest the solvency margin amount and take the benefits from the investment.

Section 92Q(5) provides that the Consolidated Revenue Fund is to be appropriated for payment of interest to Lloyd’s . This standing appropriation is no longer necessary. This is as a result of Financial Management and Accountability Determination 2006/26 - Lloyd’s Deposit Trust Special Account Establishment 2006, a determination under the Financial Management and Accountability Act 1997 (FMA Act) . This determination, in conjunction with the provisions of the FMA Act, provides the requisite appropriation authority to pay interest to Lloyd’s consistent with section 92Q(5) of the INS Act.



Schedule 9—Veterans’ Affairs

Outline

This Schedule will repeal redundant and spent provisions administered in the Department of Veterans’ Affairs concerning benefits that are no longer payable under the relevant Acts, and make amendments consequential to those repeals.

Notes on Clauses

Part 1 - Removal of spent Veterans’ Affairs payments

Outline

The amendments to the Veterans’ Entitlements Act 1986 (the VE Act) made by Part 1 will repeal redundant and spent provisions related to various one-off payments made between 2006 and 2013.

Notes on Clauses

Division 1 - Main amendments

Veterans’ Entitlements Act 1986

Item 1: Paragraphs 5H(8)(zzaa to zzag)

Item 2: Paragraphs 5H(8)(zzai)

Item 3: Paragraphs 5H(8)(zzc) to (zzg)

Items 1 to 3 will repeal paragraphs that refer to the various one-off payments repealed by Item 8 of this Part, and equivalent payments payable under provisions of other Acts that are to be repealed by this « Bill » .

Item 4: Subsection 5Q(1) (definition of clean energy advance)

Item 5: Subsection 5(Q)(1) (definition of clean energy bonus )

Item 6: Subsection 5(Q)(1) (definition of clean energy payment )

Items 4 to 6 will repeal the definition of “clean energy advance” and remove references to the payment in the definitions of “clean energy bonus” and “clean energy payment”. The clean energy advance will no longer be payable as a result of the repeal of Division 1 of Part IIIE by Item 7 of this Part.

Item 7: Division 1 of Part IIIE

Item 7 will repeal the redundant and spent Division 1 of Part IIIE, which provides for the payment of a clean energy advance to persons who were in receipt of a payment under the VE Act during the period from 14 May 2012 to 19 March 2013.

Item 8: Parts VIID to VIIH

Item 8 will repeal Parts VIID to VIIH, which provided for the payment of the 2006, 2007 and 2008 one-off payments to older Australians, the economic security strategy payment and the Education Tax Refund (ETR) payment.

The current provisions are redundant as the spent payments were all payable on a one-off basis by being linked to eligibility for a payment under the VE Act on particular days during the years 2006 to 2013.

Division 2 - Other amendments

Income Tax Assessment Act 1997

Outline

The amendments to the Income Tax Assessment Act 1997 (the ITA Act 1997), the Social Security Act 1991 (the SS Act) and the Social Security (Administration) Act 1999

(the SSA Act) are consequential amendments resulting from the amendments in Division 1 that repeal redundant and spent provisions of the VE Act.

Item 9: Section 11-15 (table item headed “social security or like payments”

Item 10: Section 11-15 (table item headed “social security or like payments”

Item 11: Paragraphs 52-65(1)(d) and (da)

Item 12: Subsections 52-65(1D) and (1h)

Item 13: Section 52-75 (table items 5B and 5C)

Items 9 to 13 are consequential amendments to repeal items and provisions of the ITA Act that refer to the economic security strategy and ETR payments made under Parts VIIG and VIIH of the VE Act (repealed by Item 8 of this Part).

Social Security Act 1991

Items 14: Subparagraph 8(8)(y)(ia)

Item 15: Paragraphs 8(8)(yb), (yd), (yf), (yh) and (yhb)

Items 14 and 15 are consequential amendments to the SS Act to repeal provisions that provide that certain payments made under the VE Act (repealed by Item 8 of this Part) are exempt income for the purposes of the SS Act.

