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Thursday, 30 June 1994
Page: 2377

Senator CROWLEY (Minister for Family Services) (10.04 a.m.) —I table the explanatory memoranda relating to the bills, and move:

  That these bills be now read a second time.

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

  Leave granted.

  The speeches read as follows


Mr President, the bill proposes a number of amendments to the Aboriginal Councils and Associations Act 1976, hereafter referred to as "the act", which are designed to improve the act so as to:

  (i)create a new authority, the Australian Indigenous Corporations Commission, to replace the existing Registrar of Aboriginal Corporations;

  (ii)give the Commission two new functions being;

    (a)the promotion of understanding and acceptance of, and compliance with the act, which will allow the Commission a greater role in providing support to Aboriginal Councils and Aboriginal Corporations; and

    (b)the power to prosecute contraventions of the act and contraventions of other law relating to fraud or dishonesty by Aboriginal Councils, Aboriginal Corporations or their members; and

  (iii)further streamline and strengthen the powers available to the Commission to arbitrate in disputes between Aboriginal Corporations and their members, and to take action to ensure that corporations meet their obligations under the act.

Mr President, the basic features of the legislation have not altered since the Aboriginal Councils and Associations Act was introduced by the then Minister for Aboriginal Affairs, the Hon Ian Viner, on 3 June 1976. The then Minister emphasised the relative simplicity and flexibility of the act to meet a wide variety of community needs, and the capacity of the act to take into account the particular cultural needs of Aboriginal and Torres Strait Islander communities and groups.

The act provides an inexpensive and straightforward method for Aboriginal and Torres Strait Islander peoples to incorporate organisations. The act has continued to be a very popular option for incorporation for Aboriginal and Torres Strait Islander communities and associations. Since the introduction of the Aboriginal Councils and Associations Amendment Bill in November 1992, the number of incorporated associations has grown from approximately 1600 corporations to approximately 2,100 corporations as at 31 May 1994.

A small number of priority amendments were made to the act in 1992 to improve the accountability of Aboriginal corporations and to better protect the rights and interests of ordinary members.

The Board of Commissioners of the Aboriginal and Torres Strait Islander Commission, as representatives of Aboriginal and Torres Strait Islander peoples, fully recognise that public accountability for expenditure in Aboriginal and Torres Strait Islander Affairs is a legitimate concern of the government. It is the right and expectation of Aboriginal and Torres Strait Islander peoples, who are the clients of organisations funded by the Government, that those organisations are held accountable.

Until the amendments to the act in 1992, the Registrar lacked the necessary range of powers to ensure that Aboriginal and Torres Strait Islander organisations incorporated under act complied with the regulatory and public accountability provisions intended to protect the rights of members of Corporations.

Mr President, the reforms to the act contained in the 1992 amendments were designed to strengthen the response by the government to Recommendation 192 of the historic report of the Royal Commission into Aboriginal Deaths in Custody, that, in the implementation of any program or policy which would particularly affect Aboriginal people, the delivery of such programs should, as a matter of preference, be made by appropriate Aboriginal organisations.

The 1992 amendments gave evidence of the commitment by the Government to the principle recognised by the Royal Commission, that Governments were entitled to require a proper system of accounting for funds provided to Aboriginal communities, and organisations.

The 1992 amendments to the act have enabled the Registrar of Aboriginal Corporations to be more effective in regulating and enforcing higher standards of honesty and clear and open accountability in the conduct of Aboriginal Corporations. Just as importantly, the Registrar has successfully performed the role of assisting and advising the members of Governing Committees of Aboriginal Corporations in performing their tasks for the benefit of their members.

The overall management and daily control of the operation of Aboriginal and Torres Strait Islander corporations as they pursue their respective social, economic and cultural objectives will remain firmly in the hands of the elected committees and office holders. However, the thrust of the new amendments is to allow the new Commission to respond even more effectively in those cases where there is evidence of a breakdown in the management of Aboriginal Corporations or their accountability to their members.

The establishment of the Australian Indigenous Corporations Commission will remove the confusion that has existed as to the roles of the Registrar of Aboriginal Corporations and ATSIC. It will also remove any potential for conflicts of interest that could have arisen while the Registrar was an ATSIC officer. The new Commission will continue to improve the efficiency of the processes of incorporation, administration and regulatory procedures to ensure the public accountability of Aboriginal and Torres Strait Islander Corporations.

Mr President, just as importantly the amendments will improve the ability of the new Commission to assist the members of Governing Committees to carry out their management functions, and in the process, provide better service and greater protection of the rights of individual members of those Corporations.

The following amendments will provide for the establishment of the Australian Indigenous Corporations Commission:

Clause 6 repeals the provisions relating to the Registrar of Aboriginal Corporations and establishes a new independent statutory authority to be titled the Australian Indigenous Corporations Commission. It provides for the new Commission to carry on the functions of the former Registrar of Aboriginal Corporations and to take on the two new functions outlined at the commencement of this speech. It further provides for a full time Commissioner to be appointed by the Governor-General for a period of 5 years to manage the Commission.

Clause 43 requires the Commission to prepare an annual report of its operations for the Minister to be laid before Parliament, and to prepare financial statements to be audited by the Auditor-General.

Another set of amendments will further contribute to giving members greater control over the operations of Aboriginal and Torres Strait Islander Corporations:

Clause 21 allows a Corporation to give a mortgage, charge or other security under the act only if the membership decides to do so by special resolution;

Clause 29 establishes the requirement that all Corporations must hold an annual general meeting between 1 July and 30 November each year and file with the Commission a written record of the minutes of proceedings at that meeting.

Mr President, there is also a series of amendments which will improve the accountability and efficiency of the management of Aboriginal Corporations.

Clauses 19 and 20 set out provisions relating to persons who are disqualified from holding positions on a Governing Committee. These provisions prevent a person who was previously a member of a Governing Committee of an Aboriginal Corporation which was wound up, or had an administrator appointed, from being elected or holding office as a member of a Governing Committee for a period of 5 years. Persons who are undischarged bankrupts, or have committed acts of insolvency are likewise disqualified.

A person can apply to the Commission to be exempted from these provisions and can appeal to the Minister where an exemption is refused;

Clauses 22 to 27 provide for greater flexibility for Aboriginal Corporations in changing their names and their rules, and improve the efficiency of the procedures for the appointment of public officers, the filling of public officer vacancies and the keeping of an up to date register of members;

Clause 28 strengthens the arbitration role of the new Commission;

Clause 30 provides for further improvement in the standards of accounts required to be submitted by Aboriginal Corporations to the Commission;

Clauses 32, 33, and 40 will improve the ability of the Commission to conduct examinations of the records of Aboriginal Corporations and provide for offences in relation to obstructing an examination being conducted by the Commission;

Clause 41 extends the grounds under which the Commission may appoint an Administrator to an Aboriginal Corporation, and simplifies the process to improve its timeliness and effectiveness;

Mr President, the proposed amendments in this bill will set up a new Australian Indigenous Corporations Commission and will improve upon the already substantial gains in flexibility of operation and standard of public accountability established by the 1992 amendments to the act. There will be higher standards of public accountability required of Aboriginal Corporations, but most of the amendments will have little effect on Corporations operating responsibly in accordance with the act and their own Rules.

