Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Hansard source

I move amendment (1) on sheet 4853:

(1)    Schedule 2, item 10, page 14 (line 15), omit “notifying”, substitute “procedures to be observed by a person who is notifying”.

I want to speak briefly to this amendment and to a number of the issues that the minister put forward in her closing remarks. In the second reading debate I set out in detail the opposition’s concerns about the regulation-making power regarding procedures for notification that are contained in the bill. We acknowledge that there are competing legal interpretations of this proposed power and I set out the opposition’s concerns that arise if a broad interpretation is preferred. I want to note that an amended EM—explanatory memorandum—was introduced during debate in the other place. That fulfils the commitment made to the Senate committee that a clarification statement would be made to explicitly state that prescribed events may only be determined expressly in the regulations.

I want to make the point that when the minister says, ‘Oh, there is no problem here; there is no issue,’ the government has responded to a request that a statement be made in the EM to clarify the precise scope of the power that is being given in this bill. I also want to note that, through the inclusion of a statement in the EM, the department and the minister are in fact acknowledging the validity of the concerns raised by the opposition and other parties about the unintended consequences of this bill and the concerns raised by the Senate committee inquiry and the office of the shadow minister, the member for Jagajaga, in discussions with the department and the former minister’s office. We note that such a statement in the amended EM would be considered as relevant extrinsic material by any court considering this matter. However, we remain concerned that the express intention of the parliament is not being clearly stated in the bill itself, and we invite the Senate to consider that this is the opportunity to make that explicit intention clear in the bill, not simply in the explanatory memorandum. We would be interested in whether the officers present are able to advise the minister if the clarification statement in the explanatory memorandum has the same effective outcome as the opposition amendment moved in the Senate. I note that, in the other place, the minister was asked to explicitly state whether that statement has exactly the same effect as the substantive amendments moved by the opposition. The minister could not, in that place, provide such an assurance.

I stress that, while technical and legal in nature, the concerns that have been raised by senators in this place go to fundamental issues of the powers of parliament to adequately scrutinise legislation which impacts on the entitlement of Australians to income support benefits. Taken as a whole, this bill will enshrine a much diminished set of options for student income support against a backdrop, as I have outlined, of a government record of unalloyed policy failure when it comes to income support for students—an area that is so vital to the success of so many students who are in genuine need of assistance. Other provisions in the bill attack, in the manner I have described, the role of the parliament as a fetter on untrammelled executive power. To the opposition these are unacceptable. I invite the minister to provide the assurance that was not provided in the other place as to whether the statement has exactly the same effect as the amendment moved by the opposition.

I also want to make the point that this is not, as I understand it, an issue about payment rates. The primary concern which we have outlined and which was referred to in the Bills Digest is that the provisions of the bill as it currently stands, notwithstanding the statement in the EM, has the potential to remove certainty from the obligation and the matching offence and removes parliamentary scrutiny with respect to the scope of the obligation. That is the crux of the concerns which have been raised by the opposition and, I understand, by Senator Stott Despoja on behalf of the Democrats.