 

 

 

Social Security (Administration) Act 1999

Item 16: Section 123TC (paragraph (b) of the definition of “clean energy income-managed payment”)

Item 16 is a consequential « amendment » to remove a reference to the “clean energy advance” that was a one-off payment under the VE Act. The payment is no longer payable as a result of the repeal of Division 1 of Part IIIE of the VE Act (repealed by Item 7 of this Part).

Division 3 - Saving provisions

Item 17: Saving provisions

Despite the repeal of provisions and the amendments made by this Part the provisions continue to apply on and after the commencement of this Item, in relation to payments of the clean energy advance, one-off payments, economic security strategy payments or an ETR payment for the following purposes:

  • payments of clean energy advances made under Subdivision D of Division 1 of Part IIIE of the VE Act;
  • recovery of debts concerning clean energy advances determined under Subdivision E of Division 1 of Part IIIE of the VE Act;
  • payments of the ETR payment under section 118ZZVH of the VE Act;
  • recovery of debts concerning payments under Parts VIID to VIIH under sections 205 and 206 of the VE Act;
  • tax exemption for the purposes of the ITA Act 1997 under subsections 52-65(1G) and (1H) for clean energy advances and ETR payments;
  • income test exemption for ETR payments for the purposes of the VE Act under paragraph 5H(8)(zzai);
  • income test exemption for ETR payments for the purposes of the SS Act under paragraph 8(8)(yhb); and
  • classification of a clean energy advance under Division 1 of Part IIIE of the VE Act as a “clean energy income-managed payment” for the purposes of Subdivision DE of Division 5 of Part 3B of the SSA Act.

Part 2 - Removal of spent « military » rehabilitation and compensation payments

Outline

The amendments to the « Military » Rehabilitation and Compensation Act 2004 (the MRC Act) made by Part 2 will repeal redundant and spent provisions related to the payment of the clean energy advance for the period from 2012 to 2013.

 

Notes on Clauses

Division 1 - Main amendments

« Military » Rehabilitation and Compensation Act 2004

Item 18: Subsection 5(1) (definition of clean energy advance )

Item 19: Subsection 5(1) (paragraph (a) of the definition of clean energy advance )

Item 20: Subsection 5(1) (definition of clean energy payment )

Items 18 to 20 will repeal the definition of “clean energy advance” and remove references to the payment in the definitions of “clean energy bonus” and “clean energy payment” as it will no longer be payable as a result of the repeal of Divisions 1 to 5 of Part 5A of Chapter 11 of the MRC Act (repealed by Item 23 of this Part).

Item 21:Subsection 415(2)

Item 22: Subsection 415(2) (note)

  Items 21 and 22 are consequential amendments to remove references to “section 424K” which is located in Division 5 of Part 5A of Chapter 11 (repealed by Item 23 of this Part).

Item 23: Divisions 1 to 5 of Part 5A of Chapter 11

Item 23 will repeal the redundant and spent Divisions 1 to 5 of Part 5A of Chapter 11 which provides for the payment of a clean energy advance to persons who were eligible for compensation under Part 2 of Chapter 4 of the MRC Act during the period from 14 May 2012 to 30 June 2013.

Division 2 - Other amendments

Income Tax Assessment Act 1997

Outline

The « amendment » to the ITA Act 1997 are consequential amendments resulting from the amendments in Division 1 which repeal redundant and spent provisions of the MRC Act.

Item 24: Section 52-114 of the ITA Act 1997 (table Item 22)

Item 24 is a consequential « amendment » to repeal a reference to a clean energy payment made under Part 5A of Chapter 11 of the MRC Act (repealed by Item 23 of this Part).