Mr President, although extensive consultations have taken place following a previous review of the act, all Aboriginal Corporations registered under the act will be fully informed of the details of these proposals. The Minister intends to write to each corporation, the ATSIC Board of Commissioners, ATSIC Regional Councillors, the Land Councils and other parties enclosing a copy of the Draft Amendment bill, and a Plain English Guide to the proposed amendments, and he will seek the views and comments of all interested persons.

The Minister has instructed that the second reading debate will not take place until he has had an opportunity to consider in detail the views of Aboriginal and Torres Strait Islander peoples in relation to the bill. The Minister also intends to have the ATSIC Board of Commissioners consider the bill once more prior to debate. This is of course consistent with both Government policy and the Minister's strong personal desire for proper negotiation and consultation on all major legislative and policy developments in Aboriginal and Torres Strait Islander affairs.

Mr President, I commend the bill to the Senate.


The purpose of the bill is to begin the process of codifying Commonwealth criminal law. The bill contains Chapters 1 and 2 of a new Criminal Code. During the next 5 years the Code will be systematically built around these chapters. Chapter 2 is the most fundamental part of the Code. It contains the foundations of the new Commonwealth criminal law—the general principles of criminal responsibility. By the end of 5 years these principles will apply to every Federal offence unless there is need to vary these by reason of special considerations applying to particular offences. When this is achieved, for the first time since federation those accused of Federal offences will be dealt with under the same principles—no longer will people charged in different States and Territories be treated differently from one another.

This step is long overdue. It is partly a recognition that the Commonwealth criminal law has grown enormously since federation. Indeed, back in 1914 when the Commonwealth Crimes Act was first enacted most of the criminal law was contained in the Crimes Act and Customs Act.

Even in 1914 an attempt was made to adopt common principles of criminal responsibility by section 4 of the Crimes Act, which provided that common law principles of criminal liability applied in relation to Crimes Act offences. Since then Commonwealth criminal law has grown like a vigorous vine, branching out into topics such as the environment, health, heritage, insurance and banking, and offences which ensure meeting of our international obligations. Now most offences are found outside the Crimes Act. This means that in most cases the principles of criminal responsibility that apply vary from State to State because they are picked up from the local State and Territory law under section 80 of the Judiciary Act 1903. This is unsatisfactory.

Codification of the criminal law has its roots in the work of the 18th century jurist Jeremy Bentham who, speaking of the English common law at that time, said:

"Do you know how they make it? Just as a man makes law for his dog. When your dog does anything you want to break him of, you wait till he does it, and then you beat him for it."

While the common law has come a long way since then, and the principles are more certain, Bentham's comment may seem to reflect the way the general principles of the criminal law are applied to anyone who travels from one Australian jurisdiction to another. A person might live in Tweed Heads, New South Wales and make a 10 minute trip to Coolangatta, Queensland. In many cases that person would be surprised to know that in relation to the commission of the same Federal offence markedly different rules apply. These differences are significant—in some cases they could be the difference between conviction or acquittal.

The problem has become more significant now that we have such a mobile society, Australians are becoming more and more involved in business and recreation which takes them to other States and Territories on a regular basis. No longer are the differences in the law just an inconvenience for those who live in the border towns of Tweed Heads and Coolangatta and Albury-Wodonga. Indeed it also impacts on those who are involved in international trade with Australia.

These problems were first addressed in the July 1990 report of the Review of Commonwealth Criminal Law chaired by Sir Harry Gibbs GCMG, AC, KBE, our former Chief Justice of the High Court.

The `Gibbs Committee', which also included the Honourable Justice Ray Watson and Mr Andrew Menzies, AM, OBE, recommended that there be general principles of criminal responsibility for Commonwealth law, and planted the seed of what became a national initiative to standardise the foundations of the criminal law across the nation.

State and Territory Governments were quick to take up the challenge and at the same time began to participate in the development of the general principles of criminal responsibility and other provisions for a Model Criminal Code. Indeed, it was the State and Territory Governments who initiated the idea of a Model Criminal Code for Australia. The Northern Territory Attorney-General, Mr Daryl Manzie suggested that the issue be placed on the agenda of the Standing Committee of Attorneys-General and out of that the Criminal Law Officers Committee was established (now the Model Criminal Code Officers Committee, made up of criminal law experts from each jurisdiction). The Committee was remarkedly successful at developing consensus on the general principles, in a process that, building on the work of the Gibbs Committee and the consultation it had undertaken, drew even more widely on contributions from the academic and legal professional community. There has been the most extensive consultation towards the drafting of this bill and of course we anticipate considerable comment will again be generated following its introduction into Parliament. We, of course, welcome such comment. The Standing Committee of Attorneys-General has agreed that it will aim to have in place the Model Criminal Code by the year 2001.

The Model Criminal Code Officers Committee has worked long and hard to turn the concept of a Model Criminal Code from theory to reality. I am pleased to say that today I am able to take the first legislative step towards making the Code a reality.

The Commonwealth has a very wide range of offence provisions to amend consequentially. The magnitude of this task should not be understated. Many serious offences with a number of elements will have to be examined. If the Standing Committee's target is to be met, the Commonwealth must start now. In this I hope to initiate a dramatic improvement in the Commonwealth statute book, and also to show commitment to those State and Territory Governments who have invested their time and resources in the development of the Model Criminal Code. This project is a very significant demonstration that federalism works in Australia. As such, I believe it is a fitting project to contribute to our celebration of the centenary of our federation.

I turn now to the provisions of the Code now before the Senate. It is to be noted that these blend the two main approaches to the criminal law in Australia. On one hand the Code contains subjective fault-based principles of criminal responsibility which reflect the approach of the common law jurisdictions, while on the other hand it has provisions (such as those relating to intoxication) which are closer to the approach of the Griffith Codes. Furthermore it is a Code and as such accepts the underlying philosophy of the Griffith Codes that in such an important area of the law it is Parliament which should be determining the appropriate principles.

In setting out the physical and fault elements of offences and instances where fault elements do not apply, Part 2.2 adopts the usual analytical division of the elements of criminal offences into "actus reus" and "mens rea". The `physical elements' may be conduct, or the circumstances in which conduct occurs or a result of conduct. The `fault elements' refer to the state of mind of the person.

It is in relation to the fault elements that the Griffith Codes and the common law have taken different approaches. The essential difference between the two systems is that criminal responsibility under the common law is based on subjective fault elements: what the accused knew, believed or intended at the time of the conduct. This is not so under the basic provisions of the Griffith Codes.

