Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I give notice that, on the next day of sitting, I shall move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the following bills, allowing them to be considered during this period of sittings:

Aged Care Amendment (Security and Protection) Bill 2007

Appropriation Bill (No. 3) 2006-2007 and Appropriation Bill (No. 4) 2006-2007

Aviation Transport Security Amendment (Additional Screening Measures) Bill 2007

Bankruptcy Legislation Amendment (Debt Agreements) Bill 2007 and Bankruptcy (Estate Charges) Amendment Bill 2007

Corporations Amendment (Takeovers) Bill 2007

Farm Household Support Amendment Bill 2007

Health Insurance Amendment (Provider Number Review) Bill 2007

Higher Education Legislation Amendment (2007 Measures No. 1) Bill 2007

Human Services (Enhanced Service Delivery) Bill 2007

Migration Legislation Amendment (Information and Other Measures) Bill 2007

Offshore Petroleum Amendment (Greater Sunrise) Bill 2007 and Customs Tariff Amendment (Greater Sunrise) Bill 2007

Schools Assistance (Learning Together—Achievement Through Choice and Opportunity) Amendment Bill 2007

Tax Laws Amendment (2007 Measures No. 1) Bill 2007

I table statements of reasons justifying the need for these bills to be considered during these sittings and seek leave to have the statements incorporated in Hansard.

Leave granted.

The statements read as follows

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Aged Care Amendment (Security and Protection) Bill 2007

Purpose of the Bill

The bill amends the Aged Care Act 1997 (the Act) to:

• implement new aged care complaints investigation arrangements, including a new Aged Care Commissioner;
• introduce the requirement for approved providers of residential aged care to report to the Department of Health and Ageing and the police allegations and incidents of sexual and serious physical assault; and
• introduce protection for approved providers and staff in residential aged care that report allegations and incidents of sexual and serious physical assault.

Reasons for Urgency

The amendments to the Act will give effect to the decision made by the government in July 2006 to implement new complaints investigation arrangements for Australian Government-subsidised aged care services, including the establishment of a new Aged Care Commissioner, as well as the introduction of compulsory reporting of alleged incidents of sexual and serious physical assault in residential aged care, and protection for approved providers and staff who report such incidents. 

In the Minister for Ageing’s announcement of 27 July 2006, he foreshadowed an implementation date of 1 April 2007 for the aged care complaints investigation arrangements, compulsory reporting and protection measures.  In order to meet this implementation date, the bill needs to be introduced and passed in the 2007 Autumn sittings. 

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Appropriation Bill (No. 3) 2006-2007

Appropriation Bill (No. 4) 2006-2007

Purpose of the Bills

The Appropriation Bills will request additional legislative authority for expenditure to be incurred in respect of 2006-2007.  Passage of the bills in the 2007 Autumn Sittings will ensure the continuity of government activities as the financial year draws to a close.

Reasons for Urgency

The timetable for the release of the Mid Year Economic and Fiscal Outlook (MYEFO) necessitates the introduction of the bills in the Autumn Sittings.

The Appropriation Acts that were passed in the 2006 Winter Sittings provide the bulk of funding for government programmes in 2006-2007.  These Additional Estimates bills seek authority for expenditure on activities that require additional funding, or on new activities agreed to by the government since the last Budget.

Unless new expenditure authority is in place in a timely manner, some activities of government agencies and some activities administered on behalf of the government may not have sufficient funds to continue to the end of 2006-2007, and new activities will not commence.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE AUTUMN 2007 SITTINGS

Aviation Transport Security Amendment (Additional Screening Measures) Bill 2007

Purpose of the Bill

The bill specifically allows random and continuous frisk searches to be conducted, in the absence of any particular indication.  There is an existing provision in the Aviation Transport Security Act 2004 which permits frisk searches but only as an alternative or additional security measure.

Reasons for Urgency

Recent international events have demonstrated an enhanced threat to aviation security based on using liquids, aerosols and gels as explosive devices on board aircraft.  Other governments and the International Civil Aviation Organisation have agreed that this newly identified risk needs to be managed.  Some governments have already introduced restrictions.  This bill will support appropriate aviation security measures to deal with the enhanced risk.  This needs to be done as a matter of priority.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Bankruptcy Legislation Amendment (Debt Agreements) Bill 2007

Bankruptcy (Estate Charges) Amendment Bill 2007

Purpose of the Bills

The bills amend the Bankruptcy Act 1966 to improve the operation of debt agreements.  In particular, the amendments address concerns about the lack of regulation of debt agreement administrators and the resulting lack of confidence by creditors in the operation of debt agreements.  The amendments are also designed to address the high failure rate of debt agreements.

