Territories Legislation Amendment Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 30 (3 February 2021)

• Territories Legislation Amendment Bill 2020
• Significant matters in delegated legislation Privacy29
• Treasury Laws Amendment (2020 Measures No. 6) Bill 2020
• No-invalidity clause33
• Reverse evidential burden of proof36

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Territories Legislation Amendment Bill 2020

Purpose	This bill seeks to amend various Acts to improve the legal frameworks applying to the territories of Norfolk Island, Christmas Island, the Cocos (Keeling Islands) and the Jervis Bay Territory
Portfolio	Infrastructure, Transport, Regional Development and Communications
Introduced	House of Representatives on 7 October 2020
Bill status	Received Royal Assent on 17 December 2020

Significant matters in delegated legislation
Privacy^[29]

2.70 The committee initially scrutinised this bill in Scrutiny Digest 15 of 2020 and requested the minister's advice.^[30] The committee considered the minister's response in Scrutiny Digest 17 of 2020 and requested the minister's further advice as to whether the bill can be amended to provide that the minister must consult with the Office of the Australian Information Commissioner before making an instrument to exempt a body, office or appointment for the purposes of proposed paragraphs 6(1)(ca) or 6(1)(ea) of the definition of 'agency' in the Privacy Act 1988 (the Privacy Act).^[31]

Minister's response^[32]

2.71 The minister advised:

The Bill will amend various Acts to improve the legal frameworks applying to the territories of Norfolk Island, Christmas Island, the Cocos (Keeling) Islands and the Jervis Bay Territory. I note that the Bill was passed by the Parliament during its recent Spring sittings and is currently waiting assent by the Governor-General. At the conclusion of the second reading debate in the House of Representatives, I tabled an addendum to the explanatory memorandum to the Bill in response to a request by the Committee in its Scrutiny Digest 17 of 2020 (2 December 2020).
The Committee has also sought further advice as to whether an amendment could be made in the Bill to the Minister's power to exempt a small category of external territory public bodies from the operation of the Privacy Act 1988 (the Privacy Act). In particular, the Committee suggests that an express requirement be included in the Bill for the Minister to be obliged to consult the Office of the Australian Information Commissioner before exercising this exemption power.
The Government has decided that an amendment to the Bill along these lines is not necessary. As explained in my previous correspondence to the Committee, any legislative instrument made by the Minister pursuant to new subsection 6(5A) of the Privacy Act is disallowable by a single House of Parliament acting alone, and subject to the usual parliamentary scrutiny, including by the Senate Standing Committee for the Scrutiny of Delegated Legislation.
The Minister will also be obliged under the Legislation Act 2003 to justify the making of the instrument in its explanatory statement, as well as recording any consultation undertaken. In making this assessment, the Minister would consult relevant stakeholders, including the Office of the Australian Information Commissioner. Accordingly, the proposed amendment would not have a substantive effect on the process that would be undertaken if this exemption power was to be used in the future.
However, acknowledging the views of the Committee, the Department of lnfrastructure, Transport, Regional Development and Communications will continue to carefully monitor these arrangements in the future.

Committee comment

2.72 The committee thanks the minister for this response. The committee welcomes the minister's advice that an addendum to the explanatory memorandum was tabled in the House of Representatives in response to the committee's scrutiny concerns.

2.73 The committee notes the minister's advice that any instrument made by the minister under new subsection 6(5A) of the Privacy Act is subject to disallowance by a single House of Parliament, and to standard parliamentary scrutiny including by the Senate Standing Committee for the Scrutiny of Delegated Legislation. The committee further notes the minister's advice that the minister is required to justify the making of an instrument in its explanatory statement, which would involve consultation of relevant stakeholders including the Office of the Australian Information Commissioner.

2.74 While noting this advice, the committee reiterates its scrutiny concerns that the minister will be able to create exemptions from the requirements of the Privacy Act in delegated legislation without explicit consultation requirements set out on the face of the bill, or elsewhere in the Privacy Act.

2.75 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

Treasury Laws Amendment (2020 Measures No. 6) Bill 2020

Purpose	Schedule 1 to this bill seeks to amend the temporary full expensing and backing business investment provisions in the income tax law to provide greater flexibility for entities to access concessions Schedule 2 seeks to amend the Competition and Consumer Act 2010 by reallocating the responsibility for conducting sectoral assessments and making consumer data rules Schedule 3 seeks to amend the Australian Charities and Not-for-profits Commission Act 2012 to incentivise basic religious charities that may be responsible for past institutional child sexual abuse to join the National Redress Scheme for Institutional Child Sexual Abuse Schedule 4 seeks to make a number of minor and technical amendments to various laws in the Treasury portfolio
Portfolio	Treasury
Introduced	House of Representatives on 2 December 2020
Bill status	Received Royal Assent on 17 December 2020

No-invalidity clause^[33]

2.76 In Scrutiny Digest 18 of 2020 the committee requested the Assistant Treasurer's advice as to the rationale for including no-invalidity clauses in proposed subsection 56BS(2) and proposed section 56BTA in relation to requirements for making consumer data rules.^[34]

Assistant Treasurer's response^[35]

