Robert Ray (Victoria, Australian Labor Party) Share this | Hansard source

I present the ninth report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 12 of 2006, dated 18 October 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 12 of 2006, I would like to draw senators’ attention to the committee’s consideration of the Environment and Heritage Legislation Amendment Bill (No. 1) 2006. The fact that the committee’s comments on this bill run to some 12 pages should speak for itself, but I would like to take a few moments to highlight some very significant concerns raised by the committee.

Amongst other things, this bill seeks to expand the range of enforcement powers and penalties which can be applied under the Environment Protection and Biodiversity Conservation Act 1999. These include more than 30 strict liability offences, a great many of which are accompanied by periods of imprisonment and fines well in excess of the accepted cap of 60 penalty units for these types of offences; provisions for the detention of suspected foreign offenders; the power to search individuals and their clothing without a warrant; and the power to conduct strip searches, again, without a warrant.

By any standards these are significant and intrusive powers and should only be conferred in exceptional and specific circumstances. The committee expects that proposals for the inclusion of such powers in legislation should be accompanied by detailed explanation and justification in the explanatory memorandum and also by appropriate safeguards. The explanatory memorandum for this bill falls well short of this expectation.

The committee notes that in many instances, the proposed provisions appear to be consistent with model provisions set out in the Crimes Act 1914. However, what is frequently missing is the justification for applying those types of provisions in these particular circumstances. In other instances, such as in the case of the search powers to be included by clauses 8 and 17 of new schedule 1 to the act, the explanatory memorandum advises that the provisions are modelled closely on sections of the Migration Act 1958 and the Fisheries Management Act 1991. Again, what is missing is a detailed justification of why these exceptional powers are required in these specific circumstances.

This is a source of some frustration to the committee, as it commented in detail on the legislative proposals which inserted these powers into the Migration Act. In commenting on the Migration Legislation Amendment (Immigration Detainees) Bill 2001 and the Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001, the committee expressed its longstanding concern about the appropriateness of conferring police powers on persons other than police officers and the appropriateness of applying a power to search persons under arrest to persons under detention. On that occasion, the risks that the committee perceived were partly tempered by the development of a draft protocol for strip searching of immigration detainees by the then Minister for Immigration and Multicultural Affairs and the Attorney-General. The committee has found no reference to similar safeguards in the explanatory memorandum to this bill.

To borrow exceptional powers from another regulatory context and to seek to apply them without due rigour or detailed justification in a different regulatory context is simply not sustainable, and there is no excuse for it. There is ample advice available to those charged with drafting legislation and, more significantly in this case, explanatory memoranda. The Office of Parliamentary Counsel publishes its drafting instructions, and these highlight many areas of concern to this committee and the parliament and how to address them. The committee has set out its views on offence, penalty and enforcement provisions in its fourth report of 2000, which dealt with entry and search provisions in Commonwealth legislation, and in its sixth report of 2002, which dealt with the application of absolute and strict liability offences in Commonwealth legislation.

More recently, in February 2004, the Minister for Justice and Customs issued A guide to framing Commonwealth offences, civil penalties and enforcement powers. This guide consolidates policy, principles and advice relevant to framing these types of provisions. It draws on a broad range of sources, including Commonwealth legislation, Model Criminal Code reports and the committee’s own reports and Alert Digests.

The committee is aware that this guide is underpinned by a consultative process aimed at ensuring that offence, penalty and enforcement provisions are framed in a sound, effective and coherent manner. This process requires the explanation and justification of the proposed amendments in order to secure the agreement of the Minister for Justice and Customs.

Unfortunately, on this occasion, little of this explanation and justification has made its way into the explanatory memorandum for the benefit of the committee, the parliament and the general public. The committee has therefore raised its concerns with the minister and sought his advice. Pending the receipt of this advice, I draw this particular bill to the attention of everyone in the Senate.