In many offences under the Griffith Codes one or more forms of intention are express elements of the offence. In these cases, the difference between the Griffith Codes and the common law as regards intention is less marked. Nevertheless, in the case of many Griffith Code provisions which do not specify a fault element the difference is more significant. There is no onus on the prosecution to prove a fault element and criminal responsibility can only be negated by the defendant raising accident, or honest and reasonable mistake, or that the event occurred independently of his or her will. In the common law jurisdictions if a fault element is not specified for a serious offence, the general rule is that a fault element (such as intention or recklessness) is to be implied, and that the prosecution must prove it as part of its case.

The Code follows the common law approach in specifying subjective fault elements. This was the preferred approach in the vast majority of submissions received on the Model Criminal Code and is consistent with the US Model Penal Code, the English Draft Code, the Canadian Draft Code and the Gibbs Committee recommendations. It strikes the right balance and strengthens the principle that the accused is innocent until proven guilty.

On the other hand the Standing Committee of Attorneys-General preferred the general approach of the Griffith Codes in relation to intoxication. The Code provides that evidence of self-induced intoxication may not be taken into account in determining whether the conduct was voluntary and that it cannot be considered in determining whether a fault element of an offence of basic intent existed. An offence of "basic intent" is an offence where the physical element is one of conduct alone (such as striking a person) rather than one requiring greater awareness (such as striking a person with intent to cause grievous bodily harm). This approach is similar to that in the law in the USA, England and Canada, but differs in some situations from the law in the common law jurisdictions of New South Wales, Victoria, South Australia and the Australian Capital Territory which follow a High Court decision known as O'Connor. In those jurisdictions gross intoxication can be taken into account in determining whether a person had intent.

It is the view of Commonwealth and the unanimous view of State and Territory Attorneys General expressed at the most recent meeting of the Standing Committee of Attorneys-General that to legislate to enable intoxication to be used as an excuse for otherwise criminal conduct in relation to simple offences of `basic intent' is totally unacceptable at a time when alcohol and drug abuse are causing so many social problems. It is the Commonwealth's view that if a person voluntarily takes the risk of getting intoxicated to such a degree then he or she should be responsible for actions which would otherwise amount to an offence of basic intent.

Part 2.3 describes circumstances where there is no criminal responsibility, such as: where a person is under 10 years of age; suffers from mental impairment; is involuntarily intoxicated; or under a mistaken belief; or has a claim of right. Also covered are situations where there is some intervening conduct or event such as duress, emergency or self-defence. Apart from intoxication, which I have already mentioned, the most difficult issues concern mental impairment and self-defence.

The approach taken in relation to mental impairment follows the basic principles of what is called the McNaghten test. The Code provides for a mental impairment defence primarily concerned with the determination of criminal responsibility, a legal rather than medical test. This issue must depend in part on the expertise of psychiatrists and psychologists but is not exclusively a medical issue. The approach adopted has produced a workable definition of mental impairment that allows the jury to hear relevant psychiatric testimony, based on the best scientific evidence, and properly leaves the ultimate question of responsibility to the jury.

The self-defence test is subjective as to the necessity of using force but the test as to the proportion of force used is objective and is similar to section 45 of the Tasmanian Criminal Code. Although not of great practical relevance to Federal offences, revision of the law of self-defence is very important in State and Territory legislation to which the same principles will apply. In this connection the approach taken in proposed section 10.4 should be noted. Attention is directed to the explanatory memorandum which examines how the issue of the so-called "battered women's syndrome" has been dealt with.

Part 2.4 of the Code deals with extensions of criminal responsibility such as attempts, complicity and common purpose, innocent agency, incitement and conspiracy. Each of these extensions raise interesting issues which are dealt with in detail in the Explanatory Memorandum. The most notable change relates to the offence of conspiracy where measures have been included to avoid it being overused. This includes a limit that the offence only applies where the offence to which it relates has a penalty of more than 12 months imprisonment or a fine of $20,000 or more. It also requires an overt act on the part of one of the parties to the agreement which forms the conspiracy and that proceedings only be commenced with the consent of the Director of Public Prosecutions. This addresses judicial and other criticisms of the use of conspiracy charges in recent decades.

Part 2.5 deals with the important issue of corporate criminal responsibility. It sets a basic standard of responsibility for bodies corporate in relation to general offences.

The Code introduces the concept that criminal responsibility should attach to bodies corporate where the corporate culture encourages situations which lead to the commission of offences. The provisions make companies accountable for their general managerial responsibilities and policy. It provides that negligence may be proven by failure to provide adequate communication within the body corporate.

In speaking about this part I must stress that it is still open to the legislature to employ reverse onus of proof provisions or strict liability for offences where the normal rules of criminal responsibility are considered inappropriate.

At the federal level this will need to occur in a number of important areas where corporations are the main players, such as environmental protection, where the potential harm of committing the offence may be enormous and the breach difficult to detect before the damage is done. For example, the Government is not planning to water down the requirements of section 65 of the Ozone Protection Act 1989 in regard to the matters covered by that act. Part 2.5 concerns general principles suitable for ordinary offences. It will be the basis of liability if no other basis is provided.

Finally Part 2.6 deals with proof of criminal responsibility and it sets out the respective burdens of proof to be discharged by both the prosecution and defence. It also deals with averments and restricts their use. It follows established principles.

Clearly there are different views on particular issues, in some cases very strongly held, and the Government will take particular care to listen to the debate on those aspects of the bill.

I will conclude by saying that for Constitutional reasons later parts of the Commonwealth Criminal Code will be different from the new State and Territory Criminal Codes as its subject matter will include what are currently Crimes Act 1914 offences and certain other serious offences, such as drug offences. Despite this, the offences common to the Commonwealth and State Codes will be expressed in substantially the same terms and offences unique to the Commonwealth Criminal Code will be constructed having regard to the same principles of criminal responsibility contained in this bill. The benefit of this will be that no matter where a trial is held in Australia, Commonwealth offences will need to be proved in the same way which, as the States modify the criminal law, will reflect a common national approach for all offences. This will have enormous benefits in terms of simplifying joint Commonwealth/State investigations and trials, the mobility of the legal profession and investigators and to Australian citizens.

It is the Government's hope that this bill will not only be the beginning of a new era for Commonwealth criminal law, but for the criminal law of Australia generally—the beginning of one of the most ambitious legal simplification programs ever attempted in Australia.

I present the Explanatory Memorandum to this bill.

I commend the bill to the Senate.


This government is committed to improving the access to justice of its citizens. The Legislative Instruments Bill 1994 is a small but significant step in that process.

Late last month the Attorney-General released the report of the Access to Justice Advisory Committee, which sets out a blueprint for future reform of the justice system to rebuild confidence in Australia's legal institutions.

