Senator COLSTON(4.21 p.m.) —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, Senator O'Chee shall withdraw business of the Senate notices of motion Nos 1 to 3 standing in his name for the next day of sitting. I seek leave to make a short statement.

Leave granted.

Senator COLSTON —On 12 September 1996, Senator O'Chee reported to the Senate on the committee's concerns with these instruments, which included possible breaches of privacy, discretions which may not have been subject to merits review and unclear procedures relating to the import of firearms. The committee has now received replies which have met its concerns sufficiently to allow removal of the notices. The committee will, however, be writing to the ministers again on aspects of each of the replies to ensure that it carries out its mandate to ensure that legislative instruments do not breach personal rights or parliamentary propriety.

As usual, I seek leave to incorporate the committee's correspondence in Hansard.

Leave granted.

The correspondence read as follows—

AUSTRALIAN POSTAL CORPORATION REGULATIONS STATUTORY RULES 1996 NO 72

6 August 1996

Senator the Hon Richard Alston

Minister for Communications and the Arts

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Australian Postal Corporation Regulations, Statutory Rules 1996 No 72.

Rr. 13(1)(b) and (c) and 23(1)(b) and 23(2) provide that the Australian Competition and Consumer Commission must not undertake an inquiry (in the case of r. 13) and must discontinue an inquiry (in the case of r. 23) if the ACCC reasonably believes that the dispute is trivial, misconceived or lacking in substance (under both provisions) or arose from negotiations where the complainant did not act in good faith ( in the case of r. 13). There is provision for the complainant to be given seven days to provide further information, but this does not appear to be mandatory.

The Committee asks whether there is AAT review of these discretions and , if not, whether the exclusion is within the relevant guidelines of the Administrative Review Council. In this context both r. 13(1)(b) and r. 23(1)(b) provide an objective standard of belief by the ACCC, which would appear to indicate that review would be appropriate.

There is another discretion provided for by r. 21(4). The Committee would be grateful for your advice about AAT review. Here again there is an objective standard of belief. The subject matter of the discretion is confidential commercial information, which may indicate that decisions about this sensitive and important subject should be reviewable by the AAT.

The Committee notes that the decision of the Minister under r. 30 is reviewable by the AAT on the application of either of the parties to the dispute.

Yours sincerely

Bill O'Chee

Chairman

Senator Bill O'Chee

Chairman Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

21 October 1996

Dear Bill

Thank you for your letter of 6 August 1996 concerning possible AAT review of certain provisions in the Australian Postal Corporation Regulations, Statutory Rules 1996 No. 72.

The Department of Communications and the Arts has sought advice from the Attorney-General's Department (A-G's) on the issues raised by the Committee. A copy of that advice is enclosed.

The A-G's advice points out that the provisions in question are procedural in nature and that in the case of subregulation 21(4) an aggrieved party is separately entitled to make application for disclosure of relevant documents under the Freedom of Information Act 1982 (FOI Act). For the reasons set out in the A-G's advice, it is not proposed to amend the Regulations to provide for merits review of the provisions that the Committee has identified.

I have, however, asked the Department to ensure that subregulation 21(4) is amended at the next opportunity to make it clear that it is subject to the FOI Act.

I hope this clarifies the matter to your satisfaction.

Yours sincerely

RICHARD ALSTON

Minister for Communications and the Arts

CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) STATUTORY RULES 1996 NO 91

6 August 1996

The Hon Geoff Prosser MP

Minister for Small Business and Consumer Affairs

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Customs (Prohibited Imports) Regulations (Amendment), Statutory Rules 1996 No. 91. The explanatory statement advises that the Regulations partly implement a number of resolutions of the special meeting on 10 May 1996 of the Australian Police Ministers' Council, following the Port Arthur killings. It also advises that the Regulations introduce a new structure for the importation of all firearms into Australia.

New schedule 6 provides for a number of discretions to be scrutinised by the Attorney-General and by the State and Territory Police Commissioners. The Committee would appreciate your advice on whether those discretions are subject to AAT review and, if not, whether the exclusions are within the relevant Administrative Review Council guidelines.

New Part 3 of Schedule 6 provides for safety requirements for firearms. Item 1.6 provides in part that a firearm must not operate so as to discharge if dropped under specified conditions from a height of not more than 45 centimetres. The Committee asks whether this should be not less than 45 centimetres. As the provision stands at present the test could be satisfied by dropping a firearm from a height of, for instance, one centimetre. Of course, if the provision was for a height of not less than 45 centimetres, the firearm could be dropped from any height greater than that, which also would not appear to be the intended effect. The Committee asks why the provision does not simply provide for drops of 45 centimetres. If such precision is not required or is not attainable, could there be provision for a drop of 40 to 50 centimetres?

The Committee notes that the subject matter of these Regulations is particularly important and sensitive.

