James McGrath (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I present Scrutiny digest No. 16 of 2021 of the Standing Committee for the Scrutiny of Bills, dated 21 October 2021. I move:

That the Senate take note of the report.

I seek leave to incorporate the tabling statement in Hansard.

Leave granted.

The statement read as follows—

In the absence of the Chair, I rise to speak to the tabling of the Scrutiny of Bill Committee's Scrutiny Digest 16 of 2021. I take this unusual step at the unanimous request of the committee to highlight the committee's significant scrutiny concerns in relation to several matters arising in the Biosecurity Act 2015.

In this Digest, the committee has reported on particular scrutiny concerns regarding the Biosecurity Amendment (Enhanced Risk Management) Bill 2021. The bill seeks to amend the Biosecurity Act to provide biosecurity officers with the power to make group directions in relation to classes of individuals where one or more of the individuals exhibit symptoms of a listed human disease.

A group direction provides biosecurity officers with a number of coercive powers, including requiring individuals to undertake a medical examination or provide a body sample.

The committee has significant scrutiny concerns where bills allow for coercive powers to be exercised in circumstances where there is limited guidance in the primary legislation as to how these powers would be exercised. The committee also raised scrutiny concerns that, as group directions are not legislative instruments, the bill provided limited options for parliamentary scrutiny over the content of the group directions.

While the committee acknowledges the initial advice provided by the minister in relation to these concerns, the committee is requesting further advice regarding whether the bill can be amended to provide more guidance about the exercise of these coercive powers, including whether safeguards can be introduced into the bill that protect an individual's right to bodily autonomy and an individual's right to provide and withdraw consent.

The committee is also seeking further advice as to whether amendments can be made to the bill to increase the ability of the Parliament and the public to scrutinise the exercise of these powers. The committee has particular concerns in this case as group directions may only be made in relation to human diseases listed within the Biosecurity (Listed Human Diseases) Determination 2016, which is exempt from parliamentary disallowance.

The committee's concerns are about the lack of parliamentary scrutiny afforded to significant measures is longstanding. In Scrutiny Digest 7 of 2021, the committee reported on the use of exempt instruments made under the Biosecurity Act to implement significant COVID-19 response measures such as the India Travel Pause Determination. That review took place following a recommendation of the Standing Committee for the Scrutiny of Delegated Legislation in its report on the exemption of delegated legislation from parliamentary oversight.

It is the view of this committee that delated legislation should only be exempt from disallowance in exceptional circumstances. Exempting an instrument from disallowance directly interferes with proper parliamentary oversight of Commonwealth law and with the constitutionally conferred role of Parliament as the seat of legislative power. Any exemption from disallowance should be considered in the context of its interaction with these considerations.

The committee will generally have heightened concerns in relation to provisions exempting instruments from disallowance where the effect of those instruments would be to confer broad discretion on a decisionmaker, would deal with significant matters, or would unduly impact on an individual's personal rights or liberties.

The committee considers that a number of provisions within the Biosecurity Act raise these issues, and that the COVID-19 pandemic has served to highlight the importance of Parliament, and in particular the Senate, maintaining a careful and considered watch over how the legislative power that it has delegated is being utilised by the executive.

With these comments, I commend the committee's Scrutiny Digest 16 of 2021 to the Senate.

Question agreed to.

Debate adjourned.