 

 

 

Division 3 - Saving provisions

Item 25: Saving provisions

Despite the repeal of provisions and the amendments made by this Part the provisions continue to apply, on and after the commencement of this Item, in relation to payments of clean energy advance for the following purposes:

  • payments of clean energy advance under Division 4 of Part 5A of Chapter 11 of the MRC Act;
  • recovery of debts concerning clean energy advances determined under Division 5 of Part 5A of Chapter 11; and
  • tax exemption for the purposes of the ITA Act 1997 under table item 22 in sections 52-114 for clean energy advances.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Omnibus Repeal Day (Spring 2014) « Bill » 2014

This « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

Overview of the « Bill »

The Omnibus Repeal Day (Spring 2014) « Bill » 2014 (the « Bill » ) is a whole of government initiative to amend or repeal legislation across nine portfolios. The « Bill » brings forward measures to reduce regulatory burden for business, individuals and the community sector that are not the subject of an individual stand-alone « bill » .

Human rights implications

Schedule 1, Part 1

The proposed repeal of Part 3 of the Fisheries Administration Act 1991 (the FA Act) relating to the establishment of the Fishing Industry Policy Council does not engage any applicable human right. A Fishing Industry Policy Council has not been convened since the FA Act commenced.

Schedule 1, Part 2

The proposed repeal of provisions in the Rural Adjustment Act 1992 relating to the Rural Adjustment Scheme and Farm Business Improvement Program does not engage any applicable human right because these two programs have ceased.

Schedule 1, Part 3

The proposed repeal of subsections 63(1) and 64(1) of the Australian Meat and Live-stock Industry Act 1997 relating to the provision of payments to industry marketing and research bodies, does not engage any applicable human right because the Acts on which these provisions are based have been inoperative since 1 July 1999 and payments of the amounts specified in the repealed Acts listed above were finalised in 2008.

Schedule 2, Part 1

The proposed repeal of provisions in the Broadcasting Services Act 1992 (the BC Act) to remove the reference to services that do no more than transmit program material supplied by National Indigenous TV Limited (NITV) does not engage any applicable human right because these provisions are redundant now that the SBS has assumed television production and supply activities previously undertaken by NITV.

 

Schedule 2, Part 2

Part 2 of Schedule 2 to the « Bill » may engage the following human right:

General obligation to consult and actively involve persons with disabilities

The proposed amendments to consultation processes relating to the making of disability standards for telecommunications related customer equipment (Item 19) potentially engage Sub-Article 4(3) of the Convention on the Rights of Persons with Disabilities (CRPD).

Sub-Article 4(3) guarantees a right for persons with disabilities to be consulted and be actively involved in the development and implementation of legislation and policies to implement the CRPD, and in other decision-making processes concerning issues relating to persons with disabilities.

While the repeal of subsections 382(1) and (5) of the Telecommunications Act 1997

(the TC Act) will remove the Australian Communications and Media Authority’s (ACMA)’s obligation under that Act to provide interested persons with an adequate opportunity to comment on proposed disability standards, it will not affect the separate consultation requirements contained in section 17 of the Legislative Instruments Act 2003
(the LI Act).

That section requires a rule-maker, subject to limited exceptions, to be satisfied that appropriate and reasonably practicable consultation has been undertaken prior to making a legislative instrument. In determining whether any consultation is appropriate, the rule - maker would typically have regard to the extent to which the consultation drew on the knowledge of persons with expertise in fields relevant to the proposed instrument; and ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment (subsection 17(2) refers). Accordingly, section 17 of the LI Act provides a separate statutory mechanism for those with an interest in disability standards, including persons with disabilities, to comment on those standards, notwithstanding the repeal of subsections 382(1) and (5) of the TC Act.

Part 2 of Schedule 2 is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the goal of rationalising regulatory requirements with respect to statutory consultation.

Schedule 2, Part 3

The proposed repeal and « amendment » of provisions in the BC Act will modernise publication requirements, allowing the ACMA to notify stakeholders of certain matters via its website and other readily accessible forms. This does not engage any applicable human right.

Schedule 3

The proposed repeal and « amendment » of provisions in four Acts administered in the Environment portfolio make minor technical amendments to improve the ease of administering legislation and do not engage any applicable human right.

 

Schedule 4

The proposed repeal of the « Customs » (Tariff Concessions System Validations) Act 1999

does not engage any applicable human right, because the Act is redundant.

