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Scrutiny of Bills - Senate Standing Committee - Reports - Fourth, dated 25 March 1982


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The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Fourth Report

March 1982

Brought up and ordered to be printed 25 March 1982

Parliamentary Paper No. 52/1982

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Parliamentary Paper No. 52/1982

The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Fourth Report

March 1982

The Commonwealth Government Printer

Canberra 1982

© Commonwealth of Australia 1982

Printed by Authority by the Commonwealth Government Printer

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

MEMBERS OF THE COMMITTEE

Senator A.J. Missen, Chairman

Senator M.C. Tate, Deputy-Chairman

Senator N.A. Crichton-Browne

Senator G.J. Evans

Senator R. Hill

Senator S.M. Ryan

TERMS OF REFERENCE

(1) (a) That a Standing Committee of the Senate, to be known as

the Standing Committee for the Scrutiny of Bills, be

appointed to report, in respect of the clauses of Bills

introduced into the Senate, and in respect of Acts of the

Parliament, whether such Bills or Acts, by express words

or otherwise:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties and obligations unduly

dependent upon insufficiently defined

administrative powers or non-reviewable

administrative decisions; or

(iii) inappropriately delegate legislative power or

insufficiently subject its exercise to

parliamentary scrutiny.

(b) That the Committee, for the purpose of reporting upon

the clauses of a Bill when the Bill has been introduced

into the Senate, may consider any proposed law or other

document or information available to it, notwithstanding

that such proposed law, document or information has not

been presented to the Senate.

The Committee has the honour to present its Fourth Report to the

Senate .

DISCUSSION OF BILLS

1. The Committee draws the attention of the Senate to clauses of

the following Bills which contain provisions which the

Committee considers may fall within the principles expressed

in paragraph 1(a)(i) to (iii) of the Resolution of the Senate

of 19 November 1981:

Tobacco Charge (No. 1) Amendment Bill 1982

Tobacco Charge (No. 2) Amendment Bill 1982

Tobacco Charge (No. 3) Amendment Bill 1982

Repatriation Amendment Bill 1982

TOBACCO CHARGE (No. 1) AMENDMENT BILL 1982

2. The purpose of this Bill is to amend the Tobacco Charge Act

(No■ 1) 1955 to increase the rate of charge payable on sales

of Australian tobacco leaf from 1 March 1982 from 1.1 cents

to 2.5 cents per kilogram and to enable the rate of charge to

be increased or decreased by regulation.

3. The Committee draws the attention of the Senate to the

following clauses:

Clause 4 - Regulations

This clause inserts a new section 6 in the Principal Act

which permits the making of regulations which may increase,

or decrease, the rate of charge specified in section 5 of the

Principal Act. Section 6 of the Principal Act in its present

1.

form permits regulations to fix only a lower charge. The

proposed section might be compared with clause 6 of the Dairy

Products (Export Inspection Charge) Bill 1982, previously

examined by the Committee, which allows regulations to fix a

charge but states a maximum permissible amount.

The Committee draws this provision to the attention of the

Senate under principle 1(a)(iii), in that it might be

regarded as inappropriately delegating legislative power.

Clause 5 - Application of amendments

The increased charge is expressed to come into operation from

1 March 1982. While this is after the date of introduction of

the Bill, it is a de facto retrospective date, as the normal

procedures of the Parliament would not have permitted its

becoming law by that date. However, in his second reading

speech, the Minister refers to the date as one that is

acceptable to growers and manufacturers.

Nevertheless, the Committee draws this retrospective

provision to the attention of the Senate under principle

1(a)(i). The Committee is making further inquiries about

retrospective provisions of this nature in case they may be

regarded as trespassing unduly upon personal rights and

liberties. The results of its inquiries will be included in a

future Report.

TOBACCO CHARGE (No. 2) AMENDMENT BILL 1982

4. The purpose of this Bill is to increase the amount of tobacco

charge payable by manufacturers on their purchases of

Australian tobacco leaf.

