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Tuesday, 16 October 1984
Page: 1707


Senator GRIMES (Minister for Social Security)(10.19) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

Mr President, this Bill continues the practice of introducing an omnibus Bill into each sittings of the Parliament to make a large number of non-contentious amendments.

Not every amendment proposed by this Bill requires detailed reasons for the change; this will be self-evident from the provision itself, or the detailed explanatory memorandum circulated with the Bill. The Second Reading Speech is, therefore, confined to addressing the more substantial amendments.

I propose, with the leave of the Senate, to have incorporated in Hansard the full text of the Second Reading Speech explaining in detail many of the changes to the various Acts which are to be made by this Bill.

Amendments of the Aboriginal Councils and Associations Act 1976

The Aboriginal Councils and Associations Act 1976 at present provides that only Aboriginals (including Torres Strait Islanders) may be members of Aboriginal associations incorporated under the Act.

The members of a number of Aboriginal associations have expressed a desire to be able to confer membership on the non-Aboriginal spouses of Aboriginal members and specified membership rights on other non-Aboriginals.

The amendments to the membership provisions of the Act will enable Aboriginal corporations to include such provisions in the corporation's rules, should the members so desire. Non-Aboriginal spouses will be able to vote and stand for office, but other non-Aboriginals with specified rights will not be able to vote or stand for office. This will ensure that the decision making function remains the responsibility of the Aboriginal members and their spouses.

The Act at present requires Aboriginal corporations incorporated under the Act to obtain written Ministerial approval before they can mortgage, charge or sell any land.

These provisions were originally inserted in the Act to safeguard against Aboriginal corporations acquiring land through a Commonwealth grant and the corporation then disposing of the land or asset in an unwise manner. As these safeguards are now considered paternalistic and unnecessary the Bill deletes the provisions from the Act. It is envisaged that in future whenever a major asset, such as land, is acquired or provided for an Aboriginal corporation, any safeguard provision should be the subject of specific arrangements between the Aboriginal corporation and the provider of the funds or asset, by use of normally accepted commercial practices such as a mortgage or charge over the title.

The Act at present requires the governing Committee of all Incorporated Aboriginal Associations to prepare annual financial statements, consisting of statements of income and expenditure and balance as at 30 June, to have these statements audited, and to then file a copy of these audited financial statements with the Registrar of Aboriginal Corporations each year.

Because of their geographic isolation, or lack of assets, it has proved impractical, or inappropriate, for many isolated or small Aboriginal Associations to have audited annual financial statements prepared when the nearest auditor may be hundreds of kilometres away and the costs would exceed the value of the Association's assets.

The Bill inserts provisions that will enable the Registrar to have some discretion in the type of annual financial reports he may require Aboriginal Associations to submit.

It is intended that the reporting provisions will only be relaxed for small or geographically isolated Aboriginal Associations, and all Associations that are receiving substantial funds or have substantial assets or liabilities will still be required to prepare complete annual audited financial statements and file a copy with the Registrar.

Archives Act 1983

Two minor amendments to the Archives Act 1983 are proposed. The proposed amendment of sub-section 44 (3) of the Archives Act 1983 corrects an erroneous cross-reference. The reference in that sub-section to sub-section (5) of section (44) should be to sub-section (7).

The proposed amendment to section 71 of the Archives Act 1983 will enable the Australian Archives to levy charges for services provided in relation to certain records of those Commonwealth institutions identified as 'business undertakings' listed in Schedule 2 of Archives Regulations (Statutory rules No. 100) whose records are in the custody of the Archives.

This is in accordance with established policy that such organisations should be provided with services on a cost recovery basis. The records concerned are those which do not form part of the archival resources of the Commonwealth in that they are retained for a limited period and then destroyed.

The Archives Act 1983 currently enables the Australian Archives to levy charges only for the transfer and storage of such records. It does not allow the organisation, as was intended, to levy charges for other associated services such as retrieval, issue and inspection of records. Prior to the proclamation of the Archives Act 1983 charges for these services had been levied under the authority of the Audit Act 1901. Following proclamation, the Archives Act 1983 became the relevant authority under which charges should be levied. The proposed amendment will therefore allow the Australian Archives to resume levying those servicing charges, other than for transfer and storage, which have been in abeyance since the Act was proclaimed on 6 June 1984.

