Gary Humphries (ACT, Liberal Party) Share this | Hansard source

On behalf of Senator Coonan, I present the seventh report of 2009 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 8 of 2009, dated 24 June 2009.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to have Senator Coonan’s tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s alert digest No. 8 of 2009 and seventh report of 2009, I draw the senate’s attention to various provisions in the following bills:

• Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009;
• Renewable Energy (Electricity) Amendment Bill 2009;
• Renewable Energy (Electricity) (Charge) Amendment Bill 2009; and
• Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Bill 2009.

In relation to the Building and Construction Improvement Bill, the Committee has raised the issue of the independence of the Administrative Appeals Tribunal (AAT). Under proposed new section 45 of the Building and Construction Improvement Act 2005, the Director of the Office of the Fair Work Building Inspectorate may apply to a presidential member of the AAT for an examination notice. Examination notices are provided for under the bill to regulate the Director’s conduct of certain examinations relevant to investigations.

Proposed new subsection 44(1) provides that ‘(t)he Minister may, by writing, nominate an AAT presidential member to issue examination notices under this Division’. The explanatory memorandum and the second reading speech provide no explanation for this variation from the usual practice of the President of the AAT constituting members of the tribunal to hear applications to the tribunal.

However, the second reading speech cites the report by the Hon Justice Murray Wilcox QC, Transition to Fair Work Australia for the Building and Construction Industry (March 2009) (Wilcox Report). The Committee has noted that the Wilcox Report refers (at paragraph 6.9) to the Ministerial nomination of members of the AAT to determine whether to issue telecommunications interceptions warrants that allow specific investigative powers. Justice Wilcox also lists the President of the AAT as a person he consulted in preparing his report.

Nevertheless, the Administrative Appeals Tribunal Amendment Act 2005 repealed a number of special constitution provisions in various Acts requiring the tribunal to be constituted in a particular way, which enhanced the tribunal’s independence. The Committee has therefore sought the Minister’s comments in relation to the reasons for the departure in the bill from the usual practice of allowing the President of the AAT to allocate the work of the tribunal.

The Committee has also commented upon several provisions in the Renewable Energy (Electricity) Amendment Bill, particularly drawing attention to the fact that many elements of the new Renewable Energy Target (RET) scheme are to be regulated in delegated legislation.

The Committee has noted that the RET scheme has been designed in cooperation with the states and territories through COAG. While the Committee recognises the importance of giving effect to national regulatory schemes, it does not regard passage through the COAG process as a sufficient reason to bypass legislative scrutiny. While it is appropriate to include technical and procedural matters in regulations – such as forms (for example, proposed new paragraph 46A(2)(b) of the Renewable Energy (Electricity) Act 2000, to be inserted by item 14 of Schedule 2 of the bill) – the Committee regards substantive changes to the law as a matter for the relevant primary legislation.

For example, proposed new subsection 23B(2) of the Renewable Energy (Electricity) Act, to be inserted by item 6 of Schedule 1 of the bill, provides that ‘(t)he regulations may provide that, in the circumstances specified by the regulations’, the number of certificates created in relation to a small generation unit may be multiplied. The Committee has formed the view that this represents an unduly broad delegation of legislative power and has sought the Minister’s advice on the reasons for delegating the power to determine criteria for issuing certificates.

A similar issue arises with respect to the complementary Renewable Energy (Electricity) (Charge) Amendment Bill 2009 which increases the level of shortfall charge under the expanded RET scheme to encourage compliance with the scheme. Item 1 of Schedule 1 of the bill increases the charge from $40 to $65, and subitem 2(1) provides that the charge ends on 31 December 2030. This has the effect of fixing a long term rate of charge.

Again, while the Committee recognises that the bill gives effect to a national co-operative scheme, the Federal Parliament is not automatically obliged to pass the bill, or regulations made pursuant to it, without giving them due consideration in accordance with federal legislative standards. In the circumstances, therefore, the Committee has left any consideration and determination of this matter to the Senate as a whole.

The Committee has also sought further information from the relevant Minister in relation to the Social Security Pension Reform Bill. Schedule 13 of the bill provides for adjusted taxable income for the Commonwealth seniors health card to include income salary sacrificed to superannuation. Items 2 and 4 of Schedule 13 provide that the substantive amendments in Schedule 13 apply in relation to seniors health cards granted ‘before, on or after the commencement’ of the relevant amendments but do not affect a person’s qualification for a seniors health card before that commencement.

Under principle (1)(a)(i) of its terms of reference, the Committee is required to consider whether legislation trespasses unduly on personal rights and liberties. A person’s legitimate expectation that government and its agencies will honour expectations that it has created in relation to property is regarded as a human right in many jurisdictions, although approaches to its application vary. The Committee looks to extrinsic materials, including explanatory memoranda and second reading speeches, to understand the balancing of human rights that has produced the outcome in the proposed legislation.

While the explanatory memorandum states that the amendments will have no adverse retrospective effect, the Committee remains concerned about the impact of these provisions on people’s legitimate expectations that government will honour its commitments, especially when those expectations would be affected by legislation having retrospective effect. Therefore, the Committee has written to the Minister to seek advice as to whether further explanation for the retrospective application of the changes might be provided.

I commend the Committee’s Alert Digest No. 8 of 2009 and Seventh Report of 2009 to the Senate.