Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General. the Hon. Lionel Bowen M.P.)

General Outline

The amendments made by this Bill have a number of purposes such as the tidying up, correction or updating of legislation. Other amendments implement changes that are of minor policy significance or are of a routine administrative nature. None of the amendments made by this Bill has any significant financial impact.

Cl. 1 - Short title

Formal

Clause 2 - Commencement

Cl.2(1) provides that, subject to the succeeding special provisions, the Bill shall come into operation on receiving the Royal Assent.

Special provision for the commencement of amendments to specified Acts contained in Schedule 1 is made by cl.2(2) to (33); references to special commencement provisions are made in notes on the relevant provisions. In the absence of any special commencement provisions the amendments will come into force on the day on which Royal Assent is given.

Clause 3 - Amendments of Acts

This clause provides that the Acts specified in Schedule 1 are amended as set out in that Schedule.

Clause 4 - Repeals

This clause provides that the Acts specified in Schedule 2 are repealed.

Clause 5 - Transitional provisions

Cl.5(1) provides that, unless there is express provision to the contrary, any act done or decision made under the provisions amended or repealed and re-enacted has effect after the amendment or repeal as if it had been done or made pursuant to the provisions as so amended or re-enacted.

Transitional provisions in cl.5(2) to (20) relating to specific Acts are referred to in the explanation of the amendments in Schedule 1.

SCHEDULE 1

Amendments of Acts

Aboriginal Land Rights (Northern Territory) Act 1976

The proposed amendments correct 5 errors in cross references that were made in the Aboriginal Land Rights (Northern Territory) Amendment Act (No.3) 1987

Acts Interpretation Act 1901

The Office of Parliamentary Counsel is pursuing a policy of simplifying its drafting style. As part of this policy some standard forms of words could be shortened or omitted if appropriate amendments are made to the Acts Interpretation Act 1901. In addition, it is desirable to insert a general provision to the effect that a mere change in style should not be taken to convey a different meaning.

In addition, problems have arisen with s.48(1) of the Act. It is necessary to make it clear that regulations may be expressed to commence at the commencement of a specified Act, even if the Act is to commence on a proclaimed date. It is also necessary to provide that regulations may be expressed to commence at a specified time on a specified day.

The language of some commencement provisions could be simpler if the word "commence" could be used instead of "come into operation". However s.3(2) of the Act appears to require the longer expression to be used. Proposed amendment of this provision will avoid this requirement.

New definitions are inserted by amending Acts by carefully specifying where each definition is to be inserted. Proposed new s.14A will provide that new definitions be inserted in alphabetical order, thus shortening the amending formula.

It has been the traditional view of Parliamentary Counsel that a paragraph, or an item in an amending Schedule, cannot have a separate commencement date because it is not a complete sentence. However, paragraphs and items in an amending Bill are independent provisions that are only technically part of a sentence. It is very convenient to give them separate commencement dates if, at the last moment, a decision is made that they are not to commence on the same date. Similarly, in application provisions, it is necessary to refer independently to amendments made by particular paragraphs or items. Proposed new s.14B will enable this to be done.

When a new provision expressing an idea in a new style is inserted in an Act that already contains similar ideas expressed in an older style, there is a danger that the courts will construe the different language as having a different meaning. Proposed new s.l5A will include a general provision in the Act to prevent this construction.

Proposed new s.15AD will allow in appropriate cases examples to be included in Acts to illustrate the operation of difficult provisions. It will be necessary to provide that the examples are not exhaustive, and that if they are inconsistent with the provision they illustrate, the provision prevails. These matters should be covered generally by inserting them in the Act.

When establishing an office of Chairperson of a body, it is customary to include a provision that the Chairperson may be referred to as the Chairman or Chairwoman, as the case requires. Proposed new s.18B will put this provision in the Act.

There is a rule of interpretation that "may" means "shall" in some circumstances. Accordingly, out of caution, it has become customary to follow the word "may" with the words "at (his) discretion". This is cumbersome, particularly when expressed in non-sexist language. Parliamentary Counsel never draft "may" as meaning "shall". It is proposed to define "may" as always importing a discretion. However, in the interests of caution, proposed new s.33(2A) will only apply to Acts assented to after the amendment is made.

Every Act establishing a body provides that things done by the body are not affected by vacancies in its membership. Proposed new s.33(28) will insert this provision in the Act.

S.33(3A) was inserted in the Act to make it clear that a power to deal with matters by an instrument included the power to deal with a class or classes of those matters. However, there has been some doubt whether a special form of words is necessary to invoke the subsection. This was not intended, and the proposed amendment of s.33(3A) will remove the doubt.

For some years it has been necessary to include separate definitions of "appoint" to include "re-appoint". Proposed new s.33(4A) will define the word in the Act.

The forms of acting provisions include many provisions that are identical in effect. Proposed new s.33A inserts these provisions in the Act.

The form for a delegation always includes standard provisions that the power itself may not be delegated, that it may be exercised generally or specially, that a power exercised by the delegate shall be deemed to be exercised by the delegator, and that a delegation does not prevent the exercise of a power by the delegator. Proposed new s.34AB will insert these provisions in the Act.

Modern legislation frequently provides for statutory instruments to be subject to parliamentary disallowance. The standard provision consists of four subsections that are · always identical. Added to this is the fact that the provision dealing with the publication of the instruments has to translate the current reference to the Minister for Sport, Recreation and Tourism into a reference to the Minister administering the legislation in which the provision appears. Proposed new s.46A will insert revised and improved versions of these subsections in the Act.

In some cases it is desirable to make regulations commence on the date of commencement of a specified Act. There is some doubt whether this can be done if the specified Act is to commence on a date to be proclaimed. Proposed amendment of s.48(1) will make it clear that this can be done in such a case. It will also make it clear that regulations may commence at a specified time on a specified day.

Administrative Decisions (Judicial Review) Act 1977

Proposed amendments of Schedule 2 make an amendment consequential upon abolition of return endorsements by proposed amendments in this Bill to the Migration Act 1958. A return endorsement gives authority to a non-citizen who is a resident of Australia to return to Australia after a trip overseas. However, since 1 January 1987, return endorsements have been replaced by "resident return visas".

The amendments also confirm that the requirement under the Act to give reasons for decisions does not apply to decisions on selection for higher duties or decisions on higher duties appeals in the Australian Public Service.

Anglo-Australian Telescope Agreement Act 1970

Proposed amendment of the long title results from the proposed expansion of the functions and powers of the Anglo-Australian Telescope Board established under the Act. It is proposed that the Anglo-Australian Telescope Board should not be limited in its functions to the operation and management of the Anglo-Australian Telescope only in accordance with the agreement annexed to the Act. The proposed amendments will, for example, permit the Anglo-Australian Telescope Board to take responsibility for telescopes other than the Anglo-Australian telescope.

Proposed new s.8A is inserted to enable the Anglo-Australian Telescope Board to undertake such additional functions as are conferred on it by the regulations. This will enable the Board to undertake function, as agreed between the Australian and United Kingdom Governments, without the cumbersome delays involved in amending the Agreement which is of treaty status.

Proposed amendment of s.13(2) is consequential upon the insertion of a new s.8A. It confines the operation of the sub-section to moneys expended on the Anglo-Australian Telescope in accordance with the Anglo-Australian Telescope Agreement. Moneys expended on other telescopes for which the Board may take responsibility would be outside the Anglo-Australian Telescope Agreement which relates only to that telescope. The present requirement in s.13(2) that expenditure by the Board be in accordance with estimates approved in accordance with the Agreement would be anomalous for telescopes other than the Anglo-Australian telescope.

Proposed new s.20 is added to enable the Governor-General to make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Arbitration (Foreign Awards and Agreements) Act 1974

Proposed new s.10A is inserted to allow the Secretary to the Department of Foreign Affairs and Trade to delegate to officers of the Department the power to issue certificates under s.10. S.10(1) empowers the Secretary to issue a certificate stating that a country is, or was at a time specified, a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Audit Act 1901

Proposed amendment in s.2(1) of the definition of "Ordinance" is made as a consequence of the amendments to s.63C.

Under the current definition of "prescribed authority" in s.2(1), organisations which are not bodies (eg the Auditor-General's Office) or which were not established under an enactment (eg, the Inter-State Commission which was established under the Constitution) cannot be prescribed. As a consequence, these organisations have had to be treated for the purposes of most sections of the Act as if they were branches of Departments of State. This has led to some minor difficulties in applying the appropriate terminology in the Regulations (and, hence, the intended application of the Regulations). The proposed amendment to the definition corrects this, enabling such organisations or bodies to become prescribed authorities and thus become "Departments" for all purposes of the Act and Regulations.

Proposed new s.11A is inserted to provide for the Auditor-General to prepare and present to Parliament annual reports on Audit Office activities, and to permit the inclusion in such reports of the Auditor-General's statutory report under s.48G(l). This is an annual report on the conduct of efficiency audits by the Auditor-General's Office during the year.

Since 1985, the Auditor-General has prepared reports of the kind envisaged by the amendment under the authority of s.51. That section empowers the Auditor-General to transmit reports to the Parliament which. are supplementary to reports on the annual financial statements of the Minister for Finance.

The Australian Audit Office report could usually be completed earlier than the report on the Minister's Statements and there is no good reason for delaying its transmission or for the report to be tabled later than would be customary for an annual report of a Department. New section llA provides the necessary flexibility to allow the Auditor-General to transmit the Australian Audit Office report as soon as it is completed.

Cl.5(3) provides that new s.llA will apply in relation to the financial year that commenced on 1 July 1986.

Proposed substitution of s.32 eliminates the requirement for the Governor-General's Warrant and the Auditor-General's certificate on such warrant prior to appropriated amounts being issued in accordance with an appropriation. S.32 currently provides for the issue of appropriated amounts to Departments by means of a Warrant signed by the Governor-General and in which the Auditor-General has certified that the amounts are lawfully available ie have been appropriated. Since all Appropriation Acts become law once the Governor-General gives Royal Assent, the Governor-General's further involvement in the actual distribution of appropriated amounts to Departments is unnecessary.

The involvement of the Auditor-General in the issuing of appropriated amounts, which is, essentially, an administrative process by the Executive Government, is also inappropriate and contrary to the modern concepts of the independence of the Auditor-General.

The new s.32 proposed to be inserted provides instead for the Minister for Finance to have complete responsibility for the process of issuing appropriated amounts. The Minister would be empowered to authorise the Secretary of the Department of Finance to draw amounts (not exceeding the appropriations) from the Commonwealth Public Account.

Proposed repeal of and substitution of a new s.33 involves machinery provisions relating to the powers of the Secretary of the Department of Finance and are consequential upon the substitution of new s.32.

Cl.5(2) provides that s.32 and s.33 in their present form continue to apply, along with other provisions of the Act, in relation to Warrants issued before the commencement of cl.5.

Proposed amendments to s.34 will permit a certifying officer to indicate, in such manner as is approved by the Minister for Finance, that a payment may properly be made. S.34, which currently requires a certifying officer to give such certificates in writing, places an unnecessary constraint on the use of computer-based systems for processing accounts by Departments. The amendment will facilitate the use of such computer-based accounting systems by enabling 'electronic signatures' to be given.

By virtue of cl.2(2) of this Bill the amendments of s.34 shall come into operation on a day to be fixed by Proclamation.

Proposed amendment of s.41D inserts annual reporting provisions for certain operations of Departments of a business nature (eg the factories operated by the Department of Defence and ACT Omnibus Network). S.41D currently provides for the accounts and financial statements of a Department's "special operations" to be audited by the Auditor-General, but it does not require Departments to prepare annual reports in respect of such special operations. The proposed amendment requires the preparation of an annual report, the auditing of the financial statements and their submission to the relevant Minister for subsequent tabling in Parliament. This measure will enhance accountability and act as an incentive on the managements of such undertakings to comply with the accountability expectations of Government and the Parliament.

Cl.5(3) provides that ss.41D(2), (2A) and (28) will apply from the financial year commencing 1 July 1987.

Proposed amendment of s.48C(3) is consequential upon the proposed repeal of s.48H.

Proposed amendment of s.48G(2)(a) is a consequence of the proposed insertion of new s.llA.

Proposed repeal of s.48H will remove the requirement for a relevant body (other than a Department), determined by the Minister for Finance, to pay a fee for an efficiency audit. This is in accordance with a recommendation of an Inter-departmental Committee in 1983 which reviewed the operation of the efficiency audit provisions of the Audit Act. It is accepted generally that it is inappropriate for fees to be charged as such audits are not performed at the request of the body audited nor are they able to determine the scope of such audits, that being a matter for the Auditor-General alone.

S.49 requires the Minister for Finance to publish a Monthly Statement of the Commonwealth's financial transactions.

Proposed amendment of s.49(1) removing reference to Form 4 is a formal amendment consequent upon the amendment to s.32.

Proposed amendment of s.491(a) substitutes "Commonwealth Public Account" for "the Commonwealth". Under current accounting practices, bank accounts are opened under s.2l(l)(b) of the Audit Act for the temporary holding of public moneys which ·are en route to or from the Commonwealth Public Account. The current provisions require the recording in the Monthly Statement of not only receipt and payment transactions to the Commonwealth Public Account but also transactions to the s.2l (l)(b) bank account. This requirement is inappropriate since it gives rise to a risk of distortion (ie double-counting) of the figures in the Monthly Statement.

By virtue of Cl.2(3) of this Bill, the amendment of s.49(l)(a) shall come into operation on 1 July 1988.