Australian Wine and Brandy Corporation Act 1980

The Bill amends the relevant provisions of the Australian Wine and Brandy Corporation Act 1980 to empower the Minister to extend until the 30 June, 1986 the terms of office of members of the Australian Wine and Brandy Corporation whose terms expired on 30 June 1984.

Commonwealth Employees (Redeployment and Retirement) Act 1979

The amendments to this Act clarify the definition of ''Commonwealth authority'' and the operation of delegations.

Commonwealth Functions (Statute Review) Act 1981

This amendment has been made necessary by a decision taken by the International Wool Textile Organisation to discard the distinction between pre-sale and post- sale wool test certificates that are an important medium for the description of greasy wool in international commerce.

As a further result of the change in the name of the test certificate, it is also proposed to amend sub-section 116 (2) to make it clear that the sub-section applies only to samples of greasy wool, and does not relate to the issue of test certificates for other wool.

Commonwealth Teaching Service Act 1972

The four amendments are consequential upon the Government's Public Service reforms, and remove the involvement of the Public Service Board in the creation, abolition, relocation or reclassification of offices in the Commonwealth Teaching Service. All such actions are to become the responsibility of the Commonwealth Teaching Service itself.

Copyright Act 1968

The amendments of the Copyright Act 1968 seek largely to make a number of tidying adjustments to the provisions introduced by the Copyright Amendment Act 1980.

The 1980 Act generally gave effect to the recommendations of the Copyright Law Committee on Reprographic Reproduction (''the Franki Committee'') relating to the photocopying of copyright works. Special meetings convened by the Attorney- General's Department between 1981 and 1983 with representatives of copyright owners' organisations, educational institutional institutions and libraries monitored the operation of the 1980 amendments and identified certain defects and ambiguities in the provisions dealing with copying by libraries and educational institutions.

None of the proposed amendments makes a fundamental change to the scheme of the 1980 Act and most are acceptable in principle to the interests affected.

Of the proposed amendments to a number of the definitions contained in section 10 of the Act, the amendments extending the range of bodies falling within the definition of ''educational institutions'' are the most significant. These amendments will enable some special categories of bodies which perform educational functions to utilise the statutory licence provisions of the Act by which educational institutions are permitted to multiple copy works, provided records of the copying are kept and an appropriate royalty paid as demanded by the copyright owner within a prescribed time.

New section 10A will introduce a new administrative mechanism to facilitate the declaration of bodies as educational institutions, central records authorities or institutions assisting handicapped readers. This mechanism will eliminate the need for such bodies to have their status declared by regulations made under the Act.

The amendments of the library copying provisions in sections 49 and 50 will enable libraries to supply library users with copies of published artistic works that are not readily available commercially and to service more effectively the reasonable requirements of library users who, by reason of their geographical remoteness, cannot conveniently comply with the usual statutory requirements applicable to library copying.

New sections 48A and 104A clarify and extend the existing protection against copyright infringements afforded to an authorised library officer of a Parliamentary library when assisting a Member of Parliament. These amendments, together with the removal of references to Members of Parliament in section 49, will have the effect of complementing the existing privileges and immunities of Members of Parliament in respect of their dealings with copyright material in the course of their Parliamentary duties.

The proposed amendments of section 53D of the Act will enable an institution assisting handicapped readers to make, or have made on its behalf, a copy of a work in order to make handicapped readers' copies of that work under the statutory licensing scheme without infringing copyright.

The main purpose of the proposed amendments to sections 203A-203H is to re-cast the defences available to a person or body prosecuted for a breach of any of the offences concerned with record-keeping matters. The amendments will modify the effects of strict liability imposed on record-keepers and others under the existing provisions by providing defences to the relevant offences based on reasonable care and reasonable belief.

Crimes Act 1914

As the Northern Territory Government has enacted its own criminal code which came into operation on 1 January 1984, it is now appropriate that the Crimes Act 1914 should reflect the self-governing status of the Territory. Accordingly the term 'State' is to include the Northern Territory and 'Territory' is to exclude the Northern Territory. These definitions are inserted into section 3 of the Crimes Act 1914.

