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Scrutiny of Bills - Senate Standing Committee - Reports - Seventeenth, dated 11 November 1982


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Parliamentary Paper No. 273/1982

The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

Seventeenth Report

November 1982

The Commonwealth Government Printer Canberra 1983

© Commonwealth of Australia 1983 ISSN 0729-6258

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 J. Haines

Senator R. Hill

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

(v) 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,

notwithstanding that such proposed law, document or

information has not been presented to the Senate.

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

SEVENTEENTH REPORT

1. The Committee has the honour to present its Seventeenth

Report to the Senate.

DISCUSSION OF LEGISLATION

2. The Committee draws the attention of the Senate to a

clause of the World Heritage Properties Protection

Bill 1982 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. It also

makes comment on provisions of the Public Service Acts

Amendment Act 1982, which received the Royal Assent

on 5 November 1982.

PUBLIC SERVICE ACTS AMENDMENT ACT 1982

This Act was originally introduced by the Minister Assisting

the Prime Minister on 29 October 1981.

3. The purpose of this Act is, inter alia, to revise promotion

and transfer proceedings in the Australian Public Service

and to abolish the divisional structure of the Service.

GENERAL COMMENT

The Committee made comments on provisions of the original

1981 Bill in Scrutiny of Bills Alert Digest No. 1 of

23 February 1982, and again in relation to the amended 1982

Bill in the Scrutiny of Bills Eighth Report of 20 May 1982.

The Eighth Report quoted extensively from the Minister's

response to the Committee's original comments, particularly

in relation to clause 28 and proposed new section SOD

dealing with new provisions for promotions appeals. On

26 October 1982, before being passed by the Senate, the Bill

was again amended. Amongst other changes, the latest

2.

amendments deleted clause 25 and parts of proposed section

SOD, all of which had been the subject of earlier comment

by the Committee. The effect of the amendment to proposed

section SOD is to delete the detailed provisions relating

to Promotions Appeals Committee and leave the procedures to

be such as the Promotions Appeals Committee "thinks fit". To

the extent that the amendment brings the relevant clause

into line with rece'nt decisions of the Federal Court, the

Committee welcomes it, although the new provision might be

regarded as providing little guidance to the parties on an

appeal. Other amendments - Nos 11, 19 and 20 - deleted

provisions to which the Committee had drawn attention. As

the Chairman of the Scrutiny of Bills Committee said in the

Senate in relation to the latest amendments, the Committee

commends the Government on the way in which it has

responded to the criticisms which have been made and

improved this Act.

WORLD HERITAGE PROPERTIES PROTECTION BILL 1982

This Bill was introduced by Senator Mason on 27 October 1982.

5. The purpose of this Bill is to give effect to the

Convention for the Protection of the World Cultural and

Natural Heritage.

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

following clause of the Bill:

Clause 6 - Protection of properties

This clause makes it unlawful for a person to "do any act

or take any action that is likely adversely to affect" the

general conservation of a property listed or nominated for

listing, under Article 11 of the World Heritage Convention.

The clause provides very little identification of the scope

of unlawful actions with which the Bill would deal. The

Committee is concerned that in the absence of any list of

specific offences, persons may not be able to arrange with

any certainty those of their affairs that relate to the use

of nominated or listed properties. Clause 7 provides that

any person may seek a Court declaration that a certain

action is in breach of the Act and a Court order to remedy

or restrain the breach. Court action might be taken

against a person who had no intention of damaging a

property, whose actions however might be regarded as "likely

adversely to affect the protection, conservation, presentation

or rehabilitation of a property". If the doing of an act

can include the failure to do an act, the declining by an

owner to take, for example, steps to preserve or restore

a property, area or building may fall within the proscribed

conduct. In the absence of any clear guidelines in the

Bill as to the precise scope of the proscribed actions

referred to in clause 6, the Committee draws this clause

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.

Alan Missen Chairman

11 November 1982