Kimberley Kitching (Victoria, Australian Labor Party) Share this | Hansard source

I'm pleased to speak on the Defence Legislation Amendment (Instrument Making) Bill 2017. This is a non-controversial bill which the opposition supports. I do take a close interest in defence-related matters, so I don't think any defence bill should pass through the Senate without debate.

The purpose of the bill is to amend the primary legislation, the Defence Act 1903, and the Regulatory Powers (Standard Provisions) Act 2014, so that these amendments will be reflected in legislative instruments made under these acts when they are re-made. There are three legislative instruments that will sunset in 2018 unless they are re-made before this date. These are the Defence (Inquiry) Regulations 1985, the Defence (Areas Control) Regulations 1989 and the Defence (Public Areas) By-Laws 1987.

I turn first to the Defence (Inquiry) Regulations 1985. The power to make these regulations is at paragraph 124(1)(gc) of the Defence Act. This section provides the power to make regulations for a range of inquiries, including general courts of inquiry, boards of inquiry, Chief of the Defence Force commissions of inquiry, and inquiry officer inquiries. The intention is to consolidate the different types of inquiries—and some may say, 'Thank goodness for that!'—and refer only to one form of inquiry which has flexibility and can scale to meet the circumstances of each inquiry. The amendment would provide greater flexibility in naming inquiries and replace them with the general term 'an inquiry'.

Secondly, I turn to the Defence (Areas Control) Regulations 1989. These regulations maintain safety for defence aviation by including limits on building heights within the prescribed areas, prohibitions on bringing hazardous objects within a prescribed area, the power to remove or mark hazardous objects within prescribed areas and the power to enter a prescribed area to remove or mark hazardous objects—and I think we can all see why they are necessary.

Thirdly, we have the Defence (Public Areas) By-Laws 1987. These by-laws apply to the public areas declared by Defence under part IXB of the Defence Act. There are two public areas that have been declared under the act: the Beecroft public area in New South Wales and the Garden Island public area in Western Australia. Each public area is a significant tract of Defence land where there is a strong interest in enabling public entry for recreational purposes. The main change to the by-laws is the introduction of an infringement notice scheme.

This bill was considered by the scrutiny of bills committee. The committee raised concerns about the extent to which it allows laws to be made by regulations and not by way of primary legislation. I quote from the committee's comments in relation to the Defence (Inquiry) Regulations.

The committee's view is that significant matters, such as these, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum simply states that the bill does not make any changes to the ability to make regulations to compel a person to appear before and answer questions at an inquiry. It does not state whether consideration was given as to whether the details regarding commissions of inquiry would be more appropriate for inclusion in the primary legislation.

The committee reiterates its view that the power to appoint a commission of inquiry and the detail of the inquiry's procedures and powers contain matters that go beyond mere technical detail. The committee's longstanding view is that significant matters such as these should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

The Minister for Defence, in response to the committee's comments, said:

Matters relating to the appointment, procedures and powers of inquiries concerning the Defence Force have been dealt with under Regulations for many decades … The current arrangements permit a necessary degree of flexibility for the Australian Government to determine forms of inquiry in the Defence Force, having regard to administrative, organisational and operational changes that occur from time to time. At the same time, appropriate Parliamentary oversight of the content of such regulations is maintained by the Senate Standing Committee on Regulations and Ordinances, as well as sunsetting arrangements under the Legislation Act 2003.

The committee did not find this to be a particularly enlightening response. It said:

The committee notes that the fact that certain powers have been contained in delegated legislation for many years without any recommendation that they be moved to primary legislation does not address the question of whether they would be more appropriate for inclusion in primary legislation.

In relation to the Defence (Areas Control) Regulations, the scrutiny of bills committee said:

… the committee notes that the regulation of all types of hazards to aviation and aviation-related communications, which includes prohibiting the construction or use of buildings, structures or objects within a defence aviation area, is a significant matter that may be more appropriate for inclusion in primary legislation, noting that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

Once again, also, the committee noted that just because this area has been regulated in this way for many years does not, of itself, justify continuing this practice.

I think the scrutiny of bills committee has raised some valid concerns about the extent to which government departments—not just Defence, as in this case, but all departments—are given power to make legislative instruments without these being subject to adequate parliamentary scrutiny. This is particularly so when these instruments give departmental officers quite sweeping powers to regulate the use of property and the actions of people. Despite these concerns, the opposition will be supporting this bill because it has the merit of simplifying and bringing up to date the regulations under which Defence operates in these three areas.