Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I do not normally speak to reports of the Senate Standing Committee for the Scrutiny of Bills. My colleague Senator Murray does an excellent job on that committee—as does everybody on the committee, I might say. It is one of those committees that, in general, does not get much scrutiny or attention, but it does perform a very important role, along with the Senate Standing Committee on Regulations and Ordinances. But I do want to speak to this report on this occasion and to make an exception, because this is an exception. I concur with the comments that have already been made, and I urge all senators—but, given the reality of the chamber at the moment, particularly government senators—to really look at this closely. The legislation in question here, the Environment and Heritage Legislation Amendment Bill (No. 1) 2006, which is the amendment bill to the EPBC Act, is before the Senate Standing Committee on Environment, Communications, Information Technology and the Arts, of which I am deputy chair. I will certainly ensure that the committee takes on board this report. But I do think it is worth noting and repeating Senator Johnston’s comment—for example, that this is the most appalling explanatory memorandum he has ever seen.

It is worth noting that, because the government—the department—have been foreshadowing the relevant legislation for months and months. I presume they have been spending a very long time putting it together. Yet, in what is sadly becoming an all too common occurrence, the legislation was, at the insistence of the government, referred to the committee before the bill had even been tabled—before people had a chance to see how big the bill was or to get any idea of its content beyond just the very general policy goals. It was already referred to the committee with the reporting date insisted upon of 17 November, which is in a non-sitting period. Indeed, we could not even get the extra non-sitting week to get a reporting date of 24 November.

When the government have months and months to put together their legislation, including their explanatory memorandum, and it comes down to something that Senator Johnston himself, on the government side, says is the most appalling explanatory memorandum he has ever seen, then you really have to wonder. But the government do that and then try and force the committee that has the job of examining the totality of the legislation—not just the narrow constructs that the Scrutiny of Bills Committee has to do but the totality of it—and say, ‘You’ve got to do it within a month.’ Two weeks of that month is already taken up with sittings and estimates committees. They even insist: ‘We won’t even let you have an extra week, because if you want to make amendments we’ve got to have enough time to write them, get them approved and all that sort of process.’ If they get the legislation or the explanatory material so wrong to start with, apparently, then that does not give great confidence about them getting any amendments right in such a short time frame. But they have given themselves almost as much time to allow for drafting of any amendments based on recommendations as the committee gets to look at the whole bill.

This should go beyond politics. We will all have different policy views about this particular piece of legislation, but this is the law we are making here. This stuff affects people’s lives. People get caught by the laws in all sorts of ways. You can always talk after the fact about what was or was not intended, but courts have to interpret the law. They might have a little bit of leeway, but they do not have that much. It is not just a game-playing or point-scoring process. If the parliament and particularly the Senate is to do its job in scrutinising legislation—in being a legislature, a law-making body—properly, we have to take reports like this seriously. To reinforce that, there are so many concerns expressed in this. I do not know if this is some sort of record, but 10 or 11 pages on one bill is pretty rare for this committee. Normally when they have concerns there are one or two pages. To have 10 or 11 pages worth of concerns about various aspects of the legislation—some of them procedural and not so serious, but some of them very serious—should send alarm bells. The Standing Committee for the Scrutiny of Bills, I would emphasise, is very much a non-partisan and non-policy committee. It simply scrutinises on the basis of basic legislative principles and basic appropriate standards for the drawing up of laws and for basic liberties—so basic they are deemed to be non-partisan.

The strict liability issue is one of those. As a nonlawyer, sometimes phrases like ‘strict liability’ and other types of liability go a bit over my head, and I am sure they do with the general community—they do not realise quite how significant it is when something becomes a strict liability offence. That is why you have committees like this and that is why you have guidelines regarding the application of absolute and strict liability. To repeat from those guidelines, which are in the report:

... strict liability should be introduced only after careful consideration on a case-by-case basis of all available options; it would not be proper to base strict liability on mere administrative convenience or rigid formula;

I frankly already have concerns that it is becoming just administrative convenience: ‘It is the easiest thing to do. It is already around the place. Let’s just put some more in. The more we put in, the more we can use it as precedent to justify even more.’ But even more crucial is the following guideline:

... strict liability offences should be applied only where the penalty does not include imprisonment and where there is a cap on monetary penalties ...

A strict liability offence basically means you are more likely to be convicted. If you are going to make it easier for people to be convicted of offences, unless you have an extremely good reason, they should not be for ones that are going to get people imprisoned. Yet on 31 different occasions here strict liability offences are put in place. In some of these cases there is a maximum penalty of seven years imprisonment or 420 penalty units—seven times the recommended maximum.

To do that once would, I am sure, draw the attention of and raise alarm bells with the committee. To do it 31 times and then not even actually explain why it is particularly necessary is a serious concern. Maybe there are very good reasons. It all goes back to treating the parliament and the public through the parliament with greater respect. It is, in my mind certainly, unavoidably intertwined with the growing practice of railroading major legislation—this legislation is 400 pages—through Senate committees in extremely short spaces of time with no consideration given to the committee’s other workload, let alone the totality of what is being put before them.

The other point I would make is that the government should not assume that people on this side of the chamber—because it is this piece of legislation, the EPBC Act—will always oppose what they are putting forward. If they actually make an effort to do the job properly and to take on board people’s concerns, they might actually find they get some support. They certainly did from the Democrats in regard to this legislation back in 1999—at great pain to us, I might say. It was something we paid a political price for. Because of that heritage, if you like, and having defended this legislation in the face of extraordinary attacks from some in the conservation movement for seven years, I am actually quite keen to try to find reasons to support attempts to keep it a solid act, as the minister is saying he is trying to do. But you make it impossible for people. How can one support what you are doing when there is not only the content of what you have here—this sort of strict liability free-for-all—but the process and the total contempt in preventing any sort of proper scrutiny, the total contempt in regard to even properly explaining the reasons why these sorts of things are being done? It simply makes it impossible for people who are actually wanting to find opportunities to support it to do so. I would really urged the minister, firstly, to open up his ears a little bit—