Yours sincerely

Bill O'Chee

Chairman

Senator Bill O'Chee

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

16 October 1996

Dear Senator O'Chee

I refer to your letter of 6 August 1996 requesting my advice in relation to matters contained in amendments to the Customs (Prohibited Imports) Regulations effected by Statutory Rules 1996 No. 91. The Customs (Prohibited Imports) Regulations (the Regulations) control the importation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.

Following the Port Arthur tragedy, a special meeting of the Australasian Police Minister's Council (APMC) adopted a number of resolutions aimed at more effective national firearm controls. The implementation of these resolutions required the Commonwealth Government to impose a total prohibition on the importation into Australia of all self-loading rifles and self-loading and pump action longarms. The importation of fully automatic weapons was already prohibited under the Regulations. While the importation of semi-automatic weapons was at that time subject to some controls under the Regulations, controls on their importation were tightened in

accordance with the APMC resolutions. These amendments took effect on 14 May 1996 in Statutory Rules 1996 No. 59.

Soon after these amendments, a new and simplified structure within the Regulations for the control of the importation of all firearms into Australia was introduced by Statutory Rules 1996 No. 91. The previous structure was introduced in 1990 but, as a result of several amendments being effected to the Regulations since 1990, the controls were spread across 6 regulations and 3 Schedules of the Regulations. This resulted in great difficulties in identifying the import control that applied to each type of firearm, and led to inconsistent interpretation and administration of the controls. The new structure introduced by Statutory Rules 1996 No. 91 has consolidated the import controls under one regulation (regulation 4F) and a single Schedule (Schedule 6) of the Regulations. The amendments also introduced tighter controls on the importation of firearm accessories, parts, magazines and ammunition.

Regulation 4F provides that the importation of a firearm a firearm accessory, a firearm part, a firearm magazine or ammunition is prohibited unless the article is an article to which an item in Part 2 of Schedule 6 applies and the importation is in accordance with the requirements set out in that Part. In particular, placing both the firearms and the requirements for their importation in the same Schedule is the core of the simplified 8—structure as it enables the immediate identification of the firearm, etc and the requirements with which the importation of the firearm, etc must comply.

These requirements fall into 4 broad categories or "tests": (1) the official purposes test, (2) the specified purposes test; (3) the specified persons test; and (4) the Police authorisation test (items 1 to 4 of Paright 1 of Schedule 6 refer). The requirements of three of the four tests (numbers (1), (2) and (4)) are a substantial carry-over of previous requirements for the importation of firearms. The fourth test, the specified persons test, contains a new set of requirements which arise from the APMC Resolution of 10 May 1996. This new test recognises the need of certain persons to possess semi-automatic firearms for the purposes of their occupation. Under the official purposes test, the importation of an article to which the test relates is prohibited unless the Attorney-General (AG) is satisfied that the article is for the purposes of the government of the Commonwealth, a State or Territory and that the relevant government will retain ownership of the firearm. This test is a carry-over of the previous "official purposes test" for the importation of firearms.

The specified purposes test also provides that the importation of an article to which the test relates is prohibited unless the permission of the AG has been given. Under this test permission may only be given where the AG is satisfied that the firearm is not available in Australia and is to be used in either the production of a film or in the development of mountings for a laser target designator. Also, the importer must hold a licence or authorisation to possess the article in the State or Territory in which it is to be used. The specified purposes test is a direct carry over of two tests for the importation of firearms under the previous Regulations (previous regulations 4D, 4DA and 4DB).

Under the specified persons test, the importation of an article to which the test relates is prohibited unless the permission of the AG has been given. Under this test, permission may only be given where the AG is satisfied that the importer is a person who carries out the specified occupation and who holds a license or authorisation to possess the article in the State or Territory in which it is to be used. While this is a new import control test it is in the same form as import control tests, such as the film test, which were in the previous Regulations.

Under the Police authorisation test, the importation of an article to which the test relates is prohibited unless the importer of the article has been given a statement, in an approved form from the relevant Commissioner, Chief Commissioner or Chief Police Officer of the police force of the State or Territory, that the importer holds a licence or authorisation to possess the article in accordance with the law of the relevant State or Territory. Similar to the specified purposes test, this test is a direct carry-over of an import control under the previous Regulations.

The type of test with which the importation of the article must comply depends on the article itself. For example, most of the articles which are included in Schedule 6 to the Regulations, including, firearms, can be imported if they comply with any of the four abovementioned tests. While any of the four tests can be complied with, in practical terms the importation of an article to which the tests apply is allowed where the least stringent Police authorisation test is complied with.

