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

On behalf of the Chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation, I present the Delegated legislation monitorNo. 2 of 2023.

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

Now we want to talk about the other scrutiny committee, the Scrutiny of Delegated Legislation Committee. First, I want to compliment my colleague Senator White in relation to her chairing of the committee. She does an outstanding job, an absolutely outstanding job. She is, I think, continuing the non-partisan role of that committee. Again, it's an important check and balance on the executive in relation to the—

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It's coming, it's coming!

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

More compliments—that's all that's coming, Senator Ciccone—more compliments! So I'll take that interjection! For those listening, let me give you an example of one of the sorts of issues we grapple with. It's dealt with in this digest. This is the sort of nonsense this scrutiny committee has to put up. Legitimate scrutiny concerns were raised with the Aged Care Quality and Safety Commission Amendment (Code of Conduct and Banning Orders) Rules 2022. Let me read paragraph 1.6 from the Delegated legislation monitor:

Section 23BE of the instrument provides that, if an investigation is undertaken in relation to compliance under section 23BD, the Commissioner may 'take any action'—

That's what it says: 'take any action'—

to deal with the outcome of an investigation that they consider appropriate.

That's the power that's invested in the commissioner. The scrutiny committee, it should not come as a surprise to any senators here, raised the obvious point that maybe 'take any action' that the commissioner considers appropriate is too wide a power. It gives him or her too great a discretion. Perhaps there should be boundaries, some guardrails, some guidance, as to what action the commissioner can or can't take. Again and again, the department resists commonsense amendments that would provide appropriate limits with respect to discretionary powers. Why do we need to continue debating these issues again and again and again? The same issues are continually arising.

The last point I want to make on this is that I do really want to compliment members of the scrutiny committee with respect to their collegiality. From time to time, we would become somewhat exasperated with the views of departments when they write back consistently in the terms in which they do. It reminded me of an essay written by Max Weber, a European social democrat. I would be disappointed if any on the opposite benches haven't heard of Max Weber, a very famous German social democrat. He wrote an essay called Politics as a Vocation, which was published in 1919. The is the last paragraph:.

Politics is a strong and slow boring of hard boards.

He's not talking about 'boring' as in a speech like mine! He's talking about strong and slow boring, as in drilling, through hard boards. He goes on:

It takes both passion and perspective. Certainly all historical experience confirms the truth that man would not have attained the possible unless time and again he had reached out for the impossible.

Is it impossible that we will actually get a regulation or a bill presented to the Senate which doesn't trigger a fundamental scrutiny concern? Is it possible that our words will actually be heard somewhere in the depths of the bureaucracy. Again and again we get legislation that is infested with exemptions from disallowance, with inappropriate discretionary powers and with a lack of checks and balances on the executive. We can only hope, and we can only seek guidance from those such as Max Weber in terms of his encouragement to keep on boring.

Question agreed to.