Rex Patrick (SA, Independent) Share this | Hansard source

I rise tonight to speak on the Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020, colloquially known as JobMaker. I'm going to do something a little bit unusual tonight, with your indulgence, Mr Acting Deputy President. I'm going to read a section of the Constitution, because it goes to a core problem that exists with this bill. I go to part I, section 1 of the Constitution, under the title 'Legislative power':

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.

Make no mistake: when Senator Roberts stands up and says he is a servant of Queensland, actually he has an obligation under the Constitution to recognise that it is in this place that laws are made; they're not made in back rooms of some office somewhere in the executive establishment. That is the problem with this bill at the moment.

This bill basically has two substantive paragraphs. It allows the government, the executive, to create a scheme that can have:

(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the relevant period, being payments that are primarily for the purpose of:

(i) improving the prospects of individuals getting employment in Australia, or

(ii) increasing workforce participation in Australia;

That's all it says. That's all we've been asked to vote on. What we've been asked to do is grant a power to the executive to go off and do whatever it is that they want, provided it fits roughly within the scope of what I've just read to you. That is not how this is supposed to work. We may be actually operating contrary to the Constitution.

Of course, there is delegated legislation; we understand about delegated legislation. Delegate legislation is where we enable the executive to make regulations of an administrative nature, or perhaps in circumstances where there is an emergency. So during the COVID crisis, when we were very concerned about whether or not the parliament could or could not sit, it was appropriate to pass a head of power for JobKeeper and for JobSeeker so that we could let the Treasurer get on and make sure that we dealt with a rapidly changing situation. We allowed the social security minister to work with a rapidly changing set of circumstances. That was an appropriate use of a head of power. But, thankfully—and I will give the government some credit for this—we are now back in a situation of relative normality and a situation where, if necessary, we can call the parliament together using remote log-ins as well. So there's very little question that we can't get the parliament to come in and deal with any piece of legislation with which there might be some problem.

Therein lies the problem. If I go back to a 2019 report from the Scrutiny of Bills committee, it says:

Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation (as opposed to Acts of Parliament). The volume of delegated legislation made each year has increased over time. For example, in the mid-1980s there were around 850 disallowable instruments tabled each year. By contrast, around 1,700 disallowable instruments are now made annually.

Enough is enough. You heard me read from the Constitution. Passing legislation that grants a head of power, but then assigns the functions of generating the rules to the executive, is not consistent with our job. We're abdicating our job to people in the backrooms of government buildings. You see, how this is supposed to work is: legislation is presented to the chamber and we talk about it. We contest that legislation, we debate that legislation and, ultimately, we vote on that legislation. When we vote, the people we work for—our constituents—get to see who voted for what and what they said. That doesn't happen in this circumstance, because the rules have been developed by the executive. We don't know who that is.

When we vote for this, perhaps later tonight or tomorrow, we're not even certain that the rules that have been circulated—because they're in an exposure draft form—will be the ones that actually come into play. The Senate doesn't even understand what it's voting for. As we go through looking at the bill tonight, as we go through the committee stage and people want to move amendments to change things, it's very difficult to do so, because, actually, all of the provisions are really in the rules. Sure, they might be disallowable, but disallowable not in a way where you can amend a regulation or seek to strike out part of a regulation—it's a job lot; you've got to say no to everything. And when the government wants to change something, they'll just do that. They'll change it. They'll table the regulation. They'll know that actually it's quite difficult in this chamber to have a disallowance, so it will go through. And you know what? Unlike when the government comes in with a bill to alter some legislation to which, provided it's roughly in scope, you can move amendments—because you've listened to your constituents and you know what the problems are and you want to make changes—you can't, because all of the details are set out in the rules. This is not the way things are supposed to work. This is not us doing our job properly. We should wait until the government has presented the rules to us, and then decide on that legislation on its merits.

On the basis that this bill is being constructed in a manner that abrogates the responsibility of the Senate, I will not be voting for it. I will not be voting for it. I am going to move an amendment that seeks to bring the rules back into the primary legislation, because that is how it's supposed to be. I hope I get the support of the crossbench and I hope I get the support of the Labor Party, because that's how the laws are supposed to be, not in some regulations drafted by someone in an office that we never get to see and voters never get to see.

I have some difficulty with some elements of this bill. I don't like the way in which it discriminates against people who are over the age of 35, and I'll have something more to say about that during the committee stage—indeed, I'm moving an amendment in relation to that. But I hope that in this instance the Labor Party stands up against the government. The government go off and do whatever it is they want to do, and they're quite comfortable doing that, and it is the job of a strong opposition to make sure that we constrain the government and make sure that they behave in a manner that is constitutional, and that is not what is happening here.

If we listened to what Senator Roberts just said, One Nation, very clearly, are not supporting this bill. And I've just indicated that, in its current form, in its unconstitutional form, I won't be supporting it either. What does that tell Labor? You've got the numbers to stop this. So, anything you don't like about this bill, you can stop. Later tonight or tomorrow, you can vote no at the third reading stage. I know that you're worried that that will somehow be portrayed in the media as you guys not supporting job creation, but it's not what that would mean. It would mean: 'Government, go back and sit down with the Labor Party and work together to find legislation that you can bring back to the chamber that is acceptable to the Labor Party.' We've just given you the numbers to do that. You now have strength because the government cannot get this bill through without the support of the Labor Party. That's pretty powerful. You have the choice now, the ability now, to go and talk in a room, to bring the rules back into the primary legislation, and let everyone see, discuss and debate it, and let everyone see how the people who propose the legislation are going to vote for it, because that is how this is supposed to work.

I will just repeat that, based on what Senator Roberts said, One Nation are not supporting this, so the government doesn't have the numbers. That gives you strength. But what you can't do now is wave it through. You can't just wave it through. You have the ability now to negotiate hard with the government, and I encourage you, I beg of you, to bring the rules back into the primary legislation so that the bill is constitutional, so that we are seen to be doing our job and so that we can lend support to some of the criticism that has come from the Scrutiny of Bills Committee from watching lots and lots of delegated legislation go through that does very significant things within the economy, within our communities. I encourage the Labor Party to think very carefully about this.