George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Robert Ray, I present the fifth report of 2007 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 5 of 2007, dated 9 May 2007.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling speech in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No 5 of 2007 I would like to draw the Senate’s attention to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007, the Food Standards Australia New Zealand Amendment Bill 2007, the Liquid Fuel Emergency Amendment Bill 2007 and the Native Title Amendment (Technical Amendments) Bill 2007. Each of these bills includes provisions declaring that an instrument is ‘not a legislative instrument’ but fail to provide an explanation of what is meant by this statement.

Under the Legislative Instruments Act 2003 instruments that are legislative in nature are automatically subject to the disallowance and sunsetting provisions outlined in that Act. If an instrument is not to be subject to these provisions, then the enabling legislation must provide for a specific exemption.

On numerous occasions since the Legislative Instruments Act commenced, bills that have come before the Committee have included a statement to the effect that an instrument or determination is ‘not a legislative instrument’.

Where a provision specifies that an instrument is not a legislative instrument, the Committee expects the explanatory memorandum to explain whether the provision is:

• merely confirming that the instrument concerned is not legislative in nature, and therefore not subject to disallowance and sunsetting; or
• expressing a policy intention to exempt an instrument, which is legislative in nature, from the usual tabling and disallowance regime set out in the Legislative Instruments Act 2003. Where the provision is a substantive exemption, the Committee expects to see a full explanation justifying the need for the provision.

If the Senate is being asked to forego an opportunity to review and disallow a legislative instrument, then it is essential that Senators are provided with the information necessary to allow them to make an informed decision. In the absence of such information there is a risk that legislative instruments will become exempt from parliamentary scrutiny, not because the Senate has made a conscious choice to exempt them, but because Senators were not cognisant that this was the intent of the provisions of the bill. It is therefore essential that statements to the effect that an instrument is ‘not a legislative instrument’ are clearly explained in the Explanatory Memorandum to the bill.

On 29 March 2007 the Government tabled its response to the Committee’s Third Report of 2004 —The Quality of Explanatory Memoranda Accompanying Bills. The Committee welcomes this response, in which the Government has agreed to implement a number of the Committee’s recommendations. In particular, the Government has agreed that the Department of the Prime Minister and Cabinet will review and update the chapter in the Legislative Handbook which sets out the requirements for preparing explanatory memoranda. The Committee trusts that the revised Handbook will include information about declarations in respect to legislative instruments and will facilitate the production of explanatory memoranda which are of adequate quality and detail to inform the reader about the nature and intent of each provision.

Question agreed to.