Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

I also present the interim report of the Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight, together with the Hansard record of proceedings and documents presented to the committee. I move:

That the Senate take note of the report.

and I seek leave to speak to the motion.

Leave granted.

I rise to speak to the tabling of the interim report of the Senate Standing Committee for the Scrutiny of Delegated Legislation's inquiry into the exemption of delegated legislation from parliamentary oversight.

As parliamentarians, we are elected by the Australian people to make and scrutinise the laws of this country. However, about half of the law of the Commonwealth by volume consists of delegated legislation, rather than acts of parliament. I would like to repeat that: half of the law of the Commonwealth by volume consists of delegated legislation, rather than acts of parliament.

In 2019, 20 per cent of the 1,675 pieces of delegated legislation made by the executive were exempt from disallowance by the parliament and scrutiny by the committee.

The volume of delegated legislation made by the executive, and the frequent exemption of these laws from parliamentary oversight, restricts our capacity as parliamentarians to perform our scrutiny and lawmaking functions.

The committee's inquiry considers the source, nature, and ongoing appropriateness of the exemption of delegated legislation from parliamentary oversight, informed by expert evidence and the committee's own scrutiny work over the past 88 years.

In the wake of the COVID-19 pandemic, this interim report focuses on how systemic issues in legislation, procedure and practice have combined to exempt delegated legislation made in response to the pandemic from parliamentary oversight, and what actions can and should be undertaken to resolve these issues.

Legislative framework for the COVID-19 response

Part I of the report provides an overview of the legislative framework relied upon by the government to make delegated legislation in response to COVID.

The Biosecurity Act 2015 is the key component of this framework. As the report explains, the Biosecurity Act confers extraordinarily broad powers on the executive to make non-disallowable delegated legislation which restricts personal rights and liberties and overrides any Australian law, including laws made by this parliament.

Despite the significance of the delegated legislation-making powers in the Biosecurity Act, they received little consideration when the Biosecurity Bill was being considered in 2014 and early 2015.

Accordingly, the committee recommends that the Senate Standing Committee for the Scrutiny of Bills or another independent body or person review the delegation of legislative powers in the Biosecurity Act.

In the future, the committee urges all parliamentarians to carefully consider the delegated legislation-making powers in emergency legislation, to ensure that the exercise of these powers is subject to an appropriate degree of parliamentary oversight.

Features that contributed to exemptions from parliamentary oversight

Part II of the report considers the specific, systemic factors that have contributed to the exemption of delegated legislation made in response to COVID-19 from parliamentary oversight. These features include:

the cancellation of parliamentary sittings;

the exemption of delegated legislation from disallowance;

the classification of delegated legislation as non-legislative;

the duration of delegated legislation;

and the exclusion of delegated legislation from scrutiny by parliamentary committees.

Exemption for disallowance

In particular, I would like to highlight the committee's concerns about the exemption of emergency delegated legislation from disallowance. Disallowance is one of the most important tools that the parliament has at its disposal to maintain control of delegated legislation.

Despite the importance of this procedure, nearly 20 per cent of all delegated legislation made in response to the pandemic between January and July this year was exempt from disallowance.

This includes all 27 legislative instruments made under the Biosecurity Act, and six Advance to the Finance Minister determinations, which allocated an additional $2.1 billion of public funds to aspects of the government's response to COVID-19.

Consequently, parliamentarians have been prevented from scrutinising and, if necessary, disallowing, significant COVID-19 response measures. These include travel bans on Australian citizens, the declaration and extension of the human biosecurity emergency period, and restrictions on people entering and exiting certain areas within Australia.

The committee fully appreciates the government's need to make such laws in response to the COVID-19 pandemic. However, where such laws have the capacity to restrict personal rights and liberties or override laws made by parliament, the committee considers that parliamentarians must—I underline must—have the capacity to scrutinise and, if necessary, disallow these laws.