The Special Prosecutor, Mr R. V. Gyles Q.C., has drawn attention to an anomalous situation: although there is an existing offence of conspiracy to defraud the Commonwealth, the Crimes Act 1984 does not contain a substantive offence of defrauding the Commonwealth. In some circumstances, conspiracy trials , with all the attendant problems for both prosecution and defence, become necessary due to this deficiency. The insertion of a new section 29D cures this defect by creating a new offence of defrauding the Commonwealth or a public authority under the Commonwealth.

The Act is also amended to bring the penalty for the offence of conspiracy to defraud the Commonwealth into line with the penalty that may be imposed for offences against the Crimes (Taxation Offences) Act 1980. The same penalty is to apply to the new offence of defrauding the Commonwealth, namely a penalty of $50 ,000 or imprisonment for 5 years or both.

Customs Act 1901

The amendment to this Act which deserves specific mention applies to section 163 which proposes to clarify that the regulation making power in that section extends to prescribing the amount of any remission, rebate or refund of Customs duty.

Legal advice confirms that when section 163 was amended in 1983 to add the word 'rebate' it was intended that the regulation making power extend to the amounts of any rebate as well as the circumstances, conditions and restrictions attached to any rebate.

It is considered desirable to put this question beyond doubt by effecting the proposed amendment.

Excise Act 1901

Two amendments are proposed to this Act. One proposes an amendment to section 78 of the Act similar to the amendment proposed to section 163 of the Customs Act 1901 by this Bill extending the regulation making power to the amount of any remission, rebate or refund. The other proposes an amendment to section 24 of the Act to make certain that the provisions of that section authorise, as required by section 61 of the Act, the movement alteration or interference with excisable goods in the manufacture of other excisable goods. Legal advice confirms that the term delivery in that section means delivery for home consumption. The intention of the section is to permit certain excisable goods subject to conditions, if any, to be used in the manufacture of other excisable goods in a factory or factories specified in an excise manufacturer's licence without being required to enter for home consumption or pay any excise duty. The proposed amendment is designed to remove any doubt as to the intention of the section.

Family Law Act 1975

The amendments to section 116C of the Family Law Act 1975 are consequential amendments to amendments contained in Part III of the Family Law Amendment Act 1983 which allow the Judges of the Court to make Rules of Court governing matters of practice and procedure. Upon the making of Rules of Court, regulations which previously covered matters contained in the Rules of Court will be repealed. Accordingly, some matters in relation to which regulations may presently fix amounts that may be paid to legal practitioners by legal aid bodies will be relocated in Rules of Court.

Health Insurance Act 1973

The Public Service Reform Act 1984 implemented the Government's policies for reform of the Australian Public Service.

Among those reforms was the change in the designation of departmental heads from 'Permanent Head' to 'Secretary'. Consistent with that reform this Bill replaces the title of 'Director-General of Health' with the title 'Secretary to the Department of Health', thus bringing this title into line with those of other departmental heads.

Industrial Research and Development Incentives Act 1976

The proposed amendment of sub-section 4 (1) of the Industrial Research and Development Incentives Act 1976 will remove the discrimination against companies seeking Commonwealth grant support to improve their existing computer software products.

Amendment to the definition will make it clear that these projects may be supported under the Act. All applications for project grant support are subject to specified assessment criteria established by Ministerial direction. These directions include criteria specifically relating to computer software projects.

Merit Protection (Australian Government Employees) Act 1984

In accordance with undertakings given by the Minister for Finance at the time of introduction of this Act, two of the proposed amendments require the Merit Protection and Review Agency to notify Parliament of certain extensions to its jurisdiction and require the Agency to include in its Annual Report a list of all bodies over which it has jurisdiction. Other amendments include clarifying the type of 'Commonwealth Authority' which may become subject to the Agency and requiring that the Agency give a copy of its report on an inquiry to the subject of that inquiry.

National Crime Authority Act

The amendments to be made to the National Crime Authority Act 1984 fall into two main categories.

There are firstly amendments of a 'tidying-up' nature to clarify certain matters resulting from the very large number of amendments made during the passage of the Act through the Senate. For example, there are amendments resulting from the removal of the requirement for the Inter-Governmental Committee's approval in the case of Commonwealth references to the Authority.

