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

Following the receipt of a satisfactory response, 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 notice of motion No. 1 standing in my name for seven sitting days after today for the disallowance of the Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006 made under subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986. I seek leave to incorporate in Hansard the committee’s correspondence concerning this instrument.

Leave granted.

The correspondence read as follows—

7 December 2006

ref: 217/2006

The Hon Bruce Billson MP

Minister for Veterans’ Affairs and

Minister Assisting the Minister for Defence

Suite M1 19

Parliament House

CANBERRA  ACT  2600

Dear Minister

I refer to the Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006 made under subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986.

The Committee notes that this instrument nominates, for the purposes of section 52ZZZWA(3) of the Veterans’ Entitlements Act 1986, each of the agreements entered into by the Commonwealth and a State or Territory, collectively known as the Commonwealth State/Territory Disability Agreement.  The instrument does not indicate the date of this Agreement.  Indeed, on the face of it, the instrument appears to apply to any agreement so described whenever it is made.  This would raise the prospect of breaching subsection 14(2) of the Legislative Instruments Act 2003, by which a legislative instrument may not apply any matter contained in a non-legislative instrument as in force from time to time.

The Committee would therefore appreciate your advice on the following matters regarding this Agreement.  First, does this Agreement have legislative character such that it would allow for its incorporation as amended from time-to-time or is it intended that the Commonwealth will nominate this Agreement each time it is amended?  Secondly, if the Agreement is to be nominated as at a particular time, should the Nomination be amended to specify a date for the current Agreement?

The Committee would appreciate your advice on the above matters as soon as possible, but before 1 February 2007, 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

22 January 2007

Senator John Watson

Chairman

Senate Standing Committee on

Regulations and Ordinances

Room SG49

Parliament House

CANBERRA   ACT   2600

Dear Senator Watson

I refer to your letter dated 7 December 2006 (your ref: 217/2006) in relation to the legislative instrument entitled Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006.

This instrument nominates a number of agreements entered into by the Commonwealth with the States and Territories, which are collectively known as the Commonwealth/State/Territory Disability Agreement.

You have noted that the instrument does not refer to the date of the agreements and have suggested the instrument may contravene section 14 of the Legislative Instruments Act 2003 by incorporating a non-legislative document as in force from time to time.  You have asked me a number of questions in this regard.

Firstly, whether the agreement has legislative character?  No, it does not.

Secondly, if the agreement is not legislative, whether the Department of Veterans’ Affairs (DVA) intends to re-make the instrument if the agreement was amended, to ensure that s.14 was observed?  In our opinion, based on advice from legislative counsel, s.14 is not relevant and this is canvassed in the following response.

Thirdly, if it is intended to confine the instrument to the agreement existing at the time the instrument commenced, whether the instrument should be amended to specify a date for the agreement?  Our advice from legislative counsel of the Office of Legislative Drafting and Publishing (OLD & P) ie the body that drafted the instrument in question, is (and as slightly paraphrased by us) as follows:

“In our view, the Veterans’ Affairs (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006 (instrument) does not incorporate the Commonwealth State/Territory Disability Agreement (CSTDA) by reference.  Instead, the instrument nominates the CSTDA in accordance with the discretionary power to do so included in subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986.

Accordingly, section 14 of the Legislative Instruments Act 2003 does not apply and there is no need to amend the instrument so that it refers to the CSTDA as existing as the commencement of the instrument.  The CSTDA consists of a number of identical agreements signed on different dates by the States and Territories.  In our view, the important thing is that the agreement being nominated was sufficiently described without reference to any date.”.

I accept the OLD & P advice and I trust this information satisfies your concerns.

Yours sincerely

Bruce Billson

Minister for Veterans’ Affairs

8 February 2007

ref: 21/2007

The Hon Bruce Billson MP

Minister for Veterans’ Affairs and

Minister Assisting the Minister for Defence

Suite M1 19

Parliament House

CANBERRA  ACT  2600

Dear Minister

Thank you for your letter of 24 January 2007 responding to the Committee’s concerns with the Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006.

In your response you advise that the Commonwealth State/Territory Disability Agreement (CSTDA) – a collection of agreements entered into by the Commonwealth with the States and Territories – is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).  You also advise that the CSTDA does not breach section 14 of the LIA because it has not been incorporated but rather nominated in accordance with subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986 and therefore the instrument does not need to be amended to refer to the agreement as existing at the commencement of that instrument.

The Committee has considered your response but is of the view that it does not clarify what happens if the Commonwealth and the States conclude another CSTDA to replace that which is referred to in this instrument.  Is it intended that this instrument would then be read as applying to that subsequent agreement, without the need for a new nomination under section 52ZZZWB(3)?

The Committee is also not convinced by the argument that the act of ‘nominating’ an agreement can be distinguished from ‘applying, adopting or incorporating’ that agreement for the purposes of section 14(2) of the LIA, and would appreciate further advice on this matter. In particular, has the Department sought legal advice on the effect of this distinction?

