Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

r ASKEW (—) (): On behalf of the chair of the Standing Committee for the Selection of Bills, Senator Dean Smith, I present Scrutiny digest No. 1 of 2023, together with ministerial responses to committee correspondence, and I seek leave to have the chair's tabling statement incorporated in Hansard.

Leave granted.

The s tatement read as follows—

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 1 of 2023.

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 non-partisanship and, accordingly, the Digest does not consider the policy merits of bills.

Scrutiny Digest 1 of 2023 reports on the committee's consideration of 27 bills which were introduced into the Parliament during recent sitting weeks. It also contains the committee's comments on recent ministerial responses in relation to 9 bills.

In this Digest, the committee has welcomed several undertakings made in response to the committee' recommendations. For instance, the Minister for Indigenous Australians has agreed to amend the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 in response to the committee's concerns. The bill seeks to provide the Chief Executive Officer of the Wreck Bay Aboriginal Community Council with the power to delegate any or all of their functions or powers to an employee of the Council. In response to the committee's concerns about the breadth of this power and the lack of safeguards as to how it will be exercised in the bill, the Minister has advised that the bill will be amended to specify factors that the Chief Executive Officer must be satisfied an employee has before they can exercise any delegated powers, including that they have the appropriate training, qualifications, skills or experience to exercise the power.

The committee has also identified potential scrutiny concerns in relation to 14 newly introduced bills.

I particularly wish to highlight the committee's comments in relation to three bills which allow significant matters to be left to delegated legislation through the inclusion of 'framework provisions'. Framework provisions contain only the broad principles of a legislative scheme and rely on delegated legislation to determine the scheme's scope and operation.

The committee has longstanding concerns with framework provisions because they considerably limit the ability of the Parliament to have appropriate oversight over new legislative schemes. As all senators are no doubt aware, a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of a bill.

While it may be appropriate to include certain administrative and technical details of a framework within delegated legislation, the committee is concerned that in some cases, much of the detail of the scope and operation of new schemes is being left to delegated legislation. These are details that are often more appropriate to include in the bill itself.

In this Digest, the committee has commented on three bills that appear to contain framework provisions.

The Customs Legislation Amendment (Controlled Trials and Other Measures) Bill 2022 seeks to amend the Customs Act 1901to set up a framework to facilitate trials of new technology, business models and approaches in relation to Australian trade and customs practices. Many significant elements of the scope and operation of the new time-limited trial scheme are left to delegated legislation. For example, the bill provides that the Comptroller-General may determine, by legislative instrument, rules that make provision for and in relation to a controlled trial. The rules made for this purpose may establish a controlled trial, outline the period of time in which that controlled trial is in operation, and revoke a controlled trial so that it is no longer in operation.

Another bill that seeks to introduce what appear to be framework provisions is the Safeguard Mechanism (Crediting) Amendment Bill 2022. This bill proposes to amend the existing Safeguard Mechanism framework in the National Greenhouse and Energy Reporting Act 2007 to allow for the creation of safeguard mechanism credit units or SMCs. Much of the detail as to how the new Safeguard Mechanism framework will operate is not set out within the bill but is instead left to delegated legislation. For example, requirements relating to review rights, the basic elements of application processes, the value of an SMC, limits or guidance on the issuing of SMCs, and guidance in relation to surrendering SMCs, is left to delegated legislation. The committee considers these elements are more appropriately characterised as part of the crediting framework and therefore it may be more appropriate to include these details within the bill itself. In any case, the explanatory memorandum for the bill does not sufficiently explain why it would not be appropriate to include this detail within the bill.

The committee's position is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. Where a bill includes significant matters in delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to include the relevant matters in delegated legislation, and whether there is sufficient guidance on the face of the primary legislation to appropriately limit the matters that are being left to delegated legislation. Consequently, the committee has requested further information from the relevant minister for both of these bills.

