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Scrutiny of Bills - Senate Standing Committee - Reports - Thirteenth, dated 22 September 1982


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The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Thirteenth Report

September 1982

Presented and ordered to be printed 23 September 1982

Parliamentary Paper No. 227/1982

Parliamentary Paper No. 227/1982

The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Thirteenth Report

September 1982

The Commonwealth Government Printer Canberra 1982

© Commonwealth of Australia 1982

ISSN 0729-6258

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 J . Haines

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/or obligations

unduly dependent upon insufficiently defined

administrative powers;

(iii) make such rights, liberties and/or obligations

unduly dependent upon non-reviewable

administrative decisions;

(iv) inappropriately delegate legislative power; or

(i) insufficiently subject the exercise of

legislative power 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, notwith­

standing that such proposed law, document or

information has not been presented to the Senate.

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

THIRTEENTH REPORT

1. The Committee has the honour to present its thirteenth

Report to the Senate.

DISCUSSION OF BILLS

2. 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 (v) of the Resolution

of the Senate of 25 May 1982:

Australian Broadcasting Corporation Bill 1982

Bounty (Berry Fruits) Bill 1982

Bounty (Ships) Amendment Bill 1982

Customs Tariff Bill 1982

Customs Tariff (Miscellaneous Amendments) Bill 1982

Northern Territory (Self-Government) Amendment Bill 1982

Statute Law (Miscellaneous Amendments) Act (No. 2) 1982

Student Assistance (Loans Guarantee and Subsidy) Bill 1982

AUSTRALIAN BROADCASTING CORPORATION BILL 1982

3. The purpose of this Bill is to provide for the establish­

ment of the Australian Broadcasting Corporation with a

Charter setting out its functions and duties.

The Committee draws the attention of the Senate to the following clauses:

Clause 42 - Determination of appeals

This clause is similar to clause 27 of the Public Service Acts

Amendment Bill, commented on in Alert Digest No. 1 of 23 February 1982 and (as clause 28) in Scrutiny of Bills Report No. 8 of

20 May 1982. As the Committee then stated, the intention of this

2.

type of provision is to establish the procedure to be followed by

a Promotion Appeals Committee or Board when hearing an appeal.

This type of provision is intended to set aside, to a large extent,

the effect of the recent decision in Finch v. Goldstein which held

that the rules of natural justice apply to an appeal and give an

appellant rights that had not been recognized by Appeals Boards

in the past. In particular, Ellicott. J. in the Federal Court

held that an appellant was entitled to all information to which

the Board was having regard on the appeal; to be present at the

proceedings of the appeal including when the promotee was being

interviewed by the Appeals Board; ‘ to cross-examine the promotee;

and, in appropriate cases, to be represented by counsel. The effect of this type of provision is to take away these rights

which the court held applicable to the proceedings of the Board.

Under clause 42(2)(b), the Board is not bound by the rules of

evidence and may inform itself in any manner as it thinks fit.

Under clause 42(2)(f), the Board is not required to furnish to

a party any information received that relates to another party.

Under clause 4 2(2) (g) , the Board is under no obligation to allow

a party, or representative of a party, to be present when it is

receiving information from a person who is not a party. Under clause 42(4), the Board may refuse to hear any oral submissions

from a party's chosen representative, and may exclude any other

party or representative from being present when a party makes

oral submission. There are no appeal procedures against such decisions by the Board.

The Committee draws this clause to the attention of the

Senate under principle 1(a)(i) in that this clause might be

regarded as trespassing unduly on personal rights and liberties, also under principle 1(a)(iii) it might be regarded as making

rights, liberties and/or obligations unduly dependent upon non-reviewable administrative decisions.

Clause 47 - Declarations to prevail over awards

This clause provides that a declaration under clause 46, to the effect that an employee's salary shall be withheld during

3.

such time as he fails to comply with a direction to work as

instructed, shall override any other provision of the proposed

Act, or any other law enacted before the date of commencement

for this proposed Act, or any other award. It is thus

possible that the provisions of an Act may be set aside

by a body other than Parliament. The Committee recognizes

the policy intention of this Bill, yet while it accepts the

need for reasonable delegation of power to implement these no-work no-pay provisions, the Committee brings this "Henry

VIII" clause to the attention of the Senate under principle

1(a)(v) in that it might be regarded as insufficiently

subjecting the exercise of legislative power to parliamentary

scrutiny.