Reasons for Urgency

The government has announced that the amendments will commence on 1 July 2007.  In particular, debt agreement administrators will need to be licensed prior to that date.  This will require them to make significant changes to their businesses prior to applying for a licence.  To meet this deadline, the licensing process will have to commence by March 2007.  The legislation needs to be in place before licences can be granted.  Deferring commencement of the amendments is not considered a suitable alternative because of the uncertainty this will create for administrators concerned that their businesses cannot continue if a licence is not granted.  This would also increase the cost to administrators of the changes they need to make to the way they conduct their businesses.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Corporations Amendment (Takeovers) Bill 2007

Purpose of the Bill

The bill addresses difficulties experienced by the Takeovers Panel as a result of the two judgments given in the Glencore cases.  Those judgments found that the powers of the Panel were more restricted than had previously been thought to be the case.  The bill gives the Takeovers Panel greater powers to declare circumstances to be unacceptable and to make consequent orders.  Those powers will be extended beyond the powers the Court found to exist in the Glencore cases.

Reasons for Urgency

The current law, as interpreted in the Glencore cases, is restricting the ability of the Takeovers Panel to efficiently fulfil its intended statutory role of acting as the main forum for resolving disputes about takeover bids until the bid period has ended.  It is desirable to correct the position as soon as possible.  Delay would enable the current unsatisfactory position to continue, causing confusion and inefficiency in the market.  The need for the bill was not apparent until judgment in the second Glencore case was delivered on 22 March 2006.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Farm Household Support Amendment Bill 2007

Purpose of the Bill

The Farm Household Support Amendment Bill 2007 (the Bill) will formalise Exceptional Circumstances (EC) Relief Payments to farm dependent small business operators and allow their access to ancillary support measures, such as the Health Care Card and concessions for access to Youth Allowance.  This is consistent with the EC Relief Payments already provided to farmers.

Reasons for Urgency

The prolonged drought is having a severe effect on farmers and regional communities, causing financial hardship and having a significant impact on local economies.  There are now 63 areas of rural and regional Australia that are EC declared and a further 4 areas have established a prima facie case and are awaiting further assessment.  This totals approximately 45 per cent of Australia’s agricultural land.

The viability of many small businesses in EC declared areas is highly dependent on the viability of farm businesses.  While farm businesses have been the first group to experience the effects of the worsening drought, non-farm small businesses in drought affected areas are consequently beginning to experience severe financial hardship. Those businesses that supply agriculture related goods and services to farm businesses are particularly adversely affected.

To date, the majority of Australian Government and state government drought relief measures have targeted farmers.  Consequently, in November 2006 the Australian Government announced measures to provide support to small business operators that rely heavily on the farm sector for their income.

The measures announced in November 2006 are targeted at farm dependent small business operators where 70 per cent of their income is derived from providing goods and services to farmers in EC declared areas.  This assistance includes EC Relief Payments and ancillary benefits such as the Health Care Card and concessions for access to Youth Allowance.  This assistance will be available until 30 June 2008. At present, small businesses can access income support through ex-gratia payments, however, ancillary assistance cannot be accessed without amending the Farm Household Support Act 1992 (the Act).  The proposed amendments to the Act will formalise the ex-gratia payments and provide much needed access to ancillary benefits to small business operators who are facing significant financial challenges due to the current severe drought.

The urgent nature of the financial challenges facing some farm dependent small business operators, and the finite period in which assistance measures may be available, warrants prompt action.  The Parliament can achieve this by allowing the bill to be introduced and passed in the 2007 Autumn sitting period.

Rural communities need to be reassured that support will be available to those small business operators who can demonstrate a sustained negative impact on business activities and income.  Failure to introduce and pass the bill in this sitting period would unnecessarily delay small business operators from accessing the much needed assistance that has been made available.  This may jeopardise the potential of some small businesses to provide services to rural and regional communities, which will have significant impacts on these communities and the broader economy.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Health Insurance Amendment (Provider Number Review) Bill 2007

Purpose of the Bill

The bill amends section 19AD of the Health Insurance Act 1973 (the Act) to change the frequency of the review of the Medicare provider number legislation from two to five years.