2.77 The Assistant Treasurer advised:

The no-invalidity clauses for procedural requirements were included to provide certainty on the validity of the consumer data rules for the benefit of all consumer data right (CDR) participants and consumers.
The no-invalidity clauses reflect the general position set out in section 19 of the Legislation Act 2003 that the validity or enforceability of a legislative instrument is not affected by a failure to consult. Recognising the importance of consultation given the broad rule-making power, the consumer data rules are subject to considerably stricter consultation requirements than those in the Legislation Act 2003. This sets significantly higher expectations in respect of the CDR than standard legislative processes.
However, the importance of thorough consultation was balanced against the need for certainty and consumer protection once the consumer data rules are made. The absence of a no-invalidity clause in relation to consumer data rules could risk their validity through challenge on the basis of, for example, the quality of consultation undertaken or adequacy of the consideration of submissions.
The lack of a no-validity clause would also create perceived and actual risk for the validity of the consumer data rules, even where all the procedural requirements have been followed. The rules create rights for consumers and explain bow the privacy safeguards for consumers' data will be applied once data has been shared under the rules. As a result it is not desirable from a consumer protection perspective for the rules to be subject to challenge on the basis of the quality of consultation undertaken.
Importantly, given that the consumer data rules are legislative instruments within the meaning of section 8 of the Legislation Act 2003, they will always be subject to the full Parliamentary scrutiny and disallowance processes applicable to such instruments.

Committee comment

2.78 The committee thanks the Assistant Treasurer for this response. The committee notes the Assistant Treasurer's advice that the no-invalidity clauses were included to provide certainty in relation to the validity of the consumer data rules. The committee further notes the Assistant Treasurer's advice that, from a consumer protection perspective, it is not considered desirable for the rules to be subject to challenge on the basis of the quality of consultation.

2.79 The committee thanks the Assistant Treasurer for providing this further information and notes that it would have been useful had this information been included in the explanatory memorandum.

2.80 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

Reverse evidential burden of proof^[36]

2.81 In Scrutiny Digest 18 of 2020 the committee requested the Assistant Treasurer's advice as to why it is proposed to use an offence-specific defence (which reverses the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[37]

Assistant Treasurer's response

2.82 The Assistant Treasurer advised:

The Committee sought advice as to why it was proposed to use an offence specific defence in relation to the new provision being inserted into the Taxation Administration Act 1953 that will allow officers of the Australian Taxation Office to disclose protected information to the new Commonwealth Registrar so as to assist the Registrar in the performance of the Registrar's new functions and powers.
Consistent with the Government's commitment to simplify its interactions with business to support growth, innovation and employment, the Commonwealth Registers Act 2020 (and related Acts) facilitated a modern government registry regime that is flexible, technology neutral and governance neutral.
Item 143 of Schedule 4 of the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 supports those amendments by making a consequential amendment in section 355-67 of the Taxation Administration Act 1953 to provide for the sharing of information by the Commissioner of Taxation to the Registrar where the disclosure relates to the performance of the Registrar's functions, or the exercise of the Registrar's powers. This amendment, which provides for a new authorised disclosure, is consistent with information previously shared under Commonwealth law by the Commissioner of Taxation to the Australian Business Register and Australian Securities and Investments Commission.
The Taxation Administration Act 1953 prohibits the disclosure of information about the tax affairs of all taxpayers except in specified circumstances. Those exceptions are designed having appropriate regard to the principle that disclosure of taxpayer information should be permitted only if the public benefit derived from the disclosure outweighs the entity's right to privacy. It achieves this by creating offences in relation to the making of records, or the disclosing of information, about an entity's tax affairs.
The new authorised disclosure to the Registrar, like all other authorised disclosures under the Taxation Administration Act 1953, is an offence specific defence to the general prohibition (or offence) on disclosure. The authorised disclosures are set out as offence specific defences as the evidence needed to prove the defence is peculiarly within the knowledge of the defendant, that is, the taxation officer making the disclosure. It is only the taxation officer who knows the basis on which they made a decision to record or disclose protected taxpayer information and it would be significantly more difficult and costly for the prosecution to disprove than for the taxation officer to establish the matter.
The taxation confidentiality provisions have been developed in accordance with the relevant principles set out in the Guide to Framing Commonwealth Offences. Treasury Laws Amendment (2020 Measures No. 6) Act 2020 does not alter the structure of the confidentiality framework or the offence provisions within it. The amendments introduced by the Act simply added a further ground for authorised disclosure which will assist the new Commonwealth Registrar to undertake their new functions in relation to the modernised and centralised Commonwealth Business Register.

Committee comment

2.83 The committee thanks the Assistant Treasurer for this response. The committee notes the Assistant Treasurer's advice that the authorised disclosures are set out as offence specific defences as the evidence needed to prove the defence is peculiarly within the knowledge of the defendant, in this instance, the tax officer making the disclosure. This is because only the taxation officer would know the basis on which they made a decision to record or disclose protected information and it would be significantly more difficult and costly for the prosecution to disprove than for the taxation officer to establish the matter.

2.84 The committee thanks the minister for providing this further information and notes that it would have been useful had this information been included in the explanatory memorandum.

2.85 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

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[29] Schedule 3, item 60, proposed subsection 6(5A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[30] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 46-47.

[31] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2020, pp. 78-80.

[32] The minister responded to the committee's comments in a letter dated 17 December 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

[33] Schedule 2, item 36, proposed section 56BS and proposed section 56BTA. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii) and (iv).

[34] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2020, pp. 28-29.

[35] The Assistant Treasurer responded to the committee's comments in a letter dated 22 January 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

[36] Schedule 4, item, 143, proposed section 355-67. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[37] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2020, pp. 29-30.