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 nine legislative instruments, a list of which I shall hand to the Clerk, be disallowed.

The list read as follows—

(1)

A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1), as contained in Select Legislative Instrument 2006 No. 258 and made under the A New Tax System (Commonwealth-State Financial Arrangements) Act 1999. [F2006L03223]

(2)

Approved Code of Practice for Manual Handling (Maritime Industry) made under subsection 109(1) of the Occupational Health and Safety (Maritime Industry) Act 1993. [F2006L03231]

(3)

Approved Form for Application of Initial Approval as a Rehabilitation Program Provider made under paragraph 34C(1)(a) and subsection 34S(1) of the Safety, Rehabilitation and Compensation Act 1988. [F2006L03292]

(4)

Approved Form for Application for Renewal of Approval as a Rehabilitation Program Provider made under paragraph 34K(1)(a) and subsection 34S(1) of the Safety, Rehabilitation and Compensation Act 1988. [F2006L03294]

(5)

Determination No. HIB 29/2006 made under paragraph (bj) of Schedule 1 to the National Health Act 1953. [F2006L03266]

(6)

Direction Relating to Foreign Currency Transactions and to North Korea made under regulation 5 of the Banking (Foreign Exchange) Regulations 1959. [F2006L03114]

(7)

Prescribed Courses for Applicants for Registration as a Migration Agent made under paragraph 5(1)(a) of the Migration Agents Regulations 1998. [F2006L03194]

(8)

Social Security (Public Interest Certificate Guidelines) (DEWR) Determination 2006 made under subparagraph 209(1)(a)(i) and paragraph 209(1)(b) of the Social Security (Administration) Act 1999. [F2006L03256]

(9)

Variation of Criteria for Approval or Renewal of Approval of Rehabilitation Program Providers made under section 34D of the Safety, Rehabilitation and Compensation Act 1988. [F2006L03288]

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

Leave granted.

The document read as follows—

A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 258

These Regulations extend the transitional period following the introduction of the GST to include the financial years up to and including 2008-09.

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 Statement that accompanies these Regulations makes no reference to consultation. The Committee has written to the Treasurer seeking advice on this matter.

Approved Code of Practice for Manual Handling (Maritime Industry)

This instrument specifies a code of practice for manual handling activity in a maritime environment. Section 2.28 of this Code requires records to be kept concerning the implementation of the National Standard for Manual Handling. The section does not indicate the form in which such records should be kept, nor the duration for which such records should be kept. The Committee has written to the minister seeking advice on this matter.

Approved Form for Application of Initial Approval as a Rehabilitation Program Provider

Approved Form for Application for Renewal of Approval as a Rehabilitation Program Provider

Variation of Criteria for Approval or Renewal of Approval of Rehabilitation Program Providers

Each of these instruments requires an applicant to provide information about certain types of legal actions against the applicant, its principals or employees. In each case, the relevant clauses specify that civil actions (eg for negligence) older than six years from the date of application, or bankruptcy declarations older than seven years, need not be declared. By comparison, professional misconduct or criminal proceedings, and breaches of antidiscrimination or privacy legislation do not have any time limit specified.

The Explanatory Statements that accompany these instruments make no reference to consultation in accordance with the definition of ‘explanatory statement’ in section 4 of the Legislative Instruments Act 2003.

The Committee as written to the minister seeking advice on these matters.

Determination No. HIB 29/2006

This instrument amends the principal Determination which was made on 19 September 2006 and which was registered and commenced operation on 20 September 2006 to specify that the default benefit that is payable per night for nursing home type patients in a private hospital is $73.80. In the principal Determination, the benefit was stated to be $74.80. This amending instrument was registered on 28 September 2006, but has retrospective effect, commencing on 20 September 2006.

The retrospective effect reduces the amount of benefit that is payable for patients and thus apparently works to the disadvantage of persons to whom that benefit is payable. Subsection 12(2) of the Legislative Instruments Act 2003 states that a legislative instrument has no effect if it takes effect before the date it is registered and as a result the rights of a person other than the Commonwealth would be affected so as to disadvantage that person.

The present instrument appears to contravene section 46 of the Legislative Instruments Act 2003. That section provides that where a legislative instrument (in this case, the principal Determination) has been registered, then no legislative instrument the same in substance as that original instrument is to be made in the period commencing on the registration date of the original instrument (in this case, 20 September 2006) and ending 7 days after the date on which the original instrument is tabled. The original instrument was tabled on 9 October 2006 and so no similar instrument can be made until 16 October 2006. This present instrument was made in contravention of this section and thus appears to contravene section 46 with the result that, again, it has no effect.

The Committee has written to the minister seeking advice on these matters.

Direction Relating to Foreign Currency Transactions and to North Korea

This instrument prohibits foreign currency transactions involving certain entities and one individual associated with the Democratic People’s Republic of Korea.

The prohibition applies, amongst other things, to any transaction that relates to property, securities or funds owned or controlled indirectly by those entities or that individual, and to any transaction that relates to payments indirectly to or for the benefit of those listed persons. It is possible that a person might engage in such a transaction without knowing of the indirect relationship with one of the listed persons. The Committee has written to the Treasurer seeking advice as to whether this Direction is intended to apply in such a circumstance.

Prescribed Courses for Applicants for Registration as a Migration Agent

This instrument, commencing on 1 October 2006, provides that a prescribed course of study is either a Graduate Certificate course at certain higher education institutions or a formal course of study or self-directed study completed before 15 July 2006.

According to the Explanatory Statement the effect of the instrument is that persons who have not completed a formal course of study or self-directed study before 15 July 2006 must complete the Graduate Certificate course in order to become registered migration agents. This appears to operate to the disadvantage of persons who have completed a formal course of study or self-directed study between 15 July and 30 September 2006, by compelling them to complete the Graduate Certificate course. The Committee has written to the Minister seeking advice as to whether this is the intention of the instrument.

Social Security (Public Interest Certificate Guidelines) (DEWR) Determination 2006

This Determination specifies guidelines for the exercise by the Secretary of the Department of Employment and Workplace Relations of the power to issue certificates that permit the disclosure of protected information about individuals. The Explanatory Statement notes that, with one exception, the Determination is similar to a previous Determination that is repealed by this present Determination. The exception is the inclusion of a new section 11 which permits the disclosure of information in the context of a Ministerial briefing. The Committee has written to the minister seeking advice on the operation of this provision and whether the Privacy Commissioner had been consulted concerning this Determination.

Senator Bob Brown to move on Tuesday, 5 December 2006:

That the Senate supports the World Heritage Convention, including its requirement that sites of potential World Heritage value should be protected until a full evaluation has been made.

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

That the Senate—

(a)

noting the Cole Commission of Inquiry’s whitewash of the Government’s failure to exercise care and diligence over the Australian Wheat Board;

(b)

deploring the damage done to Australia’s international reputation by the Australian Wheat Board scandal; and

(c)

expressing deep concern for wheat growers who suffer loss as a result,

calls on the Government, the Prime Minister (Mr Howard) and ministers personally to once again assume responsibility and accountability for the actions of the federal public service and all of its departments.