Reasons for Urgency

The critical date for the passage of the bill is 30 March 2007.  Section 19AD of the Act currently requires a review of the Medicare provider number legislation every two years.  The next review cycle is due to commence no later than 1 April 2007 with the report to be tabled in Parliament no later than 31 December 2007.

The preparation of the report is a nine month process, which requires significant staffing resources from an area of the Department that is currently working on critical workforce issues.  Such resources would be better used managing current issues.

If the bill is passed in the 2007 Autumn sittings, the next review would commence in 2010.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Higher Education Legislation Amendment (2007 Measures No. 1) Bill 2007

Purpose of the Bill

The bill implements the revised Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) National Protocols for Higher Education Approval Processes and updates funding limits to implement the Research Quality Framework (RQF).  The bill also makes a range of technical amendments to improve the functioning of the Act, including an amendment to provide for the suspension of a higher education provider to be a legislative instrument.

Reasons for Urgency

The government has committed to implementing the Research Quality Framework (RQF), and has agreed to provide funding over four years to support the implementation.  This funding will be administered through the Higher Education Support Act 2003, with funding for the first RQF cycle to commence from 1 July 2007.  The bill needs to be passed and gain Royal Assent before the end of June 2007 to make funding available to the higher education sector from 1 July 2007.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Human Services (Enhanced Service Delivery) Bill 2007

Purpose of the Bill

The Bill will streamline and modernise Australia’s delivery system for health and social service benefits and reduce the opportunity for fraud in relation to such benefits.

The Bill:

• sets out the scope and purposes of the use of the access card and Register;
• sets out the information to be included in the Register and in the chip of the card and on the surface of the card;
• provides a registration process for obtaining an access card;
• vests ownership of access cards in card holders;
• allows card owners to use their access card for whatever lawful purposes they choose;  and
• creates a range of offences to prohibit persons requiring an access card for identification purposes and to prohibit other improper uses of the access card.

Reasons for Urgency

To ensure community consultation on an exposure draft of the legislation prior to introduction in Parliament, it was not possible to introduce legislation in the 2006 Spring sittings.

The early passage of the Bill is required to ensure that a legal framework is available to support the implementation of the proposed access card system, to enable registration for the card to commence in early 2008 and to provide sufficient time to provide meaningful information to the public about the proposed changes.

The legislation will provide the certainty required to achieve cost-effective procurement of technological services required to support the access card.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Migration Legislation Amendment (Information and Other Measures) Bill 2007

Purpose of the Bill

The bill amends the Migration Act 1958 to refine provisions relating to the access and disclosure of personal identifiers, and broaden the ability of the Department of Immigration and Citizenship (DIAC) to disclose movement records for the benefit of the person to whom the record relates.

Reasons for Urgency

It is imperative that these amendments are made as a matter of urgency.

The personal identifiers measure will amend the offence provisions relating to unauthorised access and disclosure of identifying information.  The limitations and inflexibility of the currently permitted grounds for access and disclosure are causing serious problems throughout DIAC in its day to day work and for other agencies in the enforcement of the criminal law.  DIAC’s ability to continue normal working practices, such as disclosing photos and signatures to other agencies, is being severely hampered and in some instances is being discontinued as a result of the current provisions.  The Commonwealth Director of Public Prosecutions has advised that many criminal prosecutions, some for drug importation, are being affected because of DIAC’s limited ability to provide essential evidence to assist with the prosecution.

Currently citizens require their movement records for a number of reasons such as proof of residency for receipt of benefits, for purposes under the Family Law Act 1975 and taxation law, in relation to requirements to complete military service in other countries or in relation to grants such as the First Home Owners Grant.  Citizens are required to make a request under the Freedom of Information Act 1982 to access this personal information, which can result in the process taking days or weeks.  The proposed amendment will enable access for citizens to their own international movement records by attending a regional office or via an overseas post, providing a close to immediate service.  This amendment will improve customer service while requiring the same level of proof (for security) to obtain movement records.  It will also help to significantly reduce the volume of Freedom of Information (FOI) requests received each year by DIAC and consequently reduce the delays in handling other FOI requests.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Offshore Petroleum Amendment (Greater Sunrise) Bill 2007

Customs Tariff Amendment (Greater Sunrise) Bill 2007

Purpose of the Bills

The bills amend the Offshore Petroleum Act 2006 (the Act) in order to meet international treaty obligations.

Reasons for Urgency

Amendments must be made to the Act to implement the International Unitisation Agreement with East Timor.  Failure to do so could put Australia in breach of its international obligations.

