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Scrutiny of Bills - Senate Standing Committee - Reports - Seventh, dated 20 May 1982


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The Parliament of the Commonwealth of Australia

SENATE STANDING COM MITTEE FOR TH E SCRUTINY OF BILLS

Seventh Report

May 1982

Presented and ordered to be printed 20 May 1982

Parliamentary Paper No. 115/1982 ^

Parliamentary Paper No. 115/1982

The Parliament of the Commonwealth of Australia

SEN A TE ST A N D IN G COMMITTEE FOR THE SC R U T IN Y OF BILLS

Seventh Report

May 1982

The Commonwealth Government Printer Canberra 1982

© Commonwealth of Australia 1982

ISBN 0 644 01977 8

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 (iii) 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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1. The Committee has the honour to present its Seventh 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 prin­ ciples expressed in paragraph 1 (a) (i) to (iii) of the Resolution of the Senate of 19

November 1981: Australian Meat and Live-stock Corporation Amendment Bill 1982 Export Control Bill 1982

Health Legislation Amendment Bill 1982 Home Deposit Assistance Bill 1982 Income Tax Assessment Amendment Bill (No. 2) 1982 Radiocommunications Licence Fees Bill 1982 3. The Committee also draws the following Bills to the attention of the Senate:

Income Tax Assessment Amendment Bill (No. 3) 1982 (discussed in relation to the Income Tax Assessment Amendment Bill (No. 2) 1982) Tobacco Charge Amendment Bill 1982

Australian Meat and Live-stock Corporation Amendment Bill 1982 4. The purpose of this Bill is to strengthen the Australian Meat and Live-stock Cor­ poration’s control over Australia’s export meat trade, and to enable the Corpor­ ation, in certain circumstances, to adopt the role of a sole trader or to limit the

number of licencees that may trade with particular overseas markets. This Bill is linked with the Export Control Bill 1982, discussed below.

5. The Committee draws the attention of the Senate to the following clause of the Bill:

Clause 11— Proposed repeal of section 47 and insertion of new sections Section 47— Inspection Proposed paragraph 47 (3) (a) allows an authorised officer to enter registered premises. In the context of the clause, there would seem to be no limit on time of entry.

When drawing a similar provision, contained in the Export Control Bill 1982, to the attention of Senators in Scrutiny of Bills Alert Digest No. 6, tabled in the Senate on 29 April 1982, the Committee indicated its assumption that right of entry at any time could be a matter of deliberate policy and that the provision did not make it clear whether forcible entry might be effected as of right. On 6 May 1982, the

Honourable F. M. Chaney, as Minister representing the Minister for Primary Indus­ try, made the following response to the Committee: • Paragraph [47] (3) (a) does provide for authorised officers to enter registered premises at any time and this is a deliberate policy

it is necessary for authorised officers to have such rights of entry so as to provide assurances re­ garding product integrity to authorities in importing countries such a requirement is an essential prerequisite imposed by the USA and without it Australian

meat exports to the US would be jeopardised as any amendment of the paragraph could endanger Australia's eligibility to export it should remain unchanged • Forcible entry to registered premises has not been specifically provided for in paragraph

(47] (3) (a) as the need for such a power has not arisen if power for forcible entry under paragraph [47] (3) (a) was required specific provision would have to be made in the Bill as in [proposed sub-section 47 (6)] without a specific provision forcible entry would not be possible under paragraph [47] (3) (a) no need can be foreseen for the need for such powers in respect of registered premises as paragraph [47] (3) (a) does not permit forcible entry no change should be made.

In the light of the Minister’s explanation of the provision—particularly relating to the restriction on forcible entry—the Committee is now of the view that its concern, under principle 1 (a) (i), that the provision might be regarded as trespassing unduly

on personal rights and liberties, has been satisfactorily overcome.

