Wendy Askew (Tasmania, Liberal Party) Share this | Hansard source

On behalf of the chair, Senator Dean Smith, I present Scrutiny Digest 5 of 2024 of the Standing Committee for the Scrutiny of Bills, together with ministerial correspondence received by the committee. I seek leave to incorporate the tabling statement in Hansard.

Leave granted.

The statement read as follows—

As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny Digest 5 of 2024.

The digest opens by acknowledging the recent passing of Emeritus Professor Jim Davis. The committee does so to pay tribute to the outstanding contribution of Professor Davis as the committee's longest serving legal adviser, having supported the committee for 25 years, from 1983 to 2008. In this time, Professor Davis also served as legal adviser to the Standing Committee for Regulations and Ordinances from 1997 to 2000.

On his retirement as legal adviser, the committee hosted a dinner, with speeches made by former Senators Helen Coonan, Barney Cooney and Andrew Murray. This demonstrates the high regard with which he was held across all corners of the Parliament.

The speeches were consistent in their high regard for Professor Davis's wisdom, humour and strength of character. Andrew Murray remarked that Jim had an academic's depth; a practitioner's experience; a teacher's patience; a lawyer's precision; a necessary tolerance; a comic's wit; a libertarians' attitudes; and, crucially, a healthily larrikin-like suspicion of the Executive and its handmaiden, the bureaucracy.

On behalf of the committee, I extend condolences to Professor Davis's family and friends.

The digest also reports on the committee's consideration of 6 bills which were introduced into the Parliament during recent sitting weeks, as well as amendments made to 4 bills.

In the Digest, the committee has identified potential scrutiny concerns in relation to 2 newly introduced bills. The Digest also contains the committee's comments on recent ministerial responses in relation to 4 bills.

I would like to draw the Senate's attention in particular to the committee's comments on the Administrative Review Tribunal Bill 2023 and an associated bill. The committee thanks the Attorney-General for his constructive response to the committee's comments concerning the bills.

The committee previously raised concerns with the public interest certificate regime in the main bill. These provisions empower Commonwealth, state and territory Attorneys-General to issue certificates, which prevent the Tribunal from disclosing specified information or documents to applicants before making a decision. This potentially impacts the procedural fairness rights of individuals appearing before the Tribunal.

Procedural fairness is a fundamental common law right that ensures fair decision-making. Amongst other matters, it includes requiring that people who are adversely affected by a decision are given an adequate opportunity to put their case before a decision is made—known as the 'fair hearing rule'.

In Scrutiny Digest 2 of 2024, the committee requested advice from the Attorney-General on this matter. The Attorney-General has explained that the framework balances fair hearing rights with the need to protect sensitive information. Further, it would not be appropriate for the Tribunal to have discretion to disclose information under certificate as such responsibility is rightly vested in the responsible minister or Director-General of Security. These officers are uniquely placed to understand the sensitivity of the material and consequences of its disclosure.

The committee remains concerned that the public interest certificate and intervention provisions will have a significant impact on an applicant's procedural fairness rights. The committee acknowledges the importance of the policy justification of protecting sensitive information from disclosure but maintains that fairness may be legitimately adjusted whilst adopting a more flexible approach.

Additionally, the committee sought the Attorney-General's advice on the rigid approach adopted in the bill for particular requirements for proceedings that take place in the intelligence and security jurisdictional area of the Tribunal. The bill provides that applicants cannot be provided reasons for intelligence and security decisions and the Director-General of Security can issue sensitive information certificates and public interest certificates to prevent the disclosure of evidence or documents.

The committee is of the view that there is room to recalibrate the balance of the risk of disclosure against the applicant's right to a fair hearing in a manner which better recognises the fundamental nature of that right and also in treating individuals with respect and dignity.

The committee considers that the decision not to consider additional mechanisms for the protection of a fair hearing in the Intelligence and Security jurisdictional area is unfortunate and a lost opportunity.

The committee also takes this opportunity to draw to the attention of the Senate a provision in the Consequential Amendments Bill that encroaches on the powers of the Parliament. If enacted, it would restrict the power of the Parliament or its committees to receive information or documents relating to protection visa decisions.

While the committee acknowledges that the intention of the provision is to provide protection to the privacy and safety of persons involved in such decisions, the committee notes that the provision asks the Parliament to agree to an encroachment of its own powers. The power to seek information and documents is a fundamental power of a parliamentary chamber, necessary to support its ability to inquire into matters of interest. This in turn supports its ability to conduct fully informed debate on matters of public importance, and undertake its legislative function.

The committee will closely scrutinise any legislative provision that represents an intrusion on the powers, privileges and immunities of the Parliament and is of the view that only in the rarest and most extraordinary of cases will such a provision be considered to be appropriate.

In Scrutiny Digest 2 of 2024 the committee sought advice from the Attorney-General on this matter. Again, the committee thanks the Attorney-General for his response.

However the response in this area did not fully engage with the substance of the committee's scrutiny concerns. In particular, the response did not consider whether existing mechanisms within parliaments that protect from disclosure information if there is a genuine public interest reason for it not to be disclosed. These mechanisms include the ability of officers to raise public interest immunity claims and the ability of committees to receive evidence on an in-camera basis, if making the information public is not in the public interest or necessary for the committee to perform its functions. The committee is of the view that such mechanisms would adequately protect from public release information relating to reviewable protection decisions where disclosure is not in the public interest. The committee has therefore recommended that the bill be amended to remove the provision.

I encourage all parliamentarians to carefully consider the committee's analysis on this and other matters contained in the Digest. With these comments, I commend the committee's Scrutiny Digest 5 of 2024 to the Senate.