East Timorese Prime Minister Jose Ramos-Horta has indicated that East Timor will ratify the Greater Sunrise International Unitisation Agreement and Treaty on Certain Maritime Arrangements in the Timor Sea in early 2007.

When this occurs, Australia will not be in a position to proclaim the Act until such time as the Greater Sunrise amendments have been made to the Act.  Whilst Australia is currently able to fulfil its obligations under the Petroleum (Submerged Lands) Act 1967 (PSLA), if the changes to the Act were not made and it was proclaimed (and the PSLA repealed), Australia would be in breach of its international obligations.

To comply with section 55 of the Constitution, amendments to the Customs Tariff Act 1995 are required in a separate bill.  As such, the Customs Tariff Amendment (Greater Sunrise) Bill 2007 makes consequential amendments to update references from the PSLA to the Act.

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Schools Assistance (Learning Together—Achievement Through Choice and Opportunity) Amendment Bill 2007

Purpose of the Bill

The bill adds funding amounts under the Schools Assistance (Learning Together – Achievement through Choice and Opportunity) Act 2004 for:

• the Investing in Our Schools Programme (IOSP) for government schools for 2007 and non-government schools for 2007 and 2008;
• the Capital Grants Programme for non-government schools for 2008; and
• the Literacy, Numeracy and Special Learning Needs Programme (LNSLN) – National Projects for 2008.

Reasons for Urgency

These amendments are required as early as possible in 2007 to provide financial and planning certainty for each Programme.  This is particularly important for the IOSP as this amendment involves increased funding for 2007. 

It is important for planning purposes and to provide early advice to stakeholders that increased Australian Government funding is available for the IOSP for 2007 and 2008, for the Capital Grants Programme for non-government schools for 2008 and for the LNSLN - National Projects for 2008.

It is essential that there is early confirmation that IOSP funding for the Round Four applications will be available when the assessment process is completed in 2007. 

Non-Government Block Grant Authorities, who administer the Capital Grants Programme on behalf of the Australian Government, will submit the Annual Schedule of capital grant recommendations for non-government schools during 2007, which will include recommendations for funding for 2008.   Advice on and appropriation of the increased level of 2008 funding is required early in 2007. 

It is highly desirable that funding for the LNSLN - National Projects continues with minimal disruption.  Early advice to stakeholders in 2007 on the continuation of funding for 2008 will enable planning for strategic national literacy and numeracy projects and initiatives in 2008. 

STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2007 AUTUMN SITTINGS

Tax Laws Amendment (2007 Measures No. 1) Bill 2007

Purpose of the Bill

The bill amends various taxation Acts.

Reasons for Urgency

These measures need to be enacted as early as possible to provide certainty for business and taxpayers in relation to how the law applies.  Passage in the 2007 Autumn sittings is required as several of the measures are retrospective.

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

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, 15 sitting days after today, I shall move:

That the Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006, made under subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986, be disallowed.

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

Leave granted.

The summary read as follows—

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

FRLI Number – F2006L03097

Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006

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

Following the receipt of a satisfactory response, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that, on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1 standing in my name for three sitting days after today, for the disallowance of determination No. HIB 29/2006 made under paragraph 1(bj) of schedule 1 to the National Health Act 1953. I seek leave to incorporate in Hansard the committee’s correspondence concerning the determination.

Leave granted.

The correspondence read as follows

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

19 October 2006

The Hon Tony Abbott MP

Minister for Health and Ageing

Suite MG.43

Parliament House

CANBERRA  ACT  2600

Dear Minister

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

The Committee notes that this instrument amends the principal Determination which was made on 19 September 2006 and which was registered and commenced operation on 20 September 2006.  The only amendment made is to specify that the default benefit that is payable per night for nursing home type patients in a private hospital is $73.80.  In the principal Determination, the benefit was stated to be $74.80.  The Explanatory Statement indicates that this amendment is necessary because the figure of $74.80 was “an administrative oversight” that requires correction.  This amending instrument was registered on 28 September 2006, but has retrospective effect, commencing on 20 September 2006. 

The Committee makes the following comments about this present instrument, both of which suggest that this instrument has no effect.

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

The Committee notes that the Explanatory Statement argues that there is no disadvantageous effect because the instrument reduces the liability of registered health benefits organisations while leaving patient contribution rates unchanged.  On the other hand, a letter from the Office of Legislative Drafting and Publishing addressed to the Secretary of the Committee states that the retrospective operation of the instrument is detrimental and thus, under subsection 12(2) the instrument has no effect (copy attached).  With respect, the Committee has difficulty with the argument presented in the Explanatory Statement, and agrees with the conclusion reached by the Office of Legislative Drafting.

