Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

I present Scrutiny digest No. 5 of 2022 of the Standing Committee for the Scrutiny of Bills, dated 28 September 2022. I move:

That the Senate take note of the report.

I will make some brief remarks. And can I extend my congratulations to you on the wonderful stewardship that you exercised when you were chair of the Scrutiny of Bills Committee.

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

Keep it going! I move an extension of time!

Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

I think Senator Scarr might have overlooked the fact that I have actually inherited that role now that we are in opposition. But I know that Senator Scarr speaks generously of your stewardship, as he has done with Senator Liddle's, and I know Senator Scarr is a great enthusiast for the scrutiny role of the Senate.

As the chair of the Standing Committee of Scrutiny of Bills, I rise to speak on the tabling of the committee's Scrutiny digest No. 5 of 2022. The digest contains the committee's assessment of all bills recently introduced into the parliament. Each bill is assessed against the committee's technical scrutiny principles set out in standing order 24. These principles focus on the effect of proposed legislation on parliamentary scrutiny and individual rights, liberties and obligations. Importantly, the committee has a strong and longstanding commitment to nonpartisanship, and, accordingly, the digest does not consider the policy merits of various bills.

Scrutiny digest No. 5 of 2022 reports on the committee's consideration of 17 bills and three recent amendments which were introduced into the parliament during the previous sitting week. It also contains the committee's comments on a recent ministerial response in relation to one bill. The committee has identified potential scrutiny concerns in relation to 10 bills, including three private senators' bills and private members' bills. In particular, I wish to highlight the committee's comments in relation to one recently introduced bill and one amendment.

The first is the Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022. The bill seeks to extend the operation of several significant counterterrorism measures that are currently due to sunset in December this year. Each measure in the bill will be extended for 12 months. Scrutiny principle No. 1 requires the committee to report in respect of bills which may trespass unduly on personal rights and liberties. Under this principle, the committee will have scrutiny concerns in relation to any bill that introduces provisions which substantially depart from the traditional common-law approach to the criminal justice system. The traditional approach to restraining and detaining persons on the basis of a criminal conviction involves a number of well-established steps, including investigation, arrest, charge, remand in custody or bail, and then sentence on conviction. Several measures extended by the bill depart from this traditional approach and, as a result, may detrimentally impact on common-law rights or liberties. For example, the bill seeks to extend the operation of the control order regime, which allows the court to impose obligations, prohibitions and restrictions on a person without charge, for purposes related to preventing terrorist attacks.

The bill also seeks to extend the operation of the preventative detention order regime, which allows for a person to be taken into custody for up to 48 hours without charge, arrest or any intention on the part of the relevant law enforcement officer to charge the subject with a criminal offence.

Finally, the bill seeks to extend the operation of powers which allow police officers to stop, question and search persons without a warrant or to seize items from a person without a warrant. These latter powers are available to officers operating at a declared security zone, regardless of whether they are reasonable grounds to believe the relevant person may be involved in the commission or attempted commission of a terrorist act.

The extraordinary nature of these measures is recognised in the current legislation by the inclusion of a sunset period. Sunset clauses are important safeguards which facilitate regular parliamentary scrutiny and oversight of primary legislation. As sunsetting is one of the primary means by which the parliament exercises control over its legislative function, the committee considers that any modification of the sunsetting process should only occur in exceptional circumstances. In this case, the sunsetting date for each of the coercive measures in this bill has been extended on a number of occasions. The committee is therefore concerned that measures which were originally introduced as a temporary response to an emergency situation may become permanent by the continual renewal.

The explanatory memorandum to this bill does not appear to provide a justification for the extension of the sunsetting date for the measures in the bill. The committee has therefore requested the minister's advice, and this is a particularly important point, which demonstrates the comments that Senator Scarr just made. The committee has therefore requested the minister's advice as to the exceptional circumstances which might justify the extension and whether those exceptional circumstances are expected to continue into the future and what alternative scrutiny mechanisms are available to the parliament.

As you will appreciate, Acting Deputy President Polley, that writing to the minister seeking additional information or clarification is an important part of the iterative process of the Scrutiny of Bills Committee. I am always delighted to be able to report that often that exchange of views, that expression of concerns does actually lead to changes in the propositions that the governments of various persuasions bring back to parliament in the form of amendments or improved legislation.

To demonstrate that, let me make some comments about the Aged Care Amendment (Implementing Care Reform) Bill 2022. Separate to these concerns, I am pleased to highlight the committee's comments on amendments to the Aged Care Amendment (Implementing Care Reform) Bill 2022. The committee commented on this bill in scrutiny digest number 4 2022, expressing concerns about the broad discretionary power to determine via delegated legislation exemptions to statutory requirements relating to registered nurses and residential facilities, an issue that has been top of mind for many people in aged care, many families of residents in aged care and particularly those living across regional communities. The previous iteration of the bill did not set out any detailed criteria limiting this broad exemption power, nor did the face of the bill include any guidance as to how the powers should be exercised. I am pleased to note that recent amendments to the bill address these concerns by providing further limits and guidance on the exercise of this power. In particular, the amendments state that any exemption must not be granted for a period exceeding 12 months, providing significantly greater parliamentary scrutiny over exemption instruments.

The committee looks forward to continuing to engage constructively with ministers to resolve technical scrutiny concerns like this prior to the passage of the bill. I think that is a very important demonstration, again, of the comments Senator Scarr had made previously—that it is the exchange of views between this particular scrutiny committee and executive government and officials are support the government to have laws that are better defined that, in our case, better protect certain liberties for Australians. I'm pleased to note the continued work of this committee and again to note your stewardship in the previous parliament.

We have seen in the last couple of days some interesting comments about the Biosecurity Act 2015 and its appropriateness. I think that if we put our mind to the debate, or lack of debate, and the scrutiny—lack of scrutiny—around that particular bill, the bill which facilitated Australia's response to the pandemic and, for some Australians, allowed governments to exercise too much power. When we think about that bill, the lack of scrutiny, the lack of parliamentary debate and inquiry, then I think the work of this particular committee, the work of other scrutiny committees in the Senate become much more important and appreciated. So, with that, Madam Acting Deputy President Polley, I conclude my remarks.

Question agreed to.