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

I present the Scrutiny of Bills Alert Digest No. 9 of 2007, dated 13 August 2007. I seek leave to move a motion in relation to the document.

Leave granted.

I move:

That the Senate take note of the document.

What a privilege it is to have a former distinguished member sitting on the frontbench there. Alert Digest No. 9 of 2007 examines the five bills introduced to support the implementation of the Northern Territory emergency response and alerts the Senate to provisions that may be considered to raise issues within the committee’s terms of reference. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007, the Northern Territory National Emergency Response Bill 2007 and the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 all include provisions that exempt all or parts of these bills from part II of the Racial Discrimination Act. The committee notes that in each case the explanatory memorandum to these bills seeks to justify this exemption on the basis that their provisions are special measures, as provided for in the International Convention on the Elimination of All Forms of Racial Discrimination.

The committee concludes that these provisions may be considered to trespass on personal rights and liberties, but leaves it for the Senate as a whole to determine if they do so unduly in the light of their classification as special measures. Two of these bills—the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 and the Northern Territory National Emergency Response Bill 2007—also include provisions that would give the minister the power to repeal parts of these bills, or to declare that parts cease to apply, by legislative instrument. These instruments would not be disallowable by the parliament. The committee takes the view that the parliament, rather than the executive, is the appropriate body to determine when laws are to come into force and when they cease to have effect. As such, the committee considers that these provisions may inappropriately delegate legislative power, but leaves it to the Senate as a whole to determine if they do so unduly.

In respect of the Northern Territory National Emergency Response Bill, the committee has identified a number of additional provisions that may be considered to raise issues within the committee’s terms of reference, and I would like to highlight a number of these. Firstly, the bill contains a number of provisions that create offences for the possession and sale of liquor containing more than 1,350 millilitres of alcohol but does not define the term ‘alcohol’ or provide advice on how the amount of alcohol in the liquor is to be calculated. The committee draws these provisions to the attention of senators because they may be considered to trespass on personal rights and liberties by creating offences that lack clear definition. Secondly, the bill contains provisions which enable the Commonwealth minister or officials to make various decisions, for example in respect to liquor licences, community store licences and the suspension of members of community government councils, without any provision for merit review of these decisions. The committee draws these provisions to the attention of senators as they may be considered to make rights, liberties and obligations dependent on non-reviewable decisions.

Finally, the bill includes a number of provisions that allow delegated legislation to amend this act or Commonwealth and Northern Territory acts. The committee notes that the explanatory memorandum to the bill does not provide an explanation regarding why it is considered necessary to be able to amend or modify primary legislation through regulations rather than by reference to the parliament. As such, the committee draws senators’ attention to these provisions as they may be considered to delegate legislative powers inappropriately.

The committee has also identified a number of additional provisions in the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 which I draw to the attention of senators. These include proposed new subsection 123UK(1) of the Social Security (Administration) Act 1999 to be inserted by item 17 of schedule 1 of the bill, which provides for the question of whether an unsatisfactory school attendance situation exists or has existed in relation to a child to be ascertained in accordance with a legislative instrument made by the minister. The committee notes that the definition of an unsatisfactory school attendance situation is fundamental to the application of the income management framework to welfare recipients. As such, the committee suggests that this definition may be considered a matter that is more appropriately dealt with in primary legislation. The committee considers that this provision may inappropriately delegate legislative power, but it leaves it for the Senate as a whole to determine if it does so unduly.

This bill also includes a number of provisions that allow the Queensland commission or child protection officer of a state or territory to give the secretary of the department a written notice requiring that a person be subject to the income management regime. But the legislation is unclear as to whether or not these discretions are subject to merit review. Similarly, the bill includes provisions that explicitly exclude some decisions from merit review. The committee draws these provisions to the attention of senators as they may be considered to make rights, liberties or obligations dependent upon reviewable decisions.

Finally, the committee notes that, while the bill indicates that individuals subject to the income management regime will not lose any of their welfare entitlements, it does not appear to make any reference to the payment of bank interest in respect of funds deducted and held in an income management account. This is income that would have been available to an individual had these funds been deposited in their own bank account. The committee seeks the minister’s advice in respect of this matter but, pending this advice, draws these provisions to the Senate’s attention as they might be considered to trespass on personal rights and liberties.

I commend this Alert Digest to the Senate. I thank members of the committee for convening this morning; for other circumstances, I could not be there. The committee has dealt with these bills and has drawn a record number of matters to the attention of the Senate—some 28, which I think is a record. It may indicate to the Senate that, whilst there is bipartisan support for the legislation, we should not get the technical aspects wrong, because they may come back to haunt us. So I really urge the government to look at that. To show our bona fides, we sent the minister an embargoed copy of this report some hours ago so that it could be worked on. I thank the Senate.

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

It is important to draw this Alert Digest report to the attention of the Senate, as Senator Ray has done as chair of the Scrutiny of Bills Committee, and to draw the report to the attention of the wider community. It is important not to confuse what the role of this committee is or the purpose of this report. This is a nonpartisan committee. It makes assessments of legislation not on its policy merits but on the basis of its terms of reference, which go to very specific matters to do with basic rights and liberties and basic issues of appropriate delegations of power and the way legislation operates.