The committee was also concerned to discover that one in five non-disallowable legislative instruments made in response to COVID-19 are exempt from disallowance due to pre-existing grounds determined by the executive, rather than the parliament.

Accordingly, the report recommends that any grounds for exempting emergency-related delegated legislation from disallowance should be set out in primary legislation.

Exclusion from oversi ght by parliamentary committees

I also draw the chamber's attention to systemic issues which have excluded COVID-19 related delegated legislation from scrutiny by parliamentary committees.

The standing orders currently prevent the committee from considering non-disallowable legislative instruments in its regular scrutiny work.

To inform this inquiry, the committee found that 48 per cent of non-disallowable legislative instruments made in response to COVID-19 between January and July this year appeared to raise potential technical scrutiny issues.

However, the procedural constraints imposed by the standing orders prevented the committee from attempting to resolve these issues with the relevant departments or ministers.

Accordingly, the committee recommends that all delegated legislation made during times of emergency is subject to technical legislative scrutiny, regardless of its disallowance status.

Given the significant content and volume of delegated legislation made in response to COVID-19, the committee also recommends that a Senate select committee be established in times of emergency to specifically consider the policy merits of delegated legislation made in response to that emergency.

I conclude by saying that the committee is grateful to everyone who has made a submission to this inquiry and given evidence to the committee's first ever public hearings.

We trust that this interim report, and its focus on delegated legislation made in response to COVID-19, provides a useful case study of the detrimental impact of longstanding, systemic issues on parliament's capacity to appropriately oversee delegated legislation made in times of emergency.

Our final report will further consider these systemic issues and the options available to the parliament to resolve them.

In the meantime, the committee calls on all parliamentarians to carefully consider their responsibilities, as representatives of the people, to ensure that delegated legislation made in response to emergencies is subject to rigorous parliamentary oversight. That is a responsibility that we as parliamentarians have and it is the reason why we sit in this place.

I also acknowledge the hard work of the committee secretary, Glenn Ryall, and all his team. This is the first ever inquiry of this committee and their commitment to producing excellent work is to be highly commended. I and other committee members very much appreciate all your efforts.

With these comments, I commend the committee's interim report on the exemption of emergency delegated legislation from parliamentary oversight to the Senate, and I thank my colleagues on the committee for their hard work and their willingness to participate in this very important work on behalf of the people of Australia.

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I just want to take a few moments to associate myself with the remarks by Senator Fierravanti-Wells. When I first came into this place, I had, to be frank, no idea about this committee. Quite frankly, it's probably one of the committees where I most enjoy my time with colleagues, and it is good to see other colleagues on this committee in the chamber at the moment. It has been fascinating to see how our democracy works and being in the Senate, the house of review, keeping the executive accountable. I know there is only one member of the executive in the place currently. It is fair to say that we enjoy our time on the committee scrutinising the delegated legislation and the instruments, following up with ministers and ensuring that we as parliamentarians are doing our jobs as part of our democracy.

The Senate Standing Committee for the Scrutiny of Delegated Legislation—and it has had other names along the way—is certainly one of the oldest committees in this place. Its purpose is to ensure that we are scrutinising delegated legislation enacted by members of the executive and that it is subject to appropriate scrutiny by the legislator.

It's a role of us in this place to write the laws of the land. I think many Australians would be surprised to learn just how much law is written. As we heard from the chair of the committee, close to 50 per cent is written, enacted and given the stamp of approval by the executive, not the parliament. Whilst there is no doubting that there is a role for such delegated legislation to exist, it is nonetheless appropriate that, in an instance where law is made by members of the executive, it is subject to appropriate oversight by this parliament and by this Senate, most importantly to disallow in instances where it is resolved by the Senate that such a measure is necessary.

As the report articulates, the volume of delegated legislation as a proportion of total Commonwealth law is substantial. Even more substantial is the proportion of this delegated legislation that is exempted from scrutiny. All Australians should be concerned at the readiness with which government is prepared to exempt delegated legislation from consideration by the parliament. As mentioned earlier, whilst there is merit in the existence of delegated legislation, one is right to question whether exemption provisions for this legislation is entirely in accordance with the principles of the separation of powers that make up all good systems of governance.

