John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move that the following legislative instruments, a list of which I shall hand to the Clerk, be disallowed.

The list read as follows—

Banking (Prudential Standard) Determination No. 1 of 2006 made under paragraphs 11AF(1)(a) and (b) of the Banking Act 1959.

Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006 made under subsection 125(2) of the Broadcasting Services Act 1992.

Determination of Patient Contribution HIB 07/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Determination of Patient Contribution HIB 08/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Determination of Patient Contribution HIB 09/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Determination of Patient Contribution HIB 10/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Determination of Patient Contribution HIB 11/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Determination of Patient Contribution HIB 12/2006 made under subsection 3(1) of the Health Insurance Act 1973.

Insurance (Prudential Standard) Determination No. 4 of 2006 made under subsection 32(1) of the Insurance Act 1973.

Life Insurance (Prudential Standard) Determination No. 1 of 2006 made under paragraph 230A(1)(a) of the Life Insurance Act 1995.

[Legislative Instruments Act 2003 provisions apply to the instruments listed above: must be resolved within 15 sitting days after today or they will be deemed to have been disallowed.]

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

Banking (Prudential Standard) Determination No. 1 of 2006

Insurance (Prudential Standard) Determination No. 4 of 2006

Life Insurance (Prudential Standard) Determination No. 1 of 2006

Each of these instruments imposes an obligation on the relevant institution to retain sufficient documentation for each assessment, in order to demonstrate the fitness and propriety of the institution’s current, and recently past, responsible persons (see clauses 32, 34, and 30, respectively, of these three Determinations). The clauses do not sufficiently indicate the time period for which such records should be kept. The Minister has advised that these Standards have adopted a principles-based approach to the requirement of the retention of records rather than stating a specific timeframe. The Committee is seeking further information from the Minister on this obligation.

Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006

Sections 6 and 7 in each of this Standard prohibits a licensee from broadcasting programs that could reasonably be construed either as recruiting people to join terrorist organisations, or as soliciting funds for such organisations. A licensee will be in breach of these standards regardless of whether the licensee knows that the program could reasonably be construed in this way. The Explanatory Statement does not indicate why the element of the licensee’s knowledge has not been included in sections 6 and 7.

Notwithstanding sections 6 and 7, section 9 permits a licensee to broadcast a program that “merely gives information about, or promotes the beliefs or opinions of, a terrorist organisation”. If section 9 is intended to operate as a defence against an apparent breach of sections 6 or 7 it is not clear whether the licensee bears the burden of establishing that the program merely gives information or promotes certain beliefs.

The Minister has responded to the Committee advising that the omission of the element of the licensee’s knowledge in sections 6 and 7 is intentional to ensure licensees vet or view programs making an informed assessment about them before they are broadcast. Section 9 is not a defence against breaches of sections 6 or 7 but is an exemption for licensees providing broadcasts that are deemed merely informative. The Committee has written to the Minister seeking further clarification about the relationship between sections 6, 7 and 9.

Determination of Patient Contribution HIB 07/2006

Determination of Patient Contribution HIB 08/2006

Determination of Patient Contribution HIB 09/2006

Determination of Patient Contribution HIB 10/2006

Determination of Patient Contribution HIB 11/2006

Determination of Patient Contribution HIB 12/2006

These Determinations specify the amount of patient contribution in respect of recognised hospitals in five States and private hospitals in all States and Territories.

Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken particularly where a proposed instrument is likely to have an effect on business. Section 18 of the Act provides that in some circumstances consultation may be unnecessary or inappropriate. The definition of ‘explanatory statement’ in section 4 of the Act requires an explanatory statement to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken. The Explanatory Statements that accompany these Determinations make no reference to consultation. The Committee has written to the Minister seeking advice on whether consultation was undertaken and, if so, the nature of that consultation.

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 seven notices of disallowance, the full terms of which have been circulated in the chamber and I now hand to the Clerk.

The list read as follows—

Nine sitting days after today

Airworthiness Directive Part 39-105 – AD/750XL/6: Centre Console Wiring Loom, made under subregulation 39(1) of the Civil Aviation Safety Regulations 1998.