5. The Committee draws the attention of the Senate to the

following clause:

2.

Clause 3 - Rate of charge

1

This clause provides that the rate of charge paid by

manufacturers on their purchase of leaf will be the same as

that applicable under the Tobacco Charge (No. 1) Amendment

Bill 1982, with effect from 1 March 1982. Thus, the comments

made in relation to the No. 1 Bill are also applicable to

this Bill.

TOBACCO CHARGE (No. 3) AMENDMENT BILL 1982

6. The purpose of this Bill is to establish the same rate of

charge in respect of tobacco grown by a manufacturer and

appropriated by him for manufacturing purposes as that

applicable under the Tobacco Charge (No. 1) Amendment Bill

1982.

7. The Committee draws the attention of the Senate to the

following clause:

Clause 3 - Rate of charge

This clause gives effect to the purpose of the Bill, as

described above. The comments made in relation to the No. 1

Bill are therefore also applicable to this Bill.

REPATRIATION AMENDMENT BILL 1982

8. The purposes of this Bill are to repeal section 49 of the

Repatriation Act 1920 relating to the control of pensions of

unmarried mentally afflicted veterans; to ensure that all

Australians serving with a Peacekeeping Force are covered for

Repatriation benefits; to empower the Repatriation Commission

to recover from a third party the costs of medical treatment

provided for compensable patients; and to allow for the

3 .

protection of employees in Repatriation hospitals and

institutions when complying with certain State and Territory

laws.

9. The Committee draws the attention of the Senate to the

following clauses:

Clause 5 - Recovery of cost of medical treatment

This clause proposes to insert a new section 120E in the

Principal Act to permit the recovery of the cost of medical

treatment by the Commission. The purpose of sub-sections (2),

(4) and (7) is to empower the Commission to bring an action

in a court to recover the cost of such treatment. However,

'cost1 is defined in sub-section (1) to mean the cost as

determined by the Commission in writing. The effect of this

provision is that once the Commission has determined that

cost, it would not be possible to challenge the amount so

fixed in the action brought to recover it. The right of

recovery is of the defined amount, i.e. the cost determined

by the Commission. If a person wished to challenge the amount

determined by the Commission, it would be necessary to bring

a separate action under the Administrative Decisions

(Judicial Review) Act 1977. This consequence of the provision

as drafted is not referred to in either the Explanatory

Memorandum or the Second Reading Speech.

While for reasons of administrative convenience there can be

no objection to the Commission's determination of cost being

prima facie evidence of costs incurred, it appears to the

Committee that, if that determination is challenged by the

defendant to the action, the Court before which the cost

recovery action is brought should be able to adjudicate on

the matter, thus avoiding the possibility of two actions

being involved in the recovery process.

4.

The Committee draws this provision, as drafted, to the

attention of the Senate under principle 1(a)(i), in that it

might be regarded as trespassing unduly on personal rights

and liblties.

Clause 6 - Regulations

The purpose of this clause, as defined in the Explanatory

Memorandum and the Minister's Second Reading Speech, is to

enable Regulations to be prepared which will protect from

legal actions those employees in Repatriation hospitals who

may be required to carry out duties arising from State

legislation. The modification proposed to be permitted to be

made by regulation is of the application of State laws in

Repatriation hospitals. The power to make regulations having

this effect is given by the proposed section 120F to be

inserted by clause 5. It would seem desirable for the

proposed section 124(3), to be inserted by clause 6, to be

included in section 120F or alternatively to refer

specifically to that section. As stated, the power is at

large. While at present there do not seem to be any other

provisions of the Repatriation Act that give this wide

regulation-making power, such a provision could be included

in the future, and the proposed section 124(3) would, without

more, attach to it.

The Committee draws this clause to the attention of the

Senate under principle 1(a) (iii) , on the ground that it might

be regarded as inappropriately delegating legislative power.

5 .

(Alan Missen)

Chairman