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Monday, 24 November 2008
Page: 19


Senator WORTLEY (3:40 PM) —Following the receipt of satisfactory responses, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that on the next day of sitting I shall withdraw Business of the Senate Notices of Motion Nos 1 and 6 standing in my name for seven sitting days after today for the disallowance of the Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1) and the Wool Services Privatisation (Research Body) Declaration 2008. I seek leave to incorporate in Hansard the committee’s correspondence concerning these instruments.

Leave granted.

The correspondence read as follows—

Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1)

28 August 2008

The Hon Warren Snowdon MP

Minister for Defence Science and Personnel

Suite M1.49

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1), Select Legislative Instrument 2008 No. 138.

These Regulations permit the use and disclosure of personal information in connection with the administration of the Defence Force home ownership assistance scheme. The Explanatory Statement indicates that there has been consultation with certain Departments, but the Privacy Commissioner does not appear to have been consulted. The Committee therefore seeks your advice as to why the Privacy Commissioner was not consulted.

The Committee would appreciate your advice on the above matter as soon as possible, but before 19 September 2008, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair


16 September 2008

Senator the Hon Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 28 August 2008 concerning the Defence Force (Home Loans Assistance) Amendment Regulations 2008. Your letter on behalf of the Standing Committee sought advice as to why the Privacy Commissioner had not been consulted regarding the provisions on use and disclosure of personal information.

Both the Defence Home Ownership Assistance Scheme (DHOAS) and its predecessor the Defence Home Owner Scheme (DHOS) are complex schemes. The DHOAS has strict transitioning arrangements for applicants previously entitled to DHOS. The use and disclosure provisions in the Regulations were designed to protect the applicants from the administrative process that could inadvertently expose them to double payments, and the recovery process that could follow. The amendments to the Regulations are nearly identical to those in the Defence Home Ownership Assistance Scheme Regulations 2008 and support the operation of the DHOAS as well as the DHOS.

The Regulations do not go beyond the scope of the use and disclosure provisions of the Privacy Act 1988. A report on privacy matters relevant to the scheme and compliance with Commonwealth privacy law has been prepared for Defence by the Australian Government Solicitor. The report noted that the arrangement appeared only to require the sharing of personal information to the extent necessary for the scheme’s proper operation and for the protection of the public revenue.

To ensure that privacy concerns are fully addressed, Defence has forwarded a copy of the report to the Privacy Commissioner and requested she examine the use and disclosure of personal information provisions in both the Defence Force (Home Loans Assistance,) Amendment Regulations 2008 and the Defence Home Ownership Assistance Scheme Regulations 2008.

Defence was required to meet strict time constraints to prepare the legislation to support the new home ownership scheme. This prevented a full privacy assessment. In this context, it should be noted that the service providers contracted to deliver aspects of DHOAS must comply with the same standards of privacy protection required of Government agencies.

My contact officer on this matter is

Ms Ingrid Singh

Department of Defence

BP33-3-046

Brindabella Park Offices

CANBERRA ACT 2600

Telephone: 02 6127 2404

I appreciate your interest in this matter and trust this information will allay your concerns.

Yours sincerely

Warren Snowdon

Minister for Defence Science and Personnel


25 September 2008

The Hon Warren Snowdon MP

Minister for Defence Science and Personnel

Suite M1.49

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 16 September 2008 responding to the Committee’s concerns with Defence Force (Home Loans Assistance) Amendment Regulations 2008.

In your response you advise that time constraints prevented the department from conducting a full privacy assessment but that a copy of the report prepared by the Australian Government Solicitor on the privacy implications of the Defence Force Home Ownership Assistance Scheme has since been forwarded to the Privacy Commissioner for her consideration. The Committee would appreciate your advice on the Privacy Commissioner’s assessment of this report.