Civil Aviation Order 82.1 Amendment Order (No. 2) 2006 made under paragraph 28BA(1)(b) of the Civil Aviation Act 1988.

Instrument No. CASA 49/06 made under subregulations 42ZC(6) and 308(1) of the Civil Aviation Act 1988.

Twelve sitting days after today

Australian Prudential Regulation Authority Instrument Fixing Charges No. 1o f 2006 made under paragraph 51(1)(a) of the Australian Prudential Regulation Authority Act 1998.

Income Tax (Effective Life of Depreciating Assets) Amendment Determination 2006 (No. 1) made under subsection 40-100(1) of the Income Tax Assessment Act 1997.

Insurance (Prudential Standard) Determination No. 2 of 2006 made under subsection 32(1) of the Insurance Act 1973.

Insurance (Prudential Standard) Determination No. 3 of 2006 made under subsection 32(1) of the Insurance Act 1973.

I seek leave to incorporate in Hansard the committee’s correspondence concerning these instruments.

Leave granted.

The correspondence read as follows—

Airworthiness Directive Part 39-105 – AD/750XL/6: Centre Console Wiring Loom

9 February 2006

The Hon Warren Truss MP

Minister for Transport and Regional Services

Suite MG.46

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Airworthiness Directive, Part 39-105 AD/750XL/6: Centre Console Wiring Loom made under subregulation 39(1) of the Civil Aviation Regulations 1998.

The Committee notes that this Airworthiness Directive was made on 9 December 2005 and became effective from that date. It is nevertheless numbered as 2/2006 TX. The Committee therefore seeks your advice about the reason for giving this instrument a 2006 identification number.

The Committee would appreciate your advice on the above matter as soon as possible, but before 21 March 2006, to enable it to finalise its consideration of this Directive. Correspondence should be directed to Senator John Watson, Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Brett Mason

Deputy Chairman

15 June 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2611

Dear Senator Watson

I refer to the letter from Senator Mason of 9 February 2006, requesting information on why Airworthiness Directive Part 39-105 AD/750XL/6 was issued with a 2006 number. I apologise for the delay in replying.

I have received the following advice from the Civil Aviation Safety Authority (CASA).

The number you have referred to is a reference to an issue of a subscription service produced by Airservices Australia that provides subscribers with all current Airworthiness Directives. The number is included as a convenient reference for industry and has no impact on the date of effectiveness of the Airworthiness Directive.

Airservices Australia provide an update for subscribers every four weeks and the 2/2006 number reflects the delay involved in making an Airworthiness Directive and its inclusion in the hard copy service.

While every Airworthiness Directive is published on the Federal Register of Legislative Instruments and the CASA website, CASA takes further steps to inform industry of Airworthiness Directives that come into effect immediately upon being made or with only short delays on the effective date of commencement.

CASA may either mail or fax the Airworthiness Directive to the relevant aircraft owners and operators. In these circumstances the letters DM (direct mail), or TX (Fax) are included in the reference number in the top right hand corner of an Airworthiness Directive.

The Airworthiness Directive you have referred to, AD/750XL/6, was made on 9 December 2005 to mandate compliance with a New Zealand Civil Aviation Authority airworthiness directive on the same subject. CASA faxed a copy of the directive to all relevant operators and published it on the CASA website that same day. The relevant release of the Airservices subscription service was February 2006. That is why the notation ‘2/2006 TX’ appears in the top right hand corner of the Directive.

Thank you for raising this matter with me.

Yours sincerely

Warren Truss

Minister for Transport and Regional Services

Civil Aviation Order 82.1 Amendment Order (No. 2) 2006

2 March 2006

The Hon Warren Truss MP

Minister for Transport and Regional Services

Suite MG.46

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Civil Aviation Order 82.1 Amendment Order (No. 2) 2006 made under paragraph 28BA(1)(b) of the Civil Aviation Act 1988.

The Committee notes that this Order permits flight crew competency checks to be carried out by overseas flight simulator training organisations. According to the Explanatory Statement, it has been the practice of the Civil Aviation Safety Authority to permit one of the two annual competency checks to be carried out by overseas trainers, the second check being carried out in Australia. The stated purpose of this Order is to put this administrative practice onto a more certain legal footing. It is not clear, however, whether it is intended by this Order that both of the annual competency checks may now be carried out by overseas trainers.