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

The Committee draws these matters to your attention and, in particular, seeks advice as to why subsection 12(2) and section 46 of the Legislative Instruments Act 2003 should not apply.

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 this Determination.  Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

14 December 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 19 October 2006 about Determination No. HIB 29/2006 made under Schedule 1, paragraph (1)(bj) of the National Health Act 1953.

I note the Committee’s comments that HIB 29/2006 may have a detrimental effect to patients. The sole purpose of creating HIB 29/2006 was to correct an administrative oversight in HIB 20/2006. Having considered the Committee’s comments, I believe there is a possibility that the retrospective operation of HIB 29/2006 may have a detrimental effect on someone other than the Commonwealth Government. I note that the amount of the detriment would be $0.90 per night and that HIB 29/2006 was made nine days after the principal Determination. My Department advises that no complaint has been received to date in relation to HIB 29/2006.

Whilst I acknowledge that there is a potential detriment, it may assist the Committee’s deliberations to consider the sequence of events as set out below:

HIB 20/2006 was registered with the Federal Register of Legislative Instruments (FRLI) on 19 September 2006 effective 20 September 2006;

the Nursing Home Type Patient (NHTP) contribution increased to $37.30 per day;

the Commonwealth determined basic default benefit paid by health funds to hospitals for NHTP was specified as $74.70 per day;

the default benefit should have been reduced from $74.70 to $73.80, as the combined default benefit and patient contribution is capped at $111.10 per day; and

this mistake meant the basic default benefit was not changed and is therefore 90 cents more than it should have been.

To correct this error my Department took the following steps:

HIB 29/2006 was registered with FRLI on 4 October 2006;

my Department asked for it to be retrospective i.e, to take effect from 20 September 2006;

the patient contribution was unchanged at $37.30; and

the health insurance fund default benefit was amended to the correct rate of $73.80.

A legislative instrument under Schedule 1, paragraph (1)(bj) of the National Health Act 1953 was made on 26 October 2006 in order to insert new Schedules 1, 3, 4 and 6 (HIB 31/2006). This Instrument was registered on the FRLI on 30 October 2006, and on 31 October 2006 the default benefit payable by health funds to private hospitals in relation to NHTPs was reduced from $74.70 to $73.80.

In regard to the second issue raised by the Committee, where the instrument appears to contravene section 46 of the Legislative Instruments Act 2003, I note that HIB 29/2006 is an amending determination. Its sole purpose is to change a figure appearing in the original determination (HIB 20/2006). I believe that an amending determination involving a minor mechanical amendment of this nature does not amount to a determination that is “the same in substance” as HIB 20/2006. As such it is my view, HIB 29/2006 may be made within the seven day time period without infringing section 46 of the Legislative Instruments Act 2003.

I trust the information I have provided has addressed the concerns raised by the Committee.

Yours sincerely

Tony Abbott

Minister for Health and Ageing

8 February 2007

The Hon Tony Abbott MP

Minister for Health and Ageing

Suite MG.43

Parliament House

CANBERRA  ACT  2600

Dear Minister

Thank you for your letter of 14 December 2006 responding to the Committee’s concerns with Determination No. HIB 29/2006 made under paragraph (bj) of Schedule 1 to the National Health Act 1953.

In your response you acknowledge that there is ‘a possibility’ that the retrospective operation of this Determination may disadvantage the rights of persons other than the Commonwealth, or that there may be a ‘potential detriment’ – albeit relatively minor ($0.90 per night).  The Committee is of the opinion that, regardless of the fact that the amount of detriment is small and no complaint has been received to date, the effect of subsection 12(2) of the Legislative Instruments Act 2003 applies if the retrospective operation ‘would’ be affected.  It does not depend on evidence of actual disadvantage nor the extent to which it may impact on a person or persons.  It is the view of the Committee that subsection 12(2) does apply in this case and that, as a matter of law, the instrument is thus rendered ineffective. The Committee would appreciate guidance on whether the Department has sought independent legal advice on this issue, and on the related issue of whether the uncertainties surrounding the validity of this instrument could be resolved through the making of primary legislation.