The Committee would appreciate your advice on the above matter as soon as possible, but before 9 October 2008, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair


8 October 2008

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 25 September 2008 to the Minister for Defence Science and Personnel, the Hon Warren Snowdon MP, concerning the Defence Force (Home Loans Assistance) Amendment Regulations 2008. Given that the Minister is overseas, he has asked me to respond on his behalf in order that timely advice can be provided.

Your letter, on behalf of the Standing Committee, sought advice on the Privacy Commissioner’s assessment of the Australian Government Solicitor’s privacy report for the Defence Force Home Loans Assistance Scheme (the scheme).

Defence is yet to receive a formal response from the Privacy Commissioner. I note your preference to receive advice by 9 October 2008 but regrettably I am unable to respond at this time. Interim advice from the Office of the Privacy Commissioner indicates that the response should be available the week commencing 13 October 2008.

The Minister will write to you once Defence receives a response from the Privacy Commissioner.

I appreciate your interest in this matter.

Yours sincerely

Kim Isaacs

Chief of Staff

Minister for Defence Science and Personnel


10 November 2008

Senator the Hon Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 25 September 2008 concerning the Defence Force (Home Loans Assistance) Amendment Regulations 2008. Your letter, on behalf of the Standing Committee, sought advice on the Privacy Commissioner’s assessment of the Australian Government Solicitor’s privacy report for the Defence Home Ownership Assistance Scheme.

A copy of the privacy report prepared by the Government Solicitor was forwarded to the Privacy Commissioner by Defence, with a request that she examine the personal information provisions in the Regulations and comment on the privacy implications.

The Deputy Privacy Commissioner responded to Defence’s letter on 27 October 2008. The Deputy Commissioner has not identified any issues with the regulations or with the privacy report prepared by the Government Solicitor.

The Deputy Commissioner has advised that Defence appears to be authorised by law to use and disclose the information to other agencies and organisations, in accordance with the purpose of the scheme and exceptions under Information Privacy Principles 10.1(c) and 11.1(d).

The Deputy Privacy Commissioner has made some general recommendations on implementation and development of good privacy practice in the handling of personal information. In particular, he has suggested that Defence review notices and forms that underpin the scheme, to ensure they achieve best practice in relation to the collection of information that is relevant to third parties. Defence will review these matters and take any action necessary to ensure that information is collected in accordance with best practice.

I appreciate your interest in this matter and trust this information will allay your concerns.

Yours sincerely

Warren Snowdon

Minister for Defence Science and Personnel


Wool Services Privatisation (Research Body) Declaration 2008

28 August 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 30(1) of the Wool Services Privatisation Act 2000. This instrument determines that Australian Wool Innovation Ltd (AWI) is the research body for the purposes of the Wool Services Privatisation Act 2000.

The Explanatory Statement that accompanies this instrument advises that AWI was declared to be the research body in December 2000 but that its status lapsed in October 2006 when, due to an administrative error, the declaration was repealed by operation of the Legislative Instruments Act 2003. Accordingly, this present instrument is expressed to commence retrospectively from 1 October 2006. The Explanatory Statement also notes that AWI has continued to receive funding between 1 October 2006 and the date of this instrument. It appears that the intention of this instrument, in part, is to retrospectively validate the receipt of those funds. The Committee would appreciate your advice as to whether this is the intention of the instrument. If the intention behind this instrument is to validate the receipt of funds, then the Committee would also appreciate your advice as to whether it should be done by primary legislation.

The Committee would appreciate your advice on the above matter as soon as possible, but before 19 September 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair


16 September 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SO 49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 28 August 2008 about the Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 30(1) of the Wool Services Privatisation Act 2000 (the Act).

On 19 December 2000, the Hon. Warren Truss MP, the then Minister for Agriculture, Fisheries and Forestry, declared Australian Wool Innovation (AWl) Limited as the research body under subsection 30(1) of the Act. This is a pre-condition to the minister entering into a contract (known as the Statutory Funding Agreement or SFA) with the research body to provide for the Commonwealth paying wool levies, as well as matching funding for eligible research and development expenditure.

