Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

At the request of the Chair of the Senate Standing Committee for the Scrutiny of Bills, Senator Robert Ray, I present the committee’s ninth report of 2007. I also lay on the table Scrutiny of Bills Alert Digest No. 11 of 2007, dated 12 September 2007.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to incorporate Senator Robert Ray’s tabling statement in Hansard.

Leave granted.

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

The incorporated statement read as follows—

In tabling the Committee’s Alert Digest No. 11 for 2007 I would like to draw the Senate’s attention to a concern that the Committee has in relation to the exemption of legislative instruments from the disallowance provisions of the Legislative Instruments Act.

The Higher Education Endowment Fund Bill 2007 provides that a number of Ministerial determinations or authorisations are legislative instruments but are not subject to disallowance under section 42 of the Legislative Instruments Act.  The bill also provides for the making of Maximum Grant Rules which, while a legislative instrument, will not be subject to disallowance. 

The explanatory memorandum to the bill provides no justification for the exemption of these instruments from disallowance.  It simply states that this is a policy decision which ‘has the approval of the Attorney-General’. 

Similarly, as outlined in the Committee’s Ninth Report of 2007, in response to a query from the Committee about the exemption of instruments from disallowance in the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 the Minister for Families, Community Services and Indigenous Affairs indicates that ‘the Attorney-General has granted an exemption for these determinations from the Legislative Instruments Act.’

The Committee is perplexed by these assertions.  The Legislative Instruments Act provides for the Attorney-General to issue a certificate determining whether an instrument is a legislative instrument or not, but it makes no provision for the Attorney-General to exempt an instrument from the disallowance provisions of that Act.  It is therefore unclear to the Committee under what authority the Attorney-General may grant such exemptions or approve policy decisions that provide for such exemptions.

The Committee takes the view that Parliament is responsible for determining whether a legislative instrument should be exempt from the disallowance provisions of the Legislative Instruments Act, not the Attorney-General or Minister.  Where provisions express a policy intention to exempt instruments that are legislative in character from the usual tabling and disallowance regime set out in the Legislative Instruments Act, the Committee expects to see a full explanation in the explanatory memorandum justifying the need for the exemption.  Only with this information at hand can Senators make an informed decision about the instrument that they are being asked to exempt from Parliamentary scrutiny.

The Committee has sought advice from the responsible Ministers in respect of these provisions.  Pending that advice, I draw these provisions to the attention of Senators, as they may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny.

Debate (on motion by Senator Bartlett) adjourned.