Notwithstanding the comments above, the Committee would also like to take the opportunity to address the second matter raised by this Determination, namely whether it was the same in substance as a previously tabled Determination.  The case law is sparse on this subject but in Victorian Chamber of Manufacturers v The Commonwealth (CLR 67, p.389), McTiernan J considered a regulation to be the same in substance ‘if, irrespective of its form or expression it was so much like the disallowed regulation in its general legal operation that it could be fairly said to be the same law as the disallowed regulation’.  In your response you consider that HIB 29/2006 was not the same in substance as HIB 20/2006 as it is an amending Determination involving a minor mechanical amendment.  However, the Committee notes that HIB 29/2006 included identical Schedules to those found in HIB 20/2006 with only a minor variation to one fee in one schedule.  Given McTiernan J’s test, HIB 29/2006 would seem to be the same in substance as HIB 20/2006 and therefore in breach of section 46 of the Legislative Instruments Act 2003.  The Committee would appreciate guidance on whether the Department has sought independent legal advice on this issue and its effect on the validity of the instrument.

The Committee acknowledges that ultimately the legal standing of this Determination will be a matter for the courts.

The Committee would appreciate your advice on the above matters as soon as possible, but before 26 February 2007, to enable it to finalise its consideration of this Determination.  Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

26 February 2007

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 8 February 2007 in response to my letter of 14 December 2006 about Determination HIB 29/2006 made under Schedule 1, paragraph (1)(bj) of the National Health Act 1953.

As indicated in my letter of 14 December 2006, HIB 29/2006 potentially had a detrimental effect. Therefore, my Department has taken the view that, under subsection 12(2) of the Legislative Instruments Act 2003 (the LIA), this instrument had no effect. Another legislative instrument was made on 26 October 2006 (HIB 31/2006) which made further amendments to HIB 20/2006, including amendments to Schedule 4. As HIB 29/2006 had no effect, there does not appear to be a need to resolve the issue through making primary legislation.

In relation to the second issue raised by the Committee, the Australian Government Solicitor (AGS) has provided advice to my Department on the meaning of `same in substance'. I have enclosed that advice for your reference.

While the advice deals with whether an instrument can be made while HIB 29/2006 is subject to a motion to disallow (section 47 of the LIA), it also provides guidance on how the words `same in substance' should be interpreted for the purposes of the LIA.

My Department made instrument HIB 0l /2007 pursuant to that advice. The AGS’s advice indicates that regard needs to be given to the substantive effect of HIB 29/2006, which was to only amend Schedule 4, “the fact that-all the Schedules to HIB 20/2006 have been physically attached to HIB 29/2006 and registered, does not change this substantive effect of HIB 2912006.”

I trust that the information I have provided has addressed the concerns raised by the Committee.

Yours sincerely

Tony Abbott

Minister for Health and Ageing

Encl:  Attachment: Advice from AGS

Farhana

I refer to your e-mail below and to our discussions about this matter.

As foreshadowed, our advice is brief, given the urgency of the matter. We would be happy to expand on the matters in it, as necessary.

As discussed, generally, in the context of s 47, a legislative instrument would be the ‘same in substance’ with an instrument subject to a motion to disallow if it produced ‘substantially the same result ...even though they might be different in detail’ (see Pearce and Argument Delegated Legislation in Australia 3rd Edition at [13.38] when discussing Victorian Chambers of Manufactures v Commonwealth (Women’s

Employment Regulations) (1943) 67 CLR 347.

We think Schedule 5 of HIB20/2006 could be amended while HIB29/2006 is subject to a motion to disallow. In this context, we think that a legislative instrument amending Schedule 5 would not be the same in substance as HIB29/2006. The only substantive effect that HIB29/2006 had was to amend Schedule 4 which deals with Nursing Home Type Patient Accommodation. (The fact that, apparently through some error, all the Schedules to HIB20/2006 have been physically attached to HIB29/2006 and registered, does not change this substantive effect of HIB29/2006 in the context of s 47.) However, the proposed amending legislative instrument would deal with amendments to Schedule 5 which deals with Second Tier Default Benefit for Overnight and Day Only Treatment. Schedules 4 and 5 appear to us to deal with different episodes of hospital treatment. Therefore, a legislative instrument amending Schedule 5 would not be the ‘same in substance’ as HIB29/2006.

We also think the Department may revoke and remake HIB20/2006 under the current circumstances. Given the substantive effect of HIB29/2006 discussed above, we do not think that a legislative instrument revoking and remaking HIB20/2006 would be the ‘same in substance’ as it.

Regards

Peter Lahy

Senior General Counsel

Australian Government Solicitor