Jordon Steele-John (WA, Australian Greens) Share this | Hansard source

I rise, in the metaphorical sense, this evening to make some contributions in relation to the Export Control Amendment (Miscellaneous Measures) Bill 2020. The bill makes amendments to the Export Control Act 2020 and seeks to do a couple of different things: clarify the operation of the fit and proper person test when verifying the registration of export establishments; provide greater flexibility in the requirements for lodging a notice of intention to export; enable the rules relevant to providing guidance in relation to the approval of export permits; enable the rules to modify the provisions of the act and the Administrative Appeals Tribunal Act 1975 in relation to the review of the tariff rate quota certificate decisions; and, enable the rules to incorporate matters contained in agreements between Australia and other countries that relate to tariff rate quotas.

The Greens have a couple of serious concerns with the bill. While this bill claims to make minor, largely technical, amendments, the provisions which allow for changes to Export Control Act 2020 and the AAT Act are actually quite significant in nature. The function of these provisions is to limit the scope of the types of decisions that the AAT can make when reviewing tariff rate quota, TRQ, certificates. We are primarily concerned about the implication of narrowing the recourse for exporters to challenge the outcome of a review on their TRQ certificates. The aspect we are least comfortable with is the fact that this bill is seeking to constrain the types of decisions that both the AAT and the department secretary can make and are reviewable in relation to TRQ certificates. They will not be able to make decisions on TRQ certificates where Australia has reached its tariff rate quota for any particular goods.

The implication we fear is that the context of this bill is primarily concerned with agricultural exports, and smaller, less powerful, less connected agricultural exporters risk being locked out of accessing and appealing TRQ certificate decisions where bigger exporters have been able to get access to them first. In principle, limiting the recourse for decisions made by government departments, where the department is empowered to make decisions on whether one private company can earn money over another, is of significant concern. As stated by the minister in response to the report of the Senate Standing Committee for the Scrutiny of Bills:

It is proposed that rules under section 386 of the Act, as amended by the Bill, will be made in equivalent terms to the current Export Control (Tariff Rate Quotas) Order 2019, which prevents a person making a decision to overturn an initial decision if there is an insufficient amount of quota available at that time. This means there will be no change to the current administration of tariff rate quota certificates or impact on related trade agreements.

While we acknowledge that this bill seeks to retain the status quo for how TRQ certificates are administered, we are taking a principled decision not to support the provisions which allow for regulations to make changes to the original Export Control Act and the AAT Act. We see that they limit the capacity of individuals or entities to access a fair hearing when a review of decisions is limited in scope. This issue was raised at the level of the Senate Standing Committee for the Scrutiny of Bills, and we do not see that the minister's response satisfactorily accounts for this provision.

The amendments which we will move are very simple. We are seeking to remove items 9 to 13 of this bill, which will allow for the modification of the Export Control Act 2020 and the Administrative Appeals Tribunal Act 1975. The function of our amendments is to ensure that exporters seeking to challenge the decisions around TRQ certificates and entitlements have access to the full extent of available recourse.

In closing I will reflect upon a very fine speech made in this chamber during the last sitting by Senator Carr, a distinguished and long-term member of this place. Senator Carr made a very compelling argument that, unless there was a very well articulated case made by the government and the Public Service—by the department—that legislative ability be put beyond the review or intervention of this chamber, such an act should not be taken. I will quote directly from the Bills Digest in relation to the comments made by the scrutiny of bills committee:

The Committee further stated that its concerns were heightened by the fact that the modifications may be in relation to review of decisions, and may therefore affect an individual's right to a fair hearing. It requested advice from the Minister as to why the provisions are considered necessary and appropriate, the circumstances in which it is envisioned the powers will be used, and whether they may trespass on the right to a fair hearing.

At the time of the production of the Bills Digest, the minister had not even deigned to answer. The answers that were subsequently given went in no way far enough to justify such a potential risk. In addition, the scrutiny of bills committee expressed concerns about the amendments which enabled delegated legislation to modify primary legislation. If I remember rightly, that was another key point made by Senator Carr in the previous sitting. The committee stated that such provisions, referred to as Henry VIII clauses, 'impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the parliament and the executive'. As such, the committee expected a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum.

In this instance, the explanatory memorandum provides no justification as to why it is necessary and appropriate for rules to modify the operation of the act or the AAT Act. There's been no justification as to why they are necessary. In the absence of such a justification, I put it to the Senate that the only responsible legislative course of action is to remove such provisions, and that is what our amendments will seek to do. In the absence of the adoption of these amendments, we will proceed to vote against the bill, on the principle that such action should not be taken by the legislature without the relevant justification being made. We must draw a line in relation to the systemic, what now seems to be perpetual, undermining of this legislature. It is not out of any attempt to retain a sense of prestige or ego in ourselves but out of an acknowledgement that we are here, on behalf of our community, to do the work of scrutiny.

We are a house of review, so we should never, without good cause, diminish our ability to review. This legislation does that. Based on some evidence the department gave to the relevant committee, this is justified on the basis of removing unnecessary administrative burden upon the department. There was a not dissimilar argument made a couple of weeks back in relation to the trade legislation, which prompted Senator Carr's contribution. This argument that basically having to do your job—having to put a bit of work in, having to do the admin—is a justification for undermining the legislative purview of Australia's ultimate chamber of review should be roundly rejected as nonsense, absolute nonsense. So, as I said, should the amendments that we will offer fail to gain the support of the Senate, we shall vote against the legislation.