Section 47 A— Seizure

This proposed new section gives power to seize and detain prescribed goods and also ‘any matter or thing’ that an authorising officer believes on reasonable grounds will afford evidence of the commission of an offence. Such items may be detained for up to 60 days. While the Australian Meat and Live-stock Corporation may, under sub­

clause 47 (3), release anything seized, there is no right of appeal against a refusal of the Corporation so to act, and there is no time limit within which the Corporation must respond to any request for release of detained items. The Minister, in his response, has made the following points:

• The seizure provisions contained in this Bill are similar to the seizure provisions in a number of other pieces of existing and proposed Commonwealth legislation — none of these contain appeal rights or time limits for a response to a request for release — it is not common to include appeal rights or time limits in these circumstances

— the limit of 60 days to retain the goods is not an unreasonable maximum time . . an appeal would generally take at least this time to reach a hearing .. it could well be too short a time in which to commence proceedings — a time limit should not be imposed on the Secretary to respond to a request for release

. . it is essential that proper investigations are made and a time limit could hinder these. • Any variation to the seizure provisions in this Bill would have wide ranging implications for other Commonwealth legislation — the matters raised are, therefore, more appropriate for the Attorney-General to consider in light

of overall Government policy.

The Committee, in noting the Minister’s comment that the question is a matter for the Attorney-General, also had regard to a conclusion reached by the Senate Stand­ ing Committee on Regulations and Ordinances in its Thirtieth Report (Parliamen­ tary Paper No. 50 of 1970) in relation to a comparable provision contained in a

Norfolk Island Ordinance: 2. The Committee has been concerned with new sections 24. (2.) (c) (i) and 24. (4.) of the Norfolk Island Health Ordinance as contained in section 4. of this Ordinance, which read as follows: ‘24. (2.) for the purpose of enforcing the regulations, a health inspector may, at any reasonable

time, enter on and inspect any land or premises and do all or any of the following things: (c) in the case of a hairdressing establishment— (i) remove from the establishment for examination anything (other than a fixture) that in his opinion has been, is being, or may be used in connexion with the business of the establish­

ment’; and ‘24. (4.) A health inspector who, under sub-paragraph (i) of paragraph (c) of sub-section (2.) of this section, removes anything from a hairdressing establishment shall cause it to be returned within fourteen days after its removal, unless it is required for use in connexion with a prosecution

for an offence under the regulations.’ 3. It appears to the Committee that these sections would allow a health inspector to remove from a hairdressing establishment anything whatsoever and to keep it for a period of fourteen days. This could have the effect of closing down the establishment for that period, and the owner of the estab­

lishment would have no right of recovery or redress under the terms of the Ordinance. 4. The Committee believes that the Ordinance should set out the circumstances in which the health inspector is to use the above-mentioned powers and the objects which he may remove from a hair­ dressing establishment.

5. The Committee appreciates that it is unlikely that a health inspector, acting reasonably, would in reality take action of the kind envisaged in paragraph 3. However, the Ordinance confers a power which in the opinion of the Committee exposes individuals to the danger of arbitary interference with

their rights and liberties, and therefore offends against the principles which the Committee has always upheld.

The principles espoused in that Report appear to apply in relation to this provision also.

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The Committee therefore draws the provision to the attention of the Senate under principles 1 (a) (i) and (ii), in that it might be regarded as trespassing unduly on personal rights and liberties and making such rights etc. unduly dependent upon non-reviewable administrative decisions.

Section 47G— Corporation may require information or documents Proposed sub-section 47G (3) requires a person to furnish information notwith­ standing that the information might be incriminating, although any information so furnished is not admissible in evidence against the person in proceedings other than

proceedings for an offence under section 50a . The Committee draws this provision to the attention of the Senate under principle 1 (a) (i), on the grounds that it removes a fundamental right of common law, and this might be regarded as trespassing unduly on personal rights and liberties. How­ ever, the Committee also draws attention to comments made in the Senate by the

Minister representing the Minister for Primary Industry on 16 March 1982 (Hansard, page 826) when a similar provision of the Dried Sultana Production Underwriting Bill 1982 was discussed: . . . this clause is not unusual and it does . . . represent a proper balance between public

interest and the private rights of the citizen.

This view was supported by the Senate.