Schedule 5, Part 1

The proposed repeal of two Acts in the Industry portfolio does not engage any applicable human right because the Acts are redundant.

Schedule 5, Part 2

The proposed « amendment » to a definition of “VET provider” in the Social Security Act 1991 is machinery in nature and does not engage any applicable human right.

Schedule 6, Items 1 to 5

The proposed amendments to Subitem 200 of the Aboriginal and Torres Strait Islander Commission « Amendment » Act 2005 (the ATSICA Act) would enable an appropriate consenting authority to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required. As the proposed amendments are machinery in nature, the proposed amendments do not engage any applicable human right.

Schedule 6, Item 6

The policy objective of Part 10 of the Classification (Publications, Films and Computer Games) Act 1995 (the CPFCG Act) is to reduce the risk of children in certain Aboriginal communities in the Northern Territory from being exposed to sexually explicit and very violent material.

Part 10 of the CPFCG Act constitutes a ‘special measure’ within the meaning of Article 1(4) of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD). Article 2 of the ICERD provides that ‘special measures’ may, when the circumstances so warrant, be taken to ensure the protection of certain racial groups.

The proposed repeal of the provision requiring the Minister to cause an independent review of the operation of the ‘prohibited material’ measure in Part 10 of the CPFCG Act is machinery in nature and does not engage any applicable human right.

In addition, the Australian Government, in collaboration with the Northern Territory Government, is currently conducting a formal revision of the National Partnership Agreement on Stronger Futures in the Northern Territory (Stronger Futures NPA). The revision aims to better align the Stronger Futures package with government priorities and ensure funding is used to its greatest effect. The revision includes an assessment of the effectiveness of Stronger Futures measures, including Part 10 of the CPCFG Act.

The existing review mechanisms provide an equivalent level of scrutiny to the provision requiring the Minister to cause an independent review of the operation of the ‘prohibited material’ measure in Part 10 of the CPFCG Act proposed for repeal. Accordingly, this provision would not limit any applicable human right.

Schedule 6, Items 7 to 13

The policy objective of the Stronger Futures in the Northern Territory Act 2012 (the SF Act) is to support Aboriginal people in the Northern Territory to live strong, independent lives, where communities, families and children are safe and healthy. The specific policy objective of provisions relating to alcohol is to reduce alcohol related harm to Aboriginal people in the Northern Territory.

The measures contained in the SF Act, including provisions relating to alcohol, constitute ‘special measures’ within the meaning of Article 1(4) of the ICERD . Article 2 of the ICERD provides that ‘special measures’ may, when the circumstances so warrant, be taken to ensure the protection of certain racial groups.

The proposed repeals and « amendment » would remove provisions that:

·          provide for review of Commonwealth and Northern Territory alcohol laws;

·          provide for review of the operation of the SF Act; and

·          enable the Minister to request the Northern Territory to appoint an assessor to conduct an assessment in relation to licensed premises.

The Australian Government, in collaboration with the Northern Territory Government, is currently conducting a formal revision of the Stronger Futures NPA. The revision includes an assessment of the effectiveness of Stronger Futures measures. In addition, the House of Representatives Standing Committee on Indigenous Affairs recently completed an inquiry into the harmful « use » of alcohol in Aboriginal and Torres Strait Islander communities. Submissions specifically relating to Northern Territory alcohol laws were provided for the inquiry’s consideration by the Northern Territory Government, private individuals and a range of stakeholder groups.

The existing review mechanisms provide an equivalent level of scrutiny to the provisions requiring the review of Commonwealth and Northern Territory alcohol laws and the operation of the SF Actproposed for repeal. Accordingly, these provisions would not limit any applicable human right.

The proposed « amendment » relating to the Minister’s power to request the appointment of an assessor to conduct an assessment in relation to licensed premises does not engage any applicable human right, as any changes to licensing arrangements following an assessment remain a matter for the Northern Territory Government and the Northern Territory Licensing Commission.

