Commentary on Amendments and Explanatory Materials [2018] AUSStaCSBSD 254 (28 November 2018)

• Commentary on amendments and explanatory materials

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Commentary on amendments
and explanatory materials

Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)

Bill 2017

[Digests 1 & 3/18]

1.2 On 15 November 2018 the Senate agreed to 222 Government amendments, the Minister for Finance and the Public Service (Senator Cormann) tabled a supplementary explanatory memorandum and the bill was read a third time.

1.3 In Scrutiny Digest 1 of 2018 and Scrutiny Digest 3 of 2018, the committee raised concerns that proposed section 287AA would appear to allow the minister, by legislative instrument, to determine that certain classes of Australian residents are not 'allowable donors'. The committee noted that this is a significant element of the electoral reforms proposed by the bill, is central to a number of proposed offences and civil penalty provisions and should be included in primary, rather than delegated, legislation. The committee also raised concerns that the bill did not include any specific consultation obligations in relation to instruments made under proposed section 287AA. Amendment 23 omits section 287AA, and replaces it with a new section defining 'foreign donor', which does not include a power to determine significant matters by legislative instrument. This would appear to address the committee's concerns in relation to this matter.

1.4 In Scrutiny Digest 1 of 2018 and Scrutiny Digest 3 of 2018, the committee raised concerns that proposed sections 302E to 302L would create a number of offences relating to the giving and receiving of gifts, punishable by significant custodial penalties (between 5 and 10 years' imprisonment). Amendments 106 to 126 would (among other matters) replace the custodial penalties in proposed sections 302E to 302J with pecuniary penalties, and increase financial thresholds for the offences. This would appear to address the majority of the committee's concerns in relation to this matter.

1.5 The committee also notes that amendments 115 and 120 would (among other matters) introduce new offence-specific defences in relation to the offences in proposed sections 302D and 302E, which reverse the evidential burden of proof. The committee notes that no justification for reversing the evidential burden of proof is included in the supplementary explanatory memorandum.

1.6 The committee welcomes amendment 23, which replaces the definition of 'allowable donor' in proposed section 287AA with a definition of 'foreign donor'. The committee notes that the definition of 'foreign donor' does not include a power for the minister to determine significant matters by delegated legislation.

1.7 The committee welcomes amendments 106 to 126, which replace the significant custodial penalties for the offences in proposed sections 302D to 302L with pecuniary penalties, and increase applicable financial thresholds.

1.8 In relation to amendments 115 and 120, the committee considers that it would be appropriate for information regarding why it is considered necessary and appropriate to reverse the evidential burden of proof to be included in the explanatory memorandum.

My Health Records Amendment (Strengthening Privacy) Bill 2018

[Digests 10/18]

1.9 On 14 November 2018 the Senate agreed to two Pauline Hanson's One Nation amendments. On 15 November 2018 the Senate agreed to eight Government and one Australian Greens amendments, the Minister for Indigenous Affairs (Senator Scullion) tabled a supplementary explanatory memorandum and the bill was read a third time.

1.10 Government amendment 6 inserts proposed sections 70A, 71A and 71B into the bill. Proposed paragraph 70A(1)(b) would provide that information in a healthcare recipient's My Health Record is used for a 'prohibited purpose' if the information is used for a purpose prescribed by the regulations. Proposed sections 71A and 71B seek to impose criminal and civil penalties for using information derived from the My Health Records system for a prohibited purpose.^[1]

1.11 From a scrutiny perspective, it is desirable for the content of an offence or civil penalty provision to be clear from the provision itself, so that the scope and effect of the offence or civil penalty provision is clear and so that affected persons may readily ascertain their obligations. In this instance, it appears that persons may be required to consult the regulations to determine whether an offence or civil penalty provision applies to their conduct (that is, whether they have used health information for a 'prohibited purpose').

1.12 Government amendment 8 would provide for a number of matters relating to the Data Governance Board (the Board). Proposed subsection 96G(1) seeks to provide that the Board may, with consent from the secretary, delegate any or all of its functions to any APS employee. Proposed subsection 96G(2) seeks to provide that the Board may, with consent from the data custodian,^[2] delegate any or all of its functions to any staff member of the Australian Institute of Health and Welfare (AIHW). The supplementary explanatory memorandum states that:

There may be circumstances where it is appropriate for the Board to delegate a function to an employee of the Department of Health or the data custodian (i.e. the Australian Institute of Health and Welfare). New section 96G will enable the Board to do so, with permission from the respective head of the agency. To ensure effective delegation to the appropriate person, it is important that there is the ability to delegate to APS staff at all levels.^[3]

1.13 While noting this explanation, the committee is concerned that proposed section 96G would permit the Board to delegate its functions and powers (which appear to include significant powers relating to the protection of health data) to any APS employee or any staff member of the AIHW. The committee notes in this regard that the bill does not appear to set limits on the level to which functions and powers may be delegated, nor impose requirements that delegates possess qualifications or expertise appropriate to the relevant delegation. The committee also notes that it does not consider the explanation in the supplementary explanatory memorandum to be sufficient to justify the breadth of the delegation in proposed section 96G.

1.14 The committee draws its scrutiny concerns in relation to government amendments 6 and 8 to the attention of senators, and leaves to the Senate as a whole the appropriateness of:

• leaving a significant element of the offences and civil penalty provisions in proposed sections 71A and 71B to regulations; and

• allowing the Data Governance Board to delegate its functions and powers to any level APS employee, or to any staff member of the Australian Institute of Health and Welfare.

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[1] The offence would be punishable by 5 years' imprisonment, 300 penalty units, or both. A contravention of the civil penalty provision would be punishable by 1,500 penalty units.

[2] Government amendment 8 also seeks to define 'data custodian' as the Australian Institute of Health and Welfare.

[3] Supplementary explanatory memorandum, p. 19.