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

I present the Scrutiny of Bills Alert Digest No. 9 of 2007, dated 13 August 2007. I seek leave to move a motion in relation to the document.

Leave granted.

I move:

That the Senate take note of the document.

What a privilege it is to have a former distinguished member sitting on the frontbench there. Alert Digest No. 9 of 2007 examines the five bills introduced to support the implementation of the Northern Territory emergency response and alerts the Senate to provisions that may be considered to raise issues within the committee’s terms of reference. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007, the Northern Territory National Emergency Response Bill 2007 and the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 all include provisions that exempt all or parts of these bills from part II of the Racial Discrimination Act. The committee notes that in each case the explanatory memorandum to these bills seeks to justify this exemption on the basis that their provisions are special measures, as provided for in the International Convention on the Elimination of All Forms of Racial Discrimination.

The committee concludes that these provisions may be considered to trespass on personal rights and liberties, but leaves it for the Senate as a whole to determine if they do so unduly in the light of their classification as special measures. Two of these bills—the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 and the Northern Territory National Emergency Response Bill 2007—also include provisions that would give the minister the power to repeal parts of these bills, or to declare that parts cease to apply, by legislative instrument. These instruments would not be disallowable by the parliament. The committee takes the view that the parliament, rather than the executive, is the appropriate body to determine when laws are to come into force and when they cease to have effect. As such, the committee considers that these provisions may inappropriately delegate legislative power, but leaves it to the Senate as a whole to determine if they do so unduly.

In respect of the Northern Territory National Emergency Response Bill, the committee has identified a number of additional provisions that may be considered to raise issues within the committee’s terms of reference, and I would like to highlight a number of these. Firstly, the bill contains a number of provisions that create offences for the possession and sale of liquor containing more than 1,350 millilitres of alcohol but does not define the term ‘alcohol’ or provide advice on how the amount of alcohol in the liquor is to be calculated. The committee draws these provisions to the attention of senators because they may be considered to trespass on personal rights and liberties by creating offences that lack clear definition. Secondly, the bill contains provisions which enable the Commonwealth minister or officials to make various decisions, for example in respect to liquor licences, community store licences and the suspension of members of community government councils, without any provision for merit review of these decisions. The committee draws these provisions to the attention of senators as they may be considered to make rights, liberties and obligations dependent on non-reviewable decisions.

Finally, the bill includes a number of provisions that allow delegated legislation to amend this act or Commonwealth and Northern Territory acts. The committee notes that the explanatory memorandum to the bill does not provide an explanation regarding why it is considered necessary to be able to amend or modify primary legislation through regulations rather than by reference to the parliament. As such, the committee draws senators’ attention to these provisions as they may be considered to delegate legislative powers inappropriately.

The committee has also identified a number of additional provisions in the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 which I draw to the attention of senators. These include proposed new subsection 123UK(1) of the Social Security (Administration) Act 1999 to be inserted by item 17 of schedule 1 of the bill, which provides for the question of whether an unsatisfactory school attendance situation exists or has existed in relation to a child to be ascertained in accordance with a legislative instrument made by the minister. The committee notes that the definition of an unsatisfactory school attendance situation is fundamental to the application of the income management framework to welfare recipients. As such, the committee suggests that this definition may be considered a matter that is more appropriately dealt with in primary legislation. The committee considers that this provision may inappropriately delegate legislative power, but it leaves it for the Senate as a whole to determine if it does so unduly.

This bill also includes a number of provisions that allow the Queensland commission or child protection officer of a state or territory to give the secretary of the department a written notice requiring that a person be subject to the income management regime. But the legislation is unclear as to whether or not these discretions are subject to merit review. Similarly, the bill includes provisions that explicitly exclude some decisions from merit review. The committee draws these provisions to the attention of senators as they may be considered to make rights, liberties or obligations dependent upon reviewable decisions.

Finally, the committee notes that, while the bill indicates that individuals subject to the income management regime will not lose any of their welfare entitlements, it does not appear to make any reference to the payment of bank interest in respect of funds deducted and held in an income management account. This is income that would have been available to an individual had these funds been deposited in their own bank account. The committee seeks the minister’s advice in respect of this matter but, pending this advice, draws these provisions to the Senate’s attention as they might be considered to trespass on personal rights and liberties.

I commend this Alert Digest to the Senate. I thank members of the committee for convening this morning; for other circumstances, I could not be there. The committee has dealt with these bills and has drawn a record number of matters to the attention of the Senate—some 28, which I think is a record. It may indicate to the Senate that, whilst there is bipartisan support for the legislation, we should not get the technical aspects wrong, because they may come back to haunt us. So I really urge the government to look at that. To show our bona fides, we sent the minister an embargoed copy of this report some hours ago so that it could be worked on. I thank the Senate.