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

I present the Scrutiny digest No. 6 of 2022 of the Standing Committee for the Scrutiny of Bills. I move:

That the Senate to take note of the report.

Question agreed to.

As chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny digest No. 6 of 2022. The digest contains the committee's assessment of all bills recently introduced to the parliament. Each bill is assessed against the committee's technical scrutiny principles as 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 non- partisanship, and accordingly the digest does not consider the policy merits of bills.

Scrutiny digest No. 6 of 2022 reports on the committee's consideration of 16 bills which were introduced into the parliament during the previous sitting week as well as amendments introduced in relation to four bills. It also contains the committee's comments on recent ministerial responses in relation to eight bills. The committee has identified potential scrutiny concerns in relation to eight bills, including two private senators' and members' bills.

I particularly wish to highlight the committee's comments in relation to two recently introduced bills. The first is the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022. Among other things, the bill seeks to amend the Biosecurity Act to confer three new instrument-making powers on the agriculture minister which mirror existing powers that are available to the health minister in relation to human biosecurity risks. Legislative instruments made under each of these new powers will be exempt from disallowance.

Scrutiny principle (v) requires the committee to report in respect of bills which insufficiently subject the exercise of legislative power to parliamentary scrutiny. As disallowance is the primary means by which the parliament exercises control over its delegated legislative power, the committee will have scrutiny concerns in relation to any bill that seeks to exempt delegated legislation from disallowance without appropriate justification. The committee has longstanding scrutiny concerns regarding provisions in the Biosecurity Act which allow delegated legislation to be exempted from parliamentary disallowance. I note that these concerns are shared by the Scrutiny of Delegated Legislation Committee.

In 2021 and 2022, the committee conducted a review of exemption from disallowance provisions within the Biosecurity Act and recommended that, from a scrutiny perspective, the Biosecurity Act should be amended to provide that all instruments made under the act—it's worth repeating: all instruments made under the act—are subject to disallowance. Rather than responding to those recommendations, this bill would introduce three new exemptions from disallowance provisions. Of particular concern is that these new exempt instruments may deal with significant matters which may impact upon an individual's personal rights and liberties, such as determining requirements for individuals entering Australian territory at a prescribed point of entry.

In June 2021, the Senate resolved that all delegated legislation should be subject to disallowance unless there are exceptional circumstances justifying an exemption. The Senate also resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim would only be justified in rare cases. The committee does not consider that the justification provided in the explanatory memorandum to this bill adequately addressed the committee's scrutiny concerns. The committee has therefore requested the minister's advice as to whether the bill can be amended to provide that these new instrument-making powers are subject to disallowance to ensure they receive appropriate parliamentary oversight. The committee has also written to the ministers administering the Biosecurity Act to request that they move amendments to provide that all instruments made under the act are subject to disallowance.

In this digest, the committee also considered the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022. As senators know, these bills have been referred to the Joint Select Committee on National Anti-Corruption Commission Legislation for inquiry and report by 10 November. The committee makes six recommendations that more information be included in the explanatory memorandum and a further nine recommendations that consideration be given to amending specific provisions. The committee encourages the Attorney-General, the select committee and all parliamentarians to consider these recommendations in detail.

The committee's concerns relate to possible impacts on an individual's rights and liberties and to provisions which provide broad administrative powers or exclude judicial review. Under scrutiny principle (i) the committee will have scrutiny concerns in relation to any bill that introduces provisions that may trespass unduly on personal rights and liberties. The measures in these bills would provide the commissioner with a range of investigative and reporting powers which may limit an individual's personal rights or liberties, particularly in relation to longstanding common law rights relating to privacy, self-incrimination and legal professional privilege. The bill sets out a number of offence provisions which the committee considers would require further justification.

In addition, the bill also provides for the broad delegation of administrative powers and functions. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated or on the categories of people to whom those powers might be delegated. The committee has recommended that the bill be amended to provide that powers and functions may only be amended to persons who have the appropriate qualifications, training or experience.

Importantly, as I've already noted, the committee's concern relate to matters of technical scrutiny and not to matters of policy. I encourage all parliamentarians to carefully consider the committee's analysis contained in the digest. With these comments, I commend the committee's Scrutiny digest No. 6 of 2022 to the Senate.

Question agreed.