 

 

Schedule 7, Part 1

The proposed repeal of the Home and Community Care Act 1985 (the HCC Act) does not engage any applicable human right because the HCC Act is redundant. The proposed repeal will not alter the current legal obligations of the Victorian and Western Australian Governments and Home and Community Care(HACC) providers in these states, which remain governed by the HACC Review Agreement.

Schedule 7, Part 2

The removal of the requirement to notify the Department of Social Services of key personnel changes may lead to concerns being raised regarding the loss of an indicator of instability within a service. Whilst this does not engage with any particular human right, it may raise concerns about the right of care recipients to receive quality care appropriate to their needs and to the full and effective right of their personal, civil, legal and consumer rights, as provided for in the Charter of Residents Rights and Responsibilities. However, the obligation that approved providers must notify the Department when there is a material change to the circumstances of the individual key personnel is retained, as is the responsibility of providers to take reasonable steps to ensure that none of their key personnel are disqualified individuals. Further, the Department of Social Services will still have the ability to apply to the Federal Court of Australia to issue remedial orders where an unsuitable key personnel situation exists.

Schedule 7, Part 3

The measure in this Part will make an addition to paragraph 202(2)(e) of the Social Security (Administration) Act 1999 (the SSA Act) to allow a person to disclose (or further « use » or record) protected information that has been disclosed to them under subsection 202(2C) for the purposes of research, statistical analysis or policy development, but only where the further disclosure, « use » or recording is consistent with the purpose for the initial disclosure. This will ensure that researchers can effectively undertake their research project as, in practice, researchers often collaborate with others to conduct research or statistical analysis.

This item in the « Bill » is consistent with the right to protection against arbitrary or unlawful interferences with privacy under article 17 of the International Covenant on Civil and Political Rights (the ICCPR). The « use » of the term “arbitrary” in Article 17 means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in all the circumstances.

A threshold issue is the relationship between “protected information” and personal privacy. Unlike the definition of “personal information” as dealt with in section 6 of the Privacy Act 1988 , the term “protected information” as defined in the social security law is not necessarily information from which an individual can be identified. Frequently information provided to researchers under subsection 202(2C) is “de-identified” but is still “about a person” who cannot be identified, meaning that the information is likely to be “protected information” for social security purposes even where it is not “personal information” for privacy purposes. For example, it is common for the Department of Social Services to provide information that is about a person, in a form in which it is impossible to actually identify that person. In these circumstances, the right to privacy would not be engaged.

However, there may be occasions where the “protected information” is also information from which a person’s identity can be ascertained. The proposed amendments are still considered reasonable on these occasions as they clarify that, following a disclosure of protected information for research, statistical analysis or policy development purposes, further disclosure, « use » or recording of the information is only permissible for the purpose for which the initial disclosure was made. Researchers will have no expanded scope, as a result of this measure, to further disclose, « use » or record protected information for purposes unrelated to the purpose for which the initial disclosure was made.

In short, the measure is reasonable because it would reduce the regulatory burden on researchers who will no longer have to seek permission to further disclose the information to third parties, if it is for the same purpose for which the information was originally disclosed to the researcher by the Secretary under subsection 202(2C). An example that highlights this is where the Department of Social Services discloses protected information to a researcher at a university to conduct analysis of social security information, in consultation with a state Department of Housing, for the purposes of developing social security policy and reporting back to the Department of Social Services. In this example, following the Secretary of the Department of Social Services deciding that the information could be disclosed to the university for the purposes of the collaborative research project with the state Department, a further disclosure by the university and « use » of that information for the same research purpose to and by the state Department to enable the collaboration would also be permissible.

The « amendment » is necessary because it clarifies an anomaly in the protected information provisions in the social security law and enables the current policy of subsection 202(2C) to operate effectively. The law, as stated prior to these amendments, is unclear on whether, if a decision is made to disclose protected information to a researcher under subsection 202(2C), subsequent uses and disclosures (and recording) of the information to give effect to the research project can be carried out. The « amendment » clarifies this. Further, where information is disclosed for a public interest purpose, in accordance with a public interest certificate made under section 208 of the SSA Act, further « use » , recording and disclosure for that purpose is permissible under paragraph 202(2)(e).

