Robert Ray (Victoria, Australian Labor Party) Share this | Hansard source

I present the 11th report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 14 of 2006, dated 29 November 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In its Alert Digest No. 12 of 2006, the Scrutiny of Bills Committee drew senators’ attention to certain provisions in the Environment and Heritage Legislation Amendment (No.1) Bill 2006. The committee’s comments ran to 12 pages and the issues raised were such that they prompted government and opposition senators to join me in expressing concern at the apparent lack of rigour in the drafting of this bill, particularly in the drafting of the explanatory memorandum that accompanies it.

The bill was the subject of examination by the Senate Standing Committee on Environment, Communications, Information Technology and the Arts. That committee noted the Scrutiny of Bills Committee’s concerns and expressed the hope that the minister’s response to the questions raised by the committee would address these concerns. I am sorry to say that for the most part they do not, and the committee continues to draw a number of these concerns to the attention of the Senate in its 11th report of 2006.

The committee’s general concern with this bill is that it introduces a range of significant and intrusive powers and fails to provide the detailed explanation and justification which this committee and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers expects in such exceptional circumstances. In responding to the committee’s request as to the justification for the imposition of strict liability in the bill, the minister has responded in detail, setting out the justification in each case with relevant background and examples and assuring the committee that the principles set out in the guide and in the committee’s sixth report of 2002 were given due consideration in drafting the provisions. The committee regrets that these clear explanations have not been included in the explanatory memorandum to the bill.

The committee is less than satisfied with the minister’s responses to its concerns in relation to other provisions. For example, the committee noted that the bill provides for the removal of merit review by the Administrative Appeals Tribunal for decisions made personally by the minister in relation to various types of permits. The committee’s concerns are not allayed by the minister’s statement that these complex and sensitive decisions are considered sufficiently important to be taken by the minister as an elected representative and therefore should not be overturned by an unelected tribunal such as the AAT. The committee notes the submission of the Law Council of Australia that these provisions do not appear to allow for the position where the minister in applying the law under this act may have applied the law incorrectly.

Similarly, the committee continues to have concerns in relation to a lack of clarity regarding the types of searches provided for under certain provisions. The primary act distinguishes between frisk searches and ordinary searches. The committee was concerned to note that certain provisions in the bill make no such distinction, leaving it unclear as to the exact nature of the incursion on personal rights and liberties under such provisions. The minister has responded, stating that the searches in question are ‘essentially the equivalent of frisk searches’ and that it is unnecessary to specify the nature of the search in these particular provisions. The committee is not persuaded by this. These provisions permit a degree of intrusion upon an individual’s rights and liberties and the provisions should be quite clear as to the extent of this intrusion, particularly as the act already provides the means to achieve this.

Finally, the committee remains concerned at the limited justification provided for the insertion of the power to conduct strip searches. The committee draws no comfort from the minister’s statement that it is considered highly unlikely that it would ever be necessary to conduct strip searches of environment detainees and that similar powers under the Migration Act have only been used once since January 2003. This statement does little to demonstrate a need for the introduction of such exceptional powers.

Statements like these underscore the committee’s long-held view that parliament needs to exercise caution when considering legislative proposals containing such intrusive powers. Where such powers are provided, there is a need for greater accountability and review in relation to how and when they should be used. The committee notes that in other jurisdictions the exercise of police powers such as these is monitored by parliamentary committees. The committee considers that the extension of such powers to other agencies must be accompanied by clear accountability and reporting mechanisms.

The committee notes the minister’s statement that the Department of the Environment and Heritage will be working closely with the Department of Immigration and Multicultural Affairs to establish mechanisms and protocols for the implementation of these amendments. The committee expects that these mechanisms and protocols will be tabled in the parliament, as is the case in relation to similar powers exercised under the Migration Act, on which these amendments are modelled. I urge senators to give due consideration to the concerns set out in the committee’s 11th report of 2006.