Proposed amendment of s.49(2) would give to the Minister for Finance the authority to approve variations of the format of the Monthly Statement. This replaces the current requirement for prior approval of both Houses of Parliament. Proposed new s.49(3) will require the Minister to table details and explanations of variations in Parliament.

While Parliament has approved variations to the format of Monthly Statements, the act of approving a variation is seen largely to be an administrative matter. It is considered that, as an administrative matter, this should more appropriately be hand led by the Minister for Finance.

Proposed amendments of s.51 will empower the Auditor-General, at his or her discretion, not to include in his or her reports details of inconsequential or trivial breaches of the Constitution or legislation. At present, s.51(1) requires the reporting of all breaches without permitting the Auditor-General to have regard to their significance. That is, the Auditor-General's Reports at present are required to include matters which, being minor and of little technical consequence, have the effect of detracting from the overall materiality of the report. The proposed amendment is consistent with professional audit standards.

Proposed amendment of s.54 is in consequence of the proposed insertion of new s.llA.

It is proposed to repeal s.57(2). S.57 purports to set out the details which should be included in any Act appropriating moneys of the Loan Fund. The effect of s.57 is that, should the Parliament pass a Loan Act which did not contain the details required under s.57(2), then the Minister for Finance could not lawfully expend the moneys covered by that Act. Thus, the intention of such an Act, although expressing the will of Parliament, could be frustrated.

S.63C(2) enables the standard accounting and auditing provisions in Part XI of the Audit Act 1901 to be made applicable to certain public bodies, being those incorporated under an ACT Ordinance or by regulations under an Act. The proposed amendment will extend this provision to bodies incorporated by legislation of an external territory. The amendment would enable the Auditor-General's appointment and statutory audit responsibilities for those bodies to be brought into line with the general provisions of the Audit Act.

Proposed amendments of s.63H and s.63M would have the same effect as the proposed amendment to s.51. These sections deal with the auditing of some public authorities. The proposed amendments provide the Auditor-General with discretion not to include in his or her reports breaches of an authority's enabling legislation which are inconsequential or trivial. Under current provisions, the Auditor-General is required to report all breaches without having regard to their significance. For example, if an unauthorized overdrawing of a bank account to the extent of $1 is found, the Auditor-General is required to report that matter. Such a requirement detracts from the overall significance of the contents in the Auditor-General's reports.

Proposed amendments to s.63P which provides for the Auditor-General to audit certain bodies at the request of the relevant Minister, are being made to clarify the Auditor-General's responsibilities in regard to such bodies.

The amendments will put beyond doubt the requirement for the financial statements and/or the accounting records of the body to be audited and reports to be submitted to the requesting Minister. The amendments also make it clear that the request for an audit should be read as one which calls for the audits to be carried out regularly from year to year. It is intended that these provisions will apply as an extension of existing arrangements without the need to renegotiate those arrangements. Proposed new s.63P(2A) adds a new requirement that the Auditor-General report on such audits to the requesting Minister.

Proposed amendments of s.64 to s.68 seek to update the existing penalties and to include pecuniary penalties as an alternative to terms of imprisonment. Some penalties have not been reviewed since 1901 and the proposed amendments bring these sections into line with current standards and practice. Details of the offences and penalties contained in the present provisions and the proposed new penalties are as follows:

s.64(1)

Misappropriation of public moneys or stores by an accounting officer (eg an officer who deals with public moneys or stores):

Present Penalty - Imprisonment for 7 years.

Proposed Penalty - $20 000 or imprisonment for 7 years or both

s.64(2)

Accounting Officer wilfully or unlawfully damaging or destroying any stores:

Present Penalty - Imprisonment for 2 years.

Proposed Penalty - $5000 or imprisonment for 2 years, or both.

s.65

Any person forging or counterfeiting documents or uttering forged or counterfeited documents with intent to defraud the Commonwealth:

Present Penalty - Imprisonment for any period not exceeding 15 years.

Proposed Penalty - A fine not exceeding $20 000 or imprisonment for a period not exceeding 10 years, or both.

s.66(2)

Any person subscribing to a document, given in lieu of a statutory declaration, knowing it to be false:

Present Penalty - Imprisonment for any period not exceeding 4 years.

Proposed Penalty - A fine not exceeding $10 000 or imprisonment for a period not exceeding 5 years, or both.

s.67(1)

Any person failing to attend before the Auditor-General (or an independent auditor), to produce evidence, to be sworn or make a declaration or affirmation, or, to answer any lawful question, when required to do so by the Auditor-General (or by an independent auditor):

Present Penalty - $200

Proposed Penalty - $1 000

s.68(1)

Any person making or subscribing to any statutory declaration or affirmation mentioned in the Audit Act knowing it to be false, or, wilfully and corruptly giving false evidence in the course of an examination before the Auditor-General (or an independent auditor):

Present Penalty - Imprisonment for any period not exceeding 4 years.

Proposed Penalty - A fine not exceeding $10 000 or imprisonment for a period not exceeding 5 years, or both.

Proposed amendments of s.70AA, which includes the definitions necessary for the interpretation of Part XIIA, update references to Departments and office-holders in line with current administrative arrangements.

Part XIIA sets out the circumstances in which an officer may be held financially liable for a loss of public moneys or the destruction of, or damage to, other property of the Commonwealth. The proposed amendment of s.70AB (l) is to enable the streamlining of administrative arrangements, which give effect to the long standing Commonwealth liability policy for drivers. Under that policy, Commonwealth drivers are not held liable for the cost of replacing or repairing damaged vehicles in those circumstances where a driver in the private sector carrying insurance would not be held liable. The present arrangements, involving waiver of the Commonwealth's rights to recover amounts for damages are administratively cumbersome. The proposed amendment will enable Regulations to be made and, as a consequence, improved administrative arrangements can be introduced.

Proposed new s.72(5A) empowers the Secretary to the Department of Finance to give directions to delegates on the manner in which delegations of his or her powers can be exercised. By giving the Secretary such direction making powers, greater and improved control can be exercised over delegates. Such power is consistent with modern concepts of administration.

Proposed amendments to headings and Form 4 are minor drafting amendments. Proposed amendments omitting Forms 1, 2 and 3 are consequential upon the proposed amendment of s.32.

Australia-Japan Foundation Act 1976

The proposed amendments are designed to bring the accounting requirements and audit provisions of the Act into line with the standard provisions in the Audit Act 1901 and the legislation of most other statutory bodies.

Proposed insertion of new s.24A requires the Foundation to keep proper accounts and records and maintain adequate controls over expenditure, assets and liabilities.

Proposed new s.24B provides for audit of the Foundation's financial affairs by the Auditor-General and requires him to report to the Minister annually.

S.25 of the Act requires the Australia-Japan Foundation to provide financial statements for each year. These statements are submitted to the Auditor-General who reports on them to the Minister. The statements and the Auditor-General's report are laid before both Houses of Parliament.

Proposed amendments to the provisions of s.25 of the Act relating to the reporting by the Auditor-General to the Minister on the financial statements of the Foundation are designed to bring those provisions into line with the Audit Act.

Australian Apple and Pear Corporation Act 1973

Amendments of s.37(3)(a), (b) and (c) will require the Auditor-General to give an opinion in his report rather than, as now, an unqualified determination, on the appropriateness or otherwise of the Corporation's financial statements and activities. The Auditor-General has requested that these amendments be made to bring audit report requirements into line with those for other Statutory Marketing Authorities.

The amendment of s.37(3)(b) will also require the Auditor-General to include in his report an opinion as to whether the Corporation's financial statements show fairly the financial transactions and state of affairs of the Corporation. As the legislation currently stands, the audit report does not have to refer to these matters when the Corporation has not been engaging in trading activities. The effect of this provision has been that when the Corporation does not engage in trading activities, the audit report in effect reverts to the form of audit report for public authorities not required to keep accounts in accordance with commercial practice. The amendment will require the form of the audit report to be the form applicable to bodies keeping accounts in accordance with commercial practice, whether or not the Corporation has been engaging in trade activities. This amendment has also been requested by the Auditor-General.

Australian Bureau of Statistics Act 1975

Proposed amendments of s.3 provide for the replacement of "Chairman" with "Chairperson".

By virtue of cl.5(4) and (5) of this Bill, a person holding office as Chairman immediately before the commencement of cl.5 shall, as from that date, be deemed to have been appointed as Chairperson of the Australian Statistics Advisory Council for the remainder of the term for which the person was appointed as Chairman.

Proposed repeal of s.4(1) is consequential on the repeal of s.4 of the Census and Statistics Act 1905 in 1977.

Proposed amendments of s.4(2) are formal drafting amendments.

Proposed amendments of ss.5, 6, 7, 8, 9(1), 12, 15, 19(1) and (2), 20, 21(1) and 22(2), (4) and (5) make the language gender-neutral.

Proposed amendments of ss.9(3), 16(1), 16(4) and (5) and 21(3) are to bring references to legislation into line with the current mode of citation.

Proposed replacement of s.ll with a new provision is to make the language gender-neutral and otherwise achieve conformity with current drafting practice.

Proposed repeal of ss.14 and 23 (that deal with the application of the Superannuation Act 1922 to the Australian Bureau of Statistics) is consequential on the inclusion of all matters presently in those sections in the Superannuation Act l976.

Proposed repeal of s.16(2) and the insertion of a replacement s.16(2) and a new s.16(2A) are to enable employment of Australian Bureau of Statistics staff for specific tasks outside their normal duties for the taking of the Census and the collection of other statistics and related information.

Proposed amendment of s.19(3) is to allow the Chief Minister of the Northern Territory to nominate a person to the Australian Statistics Advisory Council. This will give the Chief Minister the same rights as the State Premiers in this context.

Proposed amendment of s.22(1) and proposed repeal of s.22(8) which together require that the Australian Statistics Advisory Council shall meet at least once in every calendar year is intended to take account of a proposed amendment to the Acts Interpretation Act and to conform with current drafting style.

The operation of s.24(4) provided for the preparation and submission of reports to the Parliament by the Statistician on the operations of the Bureau for the period from the commencement of the Act to 30 June 1976. The provision is now spent and it is proposed to repeal s.24(4).

Proposed amendments of s.11(4) and (5) delete references to the elected member and substitute references to the member appointed by the Governor-General. These sub-sections deal with the remuneration of the member appointed by the Governor-General and a person acting in the place of that member.

Australian Centre for International Agricultural Research Act 1982

The proposed amendments are designed to bring the accounting requirements and audit provisions of the Act into line with the standard provisions in the Audit Act 1901 and the legislation of most of the other statutory bodies.

Proposed new section s.38A is inserted to require the Centre to keep proper accounts and records and maintain appropriate controls over expenditure, assets and liabilities.

Proposed new s.38B is inserted to require audit of the Centre's financial affairs by the Auditor-General, who is to report to the Minister annually.

Australian Citizenship Act 1948

Proposed amendment in s.5(1) of the definition of "return endorsement" is a consequence of the proposed abolition by this Bill of return endorsements in the Migration Act 1958.

Proposed insertion in s.5(1) of a new definition of "visa" is in consequence of proposed amendments in this Bill to the Migration Act.

Proposed amendments of s.5A will allow the holder of a visa in a class prescribed by regulations to be treated as a permanent resident of Australia while outside Australia. The amendments will ensure that, although return endorsements under the Migration Act are to be abolished, holders of the new class of visas allowing return travel to Australia, which will replace return endorsements, will also be treated as permanent residents of Australia while outside Australia.

Australian Institute of Sport (Consequential Provisions) Act 1986

Proposed amendments of s.17(a) and (b) are formal drafting amendments.

By virtue of cl.2(4) of this Bill, the proposed amendments will be deemed to have come into operation on the commencement of the principal Act.

Australian Security and Intelligence Organization Act 1979

Proposed amendments are drafting changes to make the language gender-neutral.

Australian Tourist Commission Act 1967

Proposed amendments allow for the operation of the Commission in accordance with the Cabinet endorsed recommendations of the Australian Government Inquiry into Tourism.

Proposed amendment of s.10(3) extends the maximum period of a vacancy on the Commission during which an acting appointment can operate from 6 months to 12 months.

Proposed amendment of s.14(4) will require the election of a member of the Commission to preside over a meeting of the Commission in the absence of the Chairman and the Deputy Chairman.

Proposed amendment of s.14(5) provides for a quorum at meetings of the Commission to be not less than one third of the number of members holding office at that time.

Australian Trade Commission Act 1985

Proposed new s.12(1A) is inserted to clarify that the Managing Director of the Commission, who is automatically a member of the Board by virtue of s.12 (l)(c), is not prevented from being appointed by the Minister as Chairperson.

Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985

Proposed amendment of Part II of Schedule 3 is a formal drafting amendment.

By virtue of cl.2(5) of this Bill the amendment will be deemed to have come into operation on the commencement of s.42 of the principal Act.

Automotive Industry Authority Act 1984

Proposed amendments of s.4(1) will remove the requirement that a company be incorporated in Australia to be eligible to participate in the Motor Vehicles and Components Development Grants Scheme.

This will maintain the original intent of the Scheme by ensuring that the five local motor vehicle manufacturers continue to have access to grant funding.

As a result of the restructuring last year of General Motors - Holden's Limited, the two newly formed companies are United States subsidiaries and, therefore, ineligible for grant funding.

Accordingly, without the amendments, funding of the $14.6 million grant awarded to General Motors - Holden's Limited in 1986 and to be progressively paid for the development of the 1988 Commodore vehicle cannot be resumed. Such a situation would deny one of the local motor vehicle manufacturers the opportunities, commercial and otherwise, provided by the Scheme.