That report draws on a number of major reports recommending change to Australia's legal institutions. These include those of the Hilmer inquiry and the Trade Practices Commission, which focus on the benefits of competition principles for the legal services market, and of the Law Reform Commission, which is currently considering the issues of gender bias and the law. The Access to Justice Advisory Committee considered a large number of other reports dealing with aspects of the legal system, including the report of the Administrative Review Council on delegated legislation to which this bill gives effect.

Work is now in hand to build upon the recommendations made in the access to justice report and related reports and prepare a program for reform with the objectives that all Australians—

should have equality before the law;

have similar rights and privileges, regardless of their place of residence; and

should have equal access to legal services.

Later this year the Attorney-General proposes to make a justice statement setting out the government's commitments to a fair, just and accessible legal system.

This bill implements the government's response to the recommendations of the Administrative Review Council in its report on rule making. Those recommendations were endorsed by the Access to Justice Advisory Committee. The Administrative Review Council's report critically examined the existing process for making and accessing delegated legislative instruments and made a number of significant recommendations on ways to improve that process for the benefit of all those affected by such instruments. The government thanks the council for its contribution to the process of enhancing access to justice.

The government did not accept all the recommendations of the Administrative Review Council. In particular, it did not accept the recommendation that legislation founded upon its report should not contain a definition of a legislative instrument. In the government's view the uncertainty that would have been created from not defining the term would have resulted in significant legal proceedings to determine the ambit of the legislation. The government's approach will relieve the community of that cost burden. The bill defines a legislative instrument in section 4 and has as its principal facet the exercise of power delegated by the parliament, and determining the law, or altering the content of the law. Regulations and instruments that are currently disallowable are expressly included.

Another significant departure from the recommendations related to the proposals for sunsetting. The purpose of sunsetting was twofold. First, it would ensure that all existing instruments and future instruments were examined as to the appropriateness of their continuation. Secondly, it would have ensured that the instruments that were appropriate went on to the register. The House of Representatives Standing Committee on Legal and Constitutional Affairs report Clearer Commonwealth Law commented upon sunsetting and recommended the developing of a sunset program to promote rewriting of all subordinate legislation. The practice of sunsetting has been used but an evaluation of the benefits of the practice has not been undertaken. The government decided that until such an evaluation had been undertaken it would be premature to enact the practice particularly where it is a resource intensive practice to undertake.

The Administrative Review Council also recommended that the consultation process be undertaken in all cases. The government considered this recommendation in the context of its white paper—Working Australia but decided that because of the burden in undertaking consultation it should apply in the first instance only to legislative instruments made under specific legislation affecting business. Whether the provisions for consultation should be extended outside the business context can be considered in the future in light of experience gained in this more targeted approach. The government would expect the Administrative Review Council to examine this aspect after the whole regime contained in this bill has been in operation for a period of three years as part of its evaluation of the regime.

The council also recommended that the regime apply to rules of court made by federal courts. Rules of court are made by the judges of the court to govern the conduct and procedures of their courts. Any supervision of the rule-making process by the executive or its officers risks interference with the independence of the judiciary and, accordingly, offending the doctrine of the separation of powers. The courts, however, accept that the principles of the legislation should apply to them. Accordingly the bill makes amendments to the various acts establishing the courts to provide for them a court specific regime based upon the principles in this bill.

This bill deals with the question of accessibility to the law. Primary legislation is already relatively accessible. Members of this House can obtain that legislation readily and the general public has access to it through the Australian Government Publishing Service bookshops and will soon be able to access it through the "Scale" database system run by my department.

Delegated legislation is another matter. Some delegated legislative instruments are, like primary legislation, readily available. These include statutory rules, rules of court and other instruments covered by the Statutory Rules Publication Act. However, a substantial amount of delegated legislation is hidden from public access.

The community is entitled to know what laws exist and the effect of that law as it applies to them. If the relevant law resides in a filing cabinet in some Commonwealth department or agency or is hidden in the bottom drawer of some bureaucrat's desk the community generally only finds out about it when the department or agency seeks to enforce that legislative requirement.

As well as providing easy access to delegated legislation, the bill provides a process of review that—

affords the opportunity to sweep away any rules and regulations which have outlived their purpose or impose unnecessary burdens on business;

will assist in identifying duplication and overlapping requirements; and

enables the development of proposals for amendments to ensure that all such regulation remains appropriate and up to date.

Accessibility will be achieved through the establishment of an electronic register of all new and existing delegated legislation. A member of the community who scans that register to find legislation of interest to him or her will be able to print a copy of that legislation. After the commencement of this legislation a new delegated legislative instrument will not be able to be enforced unless it is registered. For existing instruments a series of limited timeframes are being provided for registration of those instruments. If registration has not occurred by the relevant date then the continued enforceability of such instruments will cease after that date.

To achieve more acceptable and effective delegated legislation, as it applies to business a consultation process will be mandated. Under that process, the sponsoring agency will be required to provide affected parties with a legislative instrument proposal which analyses the need for the regulation, the costs and benefits of it and alternative ways of achieving the objectives of the proposal. This should ensure that any defects in the proposal are exposed and can be rectified before the regulation is made.

Finally, it is proposed that the parliament will have a greater role in the scrutiny of delegated legislation. All registrable instruments will be subject to parliamentary scrutiny. This is not currently the case with many delegated instruments. To achieve this end the provisions of the Acts Interpretation Act dealing with the construction and disallowance of instruments are being repealed and re-enacted in this bill. At the same time the opportunity is being taken to provide further powers to the parliament in dealing with disallowable instruments by enabling a deferral of consideration of a motion of disallowance for a period not exceeding six months. This will allow the executive government to remake or amend the instrument to achieve the objective specified in the resolution of disallowance.

These new measures will go a long way towards involving Australians, and this parliament in particular, in the process of making delegated legislation and ensuring that it is understandable, effective and up to date. Everyone should have cheap and easy access to legislation and this will be achieved through access to the electronic register.

I commend the bill to the Senate. I present the explanatory memorandum to the bill.


February 1992—Policy Reforms

Mr President, on 26 February 1992, the Prime Minister announced as part of the "One Nation" Statement the most comprehensive program of international aviation reforms ever to be undertaken in this country.Included in this were the decisions to allow more than one Australian carrier to operate air services into and out of Australia (the so called "multiple designation" policy) and to allow Qantas access to domestic markets.

This removed the longstanding distinctions between international and domestic aviation in Australia and allowed the benefits of domestic deregulation to flow through to international operations.

A little more than two years down the track, these announced reforms have come to fruition with across the board gains for our consumer, trade and inbound tourism interests.

Establishment of the International Air Services Commission

To give effect to the new multiple designation policy, the Parliament passed the International Air Services Commission Act 1992 (the act) and, through it, established the International Air Services Commission (IASC) which has the responsibility for allocating to Australian carriers aviation rights negotiated internationally by the Government.