Under the Legislative Instruments Act 2003, all legislative instruments are required to be registered on the Federal Register of Legislative Instruments (FRLI). Those instruments which were made in the five years immediately preceding the introduction of FRLI on 1 January 2005 were required to be electronically lodged on the register by 30 September 2006.

While a draft electronic lodgement of the instrument was entered onto FRLI and a hardcopy was provided to the Office of Legislative Drafting and Publishing, the office advised the Department of Agriculture, Fisheries and Forestry in October 2007 that the electronic draft had not been finalised on FRLI. As a result, the declaration was repealed by default under the Legislative Instruments Act 2003 on 1 October 2006.

Prior to my remaking the declaration, the department sought legal advice from the Australian Government Solicitor (AGS) as to the validity of the current SFA, including payments made to AWl during the period in which the declaration had lapsed. AGS advised that the repealing of the declaration has not legally affected the validity of the SFA. As the Act gives me the power to both declare a research body and enter into contracts with a body to enable it to receive payments, AGS advised that the declaration of a body appears to be an administrative formality rather than a substantive requirement affecting my ability to contract.

Further, AGS advised that, while the Act requires a research body to be declared in order to receive Commonwealth funds, there is no provision in the Act to suggest that the absence of a declaration would make a contract with that body invalid. As such, AGS concluded there was minimal risk that the SFA (and payments in accordance with it) would be considered invalid by a court of law.

On advice from AGS, as an administrative procedure to ensure AWl would be deemed a research body in relation to payments already made, I remade the declaration with a retrospective clause to 1 October 2006. As the declaration does not impose any liability or disadvantage any person in respect of anything done (or not done) before the date of registration, AGS advised that the retrospective clause is consistent with subsection 12(2) of the Legislative Instruments Act 2003.

During the period in which the declaration was repealed, AWl continued to meet all its responsibilities under the SFA to receive funding and provide research and development services to industry. The retrospective operation of the declaration is intended to clarify the intention that AWl is the declared research body, and to regularise a procedural step that was not adhered to as a result of a technical error.

I trust this information has been of assistance.

Yours sincerely

Tony Burke

Minister for Agriculture, Fisheries and Forestry


25 September 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 16 September 2008 concerning the Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 30(1) of the Wool Services Privatisation Act 2000. This instrument determines that Australian Wool Innovation Ltd (AWI) is the research body for the purposes of the Wool Services Privatisation Act 2000.

In your letter you state that, under the Act, the declaration of AWI “is a pre-condition to … entering into a contract.” However, on advice from the Australian Government Solicitor (AGS), the declaration of a body appears to be “an administrative formality rather than a substantive requirement” affecting your ability to enter into a contract with AWI. Further, AGS seems to suggest that “while the Act requires a research body to be declared in order to receive funds, there is no provision in the Act to suggest that the absence of a declaration would make a contract with that body invalid.”

The Committee finds this distinction somewhat confusing and contradictory. It would appreciate receiving a copy of the AGS advice which draws this distinction, and some further clarification of how a precondition can be seen as a simple administrative formality. While the declaration of AWI as the relevant research body may have lapsed due to an administrative oversight, it may not be appropriate, or advisable, to use a retrospective legislative instrument as a remedy in these circumstances, particularly as they involve the expenditure of public monies.

The Committee would appreciate your urgent advice on the above matters as soon as possible, but before 9 October 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair


13 October 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 25 September 2008 about the Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 3 0(1) of the Wool Services Privatisation Act 2000.

On 19 December 2000, the then Minister for Agriculture, Fisheries and Forestry, the Hon. Warren Truss MP, signed the declaration of Australian Wool Innovation (AWl) Limited as the wool industry research body. This clearly indicated the Australian Government’s intent that AWl be the services body entitled to receive levies and matching government funding for research and development activities. The declaration was only repealed on technical grounds due to an error in finalising the lodgement on the Federal Register of Legislative Instruments database.

