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

Following the receipt of satisfactory responses, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that at the giving of notices on the next day of sitting, I shall withdraw eight notices of disallowance standing in my name, as follows:

Business of the Senate notices of motion nos 1, 2, 3, 5, 6 and 7 for 6 sitting days after today for the disallowance of the following instruments:

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

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

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

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

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

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

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

Leave granted.

The correspondence read as follows—

Approved Code of Practice for Manual Handling (Maritime Industry)

19 October 2006

The Hon Kevin Andrews MP

Minister for Employment and Workplace Relations

Suite MG.48

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Approved Code of Practice for Manual Handling (Maritime Industry) made under subsection 109(1) of the Occupational Health and Safety (Maritime Industry) Act 1993 that specifies a code of practice for manual handling activity in a maritime environment.

The Committee notes that section 2.28 of this Code requires records to be kept concerning the implementation of the National Standard for Manual Handling. The section does not indicate the form in which such records should be kept, nor the duration for which such records should be kept. The Committee therefore seeks your advice as to whether such information should be added to the section.

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

Yours sincerely

John Watson

Chairman

18 December 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 19 October 2006 concerning provisions in the Code of Practice for Manual Handling (Maritime Industry) (the code). Specifically, you asked about requirements under section 2.28 of the code which relate to record keeping.

It is intended that the code-including section 2.28-should be read in conjunction with section 11 of the Occupational Health and Safety (Maritime Industry) Act 1993. This provides that an operator has a duty of care to maintain appropriate information and records relating to their employees’ health and safety.

Section 2.28 envisages that appropriateness will vary according to the particular maritime activities engaged in and circumstances of the business concerned. It consequently does not specify either a form or a minimum timeframe for the keeping of these records. However, it should be noted that these records must be accessible to employees’ representatives on an ongoing basis to allow for their review and evaluation. I therefore do not consider it appropriate to prescribe this requirement in the code.

I trust this information addresses the issues raised in your letter.

Yours sincerely

Kevin Andrews

Minister for Employment and Workplace Relations

______________________

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

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

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

9 November 2006

The Hon Kevin Andrews MP

Minister for Employment and Workplace Relations

Suite MG.48

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the following instruments made under the Safety, Rehabilitation and Compensation Act 1988.

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

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

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

The Committee raises the following matters after considering each instrument.

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

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

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

Yours sincerely

John Watson

Chairman

18 December 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 9 November 2006 concerning matters raised by the Committee in regards to instruments made under the Safety, Rehabilitation and Compensation Act 1988.

The first issue raised concerns about why time limits were not being specified for certain types of legal actions against applicants, particularly those referring to professional misconduct or criminal proceedings, and breaches of antidiscrimination or privacy legislation. I am advised that statutory time limits are not required for these types of legal actions in their primary legislation. Any matters that might be raised under these criteria would allow Comcare to take these into consideration when assessing applicants against the criteria for their initial approval or renewal of approval (which occurs every three years).

The second issue concerned appropriate consultation not appearing in the explanatory statements. While Comcare is aware of its obligations, it was an oversight not to include such details in the explanatory statements, for which it apologises. Consultation via written correspondence was indeed undertaken with the approved rehabilitation providers, their association body - the Australian Rehabilitation Provider Association - and rehabilitation authorities in the Commonwealth over the course of July to October 2006.

Thank you for taking the time to write on these important matters.

Yours sincerely

Kevin Andrews

Minister for Employment and Workplace Relations

_________________________

Direction Relating to Foreign Currency Transactions and to North Korea

12 October 2006

The Hon Peter Costello MP

Treasurer

Suite MG.47

Parliament House

CANBERRA ACT 2600

Dear Treasurer

I refer to the Direction Relating to Foreign Currency Transactions and to North Korea made under regulation 5 of the Banking (Foreign Exchange) Regulations 1959. This instrument prohibits foreign currency transactions involving certain entities and one individual associated with the Democratic People’s Republic of Korea.

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

The Committee would appreciate your advice on the above matter as soon as possible, but before 17 November 2006, to enable it to finalise its consideration of this Direction. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

19 January 2007

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 12 October 2006 to the Treasurer relating to the Standing Committee on Regulations and Ordinances’ consideration of the Direction Relating to Foreign Currency Transactions and to North Korea under the Banking (Foreign Exchange) Regulations 1959 (the Direction). In particular, you sought advice about whether the Direction is intended to apply in circumstances where a person engages in a transaction with a party who, unknowingly to them, is indirectly related to those listed in the Direction.