The Committee would appreciate your advice on the above matter as soon as possible, but before 24 March 2006, to enable it to finalise its consideration of this Order. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

15 June 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2611

Dear Senator Watson

Thank you for your letter of 2 March 2006, requesting clarification on Civil Aviation Order (CAO) 82.1 Amendment Order (No.2) 2006 made under paragraph 28BA(1)(b) of the Civil Aviation Act 1988 . I apologise for the delay in responding.

The Civil Aviation Safety Authority (CASA) has advised that CAO 82.1 imposes training and checking obligations as conditions on the air operators’ certificates of aerial work operators. Training and checking obligations are carried out by training and checking organisations.

Under subsection 3 and paragraph l . l of Appendix 2 of the Order, a compliant training and checking organisations must be both wholly contained within an operator’s organisational structure and wholly responsible to the operator for standards, or wholly contained within the organisational structure of, and wholly responsible to, a second operator used by the first operator under a formal, CASA-approved, agreement between the two operators.

Prior to the amendment there was some doubt whether these arrangements could extend to overseas flight simulator organisations capable of providing flight crew competency checks for certain turbine and jet aircraft for which there is no simulator equipment in Australia. This was because paragraphs 3.3 and 3.4 of Appendix 2 of the Order mention the use of flight simulators, leaving it unclear whether overseas simulators may be used at all, or if usable, may only be used when part of the operator’s (or a second operator’s) compliant training and checking organisation.

To resolve this doubt, Civil Aviation Order (CAO) 82.1 Amendment Order (No.2) 2006 was made and introduced subclauses 1.2 and 3.4A into Appendix 2. A copy of the Amendment Order and latest compilation of Civil Aviation Order 82.1 are attached for your information. [not incorporated]

The amendments set out the conditions for use of an overseas flight simulator training organisation. The amendment also provides in effect that if a trainer is used by an operator’s training and checking organisation in accordance with these conditions, the trainer will be taken to have met the compliance requirements of paragraph 1.1 of Appendix 2.

Each operator may, therefore, use an overseas trainer for all or part of its flight crew competency checking requirements and both of the annual competency checks could be carried out by the overseas trainer.

However, renewal of an instrument rating, required every 12 months and usually included as part of the appropriate 6-monthly competency check, requires the physical presence of an approved testing officer. These officers are all based in Australia. Thus, if a pilot requires renewal of his or her instrument rating as part of one of the 6-monthly competency checks, this will be conducted with an officer in Australia. Since, for relevant aircraft, there is no flight simulator equipment in Australia, this competency check would be conducted in the actual aircraft flying in Australia.

Thank you for raising this matter with me.

Yours sincerely

Warren Truss

Minister for Transport and Regional Services

Instrument No. CASA 49/06

2 March 2006

The Hon Warren Truss MP

Minister for Transport and Regional Services

Suite MG.46

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Instrument No. CASA 49/06 made under subregulations 42ZC(6) and 308(1) of the Civil Aviation Regulations 1988. This instrument revokes a previous instrument (CASA 579/05) dealing with the supervision requirements for aircraft polishers.

The Explanatory Statement to this present instrument states that the revocation is necessary because the scope of the previous instrument has been misinterpreted, leading to possible concerns for aircraft safety. The Committee would appreciate your advice about the nature of this misinterpretation and its effect on aircraft safety to assist the Committee in its consideration of any future instrument that might be made in substitution for the revoked instrument.

The Committee would appreciate your advice on the above matter as soon as possible, but before 24 March 2006, to enable it to finalise its consideration of this Instrument. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

15 June 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2611

Dear Senator Watson

Thank you for your letter of 2 March 2006 (ref: 32/2006), requesting advice on the misinterpretation of Instrument No. CASA 579/05 and the revocation of that Instrument by Instrument No. CASA 49/06 made under subregulations 42ZC(6) and 308(1) of the Civil Aviation Regulations 1988 . I apologise for the delay in responding.

The Civil Aviation Safety Authority (CASA) has provided the following advice.