Proposed amendments of s.26B (l) and (2) are consequential amendments.

Barley Research Levy Act 1980

Proposed amendment of the definition of "growers organization" in s.4(1) reflects the change of name of the Australian Wheatgrowers' Federation to the Grains Council of Australia from 9 October 1986.

Bass Strait Freight Adjustment Trust Fund Act 1984

Proposed amendment of s.3(1) inserts a new definition of "prescribed refiner" as a person who operates a refinery. A "prescribed refiner" may export prescribed oil, that is stabilised Bass Strait crude oil which includes oil for sale under the Government's Crude Oil Allocation Scheme (allocated crude) and free market sales by producers.

S.3(3) of the Act, which applies only to allocated crude, specifies that there shall be no change in crude oil ownership from the time of lifting until refining is completed. This ownership criterion has proved to be unintentionally rigid. For logistical and commercial considerations oil refiners make crude oil exchanges between the various refinery centres, a practice which is endorsed and encouraged by the Government. However, as presently worded s.3(3) does not permit such crude oil exchanges. The new s.3(3) redefines the ownership basis for disbursing Trust Fund moneys to refiners to be in accord with industry practice.

For the refining industry to meet its commitments to the Government's Crude Oil Allocation Scheme, some refiners have found it necessary to export allocated crude oil. The proposed new s.6(2)(aa) is inserted to provide that "prescribed refiners" are eligible for payment from the Trust Fund in respect of allocated crude exported by them. This amendment in conjunction with s.7(1A) means that the exporting refiners and the Bass Strait producers are treated on the same basis in respect of their exports.

Proposed new s.7(1A) is inserted to determine the amount payable to "prescribed refiners" in respect of allocated crude exported in a particular month.

Proposed amendment of s.7(2) is a formal drafting amendment.

Proposed amendment of s.8 is consequential on the amendment of s.6. It defines the amount to be disbursed from the Trust Fund to refiners after taking into account their exports of allocated crude.

By virtue of cl.2(6) of this Bill the amendments of ss.3(1), 6, 7 and 8 (other than the amendment of s.7(2)) shall be deemed to have come into operation on 1 December 1986.

By virtue of cl.2(7) of this Bill the amendment of s.3(3) made by this Bill shall be deemed to have come into operation on the commencement of the principal Act.

By virtue of cl.2(8) of this Bill the amendment of s.7(2) made by this Bill shall be deemed to have come into operation on th commencement of s.5 of the Bass Strait Freight Adjustment Trust Fund Amendment Act 1985.

Canned Fruits Marketing Act 1979

Proposed amendment to s.3(1)will increase by one the number of seasons to which the canned fruit marketing arrangements undertaken through the Australian Canned Fruits Corporation (ACFC) apply.

The current marketing arrangements apply to production seasons, with a season being defined as the period of 12 months commencing on 1 January 1980 and each of the next 7 succeeding periods of 12 months. The amendment to the Act empowers the ACFC to continue the arrangements for a further season to 31 December 1988.

Proposed amendment to s.21A (l) provides for the removal of the current limitation on the ACFC to restrict its corporate plan to the three years ending December 1987. With the limitation removed, the Corporation may vary the plan if that is appropriate in circumstances expected to apply in 1988; it is also required to prepare an operational plan for that year.

Cheques and Payment Orders Act 1986

Proposed amendment of s.32 will correct a drafting omission.

Proposed amendments to s.95(3) and (4) will make it clear that banks collecting cheques for non-bank financial institutions are protected in the same manner as when they collect cheques for other banks.

Proposed amendment of s.110 corrects a drafting error.

Proposed amendments to s.115, which deals with replacement of lost or destroyed cheques, provide for an express conferral of jurisdiction on State and Territory inferior courts (in accordance with their usual monetary and geographic limits) to order the issue of replacement cheques.

Proposed amendments to the Schedule are consequential upon amendments to s.32(2) and s.95(4).

Commonwealth Electoral Act 1918

The purpose of the proposed amendments is to place beyond doubt the power of the Electoral Commissioner, Australian Electoral Officers and Divisional Returning Officers to issue directions to officers and staff under their control; and to correct a technical error in s.20(1) in accordance with recommendation 154 of the Joint Select Committee on Electoral Reform (Report No 2, December 1986).

Proposed new s.18(3) is to place beyond doubt, by making explicit provision for, the Electoral Commissioner's power to issue directions to Australian Electoral Officers, Divisional Returning Officers and other officers as defined in s.4(1) of the principal Act.

Proposed amendment to s.20(1) will correct a technical error in previous drafting by making Australian Electoral Officers subject to the directions of the Electoral Commissioner (rather than the Electoral Commission). The amendment was recommended by the Joint Select Committee on Electoral Reform in its Report No 2, December 1986, Recommendation 154. The amendment is complementary to the proposed new s.18(3).

Proposed new s.20(3) is to place beyond doubt, by making explicit provision for, Australian Electoral Officers' power to issue directions to Divisional Returning Officers and other officers as defined in s.4(1) of the principal Act, under their control.

Proposed new s.32(2) is to place beyond doubt, by making explicit provision for, Divisional Returning Officers' power to issue directions to officers as defined in s.4(1) of the principal Act, under their control.

Commonwealth Prisoners Act 1967

Proposed amendment of s.3(1) inserts a new definition of "parole" as including "probation" to clarify that where a court in New South Wales sentences a Federal offender to a term of less than 3 years it may impose a non-probation period.

Proposed amendments in s.3(1) of the definition of "parole officer" and "prescribed authority" insert references to the Northern Territory and update a reference to the Australian Public Service.

Proposed amendment of s.3(2) will change the meaning of Governor-General for the purposes of s.23 to Governor-General in Council.

Proposed amendment of s.4(4) will enable courts sentencing Federal offenders in respect of more than l offence to apply the relevant State or Territory law relating to the setting of global non-parole periods.

Proposed new s.4(4A) is inserted to ensure that where a court is sentencing a person in relation to Federal and State or Territory terms, the court will still be required to set a separate minimum term in relation to the State or Territory sentences under the relevant State or Territory legislation.

Proposed amendments of s.15 deal with a person whose parole order has been automatically revoked because he has been sentenced to a further term of imprisonment in a jurisdiction other than the one in which he was imprisoned before being released on parole. The amendments will enable the Attorney-General to request the prescribed authority to issue a warrant for the prisoner also to serve the balance of his first sentence in the new jurisdiction.

Proposed amendments of s.21 will enable arrangements to be made between the Governor-General and the Administrator of the Northern Territory for Northern Territory magistrates to be authorized persons (magistrates) for the purposes of the Act and for Northern Territory parole officers to perform functions under the Act, and update a reference to the Australian Public Service.

By virtue of cl.2(9) of this Bill, the amendments of this Act shall come into operation on a day to be fixed by Proclamation for the purposes of cl.2(9).

Complaints (Australian Federal Police) Act 1981

A new definition of "minor complaint" is inserted in s.3(1) for the purposes of the proposed new s.6A.

New s.3(3)(ba) and (bb) are inserted to define "cautioning" of AFP members as cautioning under the Australian Federal Police (Discipline) Regulations: this proposed new disciplinary procedure may be applied in cases involving minor breaches of discipline. This amendment, and related amendments to ss.11, 12, 13, 24, 26, 36, 37, 49 and 52, reflect the intention that this new procedure will be available as an alternative to the charging of an AFP member with a breach of discipline where he or she signifies a willingness to accept a caution.

Proposed amendment of s.5 deletes s.5(2) and consequentially amends s.5(1) to standardise the application of the Act whether complaints are made initially to the Ombudsman or to an AFP member.

Proposed amendments to s.6(1) and consequential omission of s.6(2) are to provide for initial determination of whether or not a complaint is a "minor complaint" and, if it is, for its reference to an officer designated under proposed new s.6A.

Proposed new s.6A is inserted (and related amendments are made) to place on a proper statutory footing an administrative procedure which has in fact been in operation for some years. Through arrangements agreed to by the AFP and the Commonwealth Ombudsman, "minor complaints" are resolved, if possible, without invoking the full investigation and reporting procedures embodied in the principal Act. The emphasis is on resolution through conciliatory processes: if resolution is not achieved through those processes the normal procedures apply. Where the complaint is resolved by conciliation, the designated member is to report the details to the Ombudsman. "Minor complaint" is so defined in s.3 that application of the normal procedures is mandatory where serious allegations (e.g. assault) are involved.

Proposed new s.68 provides that a designated member of the AFP may attempt to resolve a complaint, other than one to which s.6A applies, by conciliation whether or not the complaint is made to a member under s.6 or to the Ombudsman under s.22 of the principal Act (s.68(1)). Following a conciliation attempt the AFP will be required to inform the Ombudsman of the outcome and, if the attempt is successful, notify him of the particulars of the resolution of a complaint (s.68(2)). The AFP's internal investigation of a complaint which is subject to a conciliation attempt under the new s.68 may be deferred until the outcome of the conciliation process is known (s.6b(3)). The new provision will replace s.19 which presently provides for a designated AFP member to attempt to resolve a complaint (irrespective of whether it is a "minor" complaint) by conciliation if it is made under s.6 of the principal Act and will render unnecessary the Ombudsman's specific power of conciliation under s.42 of the principal Act. The success or otherwise of a conciliation attempt made pursuant to the new s.GB can be taken into account by the Ombudsman in deciding, under s.24, whether a complaint should be investigated or investigated further.

Proposed amendment of s.10 will make it consistent with the amendments to ss.34 and 37.

Proposed amendments of s.11 are consequential on the proposed insertion of new s.3(3)(ba) and (bb).

Proposed amendment of s.llA will clarify that the Ombudsman's consent to withdrawal of proceedings is necessary in any case where he has previously been involved (except those which are ultimately determined at Ministerial level pursuant to s.11(7)(a) or s.52(2)(b)).

Proposed amendment of ss.12 and 13 are consequential on the proposed insertion of new s.3(3)(ba) and (bb).

As mentioned above s.19 will be replaced by new s.6B and accordingly it is proposed that it be repealed.

Proposed amendment of s.24(l)(c) is consequential on the proposed insertion of new s.3(3)(ba) and (bb).

Proposed amendment of s.24(l)(d) and replacement of s.24(3) are designed to align more closely the investigatory discretions conferred on the Ombudsman by the principal Act and by s.6 of the Ombudsman Act 1976.

Proposed amendment of s.26 is consequential on the proposed insertion of new s.3(3)(ba) and (bb).

Proposed amendments of s.34 will provide standardised notification processes on the outcome of investigations: the Ombudsman notifies the complainant and the AFP Commissioner, whilst the Commissioner notifies the member concerned.

Proposed amendments to s.36 confer on the Ombudsman a wider power to make recommendations of a non-disciplinary kind, including those traditionally associated with the Ombudsman concept (e.g. to bring about procedural changes or to benefit a complainant), his present recommendatory options being limited by the particular nature of any adverse conclusions he reaches in regard to the conduct of a member. As well as consequential amendments to s.36(4) and (5), some further drafting changes are proposed to permit the Ombudsman to commence his own investigation without necessarily determining that the AFP's internal investigation was inadequate (as is the current position). Other changes consequential on the proposed insertion of new s.3(3)(ba) and (bb) are also proposed.

Proposed amendments of s.37 are consequential on the proposed amendments to s.34 and the proposed insertion of new s.3(3)(ba) and (bb).

As mentioned above s.42 will be replaced by new s.6B and accordingly it is proposed that it be repealed.

Proposed amendments of ss.49 and 52 are consequential on the proposed insertion of new s.3(3)(ba) and (bb).

Proposed new s.66A is inserted in order to ensure that, where a member does not accept the offer of a caution, he or she will have the opportunity of having the case heard and determined by the Federal Police Disciplinary Tribunal.

Proposed amendment of s.67 is consequential on proposed insertion of new s.66A.

Proposed amendment of ss.71 and 76 are formal amendments.

Conciliation and Arbitration Act 1904

The Registrar has the power under s.139(4) to certify an alteration to the rules of registered organisations or refuse to certify such an alteration. Doubt exists as to the power of a Registrar to certify only part of a rule alteration.

Proposed s.139(7) is to operate to validate the certification of rule alterations, the validity of which might otherwise be in doubt because a Registrar had certified only part of the rule alteration.

Proposed s.139(8) provides that where, at the commencement of the sub-section, a certification of the type addressed in proposed s.139(7) is the subject of proceedings in a court, or has been the subject of a decision by a court, sub-section (7) will not operate to validate that rule alteration unless the court decides that the certification should be treated as valid.

Crimes Act 1914

The definition of "Commonwealth officer" in s.3 is proposed to be amended to that, in relation to ss.70 (disclosure of information by Commonwealth officers, 72 (falsification of books or records by officers), 73 (corruption and bribery of Commonwealth officers), 74 (false returns of certificates by officers) and 75 (impersonating public officers), it includes those persons who perform services for or on behalf of the Commonwealth, a Territory or public authority under the Commonwealth although not persons holding office under, or employed by the Commonwealth. For example, a person on interchange with the Australian Public Service is not a "Commonwealth officer" within the meaning of s.3 where the person continues to be employed by his or her private sector, State or local government employer although the person is the person performing the duties of a Commonwealth officer.

Proposed amendments of ss.70 and 75 are consequential upon the amendment of s.3 to extend the definition of "Commonwealth officer" and substitutes references using these words.

As a consequence of the proposed amendment of s.3, s.73(1) (corruption and bribery of Commonwealth officers), which contains the same definition of "Commonwealth officer" as is inserted by that amendment, is to be repealed.