The committee produces—I think always—unanimous reports, and has done so again in this case. It really is incumbent on the Senate as a whole—and I would suggest the wider community and the media, who as usual are packing the gallery and listening to the proceedings with interest!—to absorb the messages that are contained in this report. Senator Ray, as chair of the committee, said that 28 different matters have been drawn to the attention of the Senate and the minister, many of which do touch on the terms of reference about potential trespass on basic personal rights and liberties. I do not want to go over the merits of the various pieces of legislation relating to the Northern Territory intervention—we will have an opportunity to do that later on tonight and tomorrow—but I do want to go to the issue of the basic role of the Senate, which is to examine legislation to make sure that we at least get the fundamentals rights. It is a matter of showing good faith, frankly. If we want to make radical changes to laws affecting the lives of many thousands of Australians in fundamental ways, if we want to give enormous powers to government ministers and government officials to intervene in very detailed ways in how people live their personal lives on a day-to-day basis, the least we can do is to show some good faith and to make sure there are clear limits to how those powers will operate, clear opportunities for independent review of any decisions that are made and detailed and evidence based explanations whenever any of these basic rights and liberties are being suspended for a particular purpose. It is not enough to wave around a banner saying ‘It’s an emergency’ as an excuse to then ignore all of these fundamental issues. The Senate’s—the government and all parties here—taking these issues into account will send a very important signal.

I will just recap some of the points that Senator Ray has outlined. To enable a minister to subsequently switch on or off the operation of the law on their own personal decision without the oversight of parliament is an enormously significant act, particularly when those powers he is switching on and off can have such a big impact on the individual lives of many Australians. I should draw the Senate’s attention and the community’s attention to some of the welfare measures that were detailed by Senator Ray. I am sure there is a tendency amongst some in the community to think: ‘It’s all to do with stuff in the Northern Territory and Aboriginal people in the Territory. Although I am interested in that and it concerns me, it doesn’t actually affect me directly so I will leave it up to someone else.’

These welfare measures relating to school attendance do affect every Australian. They are not about Indigenous people in the Territory; they are about every Australian. This legislation gives the power to the minister to define what is and what is not unsatisfactory school attendance. It leaves it completely open for the minister—or a future minister, for that matter—to decide for themselves what constitutes unsatisfactory school attendance and to use that benchmark in the future to impact on and intervene in the lives of any Australian that has a child at school and is receiving any sort of welfare payments, which is pretty much everybody. This potentially affects the lives of every Australian with a school-aged child, and it is giving immensely broad powers—immensely broad discretions—without merits review and without explanation or justification as to why they are needed. I do not mind having a policy debate about whether we want to make these sorts of changes, but we have not even had that. They are just being made, and no explanation has been given as to why these sorts of very extreme powers with very significant curtailment of basic fundamental rights and liberties are occurring.

The issue of how you measure 1,350 millilitres of alcohol is very significant—it is not just a matter of making life a bit more easy for the people who sell alcohol or for the people who buy it in the Territory—because, if you inadvertently go over this limit, you are risking extremely severe penalties, including jail sentences. Basically you will be put into the category of a drug runner. Maybe that is an appropriate thing to do—that is for a separate policy debate—but, when it is not very easy to determine where the offence kicks in and people could be charged with severe criminal offences and punished for the offence, it is very serious. To give Commonwealth officials the power to remove people from councils, to cancel licences and to take over stores is significant enough in itself, but to enable it to be done without review of those decisions means they are enormous powers.

I again emphasise that I am not in this context debating the policy merits of what this legislation seeks to do—I will do that elsewhere. That is not the role of this committee. This committee is there to alert the Senate and the community to any instances where there are major potential breaches of basic freedoms, rights and liberties or major potential breaches in terms of giving extreme powers to government officials, ministers or politicians without proper review and oversight of how those powers are used. That is why the report is called an Alert Digestto alert the Senate and the public. As I said, the committee makes its decisions on the basis of its fundamental terms of reference. It does not make policy judgements; it makes judgements about the basic issues of good governance, proper checks and balances on the exercise of powers and proper checks and balances on when people’s freedoms and rights are potentially being compromised. It is encumbent on the Senate, if it is wanting to show good faith, to consider the issues raised in this report before the debate—certainly before the committee stage of the debate—comes on, because it is a matter that goes to the heart of the prospects of success for what this package of legislation seeks to deal with.

We all know that the legislation seeks to deal with a very important matter—improving the protection of Aboriginal children. That is something that all of us in this place, whatever other views we have, would support the intent of. But it is one thing to support the intent; it is another to ensure that the mechanism you use will be effective. One key aspect of ensuring it is effective is showing good faith in the implementation of those measures. You do not get a much better indication of whether or not good faith is occurring than if there is genuine consideration given to the genuine concerns, and very serious concerns, raised by a nonpartisan committee like the Senate Standing Committee for the Scrutiny of Bills.

I note that one person who is regularly held up as being a strong supporter of the government’s action in the Northern Territory, Noel Pearson, gave a clear statement in his article in the Weekend Australian last Saturday that it is crucial to the long-term success of the intervention in the Territory that the Prime Minister and the minister not only work with the leadership of the Northern Territory but also do not show intransigence to proposed amendments to the legislation. If there is an attitude that shows total intransigence to any proposed amendments, including amendments going to issues as fundamental and as nonpartisan as what is contained in this report, it will be a very bad sign for the prospects of failure of the actions of the government in this area. It is crucial, fundamental, and nonpartisan, and it is a big test as to whether or not the Senate does show that it is alerted by the this Alert Digest.

Question agreed to.