Helen Coonan (NSW, Liberal Party) Share this | Link to this | Hansard source

I present the fifth report of 2010 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 5 of 2010, dated 12 May 2010.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The statement read as follows—

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

TABLING STATEMENT

Alert Digest No. 5 and Fifth Report of 2010

12 May 2010

In tabling the Committee’s Alert Digest No. 5 of 2010 and its Fifth Report of 2010 I draw the Senate’s attention to the Committee’s comments on:provisions which seek to incorporate material by reference; and the National Security Legislation Amendment Bill 2010.

The Committee’s Alert Digest No. 5 contains a number of comments in relation to bills which seek to rely on information contained in another instrument ‘as in force from time-to-time’.

The Committee’s concern with provisions which take this approach is that they allow a change in obligations to be imposed without Parliament’s knowledge or without the opportunity for Parliament to scrutinise any variation.

These provisions can create uncertainty in the law, and could mean that those obliged to obey the law do not have adequate access to its terms.

A further complexity is that incorporating material by reference is often combined with a delegation of power.

For example, a proposed section of the Therapeutic Goods Amendment (2010 Measures No. 1) Bill 2010¹ currently before Parliament empowers the Minister, by legislative instrument, to make a determination relating to ingredients in medicines. The section also provides that a determination may refer to other instruments or documents ‘as in force or existing from time to time’.

The Committee recognises that there are circumstances in which it may be appropriate to incorporate material by reference, but considers that a thorough explanation of the need for this approach should be included in the explanatory memorandum.

The explanation should any highlight any circumstances which minimise the likelihood of uncertainty for those who are affected by the law – for example, that there is a commitment to undertake appropriate consultation before incorporating material by reference, or that the material being incorporated is a widely-used and recognised industry standard.

It is also useful if the explanatory memorandum identifies whether there will be adequate access to the material being incorporated from ‘time to time’.

I also draw to the Senate’s attention the Committee’s comments on the National Security Legislation Amendment Bill 2010. This bill includes amendments to the Criminal Code and the Crimes Act in response to several reviews, including the 2008 Inquiry by the Hon John Clarke QC into the case of Dr Mohamed Haneef.

The Committee acknowledges the fine considerations that sometimes need to be balanced to maintain both the security of the community and the protection of personal rights.

As is its usual practice, without considering the policy merit of the bill the Committee has scrutinised its provisions against the Committee’s terms of reference in Standing Order 24.

In relation to some provisions the Committee is seeking further information from the Attorney-General about their operation and the justification for the proposed approach.

In relation to other aspects of the bill, the Committee draws the provisions to the attention of Senators and leaves consideration of them to the Senate as a whole.

I commend the Committee’s Alert Digest No. 5 of 2010 and Fifth Report of 2010 to the Senate.

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¹ Proposed subsection 26BB(1)

Question agreed to.

I present an interim report of the Standing Committee for the Scrutiny of Bills on its inquiry into the future direction and role of the committee.

Ordered that the Senate adopt the recommendation of the report.

The report read as follows—

STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

SCRUTINY OF BILLS COMMITTEE

INTERIM REPORT

The Committee has made progress with its inquiry into the future direction and role of the Scrutiny of Bills Committee and has received 35 submissions to date.

On 21 April 2010 the Government announced as part of its Australia’s Human Rights Framework policy the establishment of a new Parliamentary Joint Committee on Human Rights to review legislation against human rights obligations. The Parliamentary Joint Committee is to be established by legislation.

The work of the Parliamentary Joint Committee on Human Rights is likely to have an impact on the remit of the work of the Scrutiny of Bills Committee. It will be relevant for the Scrutiny of Bills Committee to consider the content of the enabling legislation before it can develop an informed view of its own future role and direction.

The Scrutiny of Bills Committee is seeking to continue the inquiry into its future role and direction once the legislation to establish the Parliamentary Joint Committee on Human Rights has been introduced. The Committee will also then be able to suggest to the Senate a new tabling date for its final report.

Recommendation

That the time for the presentation of the committee’s report on this inquiry be extended, with the reporting date to be determined after the introduction of legislation to establish the proposed Parliamentary Joint Committee on Human Rights.

The Committee thanks all of the individuals and organisations that have made submissions and been involved in the inquiry so far.

Senator the Hon Helen Coonan Chair

12 May 2010

The committee looks forward to taking this inquiry forward once the shape of the new Australian Human Rights Framework is clear.