Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present the 11th report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 14 of 2006, dated 29 November 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In its Alert Digest No. 12 of 2006, the Scrutiny of Bills Committee drew senators’ attention to certain provisions in the Environment and Heritage Legislation Amendment (No.1) Bill 2006. The committee’s comments ran to 12 pages and the issues raised were such that they prompted government and opposition senators to join me in expressing concern at the apparent lack of rigour in the drafting of this bill, particularly in the drafting of the explanatory memorandum that accompanies it.

The bill was the subject of examination by the Senate Standing Committee on Environment, Communications, Information Technology and the Arts. That committee noted the Scrutiny of Bills Committee’s concerns and expressed the hope that the minister’s response to the questions raised by the committee would address these concerns. I am sorry to say that for the most part they do not, and the committee continues to draw a number of these concerns to the attention of the Senate in its 11th report of 2006.

The committee’s general concern with this bill is that it introduces a range of significant and intrusive powers and fails to provide the detailed explanation and justification which this committee and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers expects in such exceptional circumstances. In responding to the committee’s request as to the justification for the imposition of strict liability in the bill, the minister has responded in detail, setting out the justification in each case with relevant background and examples and assuring the committee that the principles set out in the guide and in the committee’s sixth report of 2002 were given due consideration in drafting the provisions. The committee regrets that these clear explanations have not been included in the explanatory memorandum to the bill.

The committee is less than satisfied with the minister’s responses to its concerns in relation to other provisions. For example, the committee noted that the bill provides for the removal of merit review by the Administrative Appeals Tribunal for decisions made personally by the minister in relation to various types of permits. The committee’s concerns are not allayed by the minister’s statement that these complex and sensitive decisions are considered sufficiently important to be taken by the minister as an elected representative and therefore should not be overturned by an unelected tribunal such as the AAT. The committee notes the submission of the Law Council of Australia that these provisions do not appear to allow for the position where the minister in applying the law under this act may have applied the law incorrectly.

Similarly, the committee continues to have concerns in relation to a lack of clarity regarding the types of searches provided for under certain provisions. The primary act distinguishes between frisk searches and ordinary searches. The committee was concerned to note that certain provisions in the bill make no such distinction, leaving it unclear as to the exact nature of the incursion on personal rights and liberties under such provisions. The minister has responded, stating that the searches in question are ‘essentially the equivalent of frisk searches’ and that it is unnecessary to specify the nature of the search in these particular provisions. The committee is not persuaded by this. These provisions permit a degree of intrusion upon an individual’s rights and liberties and the provisions should be quite clear as to the extent of this intrusion, particularly as the act already provides the means to achieve this.

Finally, the committee remains concerned at the limited justification provided for the insertion of the power to conduct strip searches. The committee draws no comfort from the minister’s statement that it is considered highly unlikely that it would ever be necessary to conduct strip searches of environment detainees and that similar powers under the Migration Act have only been used once since January 2003. This statement does little to demonstrate a need for the introduction of such exceptional powers.

Statements like these underscore the committee’s long-held view that parliament needs to exercise caution when considering legislative proposals containing such intrusive powers. Where such powers are provided, there is a need for greater accountability and review in relation to how and when they should be used. The committee notes that in other jurisdictions the exercise of police powers such as these is monitored by parliamentary committees. The committee considers that the extension of such powers to other agencies must be accompanied by clear accountability and reporting mechanisms.

The committee notes the minister’s statement that the Department of the Environment and Heritage will be working closely with the Department of Immigration and Multicultural Affairs to establish mechanisms and protocols for the implementation of these amendments. The committee expects that these mechanisms and protocols will be tabled in the parliament, as is the case in relation to similar powers exercised under the Migration Act, on which these amendments are modelled. I urge senators to give due consideration to the concerns set out in the committee’s 11th report of 2006.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I would also like to speak to this report. It is important that senators do give consideration to this report. The Scrutiny of Bills Committee is one of the underrecognised committees in this place, in part because it goes about its work in a non-partisan way and because it deals with issues that are in broad terms outside of policy debate. It assesses legislation not on its policy merits but on whether it meets basic guidelines, including the adequacy of the drafting of explanatory memorandum to legislation and some basic legal principles.

This report flows on from the Alert Digest, as Senator Ray has said, and it is important to draw attention to it. It relates to the Environment and Heritage Legislation Amendment Bill (No. 1), which is due to be debated. Debate on that will probably start later this evening or else tomorrow. I do not wish to pre-empt debate on that but I do want to draw attention to the report because I think it is important that all senators—and obviously particularly all senators on the government side, who, one would assume, are more likely to vote for the legislation unamended—consider the issues raised in this report. I assume it is a unanimous report, as is almost always, if not always, the case from this committee. That means that it should be taken even more seriously than other reports. It deals with the basic legalistic framework of legislation and particular matters such as those raised by Senator Ray.