The Committee would appreciate your advice on the above matters as soon as possible, but before 26 February 2007, 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

20 March 2007

Senator John Watson

Chairman

Senate Standing Committee on

Regulations and Ordinances

Room SG49

Parliament House

CANBERRA   ACT   2600

Dear Senator Watson

Thank you for your letter of 8 February 2007 that raises two issues in relation to my letter of 24 January 2007 responding to the Committee’s concerns with the Veterans’ Entitlements (Special Disability Beneficiary Requirements) Nomination of Agreement 2006.  I apologise for the delay in replying.  However, it was considered appropriate to seek advice from the Australian Government Solicitor (AGS) in relation to the issues raised in your letter to ensure that these issues were considered by an independent legal adviser.

In relation to your question of whether it is intended that this instrument would be read as applying to a subsequent agreement, without the need for a new nomination under subsection 52ZZZWB(3), the answer is no.  It is envisaged that this instrument would be read as applying to the nominated agreement as that agreement is amended (if that occurs).  Senior General Counsel of the AGS has advised that the instrument would refer to the Commonwealth/State/Territory Disability Agreement (CSTDA) as it exists at any date.

In relation to your question of whether the act of ‘nominating’ an agreement can be distinguished from ‘applying, adopting or incorporating’ that agreement for the purposes of section 14(2) of the Legislative Instruments Act 2003 (LIA), Senior General Counsel of the AGS has advised that he agrees with the previous Office of Legislative Drafting and Printing (OLD&P) opinion that section 14 of the LIA does not apply and that there is no need to amend the instrument so that it refers to the CSTDA as existing at the commencement of the instrument.

The reasoning of the relevant part of the Senior General Counsel of the AGS opinion in reaching this conclusion is as follows:

“Section 14 is concerned with ‘enabling legislation’ that authorises or requires ‘provision’ to be made in relation to any ‘matter’ in a legislative instrument.

It appears to us that the relevant ‘enabling legislation’ in the present circumstances is section 52ZZZWA(3).  It also appears to us that the relevant ‘matter’ is the nomination of an agreement of a type described in s 52ZZZWA(2)(b)(ii).

In circumstances where the ‘matter’ is the nomination of a relevant agreement there seems little scope for the legislative instrument to include ‘provisions’ that purport to deal with much more than the fact of the nomination.  Because the VE Act relevantly contemplates a bare power of nominating a relevant agreement it does not in our view envisage that the instrument would include provisions that would purport to provide for ‘application, adoption or incorporation’ of such an agreement whether with, or without, modification.  Such provisions would seem to us to deal with the very thing, the nomination regime, already dealt with under the relevant sections of the VE Act (s 52ZZZWA(2)(b)(ii) and (3)); they would either duplicate or supplement, depending on their content, that nomination regime.  In our view, s14 does not authorise such duplication or supplementation.  It follows also in our view that s14 would not operate so as to enable those provisions to be made.”

I have accepted the advice of the AGS and hope that this additional advice addresses your concerns.

Yours sincerely

Bill Billson

Minister for Veterans’ Affairs

Senator Nettle to move on the next day of sitting:

That the Senate—

(a)

notes the pledge by United States of America (US) Republican presidential candidate Senator John McCain that he will close Guantanamo Bay if he becomes President; and

(b)

calls on the Government to make representations to the US Administration to shut down Guantanamo Bay.

Senator Siewert to move on the next day of sitting:

That the Senate:

(a)

congratulates the Government on its leadership in achieving the outcomes of the United Nations General Assembly (UNGA) Resolution on sustainable fisheries in November 2006;

(b)

calls on the Government to implement UNGA Resolution 61/105 on sustainable fisheries as soon as possible;

(c)

urges the Government to actively assist other nations to implement the resolution in the timeframe set;

(d)

calls on the Government to continue its leadership through the United Nations to ensure integrated global governance of high seas areas;

(e)

recognises this opportunity to put in place best practice regional agreements that include a commitment to the conservation and the sustainable, equitable use of the marine environment through the implementation of the ecosystem approach based on the precautionary principle; and

(f)

calls on the Government to take a leadership role in the negotiations on the development of the South Pacific Regional Fisheries Management Agreement.

Senator Stott Despoja to move on the next day of sitting:

That the Senate:

(a)

notes:

(i)

the recent report on student finances by the Australian Vice-Chancellor’s Committee (AVCC), Australian University Student Finances 2006, and

(ii)

that the Government has yet to respond to the Employment, Workplace Relations and Education References Committee report, Student income support, tabled on 23 June 2005; and

(b)

urges the Government to respond to both the committee report and the recommendations for alleviating student financial stress put forward by the AVCC on 15 March 2007.

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

That the Senate calls on the Government to halt the burning of old-growth forests and wildlife habitats in Australia.