The « amendment » proposed would align disclosures made for research (or statistical analysis or policy development purposes) with the treatment of disclosures made for public interest purposes. The « amendment » will also ensure that disclosure for research or statistical purposes under the SSA Act aligns with current arrangements under the A New Tax System (Family Assistance) (Administration) Act 1999 (the NTS Admin Act) Administration Act. Under the family assistance law, research disclosures are made under public interest guidelines (under sections 168 and 169 he NTS Admin Act), and, as a result, further « use » or disclosure for the purpose of an initial disclosure is permissible (because of paragraph 162(2)(e) of the NTS Admin Act). The « amendment » proposed would therefore ensure that where protected information is disclosed for research or statistical purposes under both the social security and family assistance law, further uses and disclosures of that information are treated in the same way.

This measure is proportionate because the further disclosure of information is restricted to the same purpose for which information was disclosed to the person under subsection 202(2C). Subsection 202(2C) is precisely defined to allow a person to obtain and « use » protected information only if:

·          the Secretary has reasonable grounds to form a belief; and

·          the belief is that the proposed obtaining, disclosure or « use » is reasonably necessary for a certain purpose; and

·          that purpose falls within the purpose of: 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.

That is, it is not permissible for the person obtaining information under subsection 202(2C) to disclose the information to other parties unless the disclosure is for the same purpose as the purpose for which the Secretary disclosed the information to them.

In addition, the following safeguards are in place, which ensure that disclosures under this provision do not constitute arbitrary interferences with a person’s privacy:

  • the Department of Social Services ensures that protected information disclosed under subsection 202(2C) is accompanied by additional measures to further protect the information. Such measures would include ensuring that persons who handle information enter into deeds of confidentiality and ensuring that researchers enter into contracts or Memoranda of Understanding which outline obligations or expectations about the « use » and protections that must be afforded to information as part of a research project; and

·          the Privacy Act 1988 continues to apply in relation to the management of protected information in cases where a person’s identity could be ascertained from the information (where the protected information is also “personal information” for privacy purposes). The « amendment » would provide authority under law for the purposes of disclosures or « use » of the information under Australian Privacy Principle 6, however the collection of information following a disclosure would still be subject to the requirements in Australian Privacy Principle 5 (including the obligation to notify individuals of certain matters about the « use » of their information).

In conclusion, this measure is compatible with human rights. To the extent that the right to privacy is limited, those limitations are reasonable, necessary and proportionate, and appropriate safeguards are in place.

 

Schedule 7 - Parts 4 and 5

The proposed payments for repeal include the following social security payments:

·          various one-off payments to the aged, older Australians and carers;

·          economic security strategy payments;

·          training and learning bonus;

·          famers hardship bonus;

·          mature age allowances;

·          special needs age pension and special needs wife pension;

·          Northern Territory CDEP transition payment; and

·          clean energy advance.

The proposed payments for repeal include the following family assistance payments:

·          one-off payment to families;

·          economic security strategy payment to families;

·          back to school bonus and single income family bonus;

·          Education tax refund (ETR) payment; and

·          clean energy advance.

The proposed repeal of the provisions associated with these payments would remove redundant provisions from the social security and family assistance law and simplify the relevant acts.

Parts 4 and 5 of Schedule 7 do engage the following applicable rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security. As people can no longer qualify for the social security and family assistance payments to be repealed, repealing these payments would not have any effect on an individual’s right to social security.

Additionally, as these payments are no longer payable, the relevant provisions do not serve a purpose remaining in the respective pieces of legislation.

Right to education

Article 13 of the ICESCR recognises the right to education. Although certain provisions to be repealed relate to payments that could, at one time, have enhanced an individual’s right to education (for example, back to school bonus, training and learning bonus and education tax refund), these payments are no longer payable and no longer have an effect on an individual’s right to education.

Additionally, as these payments are no longer payable, the relevant provisions do not serve a purpose remaining in the respective pieces of legislation.

