Kim Carr (Victoria, Australian Labor Party) Share this | Hansard source

This, as I say, has allowed the minister for health to change any other piece of legislation within this Commonwealth. The minister is seeking now to extend the powers of the human biosecurity emergency declaration for a sixth time, notionally ending on 17 December 2021. I don't think we know if that is the last time that he will be seeking that. If it isn't, there's nothing this chamber can do about that, given that these instruments are not disallowable. The committee has previously raised significant concerns about the exemption from disallowance of legislative instruments made under the Biosecurity Act. The committee has suggested:

… amendments should be moved to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to amend section 476 of the Biosecurity Act to provide that any future variations to extend a human biosecurity emergency period will be subject to disallowance—

that is, subject to this chamber or the House of Representatives actually being able to address that matter.

In correspondence with the committee, the minister replied that he thought there had been extensive and robust debate through both houses of parliament when the bill was introduced in 2015 and that therefore the possibility of disallowance was not necessary. That bill, as debated in 2015, was essentially about fauna and flora, not about pandemics. Neither the bill nor the explanatory memorandum even mentioned the word 'pandemic', so it's hardly received the extensive debate that the minister contended. The House of Representatives and the Senate both spent about five hours considering that bill, a bill which has fundamentally changed the regulatory regime in this country and had the effect of changing the way in which the states and territories have dealt with that issue, right across the Commonwealth. With only minor amendments, the bill passed both houses of parliament on 14 May 2015.

As Senator Smith has pointed out in the chamber in a tabled statement, we're seeing more and more examples of coercive powers being bestowed upon a minister without parliamentary oversight. These include provisions where individuals are required to take medical examinations and provide body samples through that coercive power. Time and time again, in the correspondence from ministers, this action is taken in the name of so-called administrative flexibility. The committee has been told that it's being subject to disallowance would only undermine the government's ability to respond to emergency threats. The committee acknowledges there are genuine emergencies and that there should be exemptions in specific cases, but there should not a blanket principle of exemption or disallowance in all circumstances, which is the way in which this position is being put so often in the correspondence from ministerial officers.

It is unfortunate that we are seeing a contemptuous tone grow from the executive about the concerns that this committee and its sister committee have raised. For the first time in its history, the committee took the unprecedented step in 2020 of holding public hearings into the exemption of delegated legislation from parliamentary oversight, making 11 recommendations that, as the chair of the committee has already indicated, have not yet been responded to by the government. I note that the committee has moved a motion tonight to gain a commitment from the executive, and I'm advised by other members of the government that the government will respond. I look forward to that.

Parliament and the public should be able to rely upon proper public administration, but it should also be able to rely upon proper parliamentary scrutiny of that legislation. At the start of the pandemic, when a human biosecurity emergency was declared, the committee chose to facilitate public scrutiny of COVID-19-related delegated legislation. A table on the committee's website lists all the delegated legislation registered on the Federal Register of Legislation since 18 March 2020. As of 15 October 2021, 578 legislative instruments had been made in response to COVID-19. The committee has long stressed its concern about the growth of disallowable instruments and, of course, the issue of the way in which the executive is ruling by decree as a result of this fundamental change in the way in which legislation is moved through this parliament.

In March, the committee's inquiry reported that the volume of delegated legislation made each year had increased over time. From an average in the mid-1980s of around 850 disallowable instruments tabled each year, it currently sits at around 1,500 each year. This is not a trend we should be proud of, particularly when we consider the number of these instruments which cannot in any way be overturned through the processes of the parliament. That, to me, is a matter of deep concern. Senators, if we do not do our duty and take up our responsibilities to correct this dangerous state of affairs, we may rightly and properly be accused of negligence, and so we should be. I commend the report to the chamber.

Question agreed to.