Prior to revocation, Instrument No. CASA 579/05 provided for supervision of aircraft maintenance by holders of Airworthiness Authorities endorsed for such maintenance or by licenced aircraft maintenance engineers (LAMEs). With respect to aircraft polishing, the intent of the Instrument was to require appropriate supervision only where the polishing would constitute maintenance work. There was no intention to require all aircraft polishing be conducted under the supervision of an Airworthiness Authority or a LAME.

Feedback on the Instrument was that it was complex and some industry participants were interpreting the Instrument as requiring that all aircraft polishing be conducted under the supervision of an Airworthiness Authority or a LAME. Compliance with the Instrument based on this broad interpretation would be very costly and may lead to maintenance work not being done or being done inappropriately.

CASA revoked Instrument No. 579/05 with Instrument No. 49/06 to avoid the broad interpretation of all aircraft polishing qualifying as maintenance work. A copy of the revocation Instrument No. 49/06 is enclosed for your information and extracts of relevant legislation are also set out in Attachment A for ease of reference.

CASA is currently drafting an advisory bulletin to assist those responsible for the maintenance of aircraft to decide when aircraft polishing must be conducted under supervision.

Thank you for raising this matter with me.

Yours sincerely

Warren Truss

Minister for Transport and Regional Services

ATTACHMENT A

Relevant Legislation

Civil Aviation Act 1988

Section 3 of the Civil Aviation Act 1988 defines ‘maintenance’ as ‘any task required to ensure, or that could affect, the continuing airworthiness of an aircraft or aeronautical product, including any one or combination of overhaul, repair, inspection, replacement of an aeronautical product, modification or defect rectification’.

Civil Aviation Regulations 1988

The relevant regulation is CAR 42ZC and it provides as follows:

(3)

Subject to subregulation (5), a person may carry out maintenance on a class A aircraft in Australian territory if

(a)

the person:

(i)

holds an aircraft maintenance engineer licence, an airworthiness authority or an aircraft welding authority covering the maintenance; and

(ii)

either:(A)   holds a certificate of approval covering the        maintenance; or(B)    is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or

(A)

holds a certificate of approval covering the        maintenance; or(B)    is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or

(B)

is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or

(b)

the following requirements are satisfied:

(i)

the person is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; and

(ii)

the maintenance is carried out under the supervision of a person who holds an aircraft maintenance engineer licence covering the maintenance and who either:(A)   holds a certificate of approval covering the maintenance; or(B)    is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance;

(A)

holds a certificate of approval covering the maintenance; or(B)    is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance;

(B)

is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance;

(The provisions for class B aircraft are similar.)

Australian Prudential Regulation Authority Instrument Fixing Charges No. 1o f 2006

30 March 2006

The Hon Peter Dutton MP

Minister for Revenue and Assistant Treasurer

Suite M1.22

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the following instruments made under the Australian Prudential Regulation Authority Act 1995.

Australian Prudential Regulation Authority Instrument Fixing Charges No. 1 of 2006

The Committee raises the following matters with regard to this Instrument.

First, the instrument is dated 10 February 2005. It purports to fix charges payable on a voluntary basis by those general insurers who contribute data to and receive information from the National Claims and Policies Database during each of the 2004-5 and 2005-6 financial years. It is not clear whether the date of signing of this instrument contains a typographical error (in that it should refer to 10 February 2006), or whether there has been a 12 month delay in registering the instrument. The Committee would appreciate clarification on the date of the instrument and, if it is correct, an explanation for the delay in registering it.

Secondly, the instrument specifies charges for a period of time before it was made (whether that be February 2005 or 2006). Notwithstanding the voluntary basis of the charge, the Committee would appreciate your advice on whether any legal advice was obtained regarding the retrospective imposition of those charges.

Thirdly, it is not clear in which sense the charge is voluntary. Clauses 4 and 5 of the Schedule to the instrument state that the charge is to be paid by an insurer within 28 days following receipt of a request and invoice from APRA. The Committee therefore seeks clarification on the voluntary nature of the charge.

