Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I would also like to speak to this report. It is important that senators do give consideration to this report. The Scrutiny of Bills Committee is one of the underrecognised committees in this place, in part because it goes about its work in a non-partisan way and because it deals with issues that are in broad terms outside of policy debate. It assesses legislation not on its policy merits but on whether it meets basic guidelines, including the adequacy of the drafting of explanatory memorandum to legislation and some basic legal principles.

This report flows on from the Alert Digest, as Senator Ray has said, and it is important to draw attention to it. It relates to the Environment and Heritage Legislation Amendment Bill (No. 1), which is due to be debated. Debate on that will probably start later this evening or else tomorrow. I do not wish to pre-empt debate on that but I do want to draw attention to the report because I think it is important that all senators—and obviously particularly all senators on the government side, who, one would assume, are more likely to vote for the legislation unamended—consider the issues raised in this report. I assume it is a unanimous report, as is almost always, if not always, the case from this committee. That means that it should be taken even more seriously than other reports. It deals with the basic legalistic framework of legislation and particular matters such as those raised by Senator Ray.

It is also important because the responses given by the minister, at least in some of the concerns that are raised, draw on the rationale: ‘We’re doing this to make it consistent with other acts.’ In relation to these powers about, for example, strip searches, searches without warrants and other types of searches, the minister has said: ‘We’re doing this to make it consistent with the Fisheries Management Act.’ I recall that it was in the middle of last year when the Fisheries Management Act was amended to make it consistent with the Migration Act.

I certainly agree that consistency in legislation is a good thing, but the report of the committee draws attention to the important fundamental principle that you do not give these sorts of extraordinary powers to conduct searches without warrants and strip searches to general Commonwealth officials. These are not Federal Police officers; they are Commonwealth officials, Fisheries officers and Customs officers. An extremely good reason for not giving those sorts of powers is that you will not then have the problem of a slippery slope starting to operate, where, once it is in place in one act, you can say: ‘It’s already done in this act. We’re just putting it in another one; we’re putting it in a third one.’ The in some ways counterintuitive argument from the minister is: ‘We’ll put in these strip-search powers. It’s highly unlikely we’ll ever need them but we’ll put them in anyway because it makes it consistent.’ It being highly unlikely you will ever need them is not exactly the most compelling argument for introducing powers like these. You should have a compelling argument before you bring them in.

Similarly, with the strict liability offences, including strict liability offences that have jail terms, there have been quite comprehensive responses from the minister, and I acknowledge that. As the committee has said, it would have been rather more helpful if many of these points had been put in the explanatory memorandum in the first place—that is what explanatory memoranda are for. They are not just for us as legislators but for people in the community so they can read them and understand why we are doing something. It is no use having explanatory memoranda that say, ‘Clause x does y.’ You can read that in the bill. You need to know why it is justified and what the reasoning is for introducing strict liability offences, in particular where they have jail terms attached. People can make their own judgements about whether the explanations warrant imprisonment being attached to the strict liability offences. But the committee has repeatedly stated that these things should be explicitly reflected in the explanatory memorandum, and it is a significant problem when they are not.

The other area I draw attention to is the minister’s response with regard to removing the merits review of ministerial decisions preventing appeal to the Administrative Appeals Tribunal. The rationale given by the minister is:

... where these decisions are sufficiently important to be taken by the Minister as an elected representative, those judgement calls should not be able to be overturned by an unelected tribunal such as the AAT.