Proposed new s.47A is inserted to make it clear that where a federal offender escapes from custody, his sentence will cease to run while he is at large. At common law a prisoner who escapes while serving a term of imprisonment cannot be detained once the term has expired.

Cl.5(6) provides that s.47A as inserted by the Bill applies only in relation to a prisoner who escapes from custody after the commencement of the clause.

Proposed new s.47B is inserted to enable a constable to arrest a prisoner unlawfully at large and take him before a Magistrate, and to enable the latter to issue a warrant committing the prisoner to prison. The new section applies to prisoners required by law to be in custody who are at large otherwise than as escapers, i.e., who have been mistakenly released prematurely. At common law, if a prisoner is accidentally released by the prison authorities earlier than he/she should have been, the original warrant is spent and the prisoner cannot be returned to custody.

Cl.5(7) provides that s.478 as inserted by the Bill applies only in relation to a prisoner who becomes unlawfully at large within the meaning of that section after the commencement of cl.5.

As a consequence of the proposed amendment of s.3, s.73(1), which contains the same definition of Commonwealth Officer as is inserted by that amendment, is to be repealed.

Proposed amendments of s.89(2) (which confers power on a constable or an authorized Commonwealth officer to request a person who is found upon prohibited Commonwealth land and creates the offence of failing to comply with the request) and (5) insert a reference to "a protective service officer" and a definition of such an officer respectively as a consequence of the enactment of the Australian Protective Service Act 1987.

Currency Act 1965

The Act provides, among other things, that a coin to be made and issued by the Treasurer must be of a standard composition and standard weight, design and dimensions as prescribed for that coin. At present the Act only allows for one set of these characteristics to be prescribed for any coin denomination. The amendments proposed to ss.13 and 14 will relax this restriction by allowing different compositional, size, weight etc characteristics to be prescribed for the same coin denomination. In particular, the amendments will facilitate the production of the same coin denomination in different precious metals (eg gold, silver, platinum) and thereby significantly expand market opportunities for commemorative, collector and investor coins.

Proposed amendment to s.14A(l) is necessary to allow the Treasurer to determine different prices at which coins of the same monetary denomination but having different metal, intrinsic or market values may be issued. In addition, the amendment reduces from $10 and above, to, $5 and above, the category of special collector type coins whose issue prices must also be determined by the Treasurer. This will facilitate the issue of special commemorative coins in 1988.

Customs Act 1901

The amendments to this Act are to provide for the indemnification by the Commonwealth of the Official Trustee in Bankruptcy and officers of that statutory corporation discharging functions under the Customs Act 1901.

Part XIII Div 3 of the Customs Act 1901 comprises ss.243A - 243S. These sections provide for the control of property of persons suspected of being engaged in certain narcotics dealings, and for the imposition of pecuniary penalties upon such persons.

The Official Trustee in Bankruptcy, a statutory corporation established under s.18 of the Bankruptcy Act 1966, has the responsibility, inter alia, to control the person's property (s.243E) and to sell property in order to discharge a pecuniary penalty (s.243G).

Under the Customs Act 1901 the functions of the Official Trustee are significantly different from those under the Bankruptcy Act. This is particularly so in relation to control orders pursuant to s.243E. For example:

•

the property is controlled by the Official Trustee but, unlike bankruptcy, is not vested in it, hence the rights of the owner (reversion intact to the owner is a clear possibility) as well as of other third parties must be protected;

•

"control" is a nebulous concept and it is unclear what rights, duties and powers may be exercised by the Official Trustee; and

•

the period of control is open ended and experience shows it can last for 3 years or more.

These and other factors lead to the conclusion that the exposure to risk of the Official Trustee and its officers in performing functions under the Customs Act is significant.

The indemnity is required not only for the protection of the corporation and its officers but also to ensure that third persons who may suffer loss as a result of the administration of a control order are recompensed through a Commonwealth indemnity.

The indemnification would extend to any act done or omitted to be done in carrying out of any of the functions of the Official Trustee under Div. 3 of Part XIII of the Customs Act.

The Official Receiver and other officers are also to be indemnified against liability arising out of the performance of their duties under Part XIII Div.3 of the Customs Act 1901.

Proposed s.243NA will extend indemnification to any act done or omitted to be done in carrying out any of the functions of the Official Trustee under Div. 3 of Part XIII of the Customs Act.

Proposed s.243NB of the Act will provide for the indemnification of Official Receivers and any person who performs any of the duties of an Official Receiver or who assists an Official Receiver in the performance of his or her duties under Div. 3 of Part XIII of the Act.

Customs Administration (Transitional Provisions and Consequential Amendments) Act 1986

Proposed amendment of Schedule 3 is a formal drafting amendment.

By virtue of cl.2(10) of this Bill, the amendment of Schedule 3 shall be deemed to have come into operation on 13 May 1986.

Customs Tariff (Miscellaneous Amendments) Act 1987

All four proposed amendments effect technical drafting corrections to several citation errors in the Act, which was part of the harmonised tariff legislation package introduced and passed in the Autumn 1987 Parliamentary Sittings.

By virtue of clause 2(11) of the Bill, the proposed amendments shall commence on the proclamation date for the substantive harmonised tariff Act (the Customs Tariff Act 1987), which is scheduled for 1 January 1988.

Dairy Produce Act 1986

Proposed amendments of ss.3(1), 12(5), 51(1) and 88(l)(h) a re formal drafting amendments.

Proposed amendment of s.33 inserts s.33(3A) to prevent the appointment to the Australian Dairy Corporation of members of the Executive Council of the Australian Dairy Industry Conference (ADIC).

Proposed new s.38(3)(aa) is inserted to require the termination of the appointment of a member of the Corporation if he or she becomes a member of the ADIC Executive Council.

These amendments reflect Government policy in relation to Commonwealth Primary Industry Statutory Marketing Authorities that where a statutory marketing authority is account able for its activities to an industry body, members of the executive Council of the Industry body should not be members of the authority itself. This view is based on the belief that such cross-membership is undesirable as it raises the possibility of conflict of interests.

Cl.5(8) provides that proposed new s.38(3)(aa) will apply only in relation to a person who is appointed or reappointed as an appointed member of the Corporation after the commencement of cl.5.

Proposed amendment of s.82(11) expands the definition of company auditor to include firms as well as persons. The amendment recognises that many auditing firms operate as partnerships.

Defence Force Re-organisation Act 1975

Proposed amendment of s.184(1) is a formal drafting amendment.

By virtue of cl.2(12) of this Bill, the amendment of s.184 shall be deemed to have come into operation on the commencement of s.184 of the principal Act.

Director of Public Prosecutions Act 1983

Proposed amendments of s.6 of the Act are to enable the Director of Public Prosecutions (OPP) to file an indictment where the OPP is satisfied that a person has been erroneously committed for trial in respect of a State or Territory offence and not the appropriate Commonwealth offence. For example, a person may, in error, be committed for trial on a State theft charge when the property the subject of the charge is Commonwealth property and the person ought, on the evidence, to have been committed for trial in respect of an indictable offence against Commonwealth law.

S.9(6) currently enables the OPP to give an undertaking to a person that evidence given by the person in specified proceedings for an offence against a law of the Commonwealth or for recovery of a pecuniary penalty under a law of the Commonwealth will not be used in evidence against the person and, where the OPP has given such an undertaking, will not be admissible in evidence against the person in any civil or criminal proceedings against the person other than proceedings for falsity of evidence given.

The proposed amendment to s.9(6) would enable the Director to give such undertakings in proceedings in Australia under the Extradition (Commonwealth Countries) Act 1966, the Extradition (Foreign States) Act 1966, the Mutual Assistance in Criminal Matters Act 1987 or in relation to coronial inquests or inquiries conducted under the laws of the Commonwealth.

Export Control Act 1982

Proposed new definition of "establishment" is inserted in s.3 in consequence of the inclusion of a reference to that word in the proposed new s.25(2)(da).

Proposed amendment of s.15 prohibits the application of a false trade description to goods for which a "notice of intention to export" has been given and not withdrawn and prohibits giving a notice of intention to export any falsely described goods.

Proposed amendment of s.24 substitutes a new s.24(1) prohibiting the supply of any goods or services of any kind to an authorised officer, except as may be approved by the Secretary. A new definition of "goods" is inserted in s.24(3) to make it clear that that word has a broader meaning in s.24 than it has in the Act generally.

Proposed new s.25(2)(da) is inserted to put it beyond doubt that regulations or orders may be made to make provision for sanctions (such as refusal to register, or cancellation of the registration of an establishment where prescribed goods are prepared for export) in the event of debts being owed to the Commonwealth in connection with the establishment, including debts owed by a previous occupier of that establishment. The provision makes it clear that such sanctions can be imposed in relation to debts which have ceased to exist in the strict sense (for example, debts which were owed by a Company that has been wound up) and to amounts which have become payable otherwise than in connection with the export of goods.

Cl.5(9) of the Bill provides that s.25(2)(da) applies only in relation to amounts that become payable to the Commonwealth after the commencement of cl.5. Cl.5(10) makes it clear that new s.25(2)(da) is to be inserted only for the avoidance of doubt, and its insertion does not imply any defect in the regulations or orders made under the existing provision.

Export Inspection Charges Collection Act 1985

Proposed amendments of ss.6 and 6A omit all the specified particulars of an administrative nature that are to be included in monthly returns, and provide that such particulars shall be as specified in regulations. The proposed amendment will permit flexibility to make minor alterations to these particulars without amendment of the Act and is consistent with similar provisions in other charge collection acts, for example the Livestock Slaughter (Export Inspection Charge) Collection Act 1979.

Proposed amendment of s.7 omits the requirements as to who shall sign returns and to whom and by when returns should be submitted, and provides that any matter relating to the execution and lodgement of returns to the Secretary may be specified regulations.

Proposed amendment of s.11 omits the specification of the maximum amount of penalty which may be remitted without the Minister's consent, and provides that the amount may be specified in regulations.

Proposed amendment of s.14 changes the authority for appointing authorised persons from the Minister to the Secretary. As this is an administrative function it is appropriate that the power be exercised by the Secretary.

By virtue of cl.2(13) of this Bill, proposed amendments made to this Act shall come into operation on a day to be fixed by Proclamation.

Export Market Development Grants Act 1974

Proposed amendment of includes a definition of "eligible external governmental educational services" as those supplied by the Commonwealth, the States or the Northern Territory to students outside Australia and declared to be so by regulations. This, together with the related amendments outlined below, will enable, as was originally intended, those governments to be eligible for grants under the Export Market Development Grants Scheme for the provision of such services.

Proposed amendment of s.3A (l)(f) makes the paragraph consistent with other paragraphs of the section by specifying that the relevant year is the grant year.

Proposed new s.3AC(2A) is inserted so that the requirement in s.3A(2)(b) that export earnings must result from "carrying on business" may be disregarded when considering the export earnings of government education services as the Commonwealth, the States and the Northern Territory are not regarded as carrying on a business in the ':: manner contemplated by the Act.

Proposed amendment of s.4(1)(c)(ii) allows a proved bodies to incur eligible expenditure in respect of eligible internal educational services, which are services supplied to foreign students in Australia. For such services to be eligible, the educational institutions must create additional places in these courses, with the fee paying foreign students not being allocated places at the expense of Australian or foreign aid students.

Proposed new s.4(1A) is inserted to provide that the general requirement that grants applicants "carry on business" may be disregarded in relation to the promotion of eligible educational services by the Commonwealth, the States and the Northern Territory. This is required because the education departments of those governments are not "carrying on business" in the manner contemplated by the Act. The proposal also excludes the application of s.4(l)(k) and (1) from the expenditure incurred by those governments in providing eligible educational services. S.4(l)(k) and (1) provide that expenditure that is paid or reimbursed by another person or a government is not to be included in eligible expenditure. As government education departments are directly funded by the government, it is necessary to exclude expenditure incurred by them from the operation of s.4(l)(k) and (1).

Proposed amendment of s.4(2AB) will require that in addition to accommodation, sustenance and entertainment expenses, travel costs other than fares must be identified in an account to enable the costs of the consultant to be included as eligible expenditure. This will identify those travel expenses of consultants other than fares (e.g. visa applications, passport costs, travel insurance, overseas departure taxes etc) which are by virtue of s.4(2)(g) not eligible expenditure.

Proposed amendment of s.4(2C) will require the majority (rather than all as is presently required) of the members of a consortium to be Australian residents in order for those Australian residents to be able to claim their share of costs for tenders for quotations submitted by the consortium. For the purposes of the Act, a consortium is a group of companies, usually with different skills and expertise, which enter into an arrangement to bid for and undertake a complete - or "turnkey" - project. This overcomes an unintended restriction.

Proposed substitution of new s.14(l)(a) will ensure that neither the Commonwealth, nor the State nor the Northern Territory are excluded from being paid grants in respect of educational services. This will enable (as was originally intended), those TAFE Colleges and all Matriculation Colleges, which are not separate legal entities, but part of a government education department, to be eligible for grants under the Export Market Development Grant Scheme.

Proposed amendment of s.16(3) makes it clear that the reference in s.16(2) to a "nil amount" is confined to export earnings and does not extend to a nil amount of grant entitlement. Under s.16(2) amounts that may be received in grants are reduced where grants are receivable in respect of two or more grant years. This amendment ensures that where an application for a grant is made but is unsuccessful, ie there is a nil amount of grant entitlement, that application is not counted for the purposes of s.16(2).

