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Scrutiny of Bills - Senate Standing Committee - Reports - Fifth, dated 4 May 1982


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The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Fifth Report

May 1982

Presented and ordered to be printed 4 May 1982

Parliamentary Paper No. 89/1982

Parliamentary Paper No. 89/1982

The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Fifth Report

May 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 Com­ mittee 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 Par­ liament, 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 insuf­ ficiently defined administrative powers or non-reviewable administrative decisions; or (in) inappropriately delegate legislative power or insufficiently subject its ex­

ercise 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.

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The Committee has the honour to present its Fifth 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:

Off-shore Installations (Miscellaneous Amendments) Bill 1982 Plant Variety Rights Bill 1982

Off-shore Installations (Miscellaneous Amendments) Bill 1982 2. When drawing the attention of Senators, in the Scrutiny of Bills Alert Digest No. 5, tabled in the Senate on 22 April 1982, to a specific provision of this Bill (discussed in more detail below), the Committee made the general comment that the Bill both inserts and amends sections of the Customs Act 1901 which vest an unappealable discretion in an officer of Customs—see, for example, clauses 5, 9 and 11. The Committee reiterates the point made in the same Digest in relation to the Customs and Excise Amendment Bill 1982 that the whole question of appeals against decisions under the Customs Act is at present under review by the Administrative Review Council. However, the Com­ mittee draws the attention of the Senate to provisions of this Bill, such as those con­ tained in clauses 5, 9 and 11, under principle 1 (a) (ii), on the ground that they might be

regarded as making rights, liberties and obligations unduly dependent upon non- reviewable administrative decisions.

3. The Committee draws the attention of the Senate to the following clause: Clause 15— proposed new section 64a — S hips or aircraft arriving at certain places This clause proposes to insert a new section 64a in the Customs Act which vests power in a Collector to require the master of a ship or the pilot of an aircraft to furnish the Collector with a report, to be provided within such time as is specified by the Collector and to be in such form as is specified by him. No minimum time limit is provided for the report to be furnished nor is there any guidance as to the form which the Collector may specify. Penalty for non-compliance is $2000.

The Committee drew a similar provision to the attention of the Senate in relation to the failure to specify a time limit relating to the provision of information under the Dried Sultana Production Underwriting Bill 1982, and an amendment was agreed to in Committee of the Whole to cover this aspect. The question of the form in which infor­

mation must be submitted has not been discussed by the Senate. The Committee draws the attention of the Senate to this provision under principle 1 (a) (ii), in that it might be regarded as making obligations unduly dependent upon insufficiently defined administrative powers.

Plant Variety Rights Bill 1982 4. In its first Scrutiny of Bills Alert Digest, tabled in the Senate on 23 February 1982, the Committee drew the attention of Senators to a provision of this Bill which excluded two discretions—one vested in the Secretary to the Department of Primary Industry, the other vested in the Minister—so that they were not subject to review by the Admin­ istrative Appeals Tribunal. The Committee is pleased to note that amendments agreed to in Committee of the Whole in the House of Representatives have overcome the problem identified by the Committee. A further matter raised by the Committee has not, however, been dealt with so far. The Committee draws the attention of the Senate to the following clause of the Bill.

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5. Clause 11— Plant variety rights to be granted in relation to certain varieties only Subclause 11 (2) empowers the Governor-General to make regulations declaring a genus or species to be a genus or species to which the Act applies. However, this power cannot be exercised by the Governor-General unless the Australian Agricultural Coun­ cil has consented to the declaration of the genus or species as falling within the Act. It is

not simply a matter of the Governor-General taking the advice of the Council into account. The Committee draws this provision to the attention of the Senate under prin­ ciple 1 (a) (iii), on the ground that it might be regarded as inappropriately delegated legislative power.

Michael Tate Acting Chairman 4 May 1982

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