Right to adequate standard of living

Article 11(1) of the ICESCR recognises the right to an adequate standard of living. Certain payments that are being repealed (for example, clean energy advance and education tax refund) were designed to help families meet certain costs, thereby helping to ensure an adequate standard of living. However, these payments are no longer payable and no longer have an effect on an individual attaining an adequate standard of living.

Additionally, as these payments are no longer payable, the relevant provisions do not serve a purpose remaining in the respective pieces of legislation.

Schedule 8, Part 1

The proposed repeal of three Acts in the Treasury portfolio and the making of a number of consequential amendments to other Acts so as to remove references to those Acts does not engage any applicable human right because those Acts are inoperative.

Schedule 8, Part 2

The proposed repeal of a standing appropriation in the Insurance Act 1973 does not engage any applicable human right because the provision is redundant.

Schedule 9, Part 1

Part 1 of Schedule 9 engages the following human rights:

Right to social security

Article 9 of the the ICESCR recognises the right of everyone to social security.

The proposed amendments to the Veterans’ Entitlements Act 1986 (the VE Act) engage the right to social security by repealing:

·          Division 1 of Part IIIE providing for the payment of a “clean energy advance” during a period before 19 March 2013;

·          Parts VIID, VIIE and VIIF providing for one-off payments to older Australians in 2006, 2007 and 2008 respectively; and

·          Part VIIG providing for the payment of an economic security strategy payment in 2008.

The proposed repeal of these provisions will have no impact on the right to social security. The provisions are spent and redundant as they relate to one-off payments that are no longer payable.

In some circumstances a person may be found to have been eligible for one of the payments because of a retrospective assessment of pension.  Following the repeal, such a person will retain eligibility to receive the payment on the basis that they were eligible for the underlying payment during the relevant period the repealed legislation was still in force.

Right to education

Article 13 of the ICESCR recognises the right of everyone to education.

The amendments to the VE Act engage the right to education by repealing Part VIIH, which provided for the payment of an Education Tax Refund (ETR) payment on the basis that a person was in receipt of an education allowance in 2012.

The proposed repeal of these provisions will have no impact on the right to education.  Following the repeal, such a person who is found to be eligible for the ETR payment will retain eligibility on the basis that they were eligible during the relevant period the repealed legislation was still in force.

Schedule 9, Part 2

Part 2 of Schedule 9 engages the following human right:

Right to social security

Article 9 of the ICESCR recognises the right of everyone to social security.

The amendments to the « Military » Rehabilitation and Compensation Act 2004 (the MRC Act) will engage the right to social security by repealing Divisions 1 to 5 of Part 5A of Chapter 11 providing for the payment of a “clean energy advance” during a period from 14 May 2012 to 30 June 2013.

The repeal of the clean energy advance provisions will have no impact on the right to social security. The provisions are spent and redundant as they relate to a payment during a period which finished more than a year ago. 

In some circumstances a person may be found to have been eligible for the payment because of a retrospective assessment of compensation.  Following the repeal, such a person will retain eligibility on the basis that they were eligible during the relevant period the repealed legislation was still in force.

Conclusion

The « Bill is compatible with human rights because Schedules 1, 2 (Parts 1 and 3), 3, 4, 5, 6 (Items 1 to 5), 7 (Parts 1 and 2) and 8 do not engage any applicable human right.

Schedule 2, Part 2 is compatible with human rights because to the extent that it may limit the general obligation to consult and actively involve persons with disabilities, those limitations are reasonable, necessary and proportionate to the goal of rationalising regulatory requirements with respect to statutory consultation.

Schedule 6, Items 6 to 13 do not limit any applicable human right, because existing review mechanisms provide an equivalent level of scrutiny.

Schedule 7, Part 3 is compatible with human rights because to the extent that the right to privacy is limited, those limitations are reasonable, necessary and proportionate, and appropriate safeguards are in place.

Schedule 7, Parts 4 and 5 do not adversely affect the right of people to social security, education or adequate standard of living.

Schedule 9, Part 1 does not adversely affect the right of people to social security or education.

Schedule 9, Part 2 does not adversely affect the right of people to social security.