Proposed amendment of s.38(2) deletes the words "incurred" and "received" from the terms "expenditure incurred" and "income received", since export earnings in respect of goods can be I calculated on the basis of the consideration due but not received, as well as consideration received.

The purpose of s.38(2) is to ensure that the transfer of eligible expenditure or income to other persons does not result in additional grants being payable. As currently worded it ensures this in respect of expenditure incurred or income received but, as many contracts extend over a number of years, it is necessary to ensure that it also applies to income receivable in the future. The amendment changing "expenditure incurred" to "expenditure" is to ensure consistency with the reference to "expenditure" in s.38(1).

Proposed amendment of s.38(7) expands the scope of the section so that in determining the notional grant entitlements of persons who remain active after the act or thing takes place, but cease to exist prior to a claim being lodged and/or assessed, the Commission may take into account the actual, as well as the allocated, expenditure of such persons. The provision as currently worded does not allow for such circumstances - it only allows for persons who cease to exist immediately the act or thing takes place or who do not incur/accrue any eligible expenditure/export earnings after that date. The new provision will overcome this omission.

Proposed insertion of new s.43(3A) allows specified external educational services as supplied to students outside Australia by the Commonwealth, the States and the Northern Territory to be declared eligible under the regulations. This power is necessary to give effect to the (original) intention that government education departments be eligible for grants in respect of the provision of such services.

S.43(6) is spent because the date before which regulations could be made and be deemed to have come into effect f rom 20 May 1985 (ie 1 January 1986) has passed. It is therefore repealed. Proposed new s.43(6) allows certain regulations to be expressed to have taken effect from 20 May 1985. Such retrospective regulations must be made by 1 July 1988. This will enable regulations to be made allowing claims f rom the Commonwealth, the State and the Northern Territory in respect. of educational services to students outside Australia for the 1985-86 grant year, as was originally intended.

By virtue of cl.2(14) of this Bill, proposed amendments made to the Principal Act (other than the replacement of s.43(6)) shall be deemed to have come into operation on 20 May 1985.

Extradition (Commonwealth Countries) Act 1966

The Schedule to the Act contains the list of offences for which extradition can be granted, subject to the Act, by Australia and offences for which Australia can seek

extradition. The proposed addition to the Schedule will permit extradition for offences listed in Article 7 of the Convention on the Physical Protection of Nuclear Material.

Article 11 of that Convention requires States Parties to recognize the offences mentioned in Article 7 as extraditable offences. The passage earlier this year of the Nuclear Non-Proliferation (Safeguards) Act 1987 put Australia in the position of being able to implement obligations assumed under the Convention.

The proposed addition of item 31B in the Schedule will ensure that Australia's remaining obligations are fulfilled and will enable Australia to ratify the Convention.

Family Law Act 1975

Proposed amendment of inserts a new s.94(1AA) which gives a right of appeal to the Full Court of the Family Court from a decree or decision of a Judge rejecting an application that he or she disqualify himself or herself from further hearing a matter. The Full Court of the Family Court does not have the power to issue a writ of prohibition against a trial Judge of the Court nor power under s.94 to entertain an appeal against the refusal by a trial Judge of an application that he or she disqualify himself or herself. The only way that such a refusal can be reviewed is by an action in the High Court, in its original jurisdiction, for a writ of prohibition. Such a procedure is most unsatisfactory and it is more appropriate that the Full Court should have power to hear appeals against such decisions.

Proposed amendments to ss.94(1A), 94(2) and 94A(l) are consequential drafting amendments.

Federal Court of Australia Act 1976

Proposed amendment of s.5 will enable the Federal Court's chief judicial officer to be known as "Chief Justice" rather than "Chief Judge". This amendment will bring the title of the Court's chief judicial officer into line with those of the Supreme Courts of the States, the Australian Capital Territory and the Northern Territory.

First Home Owners Act 1983

Proposed amendments of s.14 (l)(e) and (f) delete a reference to s.9(4) of the Act. The reference is no longer necessary as s.9(4) was repealed in 1985.

Proposed amendment to s.14(2)(b)(ii) confirms that the existing provision only applies to dwellings in Australia. The existing provision s.14(2)(b)(ii) disqualifies an applicant if he or she has been purchasing a home under a terms purchase contract where that contract was on foot for more than three months. Section 4 of the Act defines a prescribed date in contract cases as being the date of the contract. It is that date which determines the relevant provisions of the legislation for a particular application. S.14(7) gives to the Secretary a discretion to determine a later prescribed date in particular cases.

Proposed amendment of s l4(7)(a) and (b) will require that where the Secretary exercises his power to determine a later prescribed date in relation to contracts dated after the date of Royal Assent to this Bill, the date shall be:

•

not earlier than 3 months after the contract date and not later than settlement of the contract in cash purchase cases;

•

not earlier than 3 months and not later than 12 months after the date of the contract in terms purchase cases;

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not earlier than 6 months after the date of the contract and not later than the issue of the completion certificate or possession by the applicant in contract building cases.

The amendment clarifies a provision which has proved to be difficult and confusing for the housing and building industry.

Proposed substitution of new s.14(8) adds an additional requirement that the discretion to determine a later prescribed date in s.14(7) only be exercised in cases where unusual circumstances arise from the contract and its performance.

Proposed new s.14C(8A) and (8B) are added to enable an intending spouse to choose to join in an application with a home acquirer and to have their joint eligibility assessed in the same manner as applicants who are already spouses on the relevant date. The provision will obviate the necessity for the intending spouse to be placed on the title to the home, at legal cost to the applicants, simply to obtain assistance under the Act.

C.5(11) and (12) provide that s.14(7) and (8) in their present form continue to apply to contracts dated earlier than the commencement of cl.5, and in their amended form apply only to contracts dating on or after the commencement of cl.5.

Foreign States Immunities Act 1985

S.22 of the Foreign States Immunities Act 1985 extends the immunities from jurisdiction conferred on foreign States by Part II of the Act to separate entities of foreign States. Part II of the Act includes special provisions according immunity for transactions purely between foreign States. The provisions are s.11(2)(a)(i), s.16(l)(a), and s.17(3). These provisions are not appropriate for application to separate entities of foreign States and, accordingly, s.22 of the Act specifically excludes these provisions from the general extension of the immunities of foreign States to separate entities. By error, however s.22 excludes s.16(1) instead of only s.16 (l)(a). This confers a wider immunity on separate entities than was intended. The proposed amendment corrects this.

Health Insurance Act 1973

Proposed amendment of s.3(1) omits the definition of "net operating costs". The only provisions in which this term was used were repealed by the Health Legislation Amendment Act 1983

Proposed amendment of s.23EA adds a new s.23EA(3), S.23EA enables the Minister to declare premises to be private hospitals for purposes of the National Health Act 1953 and the Health Insurance Act 1973. Such a declaration entitles patients at such premises with private health insurance to claim a benefit from their health funds. The amendment provides that the Minister may make a retrospective declaration backdated to the day on which particular premises were licensed to operate as a private hospital under relevant State legislation.

Proposed amendment of adds new s.97(2A), (2B) and (2C) to make provision with respect to hearings by Medical Services Committees of Inquiry. The amendments provide that, at a hearing, 3 members constitute a quorum, presiding members have a deliberative vote only and, where votes on a question are equal, the question will be unresolved and may be reconsidered at a later date.

Health Legislation Amendment Act 1986

Proposed amendments of ss.25 (b) and 27(a) are formal drafting amendments.

By virtue of cl.2(15) of this Bill, the amendments of ss.25 and 27 shall come into operation or be deemed to have come into operation on the respective commencements of those sections.

Health Legislation Amendment Act (No.2) 1986

Proposed amendments of s.46(b) and Schedules 1 and 2 are formal drafting amendments.

By virtue of cl.2(16) of this Bill, the amendments of s.46 and Schedules 1 and 2 shall be deemed to have come into operation on the commencement of ss.46 and 37.

Honey Industry Act 1962

Proposed new s.7(12) and s.7(13) empower the Minister to reappoint as members of the Australian Honey Board those former members whose appointments expired on 30 June 1987 (in the case of producer members) or on 1 August 1987 (in the case of packer members).

Proposed new s.7(14) will enable the Minister to fill a vacancy where the previous industry member is unable, or does not wish, to be appointed for a further period of office.

S.7(15) provides for the term of office of appointees under the above provisions to· cease on 31 December 1988.

Housing Loans Insurance Act 1965

It is proposed to repeal dealing with Acting Chairman and Acting Deputy Chairman of the Housing Loans Insurance Corporation, and to substitute a new section.

The existing s.8A provides that where the Chairman is absent from duty or from Australia or there is a vacancy in the Office of Chairman, the Deputy Chairman shall act as Chairman and Managing Director during the absence or until the filling of the vacancy. Where the Deputy Chairman is absent or the position is vacant, the Minister may appoint a person eligible for appointment as a member of the Corporation.

The proposed new section will remove the current inflexibility in appointing an Acting Chairman. It will allow the Minister to make a standing authorisation for a nominated person to act as Chairman or Deputy Chairman during any or all periods in which there is a vacancy in either office, the holder is absent or, in the case of the Deputy Chairman, he is acting as Chairman. The standing authorisation cannot be made for a nominated person to act for periods longer than 12 months continuously. This standing authorisation will remove the requirement for a separate authorisation every time the position becomes vacant.

Proposed s.8A(6) provides that persons acting as Chairman or Deputy Chairman have all the powers and duties of the Chairman and Managing Director or Deputy Chairman and Deputy Managing Director as the case may be. This provision consolidates the provisions on powers and duties now distributed throughout the Act.

S.9(10) which provides for reference to the Chairman or Deputy Chairman to be read as persons acting in these positions is to be omitted as a consequence of the inclusion of proposed new s.8A(6).

It is proposed to repeal s.11 governing the termination of appointment of Corporation members and to substitute a new section. Proposed new s.11 contains standard conditions relating to the termination of appointments of statutory office-holders and is similar to the existing section.

References to provisions repealed by the Housing Loans Insurance Amendment Act 1985 have been omitted. The proposed new section also provides that a member's appointment can be terminated if a member, without reasonable excuse, contravenes s.10, governing the disclosure of interests.

Proposed new s.17A will allow the Corporation to enter into a reinsurance contract with a subsidiary of an approved lender in respect of loans made by the approved lender which have been insured by the subsidiary. This amendment will allow the the Corporation to respond to developments in the market place which have led some lenders to establish subsidiary companies to provide their mortgage insurance. The ability of the Corporation to offer reinsurance to these subsidiaries will allow it to maintain its involvement in a market which it has hitherto serviced directly. This amendment will assist the Corporation to at least achieve its estimated dividend and special annual payments to the Commonwealth in 1987-88.

Proposed amendments to s.5(4)(b), s.25(5), s.26(1), 27(1), s.37A, s.40A and s.41 are consequential on the proposed insertion of s.17A.

Proposed insertion of new s.20(3) is consequential on the proposed insertion of s.17A.

S.43(3) which provides that, a reference to a member of the Corporation includes a reference to a person acting as Chairman or as the Deputy Chairman, and a reference to the Managing Director or to the Deputy Managing Director includes a reference to a person acting as Managing Director or as the Deputy Managing Director is to be omitted as a consequence of the inclusion of proposed new s.8A(6).

Human Rights and Equal Opportunity Commission Act 1986

Proposed new s.11(3) is inserted to provide that it is not the function of the Human Rights and Equal Opportunity Commission to inquire into an act or practice of an intelligence agency. Where a complaint is made to the Commission alleging that an act or practice of an intelligence agency is contrary to any human right, constitutes discrimination or is unlawful under the Racial Discrimination Act 1975 or Sex Discrimination Act 1984, the Commission shall refer the complaint to the Inspector-General of Intelligence and Security.

Proposed new s.11(4) is inserted to define an intelligence agency for the purposes of s.11(3).

These amendments repeat earlier amendments made to the now repealed Human Rights Commission Act 1981 by the Intelligence and Security (Consequential Amendments) Act 1986.

By virtue of cl.2(17) of this Bill, proposed amendments shall be deemed to have come into operation on the commencement of the Inspector-General of Intelligence and Security Act 1986.

Income Tax Assessment Amendment (Capital Gains) Act 1986

Proposed amendment of is a formal drafting amendment.

By virtue of cl.2(18) of this Bill, the proposed amendment shall be deemed to have come into operation on the commencement of the principal Act.

Income Tax Assessment Amendment (Research and Development) Act 1986

Proposed amendment of s.8 is a formal drafting amendment.

By virtue of cl.2(19) of this Bill, the proposed amendment shall be deemed to have come into operation on the commencement of the principal Act.

Inspector-General of Intelligence and Security Act 1986

Proposed amendments of s.3 add a definition of "discrimination" as having the same meaning as in the Human Rights and Equal Opportunity Commission Act 1986, and replace a reference to the Human Rights Commission Act 1981 with one to the Human Rights and Equal Opportunity Commission Act 1986.

Proposed amendments of s.8 replace references to the Human Rights Commission with references to the Human Rights and Equal Opportunity Commission, and require or authorise the Inspector-General to inquire into acts or practices of intelligence agencies that may constitute discrimination, as defined in s.3 or may be unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 as well as those that may be a breach of human rights.

By virtue of cl.2(19) of this Bill, the proposed amendments shall be deemed to have come into operation on the commencement of the principal Act.

Intelligence and Security (Consequential Amendments) Act 1986

Part VII of the Act which amended the Human Rights Commission Act 1981 is to be repealed as a consequence of the proposed insertion by this Bill of new s.11(3) and (4) in the Human Rights and Equal Opportunity Commission Act 1986.