The Australian Government Solicitor (AGS) advised that, as the Act allows me to both declare a research body and to contract with a body to enable it to receive payments, the declaration of a research body can be considered an administrative formality to be followed before contracting rather than a substantive requirement affecting my ability to contract. This is why I advised the committee that the remaking of the declaration is an administrative formality.

As requested, please find enclosed legal advice provided to the Department of Agriculture, Fisheries and Forestry by AGS. As this is an internal government document, I ask that it not be made available to the public.

I trust this information is of assistance.

Yours sincerely

Tony Burke

Minister for Agriculture, Fisheries and Forestry


16 October 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 13 October 2008 concerning the Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 30(1) of the Wool Services Privatisation Act 2000.

Enclosed with your letter was a copy of the legal advice provided by the Australian Government Solicitor to the Department of Agriculture, Fisheries and Forestry. This opinion dealt with the relationship between the declaration of a research body and the power to contract with a body declared as such.

Given the apparently inadvertent way in which the problem arose, and the limited jurisprudence in this significant area of the law, the AGS opinion provides a useful analysis of the situation, and the Committee seeks your advice as to why it is inappropriate that the AGS opinion should be made public.

The Committee would appreciate your urgent advice on the above matters as soon as possible, but before 7 November 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair


11 November 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG 49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Following our recent correspondence on the Wool Services Privatisation (Research Body) Declaration 2008, your letter of 16 October 2008 requests advice on why I asked that the Australian Government Solicitor’s (AGS) legal opinion not be made public.

The Wool Services Privatisation (Research Body) Declaration 2008 corrects an administrative error that resulted in the repeal of the 2000 declaration of Australian Wool Innovation Limited (AWl) as the wool industry services body under the Wool Services Privatisation Act 2000.

I agree there is limited jurisprudence relating to this area of the law. However, my request to not make the AGS legal opinion public, reflects the advice given to me by the AGS and the Department of Agriculture, Fisheries and Forestry’s that publishing the advice would waive the lawyer-client privilege. Moreover, it was never intended that AWl’s status as the wool industry services body be repealed.

I understand that the committee may exercise its discretion to publish the advice but ask the committee to take into account the advice that I have received. Further, I would appreciate the committee informing me of its decision in this regard.

Yours sincerely

Tony Burke

Minister for Agriculture, Fisheries and Forestry


13 November 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter dated 11 November 2008 responding to the Committee’s request for advice on why the Australian Government Solicitor’s legal opinion on the retrospective validation of the Australian Wool Innovation Limited as a research body not be made public.

The Committee discussed your reasons for retaining the confidentiality of the advice at its meeting today and has agreed not to publish the legal opinion.

The Committee has also agreed to withdraw its notice of motion to disallow the Wool Services Privatisation (Research Body) Declaration 2008 at the earliest opportunity in the next sitting week.

Yours sincerely

Senator Dana Wortley

Chair

Senator Bob Brown to move on the next day of sitting:

   That the time for the presentation of the report of the Finance and Public Administration Committee on the Plebiscite for an Australian Republic Bill 2008 be extended to 15 June 2009.

Senator Hanson-Young to move on the next day of sitting:

   That the following matters be referred to the Education, Employment and Workplace Relations Committee for inquiry and report by 12 March 2009:

(a)   the financial, social and industry impact of the ABC Learning collapse on the provision of child care in Australia;

(b)   alternative options and models for the provision of child care;

(c)   the role of governments at all levels in:

(i)   funding for community, not-for-profit and independent service providers,

(ii)   consistent regulatory frameworks for child care across the country,

(iii)   licensing requirements to operate child care centres, and

(iv)   nationally-consistent training and qualification requirements for child care workers;

(d)   the feasibility for establishing a national authority to oversee the child care industry in Australia; and

(e)   other related matters.