The interim report that's been tabled has a particular focus on the emergency delegated legislation that has come about as a result of the government's response to the COVID-19 pandemic. Almost a quarter of these measures, some of which had a significant impact on the community, were exempted from disallowance. Questions as to whether the individual freedoms of our citizenry ought to be curtailed are some of the most significant that any decision-maker in this building may be forced to consider. Owing to this, those questions necessarily ought to be subject to as high a standard of democratic examination as one would expect in a nation such as ours. Regrettably, the report also finds instances where government falls short of this standard and the systemic reasons for how this has come about. As the Senate, as a democratically elected body representative of the community, we must resist this; after all, we are the house of review. Whilst I fully appreciate why government—any government, for that matter—would like to dispense with such inconvenience wherever possible, we owe it to those who have gone before us and, with much toil, have established our norms of parliamentary primacy in lawmaking to clearly demonstrate the bounds of the tolerance of this chamber.

I, like the chair, would like to place on the record my thanks and the thanks of Senator Carr, who is not here today, to the secretariat for their work. It would be fair to say that without the support of the secretariat we wouldn't have been able to produce a comprehensive report such as we are presenting today. I want to say thank you to my colleagues on the committee, in particular the chair and the deputy chair, for their advice and their wisdom. Perhaps one day I will chair such a committee and—

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I'll be your deputy!

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Scarr. I look forward to you being my deputy at some stage. Certainly the wealth of knowledge that the chair and the deputy chair bring to the table is something that we really do need to acknowledge. I note the wholly cooperative and bipartisan manner in which we've been able to conduct our work. Senators can trust that the interests of this chamber are in good hands, as is evident in the leadership of this committee. I commend the report to the Senate.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I rise to speak on this report of the Standing Committee for the Scrutiny of Delegated Legislation and, indeed, do so as an outside, not a member of this very important committee of the parliament. I want to say, and I mean this genuinely, that the words used by Senator Fierravanti-Wells in addressing this report are some of the most important words that have been spoken in this chamber in the time that I've been here. I want to reflect on something I heard today in the chamber, and then I'll come back to the point that Senator Fierravanti-Wells made. Senator Paterson, during the committee stage of the foreign affairs legislation, made the statement that the government is responsible to the people. That is not actually the case under our Constitution. The way it works is that the government of the day is responsible, through ministers, to this parliament and it is this parliament that is responsible to the people. That's really important. I'll go to the Constitution to illustrate the importance of the statements being made in the chamber. Section 1 of our Constitution, entitled 'Legislative power', states:

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate and a House of Representatives, and which is hereinafter called The Parliament or The Parliament of the Commonwealth.

It is the parliament's role to pass laws. That's a really important principle, because the people who write the delegated legislation, of which half in volume is written by officials, are not responsible to the people. They are not able to be removed by a vote of the people. In fact it's very difficult even for a minister to remove a person who might be writing this delegated legislation. When legislation is to be considered, it ought to be done in an open manner in the Senate chamber, where it can be debated and where the people can watch and hear what people say. And once every three years, or perhaps six in the case of some senators, they can exercise their right either to support that member or have them removed.

An honourable senator: Hold them accountable.

Hold them accountable—thank you. That is not the case for delegated legislation, and it concerns me.

I think we should pay regard to the two very senior people who are the chair and the deputy chair of the committee. They have a great deal of experience in this place. I commend Senator Fierravanti-Wells. It's a committee I really didn't notice very much until Senator Fierravanti-Wells started to chair it. Having someone as strong as Senator Fierravanti-Wells backed up by Senator Carr is a very powerful combination. I used to watch Wacka Williams come in here; he would stand up and move these motions announcing a possible disallowance, and I used to think: 'Jeez, he's a rebel.' Of course, I like rebels. I love rebels! Perhaps falsely, that was how I developed an affinity with Wacka. But since this committee has been chaired by the current chair and deputy chair, I've certainly started to take notice.