Clause 65 - Appeals against disciplinary action for misconduct

This clause provides procedures to be followed by the Managing

Director in disciplining an employee for misconduct, as defined

in sub-clause (10). The Managing Director may institute any

of a range of options outlined in 65(1) (a) and (b) . However,

under clause 65(5) , the Managing Director is granted the discretion to pay, either in whole or in part, the salary

of an employee who is under suspension as provided for in

clause 65(3). The clause contains no criteria under which this discretionary power shall be exercised. The Committee

brings this provision to the attention of the Senate under principle 1(a)(ii) in that it might be regarded as making rights, liberties and/or obligations unduly dependent on

insufficiently defined administrative powers.

Under clause 65(8), the Managing Director is required to

pay any salary otherwise due to an employee upon removal of

a suspension. However, under clause 65(9) , the Managing

Director is granted the discretion to decrease the amount

owing by an amount equal to any earnings which, in the

Managing Director's view, were received by the employee from other work during the suspension period. There are no appeal provisions against this exercise of discretionary power. The

Committee brings this provision to the attention of the Senate

4.

under principle 1(a)(iii) in that it might be regarded as

making rights, liberties and/or obligations unduly dependent

upon non-reviewable administrative decisions.

Clause 83 - Power to obtain information and documents

Clause 83 provides jlhe Commissioner with the power to direct

a person (an employee or otherwise) to furnish him with

specified information or documents, and to appear before

him to answer questions relevant to the investigation.

Under 83(5), a person is not excused from complying with

the Commissioner's direction on the ground that in so doing

he would tend to incriminate himself. The Committee brings this provision to the attention of the Senate under

principle 1(a)(i) in that it might be regarded as trespassing unduly on personal rights and liberties.

Clause 100 - Reversal of onus

This clause provides for the list of offences and penalties

with respect to persons who refuse, without reasonable cause,

to comply with the Commissioner's direction. The Committee

notes the severity of the penalty - $1000 or imprisonment for

3 months - and raises a question about the operation of the

"without reasonable doubt" provision. To the extent that this clause reverses the onus as to who should establish

"reasonable cause", the Committee brings it to the attention

of the Senate under principle 1(a)(i) in that it might be

regarded as trespassing unduly on personal rights and liberties.

BOUNTY (BERRY FRUITS) BILL 1982

4. The purpose of this Bill is to provide assistance by way of

a bounty scheme on the production in Australia of certain

berry fruits and to enact the control, inspection and appeal provisions standard to Bounty Acts.

The Committee draws the attention of the Senate to the

following clauses of the Bill.

5.

Clause 3(1) - Interpretation - "Bounty Period"

This clause enables the Minister to add to, or detract

from, the provisions of the Bill when defining the scope

of three terms - "bountiable fruit", "bounty period" and

"processing". The effect of the Ministerial power to define

"bounty period" is to enable the Minister to continue the

operation of the Act beyond the specified date of 30 June 1987.

The Committee brings this "Henry VIII" clause to the attention

of the Senate under principle 1(a)(v) in that it might be

regarded as insufficiently subjecting the exercise of

legislative power to parliamentary scrutiny.

Clause 8 - Good quality

This clause empowers the Comptroller-General of Customs

(or his delegate under clause 22) to withhold payment of

the bounty if he is not satisfied that the fruit is of

"good and merchantable quality". The Bill contains no

appeal provision against a refusal to pay under clause 8,

although decisions under some other sections are, by clause 23,

reviewable by the Administrative Appeals Tribunal.

The Committee brings this provision to the attention of the Senate under principle 1(a)(iii) in that it might be

regarded as making rights, liberties and/or obligations

unduly dependent upon non-reviewable administrative decisions.

Clauses 17, 18, 19, 20 - Inspections by Authorized Officers

Under clause 16, the Minister may authorize certain officers

of the Department of Industry and Commerce to carry out

inspections relevant to the payment of the bounty. Clauses

17 and 18 impose obligations on processors to open their

premises and records for entry, without a warrant, by the authorized officer. The only checks on entry are that it is at a reasonable, time.

6.

Clause 19 permits an authorized officer to require the

attendance of persons for examination under oath or

affirmation. Questions must be answered and documents

produced under threat of penalty (detailed in clause 20).