The intention of the Direction is to capture and prohibit all foreign currency transactions involving the transfer of funds or payments to, by the order of, or on behalf of entities or individuals listed under the Direction without the prior approval of the Reserve Bank of Australia (RBA). It is expected that any person dealing in foreign currency would take all reasonable steps to identify the parties with whom they are dealing and be aware of the Direction.

However, offences under the Banking (Foreign Exchange) Regulations 1959 are subject to the Commonwealth Criminal Code Act 1995 (Criminal Code) and are not ones of strict liability. As such, the effect of the Criminal Code is that a person must have known or recklessly disregarded the identity of the person taking the benefit of the dealing in order for an offence to occur.

Information regarding the financial sanctions is distributed widely with the RBA lodging the legislative instruments, each with the list of sanctions-designated individuals or entities attached, with the Federal Register of Legislative Instruments and arranging for their inclusion in the Australian Government Gazette.

Following this, the RBA notifies the financial sector regulators, including the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Australian Transaction Reports and Analysis Centre and the Australian Securities Exchange, in writing of the financial sanctions. These institutions alert their stakeholders, which include banks, building societies and credit unions and foreign exchange dealers, to the restrictions so that monitoring can occur.

The RBA also issues a media release advising of the implementation of financial sanctions, which includes the list of individuals or entities with which dealings are prohibited.

I trust this information will be of assistance to you.

Yours sincerely

Peter Dutton

Acting Treasurer

_______________________

Prescribed Courses for Applicants for Registration as a Migration Agent

9 November 2006

The Hon Andrew Robb AO MP

Parliamentary Secretary to the Minister for

Immigration and Multicultural Affairs

Room RG.81

Parliament House

CANBERRA   ACT   2600

Dear Parliamentary Secretary

I refer to the Prescribed Courses for Applicants for Registration as a Migration Agent made under paragraph 5(1)(a) of the Migration Agents Regulations 1998. The Committee notes that this instrument, commencing on 1 October 2006, provides that a prescribed course of study is either a Graduate Certificate course at certain higher education institutions or a formal course of study or self-directed study completed before 15 July 2006.

According to the Explanatory Statement the effect of the instrument is that persons who have not completed a formal course of study or self-directed study before 15 July 2006 must complete the Graduate Certificate course in order to become registered migration agents. This appears to operate to the disadvantage of persons who have completed a formal course of study or self-directed study between 15 July and 30 September 2006, by compelling them to complete the Graduate Certificate course. It is not clear if this is the intention of the instrument. If so, the Committee would appreciate an explanation as to why persons who are affected in this way should be compelled to complete the additional course of study.

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

Yours sincerely

John Watson

Chairman

5 December 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 9 November 2006 concerning the Explanatory Statement for the Prescribed Courses for Applicants for Registration as a Migration Agent and your concern that it may disadvantage persons completing a formal course of study between 15 July and 30 September 2006.

On 4 May 2006 the Migration Agents Registration Authority (MARA) announced that the Migration Advice Professional Knowledge Entrance Examination (MAPKEE) would be replaced with the Graduate Certificate in Australian Migration Law and Practice. The final MAPKEE was held in Sydney, Melbourne, Brisbane, Adelaide, Perth and London on 15 July 2006. As preparation for the MAPKEE, applicants undertook either formal or self directed study. Delivery of the new Graduate Certificate, both face-to-face and online, commenced at the Australian National University, Griffith University, Murdoch University and Victoria University in July this year.

As the final MAPKEE was held on 15 July 2006, no individuals should be disadvantaged by the new Instrument. This is because individuals would have undertaken the MAPKEE on or prior to the 15 July 2006, or enrolled for the new Graduate Certificate. Upon completion of the new prescribed course and examination, intending agents have 12 months to apply to register with the MARA.

Please note that whilst persons who hold current legal practising certificates are not required to undertake the Graduate Certificate, they are required to satisfy yearly Continuing Professional Development to maintain their registration.

I appreciate you bringing this matter to my attention.

Yours sincerely

Andrew Robb

Parliamentary Secretary to the

Minister for Immigration and Multicultural Affairs

_______________________

Social Security (Asset-test Exempt Income Stream (Market-linked) – Payment Factors) (FACS) Principles 2005

Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FACS) Principles 2005

9 November 2006

The Hon Mal Brough MP

Minister for Families, Community Services and

Indigenous Affairs

Suite MG.60

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the following instruments made under the Social Security Act 1991:

Social Security (Asset-test Exempt Income Stream (Market-linked) – Payment Factors) (FACS) Principles 2005

Social Security (Partially Asset-test Exempt Income Stream – Exemption) (FACS) Principles 2005

These two instruments were both made on 22 December 2005, and registered on 13 October 2006. The Explanatory Statements provide no explanation for the delay in registering these instruments. The Committee would therefore appreciate your advice as to why registration was delayed by ten months. The Committee would also appreciate your assurance that no person, other than the Commonwealth, has been disadvantaged by this delay in registration.