The act ensures that route allocation decisions are made within a framework of:

competition amongst Australian carriers for international operating rights;

minimal administrative burden and delay with high standards of accountability and transparency;

independence from Ministerial intervention and from the Government's responsibility for negotiating bilateral arrangements; and,

conformity with Australia's international aviation obligations.

Under the act, the Commission must determine the merits of competing claims according to public benefit criteria spelt out in an accompanying Policy Statement. This requires the Commission, in assessing applications, to take account of the extent to which each application:

promotes tourism to, and within, Australia;

benefits Australian consumers;

promotes international trade;

contributes to the development of a competitive environment for the provision of international air services; and,

impacts on the Australian aviation industry overall.

The Commission's Achievements

Since its establishment, the Commission has played an important part in ensuring the success of Australia's new aviation policy.

Ansett began services to Indonesia in September 1993 and has announced plans for full-scale international market entry in September this year with Boeing 747 services to Japan and Hong Kong.

During the same period, the Commission has awarded Qantas the capacity entitlements necessary to maintain that airline's status as a major world carrier.

Impact on Australia's approach to bilateral negotiations

In going down this path, the Government also needed to negotiate more expansive route and capacity entitlements required to support new entrants on prime routes and to maintain the growth momentum of Qantas.

The move to multiple designation has therefore had the important and intended consequence of requiring Australia to further liberalise its approach to bilateral aviation negotiations.

This has been true particularly in the rapidly growing markets of south-east Asia and north Asia where major increases in capacity have been achieved.

Since the beginning of 1992, the Government has conducted an extensive program of bilateral air services negotiations with more than 30 countries.

As a result of this, multiple designation provisions exist in the great majority of Australia's air services agreements, and in almost all major Asian markets.

Importantly, the route rights and capacity entitlements required by the airlines to give effect to their expansion plans are in place.

Need to maintain the momentum

Mr President, the policy path on which we have embarked is undoubtedly the right one for Australia.

The purpose of this bill is to build on the good work that has already been done by the IASC in helping to re-shape Australia's international aviation sector.

The IASC has been operating for over two years. As with any new undertaking, there is a need to reflect on whether things can be done differently, and if so, whether the results will be better for the changes introduced.

This bill proposes a number of amendments to the IASC act of an essentially technical nature, designed to refine and streamline the Commission's

processes in recognition of the commercial imperatives under which our airlines operate. The changes proposed will lead to more efficient delivery of the Government's reforms and will benefit the airline industry as a result.

Broadening the scope of capacity considered under the act

Mr President, there is a need to bring air services on the Taiwan route within the scope of the act. Currently, Taiwan is excluded from the act as there is no formal government to government air services agreement in place between Australia and Taiwan.

Taiwan-Australia traffic, particularly inbound tourist traffic, is growing strongly and Taiwan is forecast to be one of Australia's major markets over the course of the next five years.

Capacity on the Taiwan route is operated by Australia Asia Airlines (a Qantas subsidiary) under approvals issued by the Secretary of the Department of Transport. Whilst these arrangements provide Qantas with the necessary operational authority, IASC determinations would provide the certainty which Qantas and any new entrants would require.

This bill will ensure that decisions on Taiwan capacity can be made by the Commission and will enable capacity currently being operated by Australia Asia to be treated as if it had originally been allocated by the IASC. It will enable the Qantas Board to identify with certainty the Company's route rights and entitlements in the prospectus to be prepared for the Qantas sale.

Streamlined Application and Evaluation Procedures

The bill before you also establishes a basis for the Commission to deal more expeditiously with applications for capacity or for minor variations to determinations. It makes provision for the Commission to deal with some types of applications without necessarily applying the full range of criteria spelt out in the Policy Statement on each and every occasion.

The situations in which a more streamlined evaluation process may be appropriate include where:

capacity under bilateral arrangements is unlimited;

only one application has been made for the allocation of capacity;

there are no submissions opposing allocation of capacity to an applicant; or,

an application for the allocation of capacity is opposed on particular grounds and only the public benefit tests relevant to those grounds need be applied.

Along similar lines, the bill provides for expedited procedures to be applied when, for example, a carrier wishes only to hand back capacity previously allocated to it. This reduces the time which other carriers may have to wait to then be able to apply for the available capacity under the usual procedures.

Operational Decisions in Special Circumstances

In some circumstances, the act prevents minor operational decisions, such as approval of supplementary services in peak periods, or to allow for minor changes in aircraft seating or aircraft type, from being approved. This can inhibit flexible airline operations by Australian carriers in a manner not faced by foreign airlines operating into Australia.

The Government proposes to remedy this by allowing the Secretary of the Department of Transport to make minor and temporary operational decisions without prior reference to the IASC.

The types of decisions which the Secretary could make will be prescribed by regulation under the act to allow Parliamentary scrutiny to ensure that the Commission's processes and independence are respected.

Use of capacity by different members of a corporate group

Mr President, the act envisages that there will be circumstances when an airline awarded capacity will want to transfer that capacity to another party and it already contains provisions for this purpose. This bill also provides Australian carriers with the flexibility to operate capacity through different members of the same corporate group such as wholly owned subsidiaries or holding companies which are Australian carriers, subject to appropriate conditions being imposed by the Commission.

Internal processes of the IASC

The bill contains a number of miscellaneous provisions designed to improve the Commission's flexibility in its proceedings and day to day operations.

These include:

allowing the Commission to deal with two or more matters concerning particular capacity in the same determination;

permitting the Commission to operate with only two of the three members present;

provisions concerning disclosure of interests by the Commission; and,

provisions designed to reduce the administrative costs associated with publishing determinations.

Financial Impact Statement

This bill will not involve any additional expenditure by the Commonwealth for the Commission's on-going operations.


Mr President, the broad thrust of these amendments is to introduce as much flexibility to the process of allocating aviation rights as possible whilst retaining the need to apply proper public benefit tests where appropriate.

The changes proposed are desirable from the industry's perspective, by establishing less burdensome and time consuming procedures, and from the Government's viewpoint, in placing less pressure on the IASC's limited resources.

In the lead up to the Qantas float, the changes will provide greater certainty in relation to the Company's rights and entitlements and enable the Board of Directors to approach the public with confidence.

I commend the bill to the Senate and present the explanatory memorandum for the bill.


This bill proposes amendments to a number of acts dealing with Commonwealth criminal law or law enforcement matters. As a number of the amendments are technical in nature, I propose to discuss only the substantive amendments made by this bill.

Three amendments to the Australian Security Intelligence Organization Act 1979 will:

include certain offences created by the Crimes (Ships and Fixed Platforms) Act 1992 within the category of politically motivated violence under the ASIO Act;

allow the Director-General of Security to give a standing authorisation to an officer of ASIO to approve persons who are to be able to exercise the authority of warrants issued by the Attorney-General; and

allow officers of ASIO to apply for vacant positions in the Australian Public Service even though the positions have not been advertised as being open to the public.