However, certain firearms can only be imported under more limited circumstances. For example, all self-loading, semi-automatic firearms above a certain magazine capacity, as well as their parts and accessories, can only be imported if they comply with one of the first three tests. Not only must the possession of these firearms be permitted in a relevant State or Territory, but their importation will only be permitted if it is for one of the specified purposes set out in the first three tests. All other firearms and their parts and accessories which are not expressly identified in Schedule 6 (which includes all fully automatic firearms), can only be imported in accordance with the first two of the four tests.

In your letter, you seek my advice as to whether the discretions which are exercisable by the AG or the relevant Commissioner, Chief Commissioner or Chief Police Officer of the police force of a State or Territory under the above tests are subject to review by the Administrative Appeals Tribunal.

Firstly, in relation to the discretions exercised under the fourth test by the Commissioner, Chief Commissioner or Chief Police Officer of the police force of a State or Territory, these directions are exercised under the relevant law of a State or Territory. The licensing or authorising of the possession of a firearm, etc is dealt with in State and Territory legislation and therefore, cannot be the subject of merits review by the Commonwealth's AAT. However, it is appropriate to note that one of the purposes of the APMC itself is to promote a uniform, national approach to gun control amongst the States and Territories. Consistent and coherent administration of firearm licensing laws amongst the various administrations therefore is given an opportunity for regular discussion and review.

In relation to the discretions exercised by the AG under the first three tests, the decision by the AG to refuse to grant a permission to import an article under any of the tests is not subject to merits review by the AAT. This is because the matters of which the AG must be satisfied before he or she can grant a permission are based on the high government policy considerations of public safety. As referred to above, the types of articles to which only these tests apply include all fully automatic firearms and semi-automatic firearms above a certain capacity as well as their parts and accessories. Therefore, the AG must first be satisfied of the limited use to which the articles will be put. The fact that the permission can only be granted in respect a such limited uses will ensure that articles such as firearms will not enter into general circulation. Also the fact that the AG must be satisfied of the limited use to which the articles will be put is necessary because, without the AG's permission, such articles would otherwise be prohibited imports.

In respect of the second and third tests, the AG must also be satisfied that the importer holds the relevant State or Territory licence or authorisation to possess the article in the relevant State or Territory in which article is to be used. In the interests of public safety, the AG cannot grant a permission to import an article to which the tests apply that an importer is not licensed or authorised to possess.

Therefore, if the AG is not satisfied of these matters, permission to import the article would not be granted and the refusal would be based on the high government policy grounds of public safety. It is not considered desirable to have merits review by the AAT of refusals of permissions when based on high government policy grounds such as this one. This position is also taken in respect of the control on the importation of goods under regulation 4 of the Regulations (Importation of certain dangerous goods in Schedule 2) and regulation 4R (importation of radioactive substances). The high government policy ground of giving effect to international treaty obligations is also another example for excepting refusals to grant import permission from merits review under regulations 4QA (importation of goods of Iraqi origin presently under United Nations sanctions).

Under the three tests, the decision maker who might refuse to grant an import permission is restricted to the AG. This restriction is seen as the necessary corollary to the exemption from merits review of decisions made on grounds of high government policy. In short, the final decision can only be taken by the Government's relevant policy Minister.

The exception of decisions to refuse import permissions from merits review under the above circumstances has previously been acknowledged by the Senate Standing Committee on Regulations and Ordinances, as has the corresponding control in such circumstances that restrict the refusal of permission power to the Government's relevant policy Minister. I am advised that in respect of the first and second tests, the Committee has acknow ledged this exception in the identical circumstances under the import controls on firearms in the previous Regulations.

I also note your comment in relation to one of the requirements for safety testing of firearms contained in item 1.6 of Part 3 of Schedule 6. Under this requirement, a firearm that is dropped 3 times from a height of not more than 45 centimetres on to a rubber mat must not discharge. While I concede the point made by the Committee that the present wording of this requirement would allow a firearm to be dropped from any height less than 45 centimetres, I am advised that, in practice, a firearm is dropped from a height of 45 centimetres. However, the Committee has identified an inadvertent loophole in the present wording which is acknowledged. In order to ensure that a firearm is always dropped from a reasonable height, subitem 1.6 will be amended to provide that the firearm can only be dropped from a height between 35 and 45 centimetres. I thank the Committee for drawing this matter to my attention.

I trust that the above comments are of assistance to the Committee.

GEOFF PROSSER

MIGRATION AGENTS REGULATIONS (AMENDMENT) STATUTORY RULES 1996 NO 79

2 August 1996

The Hon Philip Ruddock MP

Minister for Immigration and Multicultural Affairs

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Migration Agents Regulations (Amendment), Statutory Rules 1996 No. 79.

New cause 27 of the Code of Conduct requires agents to keep records of applications and of written and oral communications between the agent and clients. New clause 27A then requires an agent to make these records available for inspection on request by the Migration Agents Registration Board. The Committee would appreciate your advice on what protection exists for the privacy of clients and whether the Privacy Commissioner was consulted on the present Regulations. The same question applies to clients' financial details under clause 28A.