By virtue of cl.2(21) of this Bill, the proposed amendment shall be deemed to have come into operation on the commencement of the principal Act.

International Organizations (Privileges and Immunities) Act

S.2 repealed the International Organizations (Privileges and Immunities) Act 1948 and the International Organizations (Privileges and Immunities) Act 1960. Regulations made under those Acts were deemed to have continued as if those Acts had not been repealed. The last regulations continued in force under s.2 have now been repealed. It is proposed to repeal the section as its operation is spent.

The proposed amendments to ss.3 and 7 and the Schedules omit references to "an envoy" and "retinue of an envoy" and replace them with "diplomatic agent" and "administrative and technical staff of a diplomatic mission". The existing wording was adopted before Australia became a party to the Vienna Convention on Diplomatic Relations which codifies international law on this subject and uses the new terminology.

The penalties in s.12 for unlawful use of the name or emblem of an international organisation are being increased from $100 to $1,000. The penalties have remained unchanged since 1963.

Local Government (Financial Assistance) Act 1986

Proposed amendment of s.16(1) is a formal drafting amendment.

By virtue of cl.2(22) of this Bill, the proposed amendment shall be deemed to have come into operation on the commencement of the principal Act.

Management and Investment Companies Act 1983

Proposed new s.21(5) is substituted to make it clear that the Management and Investment Companies Licensing Board may impose conditions on a licence which is in force, even where no conditions were imposed on the licence when it was granted.

Under the existing provision there is some doubt whether the Board has this power.

Proposed new s.22 is substituted to give the Board an additional power to direct a business entity that manages a licensee to provide the Board with relevant information.

Existing s.22 provides for this power in respect of licensees only. This additional power is necessary because in some instances such a business entity, rather than the licensee, has relevant information which the Board requires to enable it to perform its duties and functions under the Act.

Proposed new s.29(8A) is inserted to give the Board a discretion to approve certification of a business entity in which an officer of the licensee applying for certification was an officer of the business entity within the previous 12 months if the Board is satisfied that there is no actual conflict of interest as a result. Certification in such circumstances is otherwise barred by s.29(8).

Proposed new s.31(3) is inserted to give the Board a discretion to approve a licensee investment involving the purchase of previously owned shares otherwise prohibited by s.31(2) if the Board is satisfied that the investment has increased or will increase the value of the company to which the investment relates. This will give licensees added flexibility in their investment programs but still ensure that subsidised funds are used within eligible businesses and are not diverted to existing shareholders.

Proposed new s.37(3A) is inserted to provide the Board with a discretion to extend, in individual cases, the 18 month period set out in s.37(3) in which licensees must have 70% of their investments in eligible business entities. This will enable the Board to take into consideration fluctuations in the market place and business cycles. Experience has shown that, given the nature of the business of licensees, the time limit set out in s.37(3) has in some circumstances proved unrealistic and incapable of being met.

Meat Inspection Act 1983

Proposed new s.4(8) is inserted to require the Governor-General to give effect to any request from the Administrator of the Northern Territory to revoke the Proclamation which extended the Act to the Territory.

Proposed amendment of s.35(1) extends the prohibition on the supply by the owner of prescribed premises of meat to authorized officers so that the supply of any goods or services is prohibited, except as may be approved by the Secretary.

Migration Act 1958

Proposed amendment of s.6A(4)(a) will make a formal, updating amendment.

Proposed amendments of ss.5. 11. llA, 118. llC, 16(1), 55, 67(l)(a) and the Heading to Division lA of Part II will remove the concept of, and all references to, return endorsements. A return endorsement gives authority to a non-citizen who is a resident of Australia to return to Australia after a trip overseas. However, since 1 January 1987, return endorsements have been replaced by "resident return visas". S.llA already regulates the grant and operation of visas, including resident return visas. The provisions relating to return endorsements are, accordingly, no longer required.

Proposed amendment of s.16(1C) will make a consequential amendment.

Cl.5(13) provides that visas granted under s.llA and current at the commencement of cl.5 are, on and after that date, to be deemed to have been granted under s.llA as amended by this Bill.

Cl.5(14) provides that after the commencement of the clause, the Migration Act as in force immediately before that date is to continue to apply to return endorsements issued before that date, so that current return endorsements will continue until they expire or are cancelled.

Proposed amendment of s.67(l)(c) substitutes the term "assurances of support" for the term "maintenance guarantees". Maintenance guarantees have been known administratively as assurances of support since 1981.

By virtue of cl.2(23) of this Bill, the amendment of s.67(l)(c) shall be deemed to have come into operation on a day to be fixed by Proclamation for the purposes of cl.2(22).

Minerals (Submerged Lands) Act 1981

The Act provides for the exploration for and exploitation of minerals from the Commonwealth area of the seabed, which is on the seaward side of the outer limit of the 3 nautical mile territorial sea. Proposed amendment to s.2 would allow portions of the Act to be proclaimed. The present wording allows proclamation only of the complete Act. This has not been done pending development and passage of complementary legislation by the States and the Northern Territory in respect of the offshore areas within their jurisdiction. The proposed amendment will open the way for some exploration activity in offshore areas under appropriate title while other parts of the regime, which are now in need of revision and updating, are developed.

Mutual Assistance in Criminal Matters (Consequential Amendments) Act 1987

When this Statute Law Bill was introduced in Autumn, it amended subsection 9(6) of the Director of Public Prosecution Act by inserting certain words (here called the "first words"). Later, the Mutual Assistance (Consequential Amendments) Act amended that subsection by adding further words at the end of the first words. However, the Statute Law Bill lapsed, so the first words were never inserted. The result was that there was nothing for the further words to hang on to, so the later amendment was ineffective.

This Bill now repeals the ineffective amendment. On page 48, this Bill amends the Director of Public Prosecutions Act by inserting both lots of words in a single amendment.

National Companies and Securities Commission Act 1979

Proposed new s.14(4) to (8) are to be inserted to give the Ministerial Council for Companies and Securities the authority to determine the superannuation benefits of full-time members of the National Companies and Securities Commission (NCSC).

The amendments are needed to enable such members to be provided with superannuation benefits other than those that can be provided under the Superannuation Act 1976.

Under new s.14(4), a determination by the Ministerial Council is to be made by resolution and, under new s.14(5), may be subsequently varied or revoked by a further resolution of the Council. New s.14(6) provides that the Ministerial Council shall not make, vary or revoke a determination except in accordance with arrangements approved by the Minister for Finance.

New s.14(7) provides that the superannuation benefits to be provided to a member of the NCSC under a determination made by the Ministerial Council are to be in accordance with the determination in force at the time the benefits are provided, that is the initial determination as modified by any further resolution of the Ministerial Council.

New s.14(8) contains a definition of "superannuation benefits" for the purposes of the proposed s.14(4) and (7). The definition is very broad covering "benefits in the nature of superannuation benefits" and "benefits similar to benefits provided under the Superannuation Act 1976."

It is not entirely clear whether the NCSC is empowered under s.29(1) to make disbursements in relation to the superannuation arrangements for its full-time members. The proposed amendment of s.29(1) is intended to place beyond doubt that the NCSC is empowered to make such disbursements.

Pursuant to cl.2(24), the proposed amendments will be deemed to have come into operation on 1 February 1980, the date on which the NCSC Act was proclaimed to come into operation. The retrospective operation of the proposed amendments is to ensure the validity of the superannuation arrangements made for the full-time members appointed on 11 March 1980.

National Crime Authority Act 1984

Proposed amendment of s.4(1) adds two categories of persons to the definition of "member of the staff of the Authority" to make them subject to the relevant provisions of the Act, including the secrecy provisions (s.51). These categories are legal practitioners appointed under s.50 to assist the Authority as counsel and members of task forces established pursuant to s.ll(l)(c).

Proposed amendment of s.25(7) is consequential on the amendment to s.4(1).

Proposed amendment of s.31(1) inserts new s.3l(l)(b) making provision for issue of a warrant for the apprehension of a person who is the subject of a summons and who is believed to have absconded or is likely to abscond, or is otherwise attempting or likely to attempt to evade service of the summons.

Proposed new s.31(2A) is inserted to authorise the execution of a warrant issued under s.31 notwithstanding that the original of the warrant is not in the possession of the person executing it at the time.

Proposed new definition in s.51(4) expands the definition of "member of the staff of the Authority" in order to include within the secrecy provision persons who assist or perform services for legal practitioners appointed under s.50 as counsel to the Authority.

National Measurement Act 1960

Proposed amendments of s.3(1), 8 and 9(1) and (3) are formal. The amendments reflect the change in the spelling of the name of the Commonwealth Scientific and Industrial Research Organisation which was made by the Science and Industry Research Legislation Amendment Act 1986.

Proposed new definition of "interest in land" is inserted in s.3(1) to include, for the purposes of the Act, an interest by way of stratum title, strata title or a time-sharing interest in land, by whatever name each may be known. This definition is consequential on the amendments to s.12(1A) and 12A which refer to an "interest in land" and to ensure that such references are references to a ll property transactions.

By virtue of cl.2(25) of this Bill, the last mentioned amendment of s.3(1) shall come into operation on 1 January 1988.

Proposed new s.12(1A) is inserted to provide that s.12(1), which relates to the use of Australian legal units of measurement in trade contracts, does not apply to transactions relating to real estate transactions. This amendment is necessary because new s.12A will specifically deal with real estate transactions and accordingly, it must be clarified that s.12(1) does not apply to such transactions.

By virtue of cl.2(25) of this Bill, the amendment of s.12 will come into operation on l January 1988.

Proposed new s.12A(l) is inserted to provide that real estate transactions will be void unless entered into by reference to Australian legal units of measurement. Legal units of measurement are prescribed by regulations to the Act. The amendment will have the effect that, subject to the exceptions listed below, after 31 December 1987, real estate transactions will need to be entered into by reference to metric units of measurement. After that date imperial units of measurement used in the real estate industry will no longer, except for special purposes, be prescribed as legal units of measurement.

Proposed new s.12A(2) is similar to existing s.12(2) and ensures that a reference to a unit of measurement is, unless otherwise provided, a reference to an Australian legal unit of measurement.

Proposed new s.12A(3) provides that the provisions of s.12A(l) requiring real estate transactions to be entered into by reference to Australian legal units of measurement will not affect the validity of such a transaction that refers to units of measurement of a physical quality that, at the time when it was made or entered into, were Australian legal units of measurement of that physical quality. This will ensure that the provision will not have retrospective effect.

Proposed new s.12A(4) similarly provides that the provisions of s.12A(l) will not render void a real estate transaction by reason only that it refers to an additional unit of measurement which is applicable under the National Measurement Regulations to that transaction. This will enable non-metric units of measurement used in real estate transactions to be prescribed as legal units of measurement for specific purposes.

Proposed new s.12A(5) provides that s.12A(l) will not affect interests registered under a State or Territory Torrens land registration system.

Proposed new s.12A(6) provides that the provisions of s.12A(l) will not render void a real estate transaction by reason only that it refers to units of measurement other than Australian legal units of measurement if -

(a)

in the case of land registered under a State or Territory Torrens land registration system the folium of the register or certificate of title for the land is expressed in units of measurement other than those units of measurement; or

(b)

in any other case all title documents refer to such other units of measurement.

By virtue of cl.2(25) of this Bill, the insertion of s.12A will come into operation on 1 January 1988.

Proposed new s.13A is inserted to exclude transactions relating to futures contracts from the requirement in s.12(1) that references to a measurement of a physical quantity in transactions be to Australian legal units of measurement.

This means that futures transactions, which sometimes involve countries which do not use metric units of measurement, will be able to be entered into by reference to imperial units of measurement.

Proposed amendment of s.17(1) will make the Executive Director of the National Standards Commission (the Commission) an ex-officio member of the Commission. This will ensure that there are better lines of communication between the Commission and its staff and will as a result improve administration of the National Measurement Act and regulations.

Proposed amendment of s.17(2) will limit the requirement that members of the Commission be appointed by the Governor-General and be part-time only to members other than the Executive Director.

Proposed amendments of s.17(3) and (5) will limit the requirements relating to scientific or technical knowledge of members and to the maximum term of appointment of members to members appointed by the Governor-General.

Proposed amendments of s.18AA(l) and (2) will limit the provisions for payment of remuneration and allowances of members of the Commission to members appointed by the Governor -General.

Proposed amendment of s.18AB will limit the provision relating to resignation of members to members appointed by the Governor-General.

Proposed amendments of s.18AC (l) and (2) will limit the provisions relating to termination of appointment of members to members appointed by the Governor-General.

Proposed amendment of s.18AE(3) will raise the number of members of the Commission required to constitute a quorum at a meeting of the Commission from 4 to 5.

Proposed amendments of Part IV of the Act will create the position of the Executive Director of the Commission, and provide for his/her powers and duties. Although a person has been appointed as Chief Officer of the Commission under the existing provisions, the Act is silent as to the powers and functions of that person. This amendment will overcome that omission. A new Division 1 headed "Executive Director" with new ss.18AG to 18AR is inserted.

Proposed new s.18AG provides that there will be an Executive Director of the Commission.

Proposed new s.18AH provides that:

•

the Executive Director will conduct the affairs of the Commission;

•

the Executive Director will act in accordance with any policies determined by, and any directions given by, the Commission; and

•

all acts and things done in the name of or on behalf of the Commission by the Executive Director will be deemed to have been done by the Commission.

Proposed new s.18AI provides that the Executive Director will be appointed by the Commission.

