Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Hansard source

I thank all senators for their contribution to the debate on the Financial Framework Legislation Amendment Bill (No. 3) 2012. I will be brief. There were just a few issues that were raised in the context of debate which I should respond to. The first is Senator Brandis's complaint as to the legal advice not being provided. I place on record that the government has offered him on more than one occasion in relation to this bill a briefing by the Acting Solicitor-General, which he has not taken up.

The second is in relation to Senator Brandis's comments on the regulation-making power. I am advised that the regulation-making power in the bill remains with the Governor-General as per section 65, I think, of the financial management and accountability legislation. I think a couple of Senator Brandis's comments on this issue suggested that not even a minister but an official could make a regulation. The delegation power to which he refers relates only to the ability of an official so delegated to enter an agreement after such an agreement would be authorised by regulation.

The third point I would make is in relation to the scope of Williams, which Senator Brandis made some comment on. I think it is important not to conflate this debate with a number of other issues. The Williams decision stands for the proposition that government expenditure and programs need legislative support. This legislation before the chamber deals with that issue. It is true, as Senator Brandis referenced, that there was also discussion in that case as to whether the Commonwealth's executive power is limited by reference to the legislative heads of power. However, that matter has not been determined by the High Court and I think it is important in the discussion that the legislative response to the Williams case do not conflate those two issues—the government has not done so.

In relation to the sunset clause, I make a number of comments. Senator Brandis asserted in his speech in response to my comment that the sunset clause would not prevent the executive entering into arrangements which extend beyond the sunset day—he quoted from NSW v Bardolph. That case does not stand for the proposition on which he is relying. In particular the passage to which he was referring—which I think was, as he says, a paragraph out of the decision of the Chief Justice in Williams—refers to the Bardolph case. The Bardolph case stands for a proposition which relates to the contracts:

... in 'the ordinary course of administering a recognised part of the government of the State'.

The example there, I am advised, relates to departmental running costs. That is what the Bardolph case referred to. The bill before the chamber is not about spending in relation to departmental running costs. The listed programs in schedule 2 do not include such agreements and spending.

The senator also suggested that therefore the sunset provisions, which he has included as part of the coalition's position, would have no effect on the chaplain's case. That is not the view of the government on advice. The view of the government on advice is that the effect of the coalition's amendment would be to prevent the government entering into contracts to fund the chaplains program that exists beyond 31 December 2012. That would mean the government would not be in a position to enter into contracts, as is typically the case for the chaplains program, for a three-year period. I am surprised, given the opposition's support for the chaplains case, that they are in fact persisting with this amendment and, if they had the opportunity of the briefing that was offered and perhaps a little more time to have the discussion internally, I suspect they may not have. I thank the Australian Greens for taking, on that issue, the responsibility position.

Finally, in response to the second reading amendment moved by the Australian Greens, the government has made clear we are not supportive of that amendment. We have made changes, however, of which I know Senator Milne and Senator Wright are aware, which introduce a requirement for a certificate IV qualification in relation to the delivery of this program. I believe those changes were made by Minister Garrett earlier this year.

I commend the bill to the Senate.