Thus, proposed new paragraph 9 (1) (aa) contains a specific reference to consultation between the Committee and the Commonwealth Minister in such cases.

Consequential changes are proposed by the amendments in relation to Inter- Governmental Committee resolutions.

Further, new sub-sections 10 (4A) to (4D) are to make provision for the Authority to request the Commonwealth Minister to refer matters to the Authority . This complements the existing provision in the Act for such requests in relation to State references.

New sub-section 32 (8A) and associated amendments make necessary modifications to the procedure on certain applications to the Federal Court of Australia.

The second main category of amendments comprises amendments to complement the ' underpinning' legislation to be enacted by the States to ensure that, where necessary, the Authority's powers are clearly grounded in State law.

Thus, new section 35A is a provision to avoid 'double jeopardy' by providing that persons convicted of offences under either the Commonwealth Act or a State law will not be liable to be punished twice for the same act or omission. This will complement provisions to be made in State underpinning legislation.

Further, new sub-section 56A is to make it clear that a State law may confer powers, functions or duties upon, or vest jurisdiction in, the Federal Court of Australia being powers, functions, duties or jurisdiction also conferred or vested by the principal Act.

New section 32A is to provide that where the only relevant reference in force is one given by a Minister of a particular State, persons seeking review of decisions of, or requirements by, the Authority may apply to the Supreme Court of that State.

The remainder of the amendments are further minor 'tidying-up' amendments or amendments consequential upon amendments in the two main categories discussed above.

Taken as a whole, these amendments make useful improvements to the National Crime Authority Act 1984.

National Library Act 1960

With the repeal of the Remuneration Act 1974, and the re-enactment of provisions to give effect to remuneration and allowances for members of the Library Council, the opportunity is also being taken to revise existing provisions in line with modern practice. Redundant provisions are repealed and the amendments which are of a machinery nature will modernise the legislation.

Overseas Students Charge Act 1979

Currently students who are enrolled for periods when they do not attend courses (e.g. post-graduate students waiting marking of these and students undertaking a compulsory year of practical experience) are required to pay charges.

As originally intended when the Overseas Students Charge legislation was enacted, such students would not be required, under the proposed amendments to section 6 of the Principal Act, to pay charges, because they do not use any resources provided by the Australian tax payer.

Overseas Students Charge Collection Act 1979

At present, a temporary entry permit (TEP) may not be legally issued to cover any part of a calendar year during which a student will or proposes to incur a liability for a charge, until the charge is paid. Students must therefore pay the charge before receiving their examination results and before they know whether they will in fact be enrolling the following year. This situation needs to be remedied.

The proposed amendment to section 6 of the Act will enable officers to issue TEPs to students for that part of the year which occurs before the date on which the charge becomes payable: For example a student intending to enter Australia to study in 1985 and who, examination results permitting, proposes to continue a course of study in 1986 may be issued with TEP to cover not only 1985 but also that portion of 1986 which occurs before the date on which the 1986 charge will become payable (usually 15 March).

There will be no financial implication in connection with the amendment to the Act.

Overseas Telecommunications Act 1946

The Overseas Telecommunications Act 1946 is being amended in order to provide for an increase in the number of Commissioners from five to seven and an increase in the term of appointment from three years to five years.

The Commission is also being restructured in order to provide for a Departmental officer to be a member of the Commission. A Commissioner is also being appointed to represent officers and employees of the Commission. The Commission will now also include the Managing Director as a member of the Commission.

The Act has been redrafted in relation to the rights and obligations of the Commissioners to bring the Commission into line with the precedent set by the Australian Postal Commission and the Australian Telecommunications Commission and to accommodate the changes made to the structure of those Commissions. Obsolete forms of drafting have been replaced by more modern terminology.

Patents Act 1952

The proposed amendments of section 41 and 58C of the Patents Act 1952 facilitate access to the information contained in patent specifications by requiring the preparation of abstracts of specifications. The proposed amendments of sub-section 58A (1), (3), (4) and (5) provide a simplified means of recognising amendments made from time to time to the text of the Patent Co- operation Treaty and of the Regulations annexed to that Treaty. The proposed amendments of sub-section 58A (2) provide for the Act to recognise certain amendments which may be made to international applications lodged under the provisions of the Patent Co-operation Treaty.

