Linda White (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present two reports of the Standing Committee of the Scrutiny Delegated Legislation, as listed at item 18 of today's order of business, together with the ministerial correspondence received by the committee and move:

That the Senate take note of the report.

I rise to speak to the tabling of the Senate Standing Committee of the Scrutiny of Delegated Legislation's Delegated Legislation Monitor 6 of 2022 and the committee's Annual Report2021.

The monitor report is on the committee's consideration of 138 legislative instruments registered on the Federal Register of Legislation between 27 July and 31 August 2022. This includes 120 disallowable legislative instruments and 18 instruments exempt from disallowance. It also details the committee's ongoing consideration of instruments registered in previous periods, and concludes its engagement with the relevant minister in relation to four instruments.

I would first like to draw the chamber's attention to the committee's concluding comments on the Australian Renewable Energy Agency Amendment (Powering Australia) Regulations 2022. These regulations prescribe 'energy efficiency technologies' and 'electrification technologies' as functions of the Australian Renewable Energy Agency (ARENA).

As I noted in my comments on Delegated Legislation Monitor 5, it was unclear to the committee whether these functions fell within the scope of the Australian Renewable Energy Agency Act 2011, the ARENA Act, under which the instruments are made. The committee also sought advice about the extent of consultation undertaken in making the instrument.

Since the committee reported, the objects of the ARENA Act have been amended to expand its objects and include a note clarifying the types of functions that can be prescribed by regulation.

The minister's response to the committee outlined these amendments and provided additional, useful information about the degree of connection between the functions prescribed by the instrument and the scope of the ARENA Act. The minister also provided further information as to consultation undertaken in making the information.

On the basis of the minister's advice, and noting the recent amendments to the ARENA Act, the committee has resolved to conclude its examination of the instrument, bringing to an end a long history of this act and regulations.

The committee thanks the minister and department officers for their constructive engagement on this matter.

This monitor also contains the committee's requests for further information from the relevant minister in relation to three instruments:

The Health Measures No. 9 Regulations authorise spending on the development and maintenance of Australia's onshore capacity to manufacture mRNA products. The committee had sought the minister's advice as to why it was considered appropriate to address such significant matters in delegated legislation. The committee also asked whether the funding amount could be disclosed to promote appropriate parliamentary oversight of Commonwealth expenditure.

The Minister for Health and Ageing has since provided additional information about the need to use delegated legislation for this purpose and has also outlined some of the complexities relating to disclosing the funding amount. Despite these complexities, he advised his department is working with the funding recipient to provide the required transparency expected by parliament. The committee is therefore seeking an undertaking to update the explanatory statement to the instrument with further information about the relevant expenditure once this work is complete.

The Prime Minister and Cabinet Measures No. 11 Regulations amends the Financial Framework (Supplementary Powers) Amendment Regulations to authorise spending on the Territories Stolen Generations Redress Scheme. The committee had sought the minister's advice on several issues, including the need to use delegated legislation to address such significant matters and the availability of merits review. In the light of the minister's response, the committee has resolved to seek further advice about the availability of merits reviews for decisions made under the scheme.

Finally, I would like to speak to the tabling of the committee's annual report 2021. The report documents a significant year in the committee's history. In 2021, the committee examined 1,712 instruments, of which 420 raised scrutiny concerns. This was a significant increase from the 240 instruments raising concerns in 2020. In 2021, most concerns raised by the committee at the ministerial level related to the inclusion in delegated legislation matters more appropriate for parliamentary enactment, and instruments modifying primary legislation. Chapter 2 of the report provides further detailed information about the committee's scrutiny work over the year.

The increase in the number of instruments raising scrutiny concerns is partly due to amendments to the committee's standing orders in mid-2021. Amongst other matters, these amendments empowered the committee to scrutinise instruments in relation to exemptions from disallowance and sunsetting. These amendments arose from the recommendations of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight. Chapter 1 of the annual report outlines this important inquiry.

Chapter 3 of the report contains case studies of some of the most significant scrutiny issues identified by the committee in 2021. These include the committee's extensive engagement with the Treasurer in relation to instruments made in the Treasury portfolio which modified or created exemptions to the operation of primary legislation. Following this engagement, the committee was pleased to note the more frequent inclusion of limitations on the duration of instruments modifying the operation of primary legislation. The committee thanks the former Treasurer and departmental officers for their constructive engagement with the committee on this matter.

Chapter 3 of the report also identifies ongoing scrutiny issues that the committee will continue to monitor, including the exemption of delegated legislation from disallowance in the absence of an adequate jurisdiction.

Finally, I would like to take this opportunity to thank previous committee members, the committee's legal adviser, Associate Professor Andrew Edgar, and the secretariat for their work in 2021 on these significant matters.

With these comments, I commend to the Senate the committee's Delegated legislation monitor No. 6 of 2022 and its annual report of 2021.

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

At the outset I should acknowledge that, in the previous parliament, I had the privilege of serving on the Standing Committee for the Scrutiny of Delegated Legislation under you as chair, and that was an extremely positive experience from my perspective as a new senator. I learned a great deal on that committee. Thank you for that, if I can, with your indulgence, compliment you.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Thank you. Just keep it coming!