Finally, the Treasury Laws Amendment (Energy Price Relief Plan) Bill 2022 amends the Competition and Consumer Act 2010 to establish a new legislative framework to regulate the Australian gas market. Again, the committee is concerned that some of the provisions in Schedule 1 to the bill leave significant elements of the new framework to delegated legislation. For example, who is or is not a gas market participant is to be determined by legislative instrument. This is a fundamental aspect of who is subject to the proposed scheme and yet is entirely subject to executive decision-making. The committee has noted its concerns in relation to the bill in Scrutiny Digest 1, but in light of the fact that the bill has received the Royal Assent, the committee has not made any further comment.

Importantly, and as I have already noted, the committee's concerns 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 1 of 2023 to the Senate.

I move:

That the Senate take note of the report.

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

I rise to speak in relation to the scrutiny of bills report. I want to make three points in relation to the scrutiny of bills report. First, from page 10, there are multiple scrutiny issues which are reported with respect to the Treasury Laws Amendment (Energy Price Relief Plan) Bill 2022. That's what happens, colleagues, when a bill is introduced in the place, as it was last December, at short notice. Members in this place only received a copy of the bill at 8.25 pm on the night before the sitting, and then it was debated in this place without the benefit of going through a scrutiny process. We are now in a situation where, in early February, for the first time, this Senate is looking at the carefully considered scrutiny issues with respect to that legislation. That is unacceptable. It is an unacceptable way to make laws in this country.

These are major issues that are raised in in report. There are principle 4, significant matters in delegation when they should have been the legislation; principle 3, broad discretionary power; section 96, Commonwealth grants to the states—and it goes on. There is the exemption from disallowance, that old bugbear that keeps coming up, yet the scrutiny issues carefully considered by the scrutiny committee are first presented in this place in February after the bill was debated in December. I've been watching the commentary from senators in this place—not necessarily of my own party, but others such as the crossbench and elsewhere—who raised surprise and concern about some of the ramifications, some of the flows of money under that legislation after it was debated and passed but before it went through about appropriate scrutiny process. It is unacceptable that that should occur with respect to such a major piece of legislation.

The second point I want to raise in relation to this digest is that we keep getting the same issues. When is there going to be change with respect so some of these fundamental scrutiny concerns? I point to the National Reconstruction Fund Corporation Bill 2022. The scrutiny concerns include exemption from disallowance. Again and again bills are introduced into this place, with important regulation-making power and important instrument-delegated-legislation-making power, and they are exempt from disallowance. For those sitting in the gallery and for those listening to the debate, what does that mean? It means you have a bill passed in this place for which the minister has discretion to introduce a regulation. That goes through and, even if a majority of the senators in this place disagree with it, we've got no process to stop it. It defeats this institution as a democratic institution. We're meant to be a house of review, and yet our ability to review is gutted every time delegated legislation is made exempt from disallowance.

The point I wanted to point to in this scrutiny digest is with respect to the Crimes Amendment (Penalty Unit) Bill 2022. A number of scrutiny concerns were raised in relation to that bill, and we're now in a situation where the bill has passed and the committee raised scrutiny concerns as to how it was calculated that the criminal penalties in a whole raft of legislation should go up by 24 per cent. The basis for that was queried by the scrutiny committee, and this is what the Attorney tells us: 'The Attorney-General also noted that the bill had already passed both houses of the parliament at the time of writing.' Isn't that wonderful? The bill goes through before fundamental scrutiny concerns are considered by senators in this place.

The scrutiny processes in this place are of the utmost importance to protect the rights and liberties of the Australian people. It's an important check and balance in our democratic process. But, if legislation is pushed through before the scrutiny process can even begin, as in the case of the gas price control legislation, or at such a pace that scrutiny concerns aren't reasonably answered and the relevant minister simply says, 'Well, the bill's been passed. What's the point?' that is unacceptable. It undermines the democratic institutions of our country and it impedes the Senate's role as an important house of review and a check and balance on the executive.

Question agreed to.