Proposed new s.18AJ provides that the Executive Director will hold office during the Commission's pleasure and will cease to hold office on attaining 65 years of age.

Proposed new s.18AK provides that the Executive Director will not engage in paid employment outside the duties of his or her office except with the approval of the Commission.

Proposed new s.18AL provides for the remuneration and allowances of the Executive Director in standard form for such statutory office holders.

Proposed new s.18AM empowers the Chairman of the Commission to grant leave of absence to the Executive Director.

Proposed new s.18AN provides that the Executive Director may resign his or her office by writing to the Chairman of the Commission.

Proposed new s.18AO requires the Executive Director to disclose all direct or indirect pecuniary business interests to the Chairman of the Commission.

Proposed new s.18AP provides for the Commission to appoint a person other than a Commission member to act as Executive Director for a period not exceeding 12 months where the office of the Executive Director becomes vacant or where the Executive Director is absent from duty or from Australia, or is unable to perform the duties of the office. Specific provisions are included to provide amongst other things that:

•

an appointment may be expressed to have effect only in specified circumstances;

•

a person appointed for a reason other than a vacancy in the office may continue to act if the office becomes vacant;

•

a person appointed as acting Executive Director is to have all the powers and duties of the Executive Director; and

•

any act done by an acting Executive Director is not invalid because the occasion for his or her appointment had not a risen, there was a defect or an irregularity with the appointment, the appointment had ceased to have effect or the occasion for the person to act had not a risen.

Proposed new s.18AO provides that the Executive Director will not be present during any deliberations of the Commission in which matters relating to the appointment, leave or outside employment of the Executive Director arise. A similar restraint is placed on the Acting Executive Director in relation to such deliberations concerning either the Executive Director or Acting Executive Director.

Proposed new s.18AR provides that the Executive Director holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Commission with the written approval of the Minister.

As a result of insertion of new Division 1 in Part IV, a new heading "Division 2 - Staff" is to be inserted above s.18F, the existing provision in that Part.

Proposed amendment to s.18F raises the financial limit on contracts which may be entered into by the Commission without the approval of the Minister from $50,000 to $100,000, in accordance with the limit now governing some other statutory authorities.

National Museum of Australia Act 1980

Proposed amendment of s.7(3) extends the exceptions to the prohibition on disposal by the Museum of historical material to that provided for in new s.9A proposed to be inserted in the Act.

Proposed new s.9A is inserted to permit the Council of the Museum to dispose of historical material that is owned by or in the possession of the Museum but not in the national historical collection. The amendment is necessary to establish clearly the Museum's power to dispose of such material. As in the case of s.9 in relation to the national collection, disposal of material under new s.9A can be by sale, gift or exchange for other material or by destruction. However material may be destroyed under s.9A only if it is unsaleable and cannot be disposed of in any other way. As under s.9, the Minister must approve disposal of material valued at more than $5000.

National Water Resources (Financial Assistance) Act 1978

Proposed amendments of s.8(1) and (2) will remove the power of the Minister for Finance to make advances to the States, and places that power with the Minister who administers the legislation.

Proposed amendments of s.9 (b) will require the States to furnish evidence of expenditure to the Minister administering the legislation rather than the Minister for Finance.

Proposed amendment of s.10 (2) will require a State to repay to the Commonwealth on demand by the Minister administering the legislation, rather than the Minister for Finance, the amount by which, at the time of the demand, the total of the amounts paid to the State exceed the total of the amounts that have become payable to the State.

Proposed amendment of s.11 will give to the Minister administering the legislation in place of the Minister for Finance, the power to deduct amounts payable or repayable by a State to the Commonwealth from amounts payable by the Commonwealth.

Navigation Act 1912

Proposed amendment of s.6(1) which defines terms for the purposes of the Act, will :

•

insert a definition of "survey authority" allowing for deletion of definitions of "survey authority" elsewhere in the Act; and

•

insert a new definition of "the regulations" to generally clarify the order-making power conferred on the Minister by the Act, which at present is specified in various provisions throughout the Act.

Proposed amendment of s.113 and remaking of s.l48D(3) which deal with the security of seamen's wages, will omit references to "forfeiture of wages", as the Act no longer provides for forfeiture.

Proposed amendment of s.187A(1) substituting new definitions of "certificate of equipment" and "certificate of survey" for the purposes of Division IV of the Act are consequential on the proposed insertion of a new s.191(6).

Proposed amendment of the definition in a.l87A(l) of "international voyage" will ensure that the International Convention for the Safety of Life at Sea 1971 ("the Safety Convention") does not apply to ships on voyages to which the Convention is not intended to apply.

Proposed amendment of s.187A(l) omitting the definition of "survey authority" is consequential on its relocation in s.6(1) of the Act.

Proposed s.187BA of the Act omitting provision for the Minister's approval of survey authorities is also consequential on the relocation in s.6(1), and rephrasing, of the definition of "survey authority".

Cl.5(15) provides that a standard of classification certificate approved under s.187BA in its present form that was current immediately before the commencement of this clause is to be deemed to have been approved under s.187BA as amended by the Bill on the commencement of cl.5.

Cl.5(16) provides that where, immediately before the commencement of cl.5, a corporation or association for the survey of shipping was approved as a survey authority under s.187BA the Minister s3all, on the commencement of cl.5, be deemed to have made the approval for the purposes of the new definition in s.6(1) of "survey authority".

Proposed amendment of s.194 of the Act will insert a new s.194(6) empowering the Minister to recognise survey certificates issued by other administrations whose ship surveys are equivalent to Australia's as valid certificates for the purposes of the Act.

Proposed amendment of s.194(4) which provides for the issue of non-Safety Convention certificates, is consequential on the proposed amendments to s.206T(2) and (3) and 206V(l).

Proposed amendments of ss.206T(2) and (3) and 206V(l) will enable non-Safety Convention ships seeking clearance from an Australian port, to demonstrate compliance with statutory requirements by furnishing more than one certificate as to equipment, better reflecting actual survey certification practices.

Proposed amendments of s.221 of the Act will:

•

ensure that any exemption granted under s.221(1) which provides for appropriate exemptions from Load Lines Convention requirements is limited only to such legislative provisions as give effect to the Load Line Convention; and

•

permit any grant of exemption under s.221(1) to be made to individual ships or a class of ships and be made conditional on compliance with necessary safety requirements specified by the Minister, breach of which will be an offence.

Proposed insertion of new s.227A (IAA) will empower the Minister to recognise load line certificates issued by other administrations in the same way as "survey certificates" are proposed to be recognised under s.194. S.227A (l)(b) which requires a ship seeking clearance from an Australian port to hold a load line certificate, is to be consequentially amended.

Proposed amendment of s.229 which provides for regulations and orders to regulate the use of distress and urgency signals will ensure that such regulations and orders extend to the misuse of signals, which could result in costly and dangerous search and rescue operations being mounted.

Proposed amendment of s.258 which provides for regulations and orders to give effect to the Prevention of Collisions Convention will correct an erroneous cross-reference in s.258(3) and (5).

Proposed amendment of s.267B will authorise approved survey authorities to conduct surveys and to issue ship construction certificates in relation to Australian oil tankers.

Proposed amendment of s.267O will enable approved survey authorities to conduct surveys and to issue chemical tanker construction certificates in relation to Australian chemical tankers.

Proposed amendments of s.269H which gives effect to Safety Convention requirements for the reporting of ships' movements will insert references to "deviation reports" required in accordance with recent amendments to the Convention.

Proposed amendment of s.392(2), which provides penalties for indictable offences, is consequential upon the proposed insertion of new s.221(1C) and will also rectify a cross-referencing oversight in the Statute Law (Miscellaneous Provisions) Act (No.2) 1985 in relation to offences regarding ship safety equipment. S.394(4), providing for summary prosecution of offences, and s.397(2), which excludes certain offences from "first offence leniency" under the Crimes Act 1914, are to be similarly amended.

Proposed amendment of s.397(2) will omit from that section reference to previously repealed section 100.

Proposed omission of the definition of "survey authority" in s.405B is consequential on the proposed insertion of that definition in s.6(1).

Proposed amendment of the definition of "Council" in s.427(1) will replace reference to the Marine and Ports Council of Australia (MPCA) with reference to the Australian Transport Advisory Council, which absorbed all MPCA functions in 1984.

Non-government Schools (Loans Guarantee) Act 1977

Proposed amendment of omits the definition of the "Commonwealth Schools Commission". It is consequent upon the proposed amendments to s.4.

Proposed amendment of s.4 will empower the Minister, rather than the Commonwealth Schools Commission, to exercise the power to approve building projects of non-government schools for the purposes of the Act. This reflects the change in responsibility for the administration of the Capital Grants Program for government and non-government schools from the Commission to the Department of Employment, Education and Trade.

Proposed repeal of s.10 will abolish the Commission's power of delegation under the Act consequent upon the proposed amendment of s.4. Proposed new s.10 will empower the Minister to delegate his/her powers under the Act to officers of the Department.

Pig Industry Act 1986

Proposed amendments of s.30(3), (4). and (5) change the present requirement for the Auditor-General to decide on the suitability of a commercial auditor proposed for the Australian Pork Corporation to having the Auditor-General consider and advise the Minister on suitability.

The Auditor-General has requested that the Pig Industry Act 1986 be brought into line with other Statutory Marketing Authority legislation which requires him only to advise of his opinion as to the suitability of a commercial auditor and to leave the decision making function with the Minister.

Amendments to s.30(8) and (9) bring the legislation more into line with that for other statutory marketing organisations in respect of the procedure for advising the corporation of the outcome of its request to appoint a commercial auditor.

Proposed amendments to ss.39(2)(a) and (b) are formal drafting amendments.

Proposed omission of s.39(2)(c) abolishes the prohibition on nominating members of the executives of industry bodies for appointment as members of the Australian Pork Corporation. S.10(6), which provides that members of the executive of eligible industry bodies shall not be appointed as members of the corporation will remain. The amendment will mean that such members need not resign their executive positions until they have been nominated for appointment to the Australian Pork Corporation.

Protection of the Sea Legislation Amendment Act 1986

The amendments make formal drafting corrections to minor printing errors.

By virtue of cl.2(26) of this Bill, the amendments of s.20(2)(b) and Schedules 1, 2 and 8 shall come into operation, or be deemed to have come into operation, on the commencement of ss.20(2), 15(1), 15(2) and 40 respectively of the principal Act.

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Proposed insertion in s.3, which defines terms for the purposes of the Act, of a new definition of "the regulations" will cause that expression to mean (except in ss.33 and 34 permitting the making of regulations and orders) orders as well as regulations made under the Act.

Proposed amendments of s.11(8). 22(8) and 26B(10) will insert in provisions proscribing the making of false statements a qualification that the provisions are not breached unless such statements are made knowingly or recklessly. The amendments will meet concerns expressed by the Senate Standing Committee on Regulations and Ordinances.

Proposed amendments of s.33(1), which prescribes regulation making powers, will expand the range of matters over which power to make orders may be conferred on the Minister by regulations to include all matters that can be the subject of regulations under the Act except the prescription of penalties. This will enable uniformity and compactness of the subordinate legislation.

Proposed amendments of s.34(3) will provide Ministerial orders the same subordinate legislative scope as regulations, subject to any limitation expressed by the Act. The amendments to will bring these provisions into line with the order-making provisions contained in s.425 of the Navigation Act 1912.

Proposed amendment of s.34(6) is a formal amendment clarifying that where a provision of an order is inconsistent with a provision of the Act or regulations, the provision of the order is of no effect.

Public Order (Protection of Persons and Property) Act 1971

Proposed amendment of s.4(1) inserts a definition of "protective service officer" by reference to the definition in the Australian Protective Service Act 1987.

Proposed amendments of ss.12(2)(c) (which concerns the offence of being in or on Commonwealth premises and refusing or neglecting, without reasonable excuse, to leave those premises on being directed to do so by a constable or an authorized person) and 20(2)(c) (which concerns the offence of being in or on protected premises and refusing or neglecting, without reasonable excuse, to leave those premises on being directed to do so by a constable, by a protected person or an authorized person) insert references to "protective service officer" as a consequence of the enactment of the Australian Protective Service Act.

Public Service Act 1922

Proposed insertion of new s.9AA corrects an oversight in the Public Service Legislation (Streamlining) Act 1986 (the Streamlining Act) which devolved the power to make acting appointments of heads of Parliamentary departments from the Governor-General to the Prime Minister. Consistently with the independent position of the Parliamentary administration, under the new s.9AA this power is to be given to the relevant Presiding Officer or to the Presiding Officers in relation to each of the Parliamentary departments. The provisions governing the exercise of the power are in the standard form of provisions for acting appointments.

S.39(8) of the Principal Act makes it clear that section 39, which deals with acting appointments of Secretaries of departments, applies to heads of Parliamentary departments. S.39(8) is to be omitted as it will no longer be necessary following the enactment of a new s.9AA which is to provide specifically for acting appointments of heads of Parliamentary departments.

Proposed insertion of new s.49DA will enable the Commissioner to cancel a transfer or promotion in or to the Senior Executive Service (SES) before it takes effect. This is in line with the Commissioner's authority over transfers and promotions of other officers of the Australian Public Service.

Proposed amendments of ss.50DA and 50DB bring the use of the terms "vacancy" and "vacant office" into line with their use in the other provisions in the Act relating to promotions.

Proposed amendment of s.50H corrects an oversight in the Public Service Legislation (Streamlining) Act 1986 to make it clear that the separate right of officers eligible for redeployment to appeal against promotions made under s.50 does not extend to non-appellable promotions as defined in the Act.

