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

I speak to the latest report of the Scrutiny of Bills Committee. This is an important report. You could say that about all of them, but I think that this one, in particular, deserves attention. The Scrutiny of Bills Committee is a non-partisan committee. It assesses legislation against basic principles of good public policy and good public administration and basic principles of the rule of law. It does not make assessments about the policy merits of legislation and, inevitably, it produces unanimous reports. It has members from the Labor Party and the Liberal Party and my Democrat colleague Senator Andrew Murray. Unfortunately, it often does not get the attention it deserves precisely because it does not deal with policy merits; it deals with administrative principles, which immediately makes people’s eyes glaze over. But those administrative principles are fundamental things like whether or not a person who is affected by a decision has any right to a review of that decision, whether or not the power that a minister is giving to themselves to make particular decisions is a power they have under the law and whether or not the determination that a minister is making is one that is consistent with the law—those pretty fundamental things.

This latest report from the Scrutiny of Bills Committee is once again both unanimous and very concerning, and it is not something that should pass without comment. The committee produced a very comprehensive report a few weeks back at very short notice to deal with the package of the five pieces of legislation that dealt with the government’s emergency response with regard to Aboriginal communities in the Northern Territory. As people may recall from that debate, the government pressed ahead with having the legislation considered by the Senate before it had produced any sort of response to the committee’s report. It then tabled some response part-way through the committee stage of the debate.

But this latest report from the committee does provide follow-up information. Even though those pieces of legislation have now passed into law, the committee has nonetheless produced this report for the information of senators and for the community—and it is very appropriate that it has done so. With all due respect to the senators who passed the legislation, I would suggest that they look at this report and at the concerns the committee has continued to express. They have expressed a range of concerns, and I doubt that in the short time available to me I can detail them all, but I will refer to a couple. With one example some questions were raised about the fact that, under the new Northern Territory response legislation and amendments to the Aboriginal Land Rights (Northern Territory) Act, the minister now has the power to determine whether any person can enter or remain on particular roads on Aboriginal land or to put in place temporary restrictions on the rights of people to enter or remain on roads on Aboriginal land or within Aboriginal community land.

The government has decided that such determinations made by ministers are not legislative instruments, which means they cannot be overseen by this parliament. In some cases, the legislation just states that determination is not legislative in character but that it is purely a short-term administrative measure and therefore does not require oversight by parliament or the prospect of disallowance. In other cases, the committee report says that the legislation—and the response from the minister—specifically states that the ‘Attorney-General has granted an exemption for these determinations from the Legislative Instruments Act,’ thus implying, according to the committee, that the determinations are, in fact, legislative in character.

The Attorney-General has granted an exemption for these determinations from the Legislative Instruments Act on the basis that they are ‘only temporary in nature and will often need to take effect on very short notice’. The report says:

The committee notes, however, that the fact that an instrument is temporary in nature and needs to take effect on short notice is irrelevant to whether or not it is considered to be a legislative instrument, as defined in .... the Legislative Instruments Act 2003. The committee further notes that while the Legislative Instrument Act 2003 provides for the Attorney-General to issue a certificate determining whether an instrument is a legislative instrument or not, it makes no provision for him—

the Attorney-General—

... to ‘exempt’ a determination from that Act.

It does raise the issue of having the Attorney-General unilaterally saying that this legislative instrument is exempt from the Legislative Instruments Act ‘because I say so’. That, I would suggest, is a precedent that all senators—who are, I might remind us, law makers—should be concerned about. Another section of the legislation which I think is very germane to other matters and debates that have happened in this chamber this week goes to the issue of merits review. There are a range of areas in these different bills, which are now law, where very significant decisions affecting people are not subject to merits review. The committee sought the minister’s advice as to whether, if they are not legislative instruments, as the minister says—and these are a range of things that go to what can happen on people’s land in relation to interests in Aboriginal land in the territory—because they are administrative in character, they are administrative decisions. The question then becomes whether they should be subjected to merits review under the Administrative Appeals Tribunal Act.

The response from the government is that it is not appropriate for these determinations and notices to be subject to merits review under the act, because the potential for review would create unacceptable delays for what are short-term emergency measures. They may or may not be emergency measures, but they are potentially in place for five years. I do not know of any other Australian who would accept administrative decisions being made about what can and cannot be done on their land that could be enforced for five years and who would then say, ‘That’s okay; I don’t need any merits review of that because it’s only short term.’ It is such a ludicrous perversion of language. We are used to that in question time or media conferences or those sorts of things but this is perversion of language in the law, and that, I submit, is a serious problem.

I will use one more example which I think is very relevant and very current, given some of the great protestations that have been made by coalition members throughout this week about the disgraceful actions of the Queensland Labor government in taking away the democratic rights of Queenslanders with regard to their local councils—criticism I very much concur with, I might say. We had continual outrage from coalition members saying that there was no right of appeal with regard to the determinations that were made to amalgamate councils by the review body. ‘How terrible; no review; what a disgrace,’ they said. I totally agree that it was a disgraceful process. But the powers in this act can bring about the complete abolition of councils. The minister can just come in and seize the assets of a community store. The minister can just come in and wind up administrative bodies and organisations and community councils on Aboriginal land throughout the Northern Territory.

In responding to the committee’s concern about why there is no merits review of these decisions, the minister’s response was: ‘If we gave people the right to merits review for these decisions, this would prolong matters.’ Yes, it would prolong matters. Reviewing things does prolong matters; that is true. But, as the committee says, the absence of merits review of a decision not to approve a new community store licence, for example, or the absence of merits review of a decision to abolish an organisation or a council does have a pretty significant effect on people. The committee is of the view that this argument that merits review would prolong matters could be made in respect of any merits review process is not justification for refusing a review.

Obviously, this was in the law. The Senate can pass whatever law we like, but let us not kid ourselves that what we are doing is a fair process. In particular, let us not come in here and cry crocodile tears about the Queensland Labor government preventing merits review of decisions that require amalgamations of councils and then pass legislation that precludes merits review of complete takeovers of community councils and community stores on Aboriginal land in the Northern Territory and come back and say, ‘We didn’t have merits review because it would prolong matters if we did that.’ How pathetic. The double standards are disgraceful. But the bigger problem is that these sorts of things are being put in law and we have Senate committees drawing them to the Senate’s attention and nothing is being done. I seek leave to continue my remarks later.

Leave granted; debate adjourned.