Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I present the third report for 2008 of the Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 3 of 2008, dated 14 May 2008.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to have my tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows—

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS TABLING STATEMENT

In tabling the Committee’s Alert Digest No. 3 of 2008, I would like to draw Senators’ attention to several provisions in the Veterans’ Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008 that are to apply retrospectively.

The provisions relate to:

• the Guide to the Assessment of Rates of Veterans’ Pensions, which is prepared by the Repatriation Commission; and
• a Statement of Principles made by the Repatriation Medical Authority.

Both of these documents are legislative instruments under the Legislative Instruments Act 2003.  That Act provides that such legislative instruments take effect from the date on which they are registered under the Act.

However, provisions in the Veterans’ Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008 provide that these documents may take effect from an earlier date.

In respect of the Guide, it will take effect from the day that the Minister approves it, while the Statement of Principles will take effect from the date of notification in the Commonwealth Government Gazette.  As such, these instruments may apply retrospectively.

As a matter of practice, the Committee draws attention to any bill that seeks to have retrospective impact and will comment adversely where such a bill has a detrimental effect on people.

The explanatory memorandum to the Veterans’ Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008 states that by overriding provisions in the Legislative Instruments Act, ‘the rights of a person could be affected so as to disadvantage that person.’  Thus it recognises that these provisions may indeed be detrimental to some people.

Unfortunately, the only justification provided in the explanatory memorandum for this detrimental retrospectivity is that the provisions preserve the effect of the existing sections of the Veterans’ Entitlement Act 1986.  No explanation is provided for why this retrospective application is required.

This approach fails to recognise that the world can change a lot in a relatively short space of time.  Just because the Parliament approved an approach in the past, does not mean that they approve of it now.

Amending an Act provides the executive and the Parliament with an opportunity to critically review the provisions of that Act to ensure that they meet current standards of good practice. Unfortunately this opportunity rarely seems to be grasped by the Executive.

Time and time again, bills come before the Committee that include provisions that breach the Committee’s terms of reference. Instead of providing a justification for these provisions, the explanatory memoranda simply state that the provisions are consistent with an existing approach in that or another Act.

This is not an acceptable justification for provisions that may, for example, apply retrospectively to the detriment of those affected. Such provisions need to be justified in their own right.

In the case of the Veterans’ Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008, there may be very good reasons as to why these instruments should commence prior to their registration under the Legislative Instruments Act. Unfortunately the Committee, and the Parliament, has not been made privy to these reasons.

The Committee has sought the Minister’s advice as to the rationale for requiring these instruments to take effect from the date of ministerial approval or publication in the Commonwealth Gazette. Pending the Minister’s advice, I draw Senators’ attention to the provisions as they may be considered to trespass unduly on personal rights and liberties.

I would also like to note that the Committee has commented on the Australian Crime Commission Amendment Act 2007 in this Alert Digest.  The Committee did not get the opportunity to consider this bill during the previous Parliament as it was introduced and passed in the last sitting week prior to the Parliament being prorogued. In keeping with the Committee’s role of considering all bills that come before the Parliament and noting that the Act is currently being considered by the Parliamentary Joint Committee on the Australian Crime Commission, the Committee has included its comments on the Act in this Digest.

I commend the Committee’s Alert Digest No. 3 of 2008 and Third Report of 2008 to the Senate.

Question agreed to.