Proposed amendment to s.52(3) is a consequential drafting amendment to take account of changes made to the Act by the Streamlining Act whereby departmental Secretaries are empowered to accept an officer's application to decline a transfer.

Proposed amendment of s.55(1) substitutes a shortened form of reference to the Merit Protection (Australian Government Employees) Act 1984 utilising a definition recently inserted in the Act.

Proposed amendment of s.57(6) is a drafting change to make the language non-gender specific.

Proposed amendment of s.76L(3)(b) enables the Board, where an officer of the SES by virtue of a notice under s.76L(3) is unattached and reduced in classification, or, being an unattached officer, is reduced in classification, to direct that the officer is included in a Department specified in the notice. The amendment brings this aspect of SES redeployment into line with that applicable to non-SES staff, and simplifies procedure by removing the need for action to include an unattached officer in a Department to be taken separately under s.33C(2) of the Act.

Proposed insertion of new s.76L(3A) and (5A) and amendment of s.76L(5) will enable an SES officer to consent to the taking of redeployment or retirement action in respect of that officer, and allow that action to take effect without delay, where the parties are in agreement.

Proposed amendment of s.76L (l3) corrects a drafting error.

Proposed amendment of s.76M(3) removes the right of an SES officer to appeal against the giving of a notice of redeployment or retirement where that officer has, before the notice was issued, consented in writing to the giving of that notice. A right of appeal is not necessary where agreement on the matter has already been reached. Removal of the right of appeal also adds flexibility in the specification of the date of effect of such action.

Proposed amendment of s.87KAA substitutes a shortened form of reference to the Merit Protection (Australian Government Employees) Act 1984 utilising a definition recently inserted in the Act.

It is proposed to omit s.97(1)(1), which enables regulations to be made in relation to the keeping of a temporary employment register, the selection of persons from that register and the terms and conditions of temporary employment generally. This provision was substantially superseded by s.82AD(10), which was inserted in the Act by the Public Service and Statutory Authorities Amendment Act 1985.

Public Service Legislation (Streamlining) Act 1986

Proposed amendment of s.33 clarifies the intention in the Act that staff engaged on a temporary basis pending grant of Australian citizenship, and who immediately before the commencement of the Act were still so engaged and still awaiting citizenship, be deemed to have been appointed to the Australian Public Service as from the date of their engagement. The original deeming provision created a problem in that all such persons who were not already members of the Commonwealth Superannuation Scheme would have been required to become members of the Scheme, and thus liable to pay contributions, from the date of their deemed appointment. This will be rectified by the proposed new s.33(4) which will, for the purposes of the Superannuation Act 1976, deem such persons to have been appointed to the Service on and from the commencement of s.33 unless they had earlier become eligible employees otherwise than as a result of the operation of s.33(3).

By virtue of cl.2(27) of this Bill the proposed amendments of s.33 shall be deemed to have come into operation on the 28th day after the Act received the Royal Assent.

Quarantine Act 1908

Proposed amendment of s.46 is a formal, drafting amendment.

Proposed amendment of s.70A(4) empowers a quarantine officer to search goods on Australian vessels coming from the Torres Strait to the mainland. The original provision only empowers goods to be searched on overseas vessels. The proposed amendment will rectify this inadequacy, which was identified by the Senate Standing Committee on National Resources in its Report titled "Adequacy of Quarantine in the Torres Strait Area".

Removal of Prisoners (Australian Capital Territory) Act 1968

Proposed amendment in s.3(1) of the definitions of "constable" and "Magistrate" are consequential upon the proposed insertion of new s.5B.

Proposed new s.5B is inserted to enable a constable to arrest a prisoner unlawfully at large and bring him before a Magistrate, so that a new warrant may be issued for his detention. A prisoner is unlawfully at large for the purposes of the amendment if the prisoner is required by law to be in custody. At common law, where a prisoner is accidentally released, for example, by the prison authorities some time before he is due to be released, the warrant is spent so that the prisoner cannot be required to return to prison and serve the balance of his term.

Cl.5(17) provides that new applies only in relation to a person who becomes a prisoner unlawfully at large within the meaning of that section after the commencement of cl.5.

Removal of Prisoners (Territories) Act 1923

Proposed insertion of new s.7A will make it clear that a Territory offender's sentence will cease to run for the period he is at large. At common law, it has been held that where a prisoner escapes while serving a term of imprisonment he cannot be detained under the sentence once the term has expired.

Cl.5(18) provides that new s.7A applies only in relation to a person who, after the commencement of cl.5, commits an offence against s.7(2) of the Act.

Proposed insertion of new s.7B will enable a constable to arrest a prisoner unlawfully at large and bring him before a Magistrate, so that a new warrant may be issued for his detention. A prisoner is unlawfully at large for the purposes of the amendment, if the prisoner is required by law to be in custody. At common law, where a prisoner is accidentally released, for example, by the prison authorities some time before he is due to be released, the warrant is spent so that the prisoner cannot be required to return to prison and serve the balance of his term.

Cl.5(19) provides that new s.7B applies only in relation to a person who becomes a prisoner unlawfully at large within the meaning of s.7B after the commencement of cl.5.

Shipping Registration Act 1981

Proposed amendment of the definition of "owner" in s.3(1) which defines terms for the purposes of the Act will ensure that an unregistered owner of a registered ship may similarly to a registered owner be compelled under s.58 to give the Registrar correct information about the ship.

Proposed amendment of ss.12, 74 and 75 will create continuing offences in relation to failure to register a ship or provide information in respect of a ship. Prosecutions under the existing provisions have not been effective in securing compliance with the requirements. The applicable penalties under are appropriately reduced and a summary prosecution of an offence under will no longer be distinguished from other such prosecutions under the Act. Proposed omission from s.62 of the definition of "unregistered ship" will ensure the effective operation of ss.68 and 69 which require ships entitled to be registered to be so registered before departing a port in Australia or a foreign port. Because the definition displaces the definition of "unregistered ship" in s.3(1) in relation to ss.68 and 69, those sections currently fail to prohibit foreign-registered ships entitled to be registered in Australia from undertaking international voyages.

Proposed amendments of ss.68(1) and (3) and 69(1) are consequential on the proposed amendment of s.62.

Social Security and Repatriation Legislation Amendment Act 1984

Proposed amendment of is a formal drafting amendment.

By virtue of cl.2(28) of this Bill, the amendment of s.86 shall be deemed to have come into operation on the commencement of that section.

South Pacific Nuclear Free Zone Treaty Act 1986

Proposed amendment of s.4 is a formal drafting amendment.

Statute Law (Miscellaneous Provisions) Act (No.l) 1986

Proposed amendment of s.2(23) is a formal, drafting amendment.

Statute Law (Miscellaneous Provisions) Act (No.2) 1986

Proposed amendment of Schedule 1 is a formal, drafting amendment.

By virtue of cl.2(29) of this Bill, the proposed amendment shall be deemed to have come into operation on the day on which the Act received the Royal Assent.

Student Assistance Act 1973

Two minor amendments are proposed, resulting from the government decision to change payee arrangements for younger secondary students under AUSTUDY.

It was decided initially that AUSTUDY secondary allowances would be paid direct to students in all cases. In response to the reservations expressed by many parents in relation to the decision, a change in payment arrangements was announced in December 1986. Where secondary students are under 18 years of age and will not turn 18 before the end of the year, their parents may elect to have the AUSTUDY allowance paid to them rather than to their children.

S.31A permits recovery of social security benefits paid to a student from any AUSTUDY entitlement the student has for the same period. The proposed amendment ensures that overpayments of social security benefits to students will be recoverable from AUSTUDY allowances paid to the parents instead of the recipient students.

By virtue of cl.5(20), the proposed new s.31A(2) applies in relation to amounts referred to in s.31A(l)(a) that are paid on or after 1 January 1987.

Proposed amendment to s.32 clarifies that the Minister for Education can authorize payments to the parents where payments are being made to their children. It requires the Minister to make determinations under that section in writing. The Acts Interpretation Act then operates to give the Minister power to revoke such determinations. This means that determinations to make payments direct to secondary students can in appropriate cases be changed so that the payments are made to their parents.

Superannuation Legislation Amendment Act (No.2) 1986

Proposed amendment of s.30(2)(b) is a formal drafting amendment.

By virtue of cl.2(30) of this Bill, the proposed amendment shall be deemed to have come into operation on the day on which the Act received the Royal Assent.

Taxation Laws Amendment Act (No.2) 1986

Proposed amendment of s.9 is a formal drafting amendment.

By virtue of cl.2(31) of this Bill, the proposed amendment shall be deemed to have come into operation on the commencement of s.9.

Trade Practices Act 1974

Proposed amendment inserts a new s.66A providing that the provisions of the Vienna Convention on Contracts for the International Sale of Goods prevail over the provisions of Part V Division 2 of the Act to the extent of any inconsistency. The proposed amendment is required to eliminate overlap and potential conflict between provisions of the Act, which import certain terms into contracts for the sale of goods, and the Vienna Convention, which is being implemented by uniform legislation in the various States and Territories.

By virtue of cl.2(32) of this Bill, the amendment made by this Bill shall come into operation on a day to be fixed by Proclamation for the purposes of cl.2(32), being a day not earlier than the day on which the Vienna Convention enters into force in respect of Australia.

Wheat Tax Act 1957

Proposed amendment of s.5(2) reflects the change of name of the Australian Wheatgrowers' Federation to the Grains Council of Australia from 9 October 1986. It will also enable another organisation to be substituted by regulations.

Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1986.

Proposed amendments of s.22(f) are formal drafting amendments.

By virtue of cl.2(33) of this Bill, the proposed amendments shall be deemed to have come into operation on the commencement of the Act being amended.

Wine Grapes Levy Collection Act 1979

Proposed amendment of s.9(5) will delete the existing penalty of $1000 and substitute a penalty of $1000 or imprisonment for 6 months or both for obstruction of an authorised person in the exercise of powers relating to the Act. The existing penalty has not been amended since the enactment of this legislation in 1979 and the proposed amendment will update the penalty to the current appropriate level.

Proposed amendment of s.10(1) will delete the existing penalty of $500 for failing to submit a levy return and substitute a penalty of $1000 or imprisonment for 6 months, or both, in the case of a natural person, or $5000 in the case of a body corporate. The existing penalty has not been amended since the enactment of this legislation in 1979 and the proposed amendments will update the penalty to the current appropriate level.

Proposed amendment of s.10(2), (3), and (4) will replace these sub-sections with a new s.10(2). The sub-sections proposed to be deleted created a continuing offence for failure to submit levy returns. Consequent upon deletion of these provisions a standard provision concerning offences in relation to levy returns is proposed to be inserted. Proposed new s.10(2) provides that a person is not excused from submitting a return or providing information on the ground that it might tend to incriminate the person, but that any return or information so submitted or provided, including any information or thing obtained as a direct or indirect consequence of the furnishing of the return or information, is not admissible in evidence in criminal proceedings except for failure to submit a return or to provide information or the furnishing of information or a return that is false or misleading in a material particular. The return or information will also not be admissible in proceedings to recover penalty for non-payment of levy.

Proposed amendment of s.10(5) will delete the existing penalty of $500 and substitute a penalty of $1000 or imprisonment for 6 months, or both, in the case of a natural person, or $5000 in the case of a body corporate, for the offence of providing false or misleading information to a person performing duties in relation to the Act. The existing penalty has not been amended since the enactment of this legislation in 1979 and the proposed amendment will update the penalty to the current appropriate level.

Proposed amendment of s.10(6) is consequential upon the proposed amendments to s.10(2)-(4).

SCHEDULE 2

Repeal of Acts

Repeal of -

•

Commonwealth Aid Roads Act 1969

•

Railway Agreement (New South Wales and South Australia) Act 1968

•

Railway Agreement (Queensland) Act 1961

•

Railway Agreement (Queensland) Act 1968

•

Railway Agreement (Tasmania) Act 1971

•

Railway Equipment Agreement (South Australia) Act 1961

These Acts are now spent.

Repeal of -

•

Dairy Products (Export Inspection Charge) Act 1982

•

Dairy Products (Export Inspection Charge) Amendment Act 1984

•

Dairy Products (Export Inspection Charge) Collection Act 1982

•

Dairy Products (Export Inspection Charge) Collection Amendment Act 1984

•

Dried Fruit (Export Inspection Charge) Act 1981

•

Dried Fruit (Export Inspection Charge) Collection Act 1981

•

Eggs (Export Inspection Charge) Act 1982

•

Eggs (Export Inspection Charge) Amendment Act 1983

•

Eggs (Export Inspection Charge) Amendment Act 1984

•

Eggs (Export Inspection Charge) Collection Act 1982

•

Eggs (Export Inspection Charge) Collection Amendment Act 1984

•

Egg Export Legislation Repeal Act 1984

•

Export Inspection Legislation (Consequential Amendments) Act 1985

•

Fish (Export Inspection Charge) Act 1981

•

Fish (Export Inspection Charge) Collection Act 1981

•

Grain (Export Inspection Charge) Act 1979

•

Grain (Export Inspection Charge) Amendment Act 1983

•

Grain (Export Inspection Charge) Collection Act 1979

These Acts are no longer operative.

Corrigendum - Explanatory Memorandum

STATUTE LAW (MISCELLANEOUS PROVISIONS) BILL 1987

Crimes Act 1914

Page 44 lines 8 and 13 references to s.47A should read s.48A

Page 44 line 16 and page.45 line l references to s.47B should read s.48B