Nick Xenophon (SA, Independent) Share this | Hansard source

Yes, and notwithstanding those comments, I think there is a legitimate and genuine debate. There are some broader issues which the opposition may not like being discussed at this stage, even though it is not relevant to this particular debate—that is, whether the composition of the boards of industry super funds ought to be changed, whether they should be opened up. It is something Senator Sinodinos has commented on for some time. I think there ought to be a legitimate debate about that.

I also think all industry super funds ought to have a quasi annual general meeting so that their investors can actually turn up and ask questions of the board in a way similar to a shareholders' annual general meeting. I think they are the sorts of reforms that we need to look at and I commend the debate that Senator Cormann and Senator Sinodinos, when he was Assistant Treasurer, raised in respect of this. These are legitimate issues that I think need to be discussed.

I also want to pay tribute to Senator John Williams for the work that he has done on this issue. The point of disagreement I have with him is that I have a genuine concern that these regulations actually weaken consumer protections.

Before I go any further, I want to take this opportunity to set the record straight in relation to the issue of gags or otherwise. During this debate, I have been accused of supporting motions that would have the effect of gagging debate. Indeed, some of my coalition colleagues got quite exercised about it, quite angry, as they are entitled to, but I am afraid it is water off a duck's back in relation to that. That is part of the job. I am sorry if I make my colleagues angry in relation to this, but I want to put this in context because I think there is some misapprehension on their part as to what the facts are. I take exception to the view that was put to me in cross-chamber talk and the criticisms that have been levelled at me. They are not justified. I have always been very clear. I have never and will never support a motion that gags debate on a substantive issue, as opposed to a machinery motion, which we all know is so often used to avoid the debate and ultimately a vote on a substantive matter. I think, in their heart of hearts, my colleagues from the coalition would understand that what was happening today was an attempt to avoid a debate on the substantive issue, whether it is a piece of legislation or an amendment. They are quite disingenuous to suggest otherwise.

I have in the past supported motions to allow certain legislation or other matters to take precedence over other business, which is what I have done today. I have supported motions to have the question before the chair put, which may have the effect of ending a procedural debate but does not impact on any debate on the substantive issues in question and may indeed provide more time to deal with a substantive matter. To suggest otherwise is disingenuous at best. Let us make that very clear. I hope it is nothing more than a misunderstanding, in this case, by some members of the coalition. I believe my comments will have clarified the situation.

I will be voting to disallow these regulations in respect of financial advice because it is quite simply the right thing to do, for a number of reasons. All interested parties need to acknowledge that there are serious, legitimate concerns raised by many credible interested parties regarding the current regulations. I accept that the former government's approach was not without its flaws, but now the pendulum has swung too far away from consumers. These regulations have given comfort to a small minority of financial advisers who could use them as protection against unscrupulous advice or activities. I am sure that is not what the government attended. Disallowing these regulations today will in practical terms mean we are back to the regulations that were in place prior to 1 July. This is by no means ideal but it is preferable to the alternative.

I do not think it is unfair to suggest that the government's regulations should have, given their scope and significance, been dealt with as part of a bill rather than subordinate legislation. Indeed, I remind my colleagues of the concerns raised by the Regulations and Ordinances Committee and the Scrutiny of Bills Committees in relation to this matter. In particular, the Regulations and Ordinances Committee wrote, in their most recent delegated legislation monitor of 29 October 2014:

… the minister's response has not satisfactorily addressed the key scrutiny concern raised by both the Scrutiny of Bills committee and this committee—namely, that the regulation makes fundamental legislative change that may be more appropriate for parliamentary enactment (that is, via primary rather than delegated legislation). While the minister cites both the need for 'swift action' and the estimated savings or benefit to industry, the minister has not addressed the committee's concern that such imperatives may not amount to sufficient justification for effecting significant policy change via regulation (and therefore without the full scrutiny and approval of the parliament).

The committee also raised concerns about the potential for such regulations to create a precedent for using delegated legislation over primary legislation because of its convenience. The committee concluded:

The committee considers that the potential for this approach, in this and future cases, to 'permit a temporary mechanism to turn into a permanent legislative artefact', or to continue in operation despite the clearly expressed will of the Parliament (for example, if the bill were passed with an amendment to remove one of the measures in the regulation), is critical to the assessment of whether the legislative approach offends the committee's scrutiny principle …

It is also important to note what significant consumer groups have said in support of this disallowance and in opposition to the regulations. I know the minister has characterised Choice as a left-wing organisation, but can I assure the minister and Mr President that I will get advice whether it is from a left-wing or a right-wing organisation . Indeed, there are times when I think the Institute of Public Affairs make sense on some issues—not often but—