New clauses 28, 28A and 28B provide for the financial duties of an agent. New clause 28 requires the agent to keep separate accounts for the agent's operating expenses and for monies paid by clients to the agent for fees and disbursements. Cause 28A provides for records of clients' accounts. Clause 28B provides that nothing in these provisions affects the duty of a migration agent who is also a legal practitioner and who acts in that capacity, from the usual financial responsibility of a legal practitioner to clients' funds. This last requirements would, among other things, require a legal practitioner to comply with trust account provisions, which would give substantial protection to clients' money. The Committee asks why an agent who is not a legal practitioner does not appear to need to keep proper trust accounts? What happens if an agent who is not a legal practitioner goes bankrupt? Is the clients' money at risk? The earlier Code of Conduct provided for trust accounts, although in a permissive rather than mandatory fashion.

Yours sincerely

Bill O'Chee

Chairman

Senator William O'Chee

Chairman

Senate Standing Committee on Regulations and Ordinances Parliament House

CANBERRA ACT 2600

22 October 1996

Dear Senator O'Chee

Thank you for your letter of 2 August 1996 in which you sought advice in relation to aspects of the Migration Agents Regulations (Amendment), Statutory Rules 1996 No.79. The delay in replying to you is regretted.

The Migration Agents Registration Scheme (the Scheme) requires the registration of persons providing immigration advice and assistance and includes a complaints investigation mechanism which may result in disciplinary action by the Migration Agents Registration Board (the Board). The Scheme establishes minimum requirements for qualification for registration as a migration agent and establishes the boundaries of ethical and professional conduct within the migration advice industry. By so doing, the Scheme provides a high level of consumer protection for people who receive immigration advice from incompetent or unscrupulous advisers. The amendments to the Migration Agents Regulations are designed to enhance the objective of consumer protection.

Section 308(1)(c) of the Migration Act 1958 (the Act) provides that the Board may, at any time, require an agent to provide the Board with specified documents or records relevant to an agent's registration. The Board has exercised this power in the past, particularly in relation to complaints made against registered agents. However, in many instances, the Board has experienced difficulty in establishing the veracity of issues arising from complaints because a failure on the part of some agents to adequately document their dealings with their clients. New Clause 27 of the Migration Agents Code of Conduct (the Code) is designed to address this problem by requiring that agents maintain case files which fully document their dealings with clients.

As it stood, the wording of the former Clause 28 of the Migration Agents Code of Conduct did not impose on all agents a requirement to operate separate accounts for client monies and an agent's business operating expenses. Rather it provided examples of the type of accounts agents should operate, including trust accounts. This resulted in some agents maintaining a single bank account for client and agent monies. In its report on the review of the Migration Agents Registration Scheme, the Joint Standing Committee on Migration recommended at recommendation 32 that, "Clause 28 of the Code of Conduct for migration agents be amended to clarify a migration agent's obligation to maintain client and agent funds in separate accounts.

New Clause 28 of the Code of Conduct implements this recommendation. The Clause is also designed to ensure the separation of an agent's business operating funds and monies paid to the agent by clients to cover application and agent's fees which can only be accessed once the agent has completed the relevant service and billed the client.

Legal practitioners' obligations in relation to the operation of trust accounts are the subject of State legislation. New Clause 28B requires legal practitioners who are agents to continue to operate a trust account for the deposit of client monies. However, because non-lawyer agents were and continue to be beyond the reach of State trust fund legislation, the Code now requires that they operate a separate client account, albeit in a form similar to a trust account. The combined effect of new Clauses 28 and 28A, therefore, offers clients greater protection because the separation of client and agent's operating funds is now mandatory for all agents, as well as requiring agents to maintain detailed financial records which are open to scrutiny by the Board.

You have asked about the consequences of a non-lawyer agent being declared bankrupt. Section 303 of the Act provides that, where an agent is declared bankrupt, whether a legal practitioner or not, the Board may caution the agent or suspend or cancel the agent's registration. In such circumstances, it is then open to any client of that agent to seek recovery of monies under existing bankruptcy legislation.

In relation to the privacy issues you have raised, the members of the Board are acutely aware of the confidential and sensitive nature of information obtained by agents in the course of their dealings with clients. The Board is subject to the provisions of the Privacy Act 1988 and has, therefore, implemented procedures designed to protect information provided by agents to the Board in the exercise of its statutory powers. Given that the amendments to the Code are aimed at strengthening powers which the Board has exercised in the past, pursuant to paragraph 308(1)(c) of the Act, rather than introducing new provisions, it was not considered necessary to consult with the Privacy Commissioner.

Yours sincerely

Philip Ruddock