The offences from the Ships and Fixed Platforms Act which will be included in the definition of `politically motivated violence' in the ASIO act are similar to those which are already specified in that act. They are of a type often associated with terrorist activities. Accordingly, it is appropriate to include these offences as acts of politically motivated violence against which it is ASIO's function to protect Australia and Australians.

Part III of the ASIO act permits ASIO, under the authority of a warrant issued by the Attorney-General, to collect intelligence by means of listening devices, searching of premises and the interception of mail. To protect individual privacy as far as possible, consistent with the need for ASIO to perform its statutory functions, only officers nominated in writing by the Director-General of Security may exercise the authority of a warrant. At present, these written authorisations must be made for each warrant. The proposed amendment of section 24 of the ASIO act will allow the Director-General to appoint particular officers of ASIO to perform the function of authorising those who may exercise the authority of a Part III warrant. The amendment will enhance administrative efficiency without in any way diminishing ASIO's existing accountability in the exercise of its powers under warrant.

As to the final amendment of the ASIO act, ASIO officers are not employed under the provisions of the Public Service Act 1922 but under terms and conditions determined by the Director-General of Security. This means that they cannot apply for vacant jobs in the Australian Public Service unless those jobs are advertised as being open to the general public.

In view of the restructuring which ASIO has been undergoing, it is appropriate to enable officers of ASIO to apply for positions in the Australian Public Service. The object of this proposed amendment to the ASIO act is to put officers of ASIO in the same position as officers of the Public Service when applying for vacancies. Officers will compete on their merits and, if found suitable, may be appointed as if they were already a public servant. All appointments will be treated as promotions to allow for appeals by other candidates if applicable.

There are several amendments being made to the Crimes Act 1914.

Clauses 10 and 11 of the bill implement recommendations of the Australian Law Reform Commission from its report entitled Multiculturalism and the Law in relation to the sentencing of federal offenders. The amendments will ensure that an offender's cultural background must be taken into account by a court when it is relevant to the sentence or order that the court will make, including when deciding whether to dismiss the charge, or discharge the offender on conditions without recording a conviction.

The amendments in clauses 12 and 13 of the bill also relate to court orders made under the Crimes act. They will ensure that where courts impose conditions which include monetary amounts in recognisances (or bonds) made under paragraph 20(1)(b), the offender cannot be imprisoned for breach of a such a condition, and that where a federal offender commits an offence whilst on a recognisance, breach action may be taken, even if the order has expired at the time the person is convicted of the new offence.

Clause 13 will also extend the range of options available to a court, where a person has breached a recognisance which has either a suspended sentence of imprisonment or a partially suspended sentence of imprisonment attached to it. The proposed amendments will enable the court to impose a monetary penalty not exceeding $1000, extend the period of good behaviour, or revoke the order and impose an alternative to imprisonment, such as a community service order.

The bill also makes amendments to the "escape" provisions of the Crimes Act which create offences relating to the escape of federal offenders. The most significant aspect of these amendments is the removal of Australian Capital Territory prisoners from the ambit of the provisions. The Commonwealth is no longer responsible for ACT criminal law and the ACT has now enacted its own escape provisions.

Finally, the amendment to section 85ZKB of the Crimes Act will remove scanning devices from the scope of the offence created by that section. Section 85ZKB prohibits the manufacture, advertising, display, offering for sale, sale or possession of equipment which is capable of being used to intercept a communication contrary to the Telecommunications (Interception) Act 1979. Scanners are radio receivers which can automatically scan all broadcast radiocommunications and tune into whatever may interest the operator. They are capable of receiving telecommunications which are in part transmitted by radio signals: for example, cellular mobile telephones as certain prominent members of society have found to their chagrin.

That scanners currently fall within the scope of section 85ZKB of the Crimes Act is an unintended result of the development of telecommunications technology which in part makes use of radio signals. I am advised that there are some three million scanners in use in Australia although it is, of course, impossible to confirm that number. The Government does not believe that it is reasonable to prohibit the manufacture, sale or possession of a device which is readily available and has a number of legitimate uses apart from the possible interception of telecommunications. However, it hardly needs to be stressed that unauthorised use of a scanner to intercept telecommunications partially transmitted by radio signals remains an offence under the Telecommunications (Interception) Act 1979 as does subsequent unauthorised publication of any material collected in this way.

Amendments to the Transfer of Prisoners Act 1983 are being made so the ACT can be admitted into the national uniform interstate transfer of prisoners scheme as a participating State. At present ACT prisoners are covered by the Transfer of Prisoners Act 1983. Following ACT self government, the Standing Committee of Attorney-Generals (SCAG) considered the issue of the interstate transfer of ACT prisoners for welfare and trial purposes. The Cairns meeting of SCAG, held on 11 and 12 July 1991, decided that the ACT would be admitted to the national uniform interstate transfer of prisoners scheme, and it was agreed that the legislation of each jurisdiction would be amended to recognise the ACT as a participating State for the purposes of the scheme. The amendments implement that decision.

Finally, the Schedule to the bill makes amendments to a number of acts. Again, I only propose to deal with the more significant of these amendments.

Amendments will be made to the Crimes (Aviation) Act 1991, the Crimes (Hostages) Act 1989, the Crimes (Internationally Protected Persons) Act 1976, and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 to transfer responsibility for issuing certificates relating to the entering into force and operation of certain multilateral treaties from the Attorney-General to the Ministers who are responsible for the treaties. The amendments will also remove requirements for gazettal of these certificates where this requirement exists. Gazettal was originally required to enable copies of the Gazette to be tendered in court proceedings. However, this is not necessary in practice, since a new certificate may be issued each time.

An amendment to the Customs Act 1901 will ensure that, where a claim for recovery of items forfeited under the act is made but not pursued, the goods are automatically condemned as forfeited to the Commonwealth when the claim is discontinued or dismissed for want of prosecution. Currently, separate proceedings must be instituted for condemnation resulting in extra costs to the claimant as well as to the Commonwealth.

Two amendments are made to the Director of Public Prosecutions act 1983. The first will give the Director the function of appearing in proceedings or inquiries held under the Crimes (Aviation) Act 1991. Australia is bound by international conventions to hold such inquiries or proceedings in relation to hijacking and similar offences on aircraft involved in international civil aviation. The amendment will ensure that experience in these matters is concentrated in one body. Inquiries and proceedings under the Crimes (Aviation) Act are also to be included among the matters in which the Director can give undertakings of immunity to witnesses.