In Scrutiny of Bills Alert Digest No. 9 tabled in the Senate

on 25 August 1982, the Committee drew attention to similar

provisions in the Diesel Fuel Taxes Legislation Amendment

Bill 1982. The same comments are applicable to these

clauses of this Bill which the Committee brings to the

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

they might be regarded as trespassing unduly on personal

rights and liberties.

BOUNTY (SHIPS) AMENDMENT BILL 1982

5. The purpose of this Bill is to amend the definition of

"bountiable vessel" in the Bounty (Ships) Act 1980 to

enable the bounty under the Act to be paid on fishing

vessels over 150 gross construction tons but which do not

exceed 21 metres in length.

The Committee draws the attention of the Senate to the

following clauses of the Bill.

Clause 2 - Commencement Date

This Bill is retrospective in that it widens the definition

of "bountiable vessel" in the principal Act - the Bounty

(Ships) Act 1980 - and is deemed to have come into operation

on 1 July 1980. The proposed amendment widens the category

of eligible vessels to give effect to the Government's

original intention.

As indicated in its Ninth Report - tabled in the Senate on

20 May 1982 - the Committee is currently giving attention to

retrospective legislation. The Committee adopts the practice

of alerting the Senate under principle 1(a)(i) to all

retrospective provisions which might be regarded as either restricting or widening personal rights and liberties.

7.

CUSTOMS TARIFF BILL 1982

6. The purpose of this Bill is to replace the Customs Tariff

Act 1966.

The Committee draws the attention of the Senate to the following clauses of the Bill.

Clause 25 - Ministerial discretion

This clause empowers the Minister to direct that goods,

which he determines to be substitutes for or imitations

of other goods already specified in the Schedule, shall

be dutiable at the rate of the Scheduled goods. The Minister

is to exercise his discretion by notice published in the

Gazette. The effect of this provision is to allow the Minister to amend the Schedule. The Committee draws this

"Henry VIII" provision to the attention of the Senate .

under principle 1(a)(v) in that it might be regarded as

insufficiently subjecting the exercise of legislative power to parliamentary scrutiny.

CUSTOMS TARIFF (MISCELLANEOUS AMENDMENTS) BILL 1982

7. The purpose of this Bill is to amend the Administrative Decisions (Judicial Review) Act 1977, Consular Privileges

and Immunities Act 1972, Customs Act 1901 and Sales Tax

(Exemptions and Classifications) Act 1935 consequential

upon the introduction of the Customs Tariff Bill 1982.

The Committee draws the attention of the Senate to the

following clauses of the Bill.

Clause 9 - Ministerial determinations

This clause repeals sections 151 and 151A of the Principal Act and substitutes the proposed new sections. The clause vests

many powers in the Minister to determine whether goods are to be deemed produce or manufacture of a country. The Minister

is to exercise these powers by notice in the Gazette■ Among

those powers are the power to determine:

8.

. whether "manufactured raw materials" were involved

in the manufacture of goods from the countries

specified in 151(2);

. whether goods shall be treated as the manufacture of

Ne w Zealand on account o f their having an "appropriate"

portion of New Zealand, or of New Zealand and

Australian, labour and/or materials in its factory cost

under sub-clause 3;

. whether goods shall be treated as the manufacture of

Papua New Guinea on account .of their having an

"appropriate"portion of Papua New Guinea, or Papua

New Guinea and Australian, labour and/or materials in

its factory costs under sub-clause 4;

. whether goods shall be treated as the manufacture of a (Pacific) Forum Island Country on account of their

having an "appropriate" portion of the labour and/or

materials of one or more of the Forum Island Countries

under sub-clause 5.

The M i n i s t e r is also vested with power to:

. specify the manner in which factory costs of goods is to be determined, as well as the manner in which the value of labour

and/or materials is to be determined, under sub-clause 10.

. determine, in relation to sub-clause 7, that the goods specified shall be goods of a class or kind not

commercially manufactured in Australia, under sub-clause 2;

. determine, in relation to sub-clause 7, that the

reference to one-quarter shall be read as a reference

to one-half, under sub-clause 13.

The Committee notes that the absence in the Bill of

criteria under w h ich the Minister shall exercise his

discretionary power. While it does not reject the need

for legislation to provide for flexible administration,

the Committee brings these provisions to the attention

of the Senate under principle 1(a)(ii) in that they might

be regarded as making rights, liberties and/or obligations

unduly dependent upon insufficiently defined administrative powers.