Postal Services Act 1975

The amendments being made to the Postal Services Act 1975 are to allow an officer on probation to appeal against a decision to terminate the appointment. The amendment is to allow similar appeal rights that apply in other situations.

An amendment is also being made which enables the Australian Postal Commission to charge an administration fee to a judgment creditor. The purpose of those amendments is to provide for rights to the Commission similar to those provided to the Commonwealth by virtue of section 64 of the Public Service Act 1972.

Public Order (Protection of Persons and Property) Act 1971

Section 23 of the Public Order (Prosecution of Persons and Property) Act 1971 deals with the prosecution of offences against the Act. Sub-section 23 (2) provides that proceedings for the prosecution of a person under the Act may only be instituted with the consent in writing of the Director of Public Prosecutions . This provision is being amended to enable the Director of Public Prosecutions to delegate his power of consent. A consequential amendment is being made to sub -section 11 (3) of the Act.

Public Service Act 1922

The various amendments proposed are:

(1) to extend the period for which a person may act as a Secretary of a Department to 12 months.

(2) to insure the power to select officers for the temporary performance of the duties of another office by including certain movements between offices which have not been provided for.

(3) to extend the penalties for the offence of impersonation at examinations and tests by allowing a fine and imprisonment to be ordered.

(4) the repeal of section 95 of the Act, which is redundant.

(5) to amend a definition of ''Commonwealth authority'' to reflect changes in companies legislation.

Public Service Reform Act 1984

The main amendments proposed are intended to put beyond doubt a provision that part-time offices may not be implemented without the consent of the officer holding the office and to amend a definition of ''promotion'' to include certain movements between offices which have not been provided for. The rest of the amendments deal with textual corrections and the relocation of some provisions to allow related provisions to appear together in this Act and in the Public Servic Act 1922.

Radiocommunications Act 1983

The purpose of the amendment is to enable a range of penalties introduced for levying on the spot fines.

Telecommunications Act 1975

The amendments being made to the Telecommunications Act 1975 are to allow an officer on probation to appeal against a decision to terminate the appointment. The amendment is to allow similar appeal rights that apply in other situations.

An amendment is also being made which enables the Australian Telecommunications Commission to change an administration fee of a judgment creditor.

Trade Practices Act 1974

A new section 65A is to be inserted in the Trade Practices Act 1974 to clarify the application of certain of the consumer protection provisions of that Act to the Media and the other persons who carry on business of providing information.

Recent decisions of the Federal Court have suggested that a newspaper publisher may be taken to have engaged in conduct that is misleading or deceptive for the purposes of section 52 of the Trade Practices Act if the newspaper contains inaccurate information.

The Government recognises the need to maintain a vigourous free press, as well as an effective and enforceable Trade Practices Act. In doing so, the Government recognises that, whilst the problem may have been highlighted by a defamation action, similar considerations apply in respect of action for negligent mis- statement and actions for injurious falsehood. The Government also recognises that the difficulties in this area are experienced not only by the main newspaper, magazine and television publishers, but also by a wide range of other people who provide information.

New section 65A will operate to exempt the media (and other persons who engage in businesses of providing information) from the operation of those provisions of Division 1 of Part V of the Trade Practices Act which could inhibit activities relating to the provision of news and other information. The exemption is not available, however, in respect of a publication of information relating to goods, services or land of a kind supplied by the information provider, or relating to goods, services or land where the publication is made pursuant to a contract, arrangement or understanding with a body corporate related to a body corporate that supplies such goods, services or land. These provisions ensure that information providers are not exempt from the consumer protection provisions of the Trade Practices Act in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce. This can occur, for example, where a newspaper has agreed to publish a 'news' item about a product in exchange for the product supplier taking out paid advertising in that publication.

The insertion of a new section 79A is to correct a major gap between the imposition and enforcement of a criminal sanctions of the Trade Practices Act 1974. Following the decision of the High Court in March 1984 in Thomas v. Ducret , 1984 ATPR 40-445 the criminal provisions of the Act are, in certain circumstances, unenforceable against individuals because they depend upon the existence of applicable State and Territory legislation. The amendment will provide a uniform system of enforcement of fines imposed under the Act.

Debate (on motion by Senator Reid) adjourned.