Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The Regulatory Powers (Standardisation Reform) Bill 2020 is based on an initiative of the former Labor government called the Clearer Laws Project. The purpose of that project was to simplify and streamline the Commonwealth's statute books to make it easier for individuals and businesses to access and understand the law. Another key objective of the standardisation project that we commenced when last in government was to reduce the compliance burden for individuals and businesses subject to multiple regulatory regimes by reducing unnecessary differences in equivalent provisions of multiple Commonwealth acts.

The Clearer Laws Project was given effect in legislation prepared and introduced by Labor in 2012 and was finally passed in 2014 in legislation called the Regulatory Powers (Standard Provisions) Act. The fact that this Labor project was passed by a government that was notoriously hostile to just about everything Labor sought to achieve, even if they now claim it as their own, says a lot about just how worthy and beneficial this project has been.

Under this regime, the standardised powers set out in the 2014 act are only available to a regulatory agency if their governing legislation expressly engages those powers in whole or in part. That's what this bill achieves, by amending the following six Commonwealth acts to apply the standardised regulatory provisions: the Defence Force Discipline Act 1982, the Education Services for Overseas Students Act 2000, the Fisheries Management Act 1991, the Tertiary Education Quality and Standards Agency Act 2011, the Tobacco Advertising Prohibition Act 1992 and the Tobacco Plain Packaging Act 2011.

When the 2014 act was introduced, Labor noted that, while there are clear benefits in standardising regulatory regimes across the Commonwealth statute book, not all of the standardised regulatory powers set out in the bill are required for all regimes. And there are other Commonwealth agencies with specialised roles, such as ASIO, which will not use the standardised regime, because of their need for specialised powers unique to their particular roles.

Given the importance of ensuring that regulatory regimes under any given act are fit for purpose and that no unintended adverse consequences arise from the replacement of the specific regime in the relevant act with the standardised regime, this bill was rightly the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. It was through that inquiry that some problems with this bill came to light. The Law Council raised a particular concern about the manner in which schedule 1 of the present bill extends the circumstances for which the monitoring provisions of the standardised regime may be exercised in relation to 'other matters to which an act or legislative instrument relates'. The Law Council suggested that the term 'other matters' is too broadly worded and that this could lead to significantly broadening the scope of standardised regulatory monitoring powers. We endorse these suggestions of the Law Council in this regard and restate the view of the Senate Legal and Constitutional Affairs Committee that the government should clearly define which 'matters' are subject to the powers in triggering acts so as to ensure that there is certainty regarding their scope and application. These concerns were acknowledged by the committee, which, while declining to make a specific recommendation, said that it 'encourages the government to clearly define … matters … the subject of these powers in triggering acts to ensure that there is certainty in their scope and application'.

Labor endorses that statement and the Law Council's recommendations that the government provide a greater degree of transparency and clarity around any amendments to the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014. This is particularly important because any change to the 2014 act impacts all the subordinate regimes that engage that standardised regime.

I also note that the Senate Standing Committee for the Scrutiny of Bills sought further information from the Attorney-General in relation to a number of aspects of this bill, including the issue I have just discussed. These questions included, firstly, the justification for expanding the application of the monitoring powers in the Regulatory Powers (Standing Provisions) Act 2014 to allow them to be exercised in relation to 'a matter'; secondly, the justification for the proposed amendment to section 93 of the Fisheries Management Act 1991 to provide that the offence will be a strict liability offence with reference to the principles set out in the Guide to framing Commonwealth offences; thirdly, the training, qualifications or experience of the various authorised officers who are authorised to use force against things under the bill; fourthly, why it is necessary to confer powers to use force against things on any other person to assist an authorised person; fifthly, whether the bill can be amended to require that all persons authorised to use force must have appropriate expertise and training; sixthly, why it is considered necessary and appropriate to allow any other person to assist an authorised person in exercising monitoring and investigatory powers; and, seventhly, whether the bill can be amended to require that any person assisting an authorised person have the expertise appropriate to the function or power being carried out.

Despite this bill being scheduled for debate last week, I note that at the time the committee finalised its report last week the Attorney-General had not provided a response to these questions. For the reasons I have discussed, Labor is concerned at the potential for the changes to the Regulatory Powers (Standard Provisions) Act 2014 made by schedule 1 of this bill to extend the scope of regulatory powers under Commonwealth legislation in a manner that appears to be unnecessary in scope and uncertain in effect. In doing so, this bill has the potential to work against a key purpose of the standardisation regime, which is to harmonise and simplify Commonwealth laws and thereby reduce the regulatory burden imposed by those laws. As I have said, the aim of the Regulatory Powers (Standard Provisions) Act 2014 is to harmonise Commonwealth regulatory regimes and, in so doing, to provide greater clarity for agencies that utilise regulatory powers and greater clarity to Australians and Australian businesses that are the subject of those regimes.

Other than the concerns I have expressed today regarding the need for better justification and clarity regarding some of the changes to the standardised regime made by schedule 1 of the current bill and the need for the government to respond to these concerns, Labor supports the process of regulatory standardisation under the 2014 act and we support the changes to the six acts made by this bill as appropriate to that purpose.

I commend this bill to the House and I move the second reading amendment circulated in my name:

That all words after "That" be omitted with a view to substituting the following words:

"while not declining to give the bill a second reading, the House calls on the Government to:

(1) ensure that:

(a) there is certainty around the scope and application of the standardised regime set out in the Regulatory Powers (Standard Provisions) Act 2014, particularly with respect to the changes that Schedule 1 of this bill makes to that Act;

(b) any future changes to the Regulatory Powers (Standard Provisions) Act 2014 are carried out following appropriate consultation with relevant stakeholders, are drafted so as to ensure certainty regarding their scope and application, and are properly justified by the Government in the explanatory memorandum to any future bill; and

(c) all Commonwealth regulations are fit for purpose and that all Commonwealth regulators are properly resourced; and

(2) monitor the impact of the changes to the regulatory regimes affected by this bill to ensure there are no adverse unintended consequences".

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