Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

What is becoming quite clear is that we are just experiencing another delaying tactic by the opposition on this legislation. I can appreciate the desire of the parliament to have adequate scrutiny of it. The government fail to see how a determination does not already provide for this. But we can assume that those opposite are concerned about parliamentary scrutiny. Parliamentary scrutiny is appropriate under the legislation. It does provide for delegated legislation. It does ensure that there is the ability of parliament to disallow legislation. There is a process in place for that. There is also a committee that deals with regulations and ordinances. There is also scrutiny of delegated legislation. There is a process in the parliament to deal with a whole range of matters that arise under the Legislative Instruments Act 2003. Sensible processes are then put in place.

It is being suggested that we depart from the accepted principles of how matters are dealt with both by act and regulation in this place and pursue a determination outlined in the amendments moved by the opposition. It is correct to say that they are not new issues. Determinations can be made. They are usually made for a range of reasons. I would submit that they are not for the purposes of this legislation, though. They are usually made for matters such as where you might want a building approval, and you have to ensure that you can deal with it prior to that via determination. But in those instances what we find, and what is lacking in this bill, is that there is no process and that the mechanics are missing as to how it would operate. So we have a dumb amendment, quite frankly, which does not have a way of dealing with simple mechanics about what time line you would expect, how the matter would then be progressed and how you would then have it promulgated. All of those mechanics are missing from this amendment.

That could mean that—whereas with delegated legislation when you have a matter tabled you have a process, and parliament can see what the delegated legislation is, and you have committees of the parliament that can look at it—you also have a process where it can be laid on the table to be dealt with. You then have a position where it has to be laid on the table for 15 days. At the end of those 15 days the process is that if the motion is not dealt with it moves through. If the motion is put on it to disallow then it has the time to run. That means that there are mechanics, the tintacks, about how these matters work. We have before us a bold-faced determination dressed up as amendments without a process attached and without time lines attached for how the matter would progress through both houses of parliament.

I am not going to blame Senator Cormann for perhaps not considering all of those issues. It may have been something that slipped his mind when he turned his attention to how he would construct such a determination. Notwithstanding that, though, there is a range of unanswered questions about how the mechanics would work. I assume Senator Cormann will leave it to the government to work that out should his amendment get up. I am trying to persuade the Greens and Senator Xenophon that it is a dumb amendment. The delegated legislation is the appropriate way of dealing with these things. Yes, it does not give you a positive vote; it does provide you with a negative vote. I understand the difference between those two issues. But in that sense it does provide a process with which we are all familiar for how legislation will operate, how it will be laid before parliament and how we will be able to scrutinise it and make our decisions about it.

This introduces a determination without the mechanics, and that is what this government is concerned about in its support. It does not have the time lines and or the processes that are essential for the determinations to work effectively for the purposes of whatever is behind the amendment in the first place. I assume that is to impute a positive vote in the Senate to ensure that those determinations are made, but I can only assume that because quite frankly the amendment itself does not actually lay that out. I have not really understood the mechanics of how it would operate from the opposition either. If you sign yourselves up to this, if the Greens and Senator Xenophon and Senator Fielding sign themselves up to this, then at some point someone is going to have to work through the mechanics of this and how it will operate.

On that basis I would submit that you should not sign yourselves up to it. You should allow the delegated legislation to operate as it always has in this place. It is a disallowable instrument and it is a sensible process to adopt. It does not give you a positive vote but then delegated legislation is constructed in that way. If you want a determination, this is not the place you would use it in any event. That would be the second string to my argument. Determinations are familiar and have been used in the past in this place but not in respect of, in my submission, this type without the mechanics that would go with it. We are familiar with them for building approvals so that you do not build a building and then find that it is disallowed subsequently—although for a short period you might start the design and construction, make a whole range of other expenditures and then find that the parliament does not approve. This instance is not caught in that sense and it should not be a determination, in my submission. On the Greens amendment, if it would help, I can foreshadow that we will oppose it.