The second amendment concerns court orders prohibiting or restricting the publication of evidence or information in certain cases to prevent prejudice to the administration of justice. Courts already have this power in relation to civil remedy and recovery of pecuniary penalty actions instituted by the Director. The amendment will expand these categories to include proceedings under the Proceeds of Crime Act 1987 seeking restraining orders over property, or the extension of the period of operation of such orders. Before such an order can be granted, the court must be satisfied that there are reasonable grounds for believing that the defendant committed a serious offence: a serious narcotics offence, an organised fraud offence or a money laundering offence. Satisfying the court of these matters often involves affidavit evidence which reveals details of witnesses or of an investigation. In some cases the court may need to make an order prohibiting or restricting the publication of this evidence to protect a witness or to ensure the effectiveness of a continuing investigation.

Amendments to the Extradition Act 1988 made by this bill will ensure that Australia can fulfil its international obligations under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the related Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf. Australia's accession to the Convention and Protocol took effect on 20 May 1993. The Convention and Protocol are designed to prevent and suppress maritime terrorism and they list offences in relation to acts likely to endanger the safe navigation of a ship or the safety of a fixed platform. Those offences are extraditable within the terms of the Convention and Protocol. As extradition will not be granted for political offences under the Extradition Act, it is necessary to put beyond doubt that the Convention and Protocol offences are outside the definition of `political offence' in that act. The amendment therefore excludes those offences from the definition of `political offence' for the purposes of the Extradition Act. The `political offence' definition has been limited in this way for a number of other multilateral Conventions to which Australia is a party.

The bill makes an amendment to the Financial Transaction Reports Act 1988 to enable Australian Federal Police officers performing customs functions on Christmas Island to receive reports on the transfer of currency into or out of Australia under section 15 of the act.

Finally, amendments to the Mutual Assistance in Criminal Matters Act 1987 made by this bill will ensure that the act can be applied by regulation to one country for one or more of the following 3 purposes;

to give effect to a bilateral treaty which provides for mutual assistance in relation to limited subject matter only,

to give effect to a non-treaty bilateral arrangement providing for mutual assistance in relation to other subject matters; and

to give effect to our mutual assistance in criminal matters obligations to a country which, with Australia, is party to a multilateral treaty or convention which contains mutual assistance obligations.

I commend the bill to the Senate and present the related explanatory memorandum.


The purpose of this bill is to amend the Crimes Act 1914 as an interim measure pending the commencement of the Criminal Code Bill 1994 which will not be completed for 5 years. While the Code bill is likely to commence in relation to its own offence provisions towards the end of next year, there are many Commonwealth offences which will need to be reviewed and consequentially amended to make them referable to the Code before it applies to them. The period of 5 years was chosen to ensure that the transition is ordered and that it occurs without disruption.

While interim in nature, this bill contains much needed and long overdue reforms. The application of common law principles of criminal responsibility means that all people accused of Federal offences will be subject to same principles of criminal liability wherever they are in Australia. The bill will replace section 4 which only applied these principles to offences against Crimes Act 1914.

The common law principles of criminal liability have been extended to other Commonwealth offences to avoid a situation where there would be 3 sets of principles in existence during the transitional period—the Code principles, the Crimes Act use of the common law, and the application of State and Territory law in relation to other offences.

It should be noted that the common law principles have already applied to Federal Crimes Act offences since it was first enacted in 1914. At that time there were far fewer offences in other Commonwealth legislation. Therefore the change is consistent with the effect of the policy then, that is, in relation to criminal liability, people were dealt with under the same principles in different parts of the country.

Finally, the Code itself is largely based on common law principles; therefore this interim measure will be generally consistent with its principles.

The minimum age of criminal responsibility has for some time varied between jurisdictions. The minimum age for criminal responsibility is 7 years in Tasmania, 8 years in the ACT and 10 years in the other jurisdictions. This meant that a child from New South Wales on holidays in Tasmania could be accused and convicted of a Federal offence committed during the holiday, when at home he or she would not be charged for doing the same thing. This is clearly anomalous and requires reform. The approach taken mirrors proposed section 7.1 of the Criminal Code.

Also in pressing need of reform are the laws relating to attempt and conspiracy.

In relation to `attempt' the Government was keen to see some clarification of this in some respects complex area of the law in the shorter term. In particular we wanted to act on the recommendations of the Gibbs Review of Commonwealth Criminal Law in relation to impossibility. The amendment ensures that couriers who believe they are importing a prohibited drug are unable to avoid being charged for attempt when it is discovered the substance is something else. Apart from the question of what fault element applies (which is not dealt with in this bill but is left to the common law), the provision on attempt is the same as proposed section 11.1 of the Criminal Code.

Finally the bill introduces new rules in relation to the offence of conspiracy. Measures have been included to avoid it being overused. This includes a limitation that the offence only applies where the offence to which it relates has a penalty of more than 12 months imprisonment or a fine of $20,000 or more. It also requires an overt act on the part of one of the parties to the agreement which forms the conspiracy and that proceedings only be commenced with the consent of the Director of Public Prosecutions. This addresses judicial and other criticisms of the use of conspiracy charges in recent decades. This reform mirrors proposed section 11.5 of the Criminal Code.

These measures ensure that during the period leading up to the commencement of the Code the reform process is not frozen. They will facilitate the introduction of the Code by following a consistent approach and helping to simplify the transition.

I present the Explanatory Memorandum to this bill.

I commend the bill to the Senate.


The purpose of this bill is to make a number of amendments to the Merit Protection (Australian Government Employees) Act 1984.

The Merit Protection (Australian Government Employees) Act was one of the elements of the Government's public service reform package in 1984. The act provided for the establishment of the Merit Protection and Review Agency (MPRA) as an independent statutory authority responsible for handling grievances and appeals of public servants.

Mr President, the Government remains committed to the principles on which the MPRA was established and which are articulated in its legislation—fairness, equity, sound personnel management practices, efficiency and good staff relations. The Government sees the MPRA having an important role in preserving key values in Australian Government employment and, in particular, in preserving the merit system. In its first ten years, the MPRA has developed an enviable reputation for probity and independence.

The amendments cover a range of matters designed to facilitate and improve the performance of the MPRA's functions and to further the objectives contained in the act.

The most important amendment provides for the MPRA, or a committee established by the MPRA, to perform specified employment related functions in addition to those already provided for in the Merit Protection (Australian Government Employees) Act.

This means that the MPRA or one of its committees could, for example, at the request of a Commonwealth department or authority and the principal relevant staff organisation:

  mediate in a dispute; or

  select staff for transfer; or

  where there is a "spill" of positions, establish an order of merit for selection.

The amendments also provide for the MPRA to deem a promotion appeal to be an application for review and vice versa to help avoid situations where an officer with an otherwise valid entitlement may be disadvantaged because of his or her lack of detailed knowledge of the relevant legislation.

