Senate debates

Thursday, 25 November 2021


Scrutiny of Delegated Legislation Committee; Delegated Legislation Monitor

4:16 pm

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

I would like to speak in support of the remarks of Senator Fierravanti-Wells, who is chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation. I emphasise to the chamber: this is a committee that operates on a bipartisan basis. In my direct experience it has demonstrated a commitment to working through issues carefully and in a considered way. There has been—along with the other scrutiny committees of this chamber—a renewed emphasis on providing proper transparency and accountability to the work of this parliament through this committee's leadership.

I can draw the attention of the chamber to the fact that the committee, after careful study and review—there have been a number of inquiries, changes to the standing orders and a number of mechanisms put in place to engage the executive on these questions—has advanced a bipartisan proposition that the biosecurity legislation should be amended by this chamber. There is a particular bill coming up, the Biosecurity Amendment (Enhanced Risk Management) Bill, that will provide the opportunity for that matter to be prosecuted.

These are the simple facts: from April last year there have been—I've mentioned figures of this type before—some 591 decrees issued around biosecurity and the Biosecurity Act. In particular, because of the nature of the act, under sections 477 and 476 there is a set of circumstances where this act overrides all other law in the Commonwealth. It has the effect of being able to change all other law in Australia. You might question how it could be that such legislation was put in place? As Senator Fierravanti-Wells has pointed out, we did so after only five hours of discussion in this chamber back in 2015, in circumstances where the word 'pandemic' wasn't used. It was a bill we were led to believe was about flora and fauna, not about changing the law—any law—should a minister decree it. As I have outlined, there have been some 591 occasions where decrees have been issued, most of which are not able to be amended or effected through this chamber through a disallowable instrument.

It strikes me that we have to emphasise that it's not about the right of government to act in an urgent way—and committee deliberations have always emphasised the fact that governments should have the right to act, particularly in terms of national health emergencies—but that any government's actions should be subject to parliamentary scrutiny. That's the substance of this conversation: should a government's actions in times of emergency be subject to parliamentary scrutiny?

It goes further than the actions of this parliament. These measures have been replicated in every other parliament across the Commonwealth—all the state parliaments. And while people are very anxious about what happens in the state parliaments, at least in the state of Victoria there is a requirement for parliamentary approval for an extension of a state of emergency. That does not occur here. It has now happened six times, effectively by the issuing of a press release by the Governor-General. These are measures that have the capacity to override, for instance, the telecommunications laws in this country, to track people using mobile phone towers. The next bill we'll see has the capacity to forcibly take body samples from people, infringing in the most basic way on civil liberties that we have expected to be upheld in this country and never questioned. There has been the issue about the right of travel and various other things. It may well be these matters are necessary in times of emergency. The question remains: should not the parliament make a judgement as to how long they should continue and under what circumstances they continue?

The proposition that's put is that ruling by decree is right because there are scientific and technical matters that we're all too stupid to understand—that's the inference that has been put to us—in circumstances whereby the balance between the technical and scientific issues invariably involves the question about restrictions on liberty. There's always a crossover. The question should legitimately be asked: 'Is that crossover appropriate in the circumstances, and does it continue to be appropriate in the circumstances?'

The other argument that is put is about how business needs certainty. Our largest trading partner, the People's Republic of China, does not provide the certainty that many people speak of, yet there doesn't seem to be any shortage of people wanting to do trade where the People's Republic of China. The idea that business is somehow or another so phased by the prospect that parliamentary democracy should impinge upon their right to trade strikes me as fallacious. What this is about is providing certainty for public servants to provide their decisions without parliamentary scrutiny.

Then there's the argument about whether or not there was a deliberative act by the parliament in setting these mechanisms in train. Clearly, that did not happen, yet it is presented to us as if it did happen. This is part of this regime. We now have a situation where the reports have come down from the committee, the government has responded in a completely contemptuous way once again, saying: 'We don't have to deal with these matters. We can continue on because it's custom and practice for us to act in this way.'

We have a situation where delegated legislation 30 years ago was occurring about 800 times a year and now it's up to 1,500 or 1,600 times a year, doubling over that period. This is increasingly becoming a major problem, because we have allowed it to become a major problem. Given that the overseas experience has been that we should have proper transparency and accountability, particularly in times of emergency—particularly in those circumstances—it strikes me that the recommendations of this committee are entitled to be supported. I'll be urging the chamber to do so, particularly given that these recommendations have been presented on all occasions in a bipartisan manner and it now seems that there is—from what I see in a media report—an attempt by some elements of the government to, essentially, maintain a control mechanism, not an engagement