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

At the request of Senator Dean Smith, I present Scrutiny digest6 of 2024 of the Standing Committee for the Scrutiny of Bills together with ministerial correspondence received by the committee. I seek leave to incorporate the tabling statement in Hansard.

Leave granted.

The statement 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 6 of 2024.

The Digest reports on the committee's consideration of seventeen bills which were introduced into the Parliament in March, as well as amendments made to two bills.

In the Digest, the committee has identified potential scrutiny concerns in relation to ten newly introduced bills. The Digest also contains the committee's comments on recent ministerial responses in relation to nine bills.

The committee welcomes Senate amendments to the Digital ID Bill 2024 which address scrutiny concerns raised by the committee. The bill has been amended at the committee's request to require a report of the Minister's review of legislative rules relating to fees charged by entities in the Australian Government Digital ID System be tabled in each House of Parliament. The bill has also been amended to clarify that protection from liability for accredited entities is applied only in respect of actions or other proceedings brought by other accredited entities and relying parties participating in the Australian Government Digital ID System.

I also wish to draw Senators' attention to the committee's remarks in relation to the Migration Amendment (Removal and Other Measures) Bill 2024. The committee sought advice in relation to this bill when it was first introduced and has received a response from the Minister which is addressed in this Digest. The bill raises a number of scrutiny concerns in relation to trespass on rights and liberties, the imposition of significant penalties and significant matters that have been left to delegated legislation.

In relation to significant matters in delegated legislation, of particular concern to the committee is proposed section 199F, to be inserted into the Migration Act 1958. This section would allow the minister to designate a 'removal concern country' by legislative instrument. Senators will be aware that the momentous impact of making such a declaration is to effectively ban citizens of that country from applying for a visa to come to Australia. The minister advised the committee determinations made under proposed section 199F are in the national interest and are therefore a matter for the Executive, and that the intention is for countries to be aware of Australia's position that they should facilitate removal of affected persons.

The committee's position is that the designation of countries as removal concern countries is a significant matter which should be subject to full parliamentary approval and would be most appropriate for primary legislation. The committee's view is that parliamentarians are clearly capable of appropriately assessing whether a legislative proposal is in the national interest and the committee has noted that the Government would have the opportunity to put its position during parliamentary debate.

The committee also takes the opportunity to draw to the attention that an instrument designating a country as a removal concern country would not be subject to parliamentary control through the disallowance process. The committee notes that this crucial information was not provided with sufficient clarity in the explanatory memorandum to the bill, nor was it identified or justified in the minister's response to this committee.

Any bills which empower the making of non-disallowable instruments should clearly set out the legislative authority for the exemption from disallowance in the explanatory memorandum so that this information may be properly scrutinised and considered by the Parliament. Explanatory memoranda should also justify why the exemption is necessary and appropriate in the context of each individual instrument.

This is particularly salient in situations such as the current bill where the measures to be included in non-disallowable instruments are matters of high policy impact and which trespass on individual rights and liberties.

In this instance the committee has not been furnished with any justification as to why it is necessary and appropriate for instruments made under proposed section 199F to be exempt from disallowance. Noting the significant consequences of the designation of a country as a removal concern country, which would inevitably affect a significant number of people, the committee is of the view that any such designation should be subject to parliamentary control through the disallowance process. However, at a minimum, a full justification for this exemption should have been set out in the explanatory memorandum to the bill.

The committee also notes the advice that it is the intention of the Government that should the power to designate a country as a removal concern country be exercised, countries would be individually designated. While welcoming this statement of the Government's intentions, the committee notes that this is not required by the provision as drafted and this protection would be guaranteed through an amendment to the bill.

Finally, I wish to draw the Senate's attention to the committee's comments on standing appropriations in the Parliamentary Business Resources Legislation Amendment (Review Implementation and Other Measures) Bill 2024. This bill seeks to amend the National Anti-Corruption Commission Act 2022,which appropriates the Consolidated Revenue Fund for the purpose of making payments of financial assistance to, or for the benefit of, parliamentarians under arrangements prescribed by the National Anti-Corruption Commission Regulations 2023. This bill seeks to amend the existing standing appropriation to add the words former parliamentarians, with the effect that the standing appropriation will extend to all payments that can be made in accordance with the NACC Regulations, including those made to former parliamentarians.

Standing appropriations enable entities to spend money from the Consolidated Revenue Fund on an ongoing basis, usually for indefinite amounts and duration. Once a standing appropriation is enacted, any expenditure under it does not require regular parliamentary approval and therefore escapes direct parliamentary control.

Given the difficulty of ongoing parliamentary oversight over enacted standing appropriations, the committee expects a robust justification for why a standing appropriation should be established or expanded in the first place.

The committee has requested advice from the Special Minister of State as to:

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 6 of 2024 to the Senate.