The MPRA will also have the power to issue guidelines to Joint Selection Committees which are tripartite staff selection committees with a convenor nominated by the MPRA. There is generally no appeal against the outcome of a Joint Selection Committee process with resultant time and cost savings in comparison to standard methods of staff selection. The MPRA currently has the power to issue guidelines in relation to Review Committees.

The remaining amendments are minor, designed to bring particular provisions into line with similar provisions already contained in the act.

I present the explanatory memorandum for the bill and commend the bill to the Senate.


This bill proposes the repeal of the Customs Tariff (Uranium Concentrate Export Duty) Act 1980. The repeal is part of a package of changes designed to streamline and refocus the Commonwealth's involvement in the Alligator Rivers Region of the Northern Territory.

Three main features of the package of reforms, which were implemented by the Environment Protection (Alligator Rivers Region) Amendment Act 1993, are:

the incorporation of the Office of the Supervising Scientist into the Commonwealth Environment Protection Agency;

refined mechanisms for consulting key stakeholders (including the Traditional Owners and the Northern Lands Council); and

allowing the Alligator Rivers Research Institute to undertake research on matters outside the Region on a commercial basis.

The reforms also include the conduct of an independent review of the research now needed to meet the Commonwealth's environment protection objectives in the Region.

The Uranium Export Levy was introduced in 1980 in recognition of the special costs of environmental monitoring and research activities related to uranium mining in the Alligator Rivers Region. However, with diminishing exports from the Alligator Rivers Region, due to the closure of the Nabarlek mine and declining exports from the Ranger mine due to the poor state of the market for uranium, levy collections have become uncertain.

The Government has also recognised that there was a general benefit to the community associated with the work of the Office of the Supervising Scientist and this portion should not be borne by the uranium industry. Ranger, as the sole producer in the Region and the only one contributing to the levy should therefore not be expected to meet the full costs of these activities.

The levy was also seen as inequitable to Ranger as there is no similar levy applying to any other mineral commodity. It also hinders Ranger's competitiveness, including against Roxby Downs in South Australia where the export levy does not apply.

As a result, the Uranium Export Levy has come to be seen by the Government as an inappropriate mechanism for collecting an industry contribution to the special costs of environmental protection required for the Region.

Consequently, the Government has sought a mechanism which more directly relates the industry's contribution to the environmental research needs of the Region and provides some certainty in its collection. It has therefore decided to replace the contribution previously collected by the Uranium Export Levy with a contractual arrangement with Energy Resources of Australia Ltd (ERA). This arrangement provides for the annual payment of at least $1.5 million to the Commonwealth. The agreement is subject to review after 2 years or in the event of any significant change in mining circumstances. The environmental research needs of the Region have recently been reviewed by a team of independent consultants and will be the subject of ongoing review through the Technical Committee established by the recent amendments to the Environment Protection (Alligator Rivers Region) Act 1978.

In return for ERA's financial contribution to research, the Commonwealth has undertaken to repeal the Customs Tariff (Uranium Concentrate Export Duty) Act 1980. ERA's contribution will more than offset current revenue collections and result in a greater degree of certainty in revenue receipts for the Commonwealth and expenditure for ERA.

This bill removes the Uranium Export Levy by repealing its parent legislation.


The direct impact of this bill is the loss of between $1.2m and $1.5m per annum in Export Duty based on the revenue received in 1992/93 of $1.538m and 1993/94 of $1.207m.

However, as the Export Duty is to be repealed on the condition that ERA agree to an annual contribution of at least $1.5m to research in the Alligator Rivers Region, there is no net financial impact as a result of the measures contained in this bill.

I commend the bill to the Senate and present the Explanatory Memorandum to the bill.


Mr President, the Law and Justice Legislation Amendment Bill (No. 2) 1994 will amend 5 acts coming within the Attorney-General's portfolio.

The bill contains amendments of a minor policy nature and makes minor technical amendments to existing legislation. None of the amendments involve major policy proposals. They are explained in the Explanatory Memorandum circulated with the bill.

The proposed amendments will not have any significant financial impact.

The amendment to the Law Officers Act 1964 will allow the Governor-General to appoint a person to act as Solicitor-General during all periods in which the Solicitor-General is absent from duty or from Australia or is, for any other reason, unable to perform the duties of a Solicitor-General. This will allow a person to be given an appointment for a fixed term during which that person would automatically act as Solicitor-General during any vacancy or absences of the Solicitor-General without the need for an appointment by the Governor-General each time that the Solicitor-General is absent from duty.

The bill will amend Parts 5 and 7 of the Service and Execution of Process Act 1992 in relation to the enforcement of warrants.

Part 5 of the act provides for interstate execution of a warrant (other than one for the non-payment of a lower court fine) issued under the law of a State.

There is a possibility that if a person arrested under an interstate warrant is released or remanded on bail by a magistrate and subsequently goes to another State, he or she might be invalidly re-arrested under the warrant in that State.

The Service and Execution of Process Act 1992 will be amended to provide that:

where the arrested person has been so released or remanded, the court, authority or tribunal that issued the warrant must be notified of the release or remand; and

the issuing court, authority or tribunal must notify the police force of each other state which had been notified of the issue of the warrant of the consequences, under the act, of the person's being released or remanded.

Part 7 of the act provides for interstate execution of warrants issued under State law for the non-payment of a lower court fine.

It is considered that, unlike warrants under Part 5, there is very little benefit in having warrants capable of being executed in more than one State. Accordingly, rather than provide for a notification procedure under Part 7 of the act, the bill will amend the act to provide that a warrant under Part 7 must be directed to police in one particular State or Territory.

In addition the bill will strengthen the existing provision for withdrawal of a Part 7 warrant once a person's liability to pay a fine has been discharged.

The bill will also clarify the provisions of the act in relation to interstate service of process at an address for service in proceedings.

The proposed amendments to the Trade Practices Act 1974 will:

increase the penalties for breaches of the product safety and information provisions of the act to bring them into line with penalties for breaches of the consumer protection provisions of the act which came into force in January 1993;

allow the use of penalty infringement notices as an alternative to prosecution for failure to notify the Minister of a voluntary recall of unsafe goods;

include requirements consistent with Commonwealth criminal law policy to clarify the basis upon which an officer may exercise his or her powers of entry without warrant to inspect unsafe goods;

bring the procedure for effecting entry to premises under a warrant issued under section 65q(5) of the act into line with Commonwealth criminal law policy; and

allow the Secretary to the Department responsible for the enforcement of the product safety and information provisions of the act to accept and apply to the court to enforce written undertakings in connection with matters in which he or she has powers or functions under the act.

The bill will also make a number of minor amendments, including removing gender-specific language, to the Copyright Act 1968, the Judiciary Act 1903 and the Law Officers Act 1964.

I commend the bill to the Senate.

  Debate (on motion by Senator O'Chee) adjourned.

  Motion (by Senator Crowley) agreed to:

  That the bills be listed on the Notice Paper as separate orders of the day.