NORTHERN TERRITORY (SELF-GOVERNMENT) AMENDMENT BILL 1982

The purpose of this Bill is to confirm that minerals in

land acquired under section 70 of the Northern Territory

(Self-Government) Act 1978 are vested in the Commonwealth, to bring within the operation of the Act the effect achieved

by the Northern Territory (Commonwealth Lands) Act 1980

and to make machinery amendments to improve the administration of the Act.

The Committee draws the attention of the Senate to the following clauses:

Clause 11 - Confirmation of mineral rights

Under section 69 of the Northern Territory (Self-Government) Act 1978, the Commonwealth vested all of its interests in

respect of land (sub-section 2) and minerals (sub-section 4)

in the Territory. Under section 70 of the same Act, the Commonwealth was authorized to acquire, without compensation

to the Territory, any interest in land vested in the Territory

under section 69(2) . Section 70 required notice of acquisition

"of the interest for a public purpose" to be given within

12 months of the date of commencement, on 22 June 1978.

Clause 11 of this Bill has the effect of incorporating section 69(4) of the Principal Act within the Commonwealth

interest as defined in section 70 of that Act. This clause has the effect that minerals in land acquired by the

Commonwealth during the 12 month period of notification (between 22 June x978 and 21 June 1979) are vested in the

10.

Commonwealth. The Committee adopts the practice of

alerting the Senate to all provisions which may be regarded

as having a retrospective effect.

STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT (NO. 2) 1982

9. The purpose of this Act is to correct printing and drafting

errors in a number of Acts; to amend references in Acts to

Ministers, Departments and officeholders both to correct

references that are incorrect as a consequence of the changes

in administrative arrangements made on 7 May 1982, and to

express such references, whenever possible, in a general way;

to amend the Banking Act 1959, to ensure that specified State

and Territory Acts to facilitate certain bank mergers will

have full operation and not be subject to constitutional challenge; to amend the Defence Service Home Act 1918 to

extend the scope of eligibility for home assistance; to amend the Industrial Research and Development Incentives Act

1976 to clarify eligibility for commencement grants under

the Act; and to make a number of amendments of a non-contro-

versial nature.

The Committee draws the attention of the Senate to the

following clauses:

Clause 32 - Bank mergers

This clause inserts a new section 38A into the Banking Act

1959 to ensure the operations of certain State and Territory

laws concerning particular bank mergers, such as those

referred to in the proposed Third Schedule introduced by

Clause 33. Proposed section 38A(3) will enable the Treasurer,

at his discretion, to declare that any future law of a State

or Territory relating to bank mergers will be a valid law

to which this section will apply. The effect of this

"Henry VIII" clause is that the Treasurer will be able, by

adding to the Third Schedule, to amend the Act. The Committee

brings this provision to the attention of the Senate under

11.

principle 1(a)(v) in that this clause may be regarded as insufficiently subjecting the exercise of legislative

power to parliamentary scrutiny.

Clause 170 - Approved survey authority

This clause inserts a new section 187B in the Navigation

Act 1912. This proposed section vests a discretion in the

Minister to approve a corporation or association for the survey

of shipping. The Committee brings this provision to the

attention of the Senate under principle 1(a)(iii) in that

this clause may be regarded as making rights, liberties and/or obligations unduly dependent upon non-reviewable

administrative decisions.

STUDENT ASSISTANCE (LOANS GUARANTEE AND SUBSIDY) BILL 1982

10. The Purpose of this Bill is to provide for a subsidy on the

interest charged by banks on approved loans to students

and for the Commonwealth to give guarantees to banks that it will repay the outstanding debts on approved loans

within prescribed limits.

The Committee draws the attention of the Senate to the

following clause.

Clause 3 - Appeal provisions

Clause 3(2) defines the scope of "eligible student" for the

purposes of the Bill. Included in the list of eligibility

criteria are two Ministerial determinations against which there is no appeal procedure. Under 3(2) (d) and (e) the

Minister must satisfy himself that a student is in fact enrolled as a full-time student. The Committee accepts that

the meaning of full-time student is not always easy to define,

and brings these provisions of this clause to the attention

of the Senate under principle 1(a)(iii) in that they might be regarded as making rights, liberties and/or obligations

unduly dependent upon non-reviewable administrative decisions.

Michael Tate Acting Chairman 23 September 1982