Export Control Bill 1982 6. The purpose of this Bill is to establish a new and comprehensive legislative base for the export inspection and control responsibilities in the Department of Primary In­ dustry. Clauses 10 and 11 of the Bill incorporate entry and seizure provisions similar

to those contained in the Australian Meat and Live-stock Amendment Bill 1982, discussed at paragraph 5 above. The committee’s conclusions on those matters re­ late to this Bill also.

Health Legislation Amendment Bill 1982 7. In its Sixth Report, tabled in the Senate on 5 May 1982, the Committee made com­ ments on a number of provisions in this Bill relating to proposed amendments to the Health Insurance Act 1973. Subsequent to the tabling of the report, a Senator drew

the Committee’s attention to clause 43 of the Bill, which proposes to insert in the National Health Act 1953, new section 73BEA—Minister may give directions to registered organizations concerning management practices.

8. A comparable provision of the National Health Act, section 73BE provides that di­ rections by the Minister must be laid before the Parliament, and are subject to disal­ lowance, and that decisions made under such directions are reviewable by the Ad­ ministrative Appeals Tribunal. No similar safeguards are provided under this proposed new section.

9. The Committee therefore draws the proposed new section to the attention of the Senate under principles 1 (a) (ii) and (iii), in that it might be regarded as making rights, liberties and obligations unduly dependent upon non-reviewable adminis­ trative decisions, and as insufficiently subjecting the exercise of legislative power to parliamentary scrutiny.

Home Deposit Assistance Bill 1982 10. The purpose of this Bill is to provide a legislative basis for the proposed Home De­ posit Assistance Scheme, which is to replace the current Homes Savings Grant Scheme.

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

Clause 39— Amount of grant Sub-clause 39 (5) authorises the making of regulations to amend, in effect, a pro­ vision of the act, in order to provide that changes to the higher and lower amounts of prescribed earnings for the purposes of determining the amount of a grant under

a formula provided by sub-clause 39 (4) may be made by regulation. The Com­ mittee draws this ‘Henry VIIT 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. However, the figures concerned could probably have been

prescribed by regulation from the outset without objection.

Clause 55— Payment of grants Sub-clause 55 (4) permits the Secretary, Department of Housing and Construction, to refuse to pay a grant under the Bill to all joint applicants in respect of an ap­ plication if, for any reason, he considers it is not practicable to do so. Under sub­ clause (5), the grant paid otherwise than to all the joint applicants is deemed to have been paid.

While decisions made by the Secretary under this clause—and, indeed, under all clauses of the Bill except clause 34—are, by clause 49, subject to review by the Ad­ ministrative Appeals Tribunal, it is difficult to see how appeals against decisions made under sub-clause 55 (4) could operate. The payment to other joint applicants

would presumably have been made and no system of notification to unsuccessful joint applicants would appear to be required by the legislation. The generally adequate review mechanisms in the legislation could, in relation to this provision, be ineffectual. Thus, the provision, as it stands, is drawn to the atten­

tion of the Senate under principle 1 (a) (ii) in that it might be regarded as, in effect, making rights unduly dependent upon non-reviewable administrative decisions. In the light of recent changes to the Administrative Arrangements Order, abolishing the Department of Housing and Construction, the Committee also questions who

will now be required to make decisions under this provision.

Income Tax Assessment Amendment Bill (No. 2) 1982 12. The purpose of this Bill is to amend the income tax law, inter alia: to permit the supply of information from income tax records to the "the Secretary, Department of Housing and Construction’, for the purposes of the new Home De­

posit Assistance Scheme; and to permit the disclosure of information from income tax records to the Royal Com­ mission on the Activities of the Federated Ship Painters and Dockers Union, the Royal Commission of Inquiry into Drug Trafficking and any subsequent Royal

Commission which is given appropriate terms of reference. The Income Tax Assessment Amendment Bill (No. 3) 1982 is also discussed in the context of this Bill.