I must congratulate Senator Fierravanti-Wells for the job that she's doing. Again, I say her contribution this afternoon is one of the most important contributions I have heard in this chamber during my time here. I would ask that all senators listen to what has been said and look at the series of reports that are coming from this committee, because it's directed at us and our responsibility to our Constitution and to the people we represent.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I too would like to make some remarks on this interim report, Inquiry into the exemption of delegated legislation from parliamentary oversight. First, if I could acknowledge the kind remarks from Senator Patrick—I couldn't agree more. I also associate myself with the remarks of Senator Ciccone and, given he associated himself with the remarks of Senator Fierravanti-Wells, that means I'm associating myself with your remarks, Senator Fierravanti-Wells. So we're all associates!

Senator Patrick, you are absolutely correct that we, serving on this committee, are very fortunate to have Senator Fierravanti-Wells as our chair and Senator Carr—not Scarr!—as our deputy chair. As a relatively new senator to this place—in the class of 2019 with my good friends Senator Ciccone, Senator Davey and Senator Green, who is not here today, but I'm sure she would concur—there are three things I've taken from the leadership demonstrated by Senator Fierravanti-Wells and Senator Carr on this committee. Firstly, the importance of the experience and wisdom that they bring to the process. It is irreplaceable and just so important. Secondly, the collegiality with which they have conducted themselves. One of the lessons I've learned from serving on this committee is that you have to divorce the partisan from the nonpartisan and I think both Senator Fierravanti-Wells and Senator Carr do that extremely well. Thirdly, and most importantly, is the deep and abiding respect they each have for the institution of parliament. That respect for the institution of parliament is reflected in this report. It's reflected in the first recommendation of this report, that parliamentarians—we're not just politicians—give 'adequate consideration to the appropriateness of exempting delegated legislation from parliamentary oversight mechanisms'. We should do that as parliamentarians.

Reflecting on that point, that we're parliamentarians first and foremost, I commend to my colleagues that they look at sections 4.31 and 4.33 of the report, which contain some quotes from submissions made to the inquiry. Section 4.31 states:

… 'the rule-making process should or needs to be separated from the political process'.

Section 4.33 states:

… determinations should be exempt from disallowance to prevent political considerations interfering with what should be a technical and scientific process.

Those quotes are from two submissions made by government departments, and I think they reflect more than anything an institutional view with respect to these matters, an institutional view which we as senators need to be aware of, and in the context, through this report, where we are robustly reasserting the importance of the parliamentary processes. What are these political processes? What are these political considerations? Are they not parliamentarians—not just politicians—as democratically elected representatives exercising their judgement on behalf of their constituents and their country? That's what these political considerations are. Are they not parliamentarians making an assessment on how the proposed laws of the land will impact upon the people they represent and their country? Those are the political considerations. Are they not parliamentarians acting as a check and balance upon the executive, we in this place acting as a house of review, as Senator Ciccone referred to? Are they not parliamentarians being accountable to and facing their constituents on a regular basis in free and fair elections as part of a liberal democracy? Those are the political considerations. They go to the absolute heart of our liberal democracy, and we must always remember that and cherish it, respecting the institution of parliament.

Finally, I too would like to give some thanks to the members of the secretariat who worked on the report. Senator Fierravanti-Wells, one person we should always remember is 'the Prof', Professor Edgar. Where would we be without our good Professor Edgar? He is always there to give his wisdom and educated view on sometimes the most arcane of legal matters. Thank you, Professor Edgar; thank you Glenn, Laura and the team.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

And his knowledge of contract law.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

And his knowledge of contract law as well—you're absolutely right, Chair. They're a terrific crew and we've been extremely fortunate to have the benefit of their assistance. I, too, commend this report to the Senate.

Question agreed to.