George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

I should say that the selection of 40 sitting days was not mine. It was the recommendation of the PJCIS. So, in order to meet the concerns of those who were worried about the possibility of an arbitrary regulation-making power not being supported by legislation the government adopted the PJCIS recommendation.

I do not sit on the PJCIS, of course. They arrived at the 40 sitting-day standard or time frame. Had I been a member of the PJCIS would I have adopted 40 days, 30 days, 20 days or 50 days? I do not know. But in a spirit of comity the government decided to adopt the unanimous view of the PJCIS that 40 days was the appropriate period.

By the way, Senator Ludlam, do not disregard how unusual this is in terms of additional protections. Ordinarily, of course, where a regulation-making power is conferred there is no obligation to support that regulation by the introduction of legislation, at all. The regulation is, of course, subject to the disallowance powers of either house of the parliament but in an ordinary case a regulation is not required to be supported by legislation, at all. So this is, if you like, an additional safeguard measure to lend consistency to the government's decision to locate the descriptions of the metadata required to be retained within the act rather than in regulations

I think you can see the point, Senator, that it would be very odd—having decided to put the descriptions of the information, the subject of the retention obligation, into the act itself—then to allow that to be avoided by allowing the minister to use a regulation-making power to add new categories, which is why we have said these have to be legislated for as well.

As to 40 sitting days, it does not strike me as an obviously unreasonable length of time; nevertheless, that is what the PJCIS, in its wisdom, decided to recommend and the government—eager to oblige the critics of this bill—adopted all of the PJCIS's recommendations, including that one.