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

I'm running out. I miss you. I'm on the Scrutiny of Delegated Legislation Committee and your absence is notable. But I would like to talk about the Scrutiny of Delegated Legislation Committee and its most recent report. First I want to compliment Senator White in relation to her chairing of that committee. There were extremely big shoes to fill on that committee. From my experience, Senator Fierravanti-Wells as chair of that committee and Senator Kim Carr as the deputy chair of that committee did outstanding work during the last term of parliament, and I'm so pleased that Senator White, in her chairing of that committee, has continued the non-partisan nature with respect to the conduct of that committee's business.

I want to give one example in the most recent monitor to draw out the importance of the work of that committee, and that is in relation to the questions that have been raised in respect to electronic service of documents under the Bankruptcy Act. As someone who, in my previous life, worked for a period of time in the field of insolvency litigation, I understand the monumental importance with respect to bankruptcy proceedings on everyday Australians. It is so important that the service of bankruptcy notices, creditors petitions et cetera is done in a way which ensures that people aren't caught unawares by those sorts of proceedings. As an example of the great things that this committee does, the committee has drawn attention to the fact, in relation to the electronic service of documents, that it is so important to the rights of individual Australians that they be correctly served. Those sorts of documents can be profoundly life-changing, and it's absolutely crucial that those principles are adhered to.

I would like to say something in respect of the annual report for the 2021 year of the Scrutiny of Delegated Legislation Committee. Some of the most important work that that committee has done is in respect of its inquiry during the course of last year's parliament in regard to the exemption from disallowance procedures of delegated legislation. I have spoken previously about delegated legislation in this place. As the committee has noted in the past, there are tidal waves of this sort of delegated legislation coming through. I think the ratio is about four to one in terms of delegated legislation compared to bills of parliament.

That delegated legislation can have a profound impact on Australians. We saw it during the recent pandemic, in relation to controls with respect to the ability of Australians to leave the country or come back to the country. Because of the impact that that delegated legislation has on the rights of everyday Australians, in my view it is absolutely crucial that in nearly every case—and the exemptions should be extremely narrow—that delegated legislation should be subject to disallowance procedures in this place. That's important for a number of reasons. The first is to make sure that the appropriate scrutiny is applied to the delegated legislation. And, as you know, Madam Acting Deputy President Polley, the way the scrutiny committees work is that typically dialogue is entered into between the committee and the relevant minister. So, invariably, in the vast majority of cases, through the toing and froing of that correspondence—which can take months in some cases—a good result is arrived at for the people of Australia. So, that process is extraordinarily important and leads to an improvement in terms of the laws and instruments that impact everyday Australians.

The second point I want to make is that if you exempt that delegated legislation from oversight by the Senate, oversight by the elected representatives, then who's responsible? Who's responsible for that delegated legislation? From my perspective, I've been elected on behalf of the people of Queensland to represent their interests in this place, and that means I have a responsibility to consider the laws that impact Queenslanders. If a piece of delegated legislation is not subject to a disallowance process, I'm deprived of the opportunity of considering the impact of that delegated legislation upon my constituents in Queensland, and that is unacceptable. It is unacceptable when it comes to legislative instruments, delegated legislation which can have incredible impacts on the lives of everyday Australians and, as we saw during the pandemic, can have an impact on whether or not they can leave the country or come back to the country. It doesn't get more fundamental than that. From my perspective, it is unacceptable that that should not be subject to a disallowance process in this parliament, so that every one of the 76 senators in this place has to discharge their obligation to soberly consider that delegated legislation and whether or not it's in the best interests of their constituents.

That's how this place is meant to work. Yet, over the years—and this isn't party political; this is about both parties of government—there's been a creep towards more and more delegated legislation not being subject to disallowance processes. I do not accept the argument that has previously been put that there are some things that are too important or too sensitive for this place to consider. The more sensitive it is, the greater the impact on people in Queensland and the more important it is that the people's elected representatives should consider the delegated legislation and the impact it's going to have on the lives of their citizens—the more important. I do not accept the notion that I've heard from a number of representatives in the executive of government—the Public Service—that this is something that really is so obvious it shouldn't be going to the Senate and we can't risk this becoming political. And I've heard that said—that we can't risk this becoming political. I'm sorry, but when I see that word, 'political', I interpret it as subject to the scrutiny of the representatives elected by the people. That's what politics is all about. Each and every one of us here in this place is representing the people who elected us. The more sensitive it is, the more appropriate it is that it should come before this Senate so that this Senate can consider whether or not we should apply the disallowance procedures that were available to us.

Lastly, in conclusion, I want to sincerely place on the record my personal thanks to former Senator Fierravanti-Wells and also Kim Carr. I think they gave all of us an outstanding example of the good that can be done when we reach across the chamber and work together in a nonpartisan fashion to improve the laws for the benefit of all Queenslanders. Their cooperation on and their leadership of that committee left a profound imprint upon me. In closing, I'd like to again congratulate Senator Wyatt, as the only continuing member of that committee from the last parliament to this parliament: from my perspective, you're continuing that tradition, and I congratulate you for it.

Question agreed to.