Helen Coonan (NSW, Liberal Party, Shadow Minister for Finance, Competition Policy and Deregulation) Share this | Link to this | Hansard source

I present the third report of 2009 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 4 of 2009, dated 18 March 2009.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 4 of 2009, I draw the Senate’s attention to the AusCheck Amendment Bill 2009 and a provision in the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2009. The AusCheck bill amends the AusCheck Act 2007 to provide a framework to facilitate an extension of AusCheck’s background-checking functions for national security purposes, in addition to those already provided for in relation to aviation and maritime transport. The bill does not contain any requirement for background checks but provides the capacity for AusCheck to conduct background checks that are required under the authority of some other law.

In his second reading speech, the Attorney-General explained that if the government wishes to use the proposed national security background check in a new context it will separately develop the legislative or other regulatory provisions that establish the requirement for the background check and that the bill ‘simply paves the way for AusCheck to take on additional background-checking functions under future legislation’. While the committee has not sought the Attorney-General’s specific advice in relation to particular aspects of the AusCheck bill, it has nevertheless noted that the bill significantly expands the potential scope of the AusCheck background-checking scheme. For that reason, it has turned up in this report.

In light of the proposed extension of the scheme and the committee’s brief to report on whether legislation trespasses unduly on personal rights and liberties, the committee has expressed its intention to closely scrutinise any future legislation establishing the requirement to conduct a background check. In particular, the committee would like to see the inclusion in such legislation of a requirement that advice be given to a person who is asked to undergo a background check.

With respect to the political donations bill, the committee has noted that item 21 of schedule 1 provides for the substitution of subdivision A, concerning entitlement to election funding, and subdivision B, concerning claims for election funding. Under subdivision B there may be interim and final claims for election funding lodged with the Australian Electoral Commission, or AEC—proposed new section 298B. If the AEC refuses a final claim—proposed new section 298F—an application may be made for reconsideration of the decision under proposed new section 298G.

Proposed new section 298G(3) provides that the application for reconsideration must be made within 28 days or, if the AEC extends the period within which the application may be made, within that extended period. The explanatory memorandum explains at paragraph 92 that, in deciding whether to grant an extension of time, the AEC would have regard to the principles outlined in the case of Hunter Valley Developments v Cohen [1984] FCA 176. Proposed new section 298G(3) therefore gives the AEC a discretion to extend the time for lodging an application for the reconsideration of a decision to refuse a final claim for election funding. This power operates in conjunction with the power of the AEC under proposed new section 301, to be inserted by item 25 of schedule 1, to vary decisions accepting claims.

The committee considers that this discretionary power of the AEC may make the rights of claimants unduly dependent upon insufficiently defined guidance as to how the power may be exercised. This would be of particular concern if the AEC were to delegate its decision on the extension of time. For example, in proposed new section 298H it is expressly stated that the AEC may not delegate its power to reconsider a claim. However, such a prohibition does not appear in proposed new section 298G in relation to the AEC’s power to extend time for an application for the reconsideration of a decision refusing a claim. Therefore, the committee has sought the minister’s advice as to whether further explanation for the breadth of the AEC’s discretionary power in proposed new section 298G might be provided, including the reasons why it is considered necessary not to limit that power in any particular way.

I also table a publication today to mark the retirement late last year of the committee’s legal adviser, Emeritus Professor Jim Davis. As I have already mentioned in this place, Professor Davis was the committee’s longest serving legal adviser, having worked for the committee for 25 years. On 24 November 2008, a dinner was held in the Senate alcove to formally acknowledge and celebrate Professor Davis’s sterling service to the committee and to the Australian parliament over the last 25 years. It is a truly outstanding contribution. The committee has therefore put together a short publication containing edited text from speeches made at the dinner, along with a selection of photographs taken on the night, to help commemorate the occasion. I want to once again congratulate Professor Davis for his efforts on behalf of the committee and more broadly.

I commend to the Senate the committee’s Alert Digest No. 4 of 2009, the third report of 2009 and the committee’s special publication to mark Professor Davis’s retirement. I appreciate that, quite apart from Professor Davis’s contribution, the scrutiny of bills can be a dry subject. Nevertheless, there are occasions when it is important that I make some remarks rather than just table the report. I thank the Senate very much for its indulgence.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

As a former Chair of the Senate Standing Committee for the Scrutiny of Bills, I wish to join Senator Coonan in her remarks as the current Chair of the Senate Standing Committee for the Scrutiny of Bills. I think this is one of the most important committees that operate in our Senate. I know that internationally we are regarded very highly because of the work of this committee. The excellent work of the committee would not have been possible without the counsel we have had for the last 25 years from Emeritus Professor Jim Davis.

Jim—if we could be so cheeky as to call him that—has made an extraordinary contribution, as Senator Coonan has said, to the operations of the parliament, particularly to the operations of the Senate. His legal knowledge is extraordinary. Those of us who have had the privilege of serving on this committee have had an amount of legal training that I do not know that you would get at university. That is something that we are very grateful for. On behalf of the government, we wish him all the best in his retirement and hope that it is a long and happy one.

Question agreed to.