13. The Committee draws the attention of the Senate to the following clause of the Bill.

Clause 3— Officers to observe secrecy

This clause proposes amendments to section 16 of the Principal Act, and raises fun­ damental issues as to the availability of information provided under compulsion to the Commissioner of Taxation. Paragraph (c) of the clause proposes to add ‘the Secretary, Department of Housing

and Construction’, two existing Royal Commissions, and future Royal Commissions

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to which sub-paragraph 16 (4) (k) (iii) is declared by the Governor-General to apply, as persons or bodies to which information may be communicated by an auth­ orised Taxation officer, for specified purposes. The extension of access to information provided under compulsion might, in itself, be regarded as trespassing unduly on personal rights and liberties. It may be noted, further, that the proposed amendments have, in effect, retrospective operation, be­ cause they apply to information already furnished to the Commissioner of Tax­ ation, and, on this ground also, might be regarded as trespassing unduly on personal

rights and liberties. The Committee therefore draws the general content of the Bill to the attention of the Senate under principle 1 (a) (i). In addition to these factors, proposed sub-paragraph 16 (4) (k) (iii) would enable any future, unspecified Royal Commission to gain access to information by declar­ ation of the Governor-General, without Parliamentary intervention or scrutiny. This sub-paragraph contrasts sharply with sub-paragraph 16 (4) (k) (ii) of the Bill, w hich would, if agreed to, give the two existing Commissions named in the provision access to information by decision of the Parliament, rather than by Executive Act.

While the Committee would not regard the conferral of access to information on future Royal Commissions as necessarily required by Act of the Parliament, it suggests that some form of Parliamentary control, whether by affirmative resolution of the Houses or the disallowance procedure, may be worthy of consideration. As the provision stands at present, however, it is drawn to the attention of the Senate under principle 1 (a) (iii) in that it might be regarded as either inappropria­ tely delegating legislative power or insufficiently subjecting its exercise to parlia­ mentary scrutiny. The Committee also draws attention to paragraph 16 (4a ) (b), which is proposed to be inserted by clause 3 (d). The paragraph confers a wide-ranging power on a Royal Commission to communicate to the Attorney-General information received by virtue of access to information under sub-section 16 (4) ‘if the Royal Com­ mission is of the opinion that the information indicates that a person may have com­ mitted an offence against an Act’. The paragraph, as drafted, does not include a safeguarding provision to exclude offences which might be regarded as trivial—for example, offences which attract a penalty of not more than six months’ inprisonment.

The Committee draws the paragraph 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. However, following consideration of this provision in the House of Rep­ resentatives, an amendment was moved to the Income Tax Assessment Amendment

Bill (No. 3) 1982, to provide that trivial offences would be exempted from disclos­ ure to the Attorney-General.

Radiocommunications Licence Fees Bill 1982 14. The purpose of the Bill is to impose fees for the grant or renewal of radiocom­ munications licences with the actual rates and form of any concession or exemption to be fixed by regulations.

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

C lause 8— Amount of fees; and Clause 9— Reduced fees and exemptions Ί hese clauses enable the fees that are to be imposed by the Bill to be fixed by regu­ lation. No indications are included relating to the amount of fees that may be imposed. While the Wireless Telegraphy Act 1905, under which radiocommunica­ tions licence fees were previously imposed, made like provision, the Committee

draws the clauses to the attention of the Senate under principle 1 (a) (iii), in that they might be regarded as inappropriately delegating legislative power.

Clause 11— Application

This clause provides that the enactment will be deemed to have taken effect on 1 July 1981, and the retrospectivity is drawn to the attention of the Senate under pri n- ciple 1 (a) (i), in that it might be regarded as trespassing unduly on personal rights and liberties.

However, the explanatory memorandum indicates that the Bill will not involve increased payments in respect of the period from that date till its commencement, and that in some cases fees will be reduced.

Tobacco Charge Amendment Bill 1982 16. The purpose of this Bill is to overcome a difficulty identified in the Committee’s Di­ gest No. 3 and its Fourth Report, in relation to the Tobacco Charge Amendment Bills (Nos 1, 2 and 3) 1982. As those Bills stand, they would permit the making of

regulations increasing, or decreasing, the rate of charge specified in the Principal Act. The Committee pointed out that removal of the ‘ceiling’ on amounts which could be specified in regulations might be regarded as an inappropriate delegation of legislative power.

17. This Bill fixes a maximum permissible amount which may be specified under the regulations.

ALAN MISSEN Chairman 20 May 1982

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