Finally, the instrument contains three different definitions of the term ‘NCPD insurer’. One is found in the general interpretation section of the instrument. The second is found in clause 7 of the Schedule. The second definition varies from the first by adding the words ‘or Lloyd’s underwriter’ and ‘or reportable facility business’. The third definition is found in the Annexure A. The third definition varies from the second by referring to 1 January 2003, instead of 1 January 2006, the latter date being used in the first two definitions. The Committee would appreciate your advice on whether these variations are intended and, if so, the reasons for the differences.

The Committee would appreciate your advice on the above matters as soon as possible, but before 5 May 2006, to enable it to finalise its consideration of these instruments. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

Received 20 June 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter dated 30 March 2006 regarding Australian Prudential Regulation Authority Instrument Fixing Charges No. 1 of 2006 and Australian Prudential Regulation Authority (Confidentiality) Determination No. 3 of 2006 (Determination No. 3 of 2006). 1 apologise for the delay in replying and will deal with each Issue in turn.

Australian Prudential Regulation Authority Instrument Fixing Charges No. 1 of 2006

While the issues you have raised in relation to this instrument are valid, I would like to clarify that the instrument fixes a charge for the 2004-05 and 2005-06 financial years only.

In subsequent financial years, as a result of an amendment to the General Insurance Supervisory Levy Imposition Act 1998, the costs associated with the National Claims and Policies Database (NCPD) will be recovered via a special levy component to be imposed on a class of general insurers. That is those insurers which contribute to, and thereby can benefit from, the NCPD. The General insurance Supervisory Levy Imposition Act 1998 was passed by the Senate on 11 May 2006.

APRA will fix the special levy component for the 2006-07 financial year by way of the annual supervisory levy imposition determination made under subsection 8(3) of the General Insurance Supervisory Levy Imposition Act 1998.

In relation to your request for clarification on the voluntary nature of the charge in the existing instrument, it is noted that clause 6 expressly states that payment of the charge is voluntary. Clauses 4 and 5 of the Schedule are therefore to be read subject to clause 6. Payment was made voluntary following consultation by APRA with industry representative bodies.

I am informed that as a result of a typographical error, the instrument was dated 10 February 2005. The date of the instrument should in fact be 10 February 2006, being the date on which it was signed. The fact that the incorrect date was inserted does not impact the legal validity of the document, however, I am advised that APRA will be exploring with the Office of Legislative Drafting any avenues to correct the record.

I am advised by APRA that legal issues, including retrospectivity, were considered in the process of drafting the instrument. As the charges are voluntary, the view was taken that the instrument did not affect the rights of relevant general insurers so as to disadvantage them, nor did it impose liabilities on general insurers. Consequently, I am advised that it was considered that the instrument would not attract the operation of subsection 12(2) of the Legislative Instruments Act 2003 (the Legislative Instruments Act).

You have rightly pointed out that the instrument contains three different definitions of the term ‘NCPD insurer’. The difference between the definition in the general interpretation section and clause 7 of the Schedule was unintentional. The definition in the general interpretation section was intended to make clear the meaning of ‘NCPD’ and ‘NCPD insurer’ in the heading of the instrument. The definition in clause 7 of the Schedule contains the correct definition. I am advised that it is APRA’s view that this definition prevails over the definition in the general interpretation section.

The difference between the definition of ‘NCPD insurer’ in the Conditions of Use set out in Annexure A on the one hand, and the definitions in the general interpretation section and clause 7 of the Schedule on the other was intentional. The reference to a ‘reporting period that ended before 1 July 2006’ in the first two definitions reflects and emphasises the fact that the instrument only fixes charges in respect of the 2004-05 and 2005-06 financial years. As the Conditions of Use will have effect beyond 1 July 2006, the first two definitions are inappropriate. The reference to 1 January 2003 in the definition in the Conditions of Use is consistent with the definitions of ‘reportable policy’, ‘reportable claim’ and ‘reportable facility’ in the reporting standards.

I trust this information will be of assistance to the Committee.

Yours sincerely

Peter Dutton

Minister for Revenue and Assistant Treasurer

Income Tax (Effective Life of Depreciating Assets) Amendment Determination 2006 (No. 1)

30 March 2006

The Hon Peter Dutton MP