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

Yours sincerely

John Watson

Chairman

30 November 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 600

Dear Senator Watson

You have requested advice on the reason for the delay in registration of the following instruments, and assurance that no person, other than the Commonwealth, has been disadvantaged as a result of that delay. These instruments were both made on 22 December 2005, and registered on 13 October 2006.

• Social Security (Asset-test Exempt Income Stream (Market-linked) - Payment Factors) (FACS) Principles 2005
• Social Security (Partially Asset-test Exempt Income Stream - Exemption) (FACS) Principles 2005

The effect of these instruments is to allow:

• the continuation of a 100 per cent exemption from the assets test where a lifetime or life expectancy income stream is created on or after 20 September 2004 from the commutation and rollover of an asset test exempt lifetime or life expectancy income stream purchased before that date;
• the use of payment factors to determine the total amount of the payments to be made under a market-linked income stream for a financial year.

My department delayed registration of the instruments, to explore with other departments responsible for social security legislation, a consistent approach to changing the legislation. However, following discussions with those departments, it was decided to register the instruments without further delay to allow customers to take advantage of the beneficial effect of the instruments.

While my department cannot rule out the possibility, I am advised that it is not aware of any people who have been disadvantaged by the delay in registering the instruments.

Yours sincerely

Mal Brough

Minister for Families, Community Services and Indigenous Affairs

7 December 2006

The Hon Mal Brough MP

Minister for Families, Community Services and

Indigenous Affairs

Suite MG.60

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 30 November 2006 responding to the Committee’s concerns with the delay in registering two Social Security Principles made in 2005 that provided for exemptions and payment factors for the asset-test exempt income stream.

The Committee notes that the reason for the delay was the desire to ensure that a consistent approach to changing the legislation was adopted with other departments responsible for social security legislation. We appreciate that consistency across legislation is important when legislation is managed across a number of agencies. However, we are still concerned about the possible impact of the delay on any individuals affected by this legislation.

In your response you advise that the department is ‘not aware’ of any people who have been disadvantaged by this delay. From your advice it is not clear what steps have been taken to ascertain whether disadvantage has occurred. While appreciating that the number of people involved might make it a difficult task, it would be helpful to know how the department determined its awareness. Also, given the acknowledgment that it may be a possibility, we would appreciate your advice about how the department proposes to deal with any instances of disadvantage that do come to light.

In the meantime, we have given a notice of motion to disallow these Principles to allow time to further consider the delay in registering these instruments.

The Committee would appreciate your advice on the above matters as soon as possible, but before 2 February 2007, to enable it to finalise its consideration of these Principles. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

22 January 2007

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACCT 2600

Dear Senator Watson

Thank you for your letter of 7 December 2006 requesting further details regarding the delay in registration of the following instruments:

• Social Security (Asset-test Exempt Income Stream (Market-linked) - Payment Factors) (FACS) Principles 2005
• Social Security (Partially Asset-test Exempt Income Stream - Exemption) (FACS) Principles 2005

Officers in my department are in regular contact with Centrelink regarding the administration of the income streams rules and have made specific inquiries in regard to whether any customers have been disadvantaged by the delay in implementing these Principles. To date, we have received no notification that any customers have been disadvantaged by this delay. If my officers did become aware of any particular case where there was potential disadvantage to a customer, we would make every attempt to investigate whether the customer’s situation can be addressed.

I would note that, in particular, the first of the above Principles is beneficial to customers as it stipulates that, under certain conditions, where asset-test exempt (ATE) income streams were purchased before 20 September 2004 and then rolled over to purchase a new non-commutable lifetime or life expectancy income stream, the new income stream should retain the 100 per cent exemption from the assets test that was accorded the original income stream. Accordingly, any disallowance of the instruments could potentially disadvantage those customers who have purchased a new income stream from the proceeds of a previously commuted ATE income stream, and who would otherwise qualify for retention of the 100 per cent assets test exemption.

Yours sincerely

Mal Brough

Minister for Families, Community Services and Indigenous Affairs