Stephen Parry (Tasmania, Liberal Party) Share this | Hansard source

On behalf of Senator Coonan, I present the 10th 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. 11 of 2009, dated 9 September 2009.

Ordered that the report be printed.

I move:

That the Senate take note of the document.

Question agreed to.

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

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No. 11 of 2009 and Tenth Report of 2009, I draw the Senate’s attention to provisions in the following bills:

Crimes Amendment (Working With Children – Criminal History) Bill 2009;

Education Services for Overseas Students Amendment (Re-registration of Providers and Other Measures) Bill 2009; and

Foreign States Immunities Amendment Bill 2009.

With respect to the Working With Children – Criminal History Bill, the Committee has noted that Schedule 1 contains provisions amending the Crimes Act so that criminal history information relating to ‘spent’, pardoned or quashed convictions can be exchanged with prescribed bodies for the purpose of child-related employment screening. Proposed new Subdivision A of Division 6, to be inserted by item 6 of Schedule 1, contains a number of provisions allowing for exclusions for the purpose of assessing the suitability of persons for working with children.

Under principle (1)(a)(i) of its terms of reference, the Committee has regard to whether provisions in bills trespass unduly on personal rights and liberties. The Committee has noted that, despite its divergence from the general rule that a person does not have to disclose information about his or her criminal history where a conviction is ‘spent’, pardoned or quashed, the bill provides for mandatory review of the operation of new Subdivision A. Further, disclosure can only be made to prescribed bodies for a prescribed purpose by a prescribed body; and the person or body receiving the information must comply with principles relating to privacy, human rights, records management, natural justice, and risk assessment frameworks.

While mindful of the stated aim and purpose of the amendments to protect children from sexual, physical and emotional harm, along with the fact that extensive safeguards have been provided, the Committee considers that there may still be significant possible adverse effects on a person’s rights and liberties through disclosure of criminal history information. Therefore, the Committee has sought the Minister’s advice and clarification in relation to the breadth of the bill’s application.

In particular, the Committee wishes to ascertain whether the bill covers all of a person’s criminal history information or is more limited to criminal history pertaining to offences involving, for example, sexual assault or violence. If a person’s entire criminal history is intended to be covered, the Committee would like to know why this is considered necessary and appropriate in the context of the stated purpose of the bill. The Committee has also sought advice on the reasons for the application of the amendments to offences that have been ‘quashed’. Further, it is not clear to the Committee from the language used in the bill that exchange of information under the proposed scheme is mandatory or would simply allow relevant information to be exchanged in particular circumstances.

Proposed new section 9B of the Education Services for Overseas Students Act, to be inserted by item 11 of Schedule 1 of the Education Services for Overseas Students Amendment Bill, makes provision for deciding whether a higher education provider is ‘a fit and proper person’. Proposed new paragraph 9B(1)(b) specifies that paragraphs 9(2)(ca) and 9A(2)(e) (which contain certain criteria) do not apply to providers ‘entitled to receive funds under a law of the Commonwealth for recurrent expenditure for the provision of education or training, other than one excluded by the regulations from the scope of this paragraph’. The Committee has noted that this is a ‘Henry VIII’ clause.

The explanatory memorandum does not explain why regulations will be needed to exclude certain providers from the scope of paragraph 9B(1)(b). Therefore, the Committee has sought the Minister’s advice on the reasons for the use of the regulation-making power to alter the scope of the principal legislation in these circumstances.

The Committee has also identified a ‘Henry VIII’ clause in the Foreign States Immunities Amendment Bill. Proposed new subsection 42A(1), to be inserted by item 2 of Schedule 1, extends immunity in tort proceedings under the Foreign States Immunities Act 1985 to a foreign state and its emergency management personnel for acts or omissions that occur in the course of the foreign state providing emergency management assistance to Australia. Specifically, immunity is extended if the Minister is satisfied that a foreign state (or its entity) is providing assistance or facilities to the Australian government(s) for the purposes of preparing for, preventing or managing emergencies or disasters.

Under proposed new subsection 42A(2) of the Foreign States Immunities Act, such immunity would be achieved by excluding or modifying the application of section 13 of the Act by regulation. The Committee notes that current section 13 provides that a foreign state is not immune in a proceeding insofar as the proceeding concerns: the death of, or personal injury to, a person caused by an act or omission done, or omitted to be done, in Australia; or loss of, or damage to, tangible property caused by a similar act or omission.

Proposed new subsection 42A(2) is a ‘Henry VIII’ clause. The explanatory memorandum explains (at paragraph 10) that ‘(t)he scope of the regulation-making power is limited to emergencies or disasters which occur, or which may occur, in Australia’. An example is given (at paragraph 13) of the use of regulations to exclude the application of section 13 in whole, or in part, to a foreign state with respect to personnel assisting in bushfire prevention or management. The Committee has sought advice from the Attorney-General as to whether it might be appropriate for the Act itself to confine the scope of the regulations by listing specific circumstances in which it is envisaged that this regulation-making power will be used.

The Committee has also sought the Attorney-General’s clarification in relation to how the scope of the proposed exception will be practically confined so that it applies only to foreign officials acting in the course of their duties, noting that emergency situations may necessarily involve the legitimate performance of a wide range of unforeseen or unusual duties.

I would also like to make mention of several recent undertakings by Ministers to make changes to explanatory memoranda on the basis of suggestions made by the Committee. Increasingly, the Committee has resolved to request that particular information provided in Ministerial responses should also be included in explanatory memoranda to provide more context and background to proposed amendments, and to assist readers and those affected by the legislation. The Committee is also pleased to note that some Ministers have undertaken to give further consideration to certain issues which have been brought to their attention by the Committee. Examples of such undertakings can be found in the Tenth Report of 2009 which I am tabling today.

The Committee thanks Ministers and Departments for their responsiveness in issuing corrections and supplements to the relevant explanatory memoranda and for their readiness to engage in further dialogue about particular matters. Such results are testament to the value of the Committee’s work and serve to highlight the importance of the Committee’s ongoing relationship with Ministers and their Departments.

I commend the Committee’s Alert Digest No. 11 of 2009 and Tenth Report of 2009 to the Senate.