It is also important because the responses given by the minister, at least in some of the concerns that are raised, draw on the rationale: ‘We’re doing this to make it consistent with other acts.’ In relation to these powers about, for example, strip searches, searches without warrants and other types of searches, the minister has said: ‘We’re doing this to make it consistent with the Fisheries Management Act.’ I recall that it was in the middle of last year when the Fisheries Management Act was amended to make it consistent with the Migration Act.

I certainly agree that consistency in legislation is a good thing, but the report of the committee draws attention to the important fundamental principle that you do not give these sorts of extraordinary powers to conduct searches without warrants and strip searches to general Commonwealth officials. These are not Federal Police officers; they are Commonwealth officials, Fisheries officers and Customs officers. An extremely good reason for not giving those sorts of powers is that you will not then have the problem of a slippery slope starting to operate, where, once it is in place in one act, you can say: ‘It’s already done in this act. We’re just putting it in another one; we’re putting it in a third one.’ The in some ways counterintuitive argument from the minister is: ‘We’ll put in these strip-search powers. It’s highly unlikely we’ll ever need them but we’ll put them in anyway because it makes it consistent.’ It being highly unlikely you will ever need them is not exactly the most compelling argument for introducing powers like these. You should have a compelling argument before you bring them in.

Similarly, with the strict liability offences, including strict liability offences that have jail terms, there have been quite comprehensive responses from the minister, and I acknowledge that. As the committee has said, it would have been rather more helpful if many of these points had been put in the explanatory memorandum in the first place—that is what explanatory memoranda are for. They are not just for us as legislators but for people in the community so they can read them and understand why we are doing something. It is no use having explanatory memoranda that say, ‘Clause x does y.’ You can read that in the bill. You need to know why it is justified and what the reasoning is for introducing strict liability offences, in particular where they have jail terms attached. People can make their own judgements about whether the explanations warrant imprisonment being attached to the strict liability offences. But the committee has repeatedly stated that these things should be explicitly reflected in the explanatory memorandum, and it is a significant problem when they are not.

The other area I draw attention to is the minister’s response with regard to removing the merits review of ministerial decisions preventing appeal to the Administrative Appeals Tribunal. The rationale given by the minister is:

... where these decisions are sufficiently important to be taken by the Minister as an elected representative, those judgement calls should not be able to be overturned by an unelected tribunal such as the AAT.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Tell the High Court.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

As Senator Ray says, it is a nice argument—try that out on the High Court, which is also unelected. It is a nice rhetorical flourish, I appreciate that. We are all elected; they are not. That does not mean that we can do whatever we want and everyone else can get lost. We do have a system of checks and balances in our Constitution and in our political system. It is not as strong as I would like it to be, but it is still there. Again, I point to the danger of the slippery slope—if you adopt the argument that this is a difficult, complex decision and if I make it as an elected official then someone who is unelected cannot tell me I am wrong. I am sorry, but that is not really my idea of checks and balances or my idea of accountability and scrutiny. It is my idea of quite a dangerous precedent, particularly if that is the reason given for that precedent.

If there is some other reason—for example, if it is a problem for environmental protection, national security or something like that or if there needs to be certainty in decisions and no merits review; there are areas in other acts where merits review of some decisions is not allowed, including the Migration Act—then let us put that reason. But to just say, ‘I am an elected official and the AAT is not, so it should not be able to overturn my complex and sensitive decisions,’ is not only a flimsy but quite a dangerous precedent to put in place. I note that the committee in its report says:

The committee finds the explanation that such important and complex decisions ‘should not be able to be overturned by an unelected tribunal such as the AAT’ obscure.

It is an interesting word to apply—‘obscure’. I can think of words other than ‘obscure’ but it certainly suggests the committee is less than satisfied with the adequacy of the explanation put forward by the minister. I again urge all senators to read this report. I am sure all senators regularly read the Scrutiny of Bills Committee reports but perhaps occasionally they may have fallen short of doing so, particularly in recent times with all the other work to do. If they have fallen out of the habit of reading every single Scrutiny of Bills Committee report, I suggest that if there is one that they are going to read it should be this one, and if they are going to read it they should do it pretty soon. If this legislation comes on for debate within the next day or so, some of these matters, frankly, should not pass without further scrutiny and examination in the committee stage of the debate. I hope that at least some of them are not allowed to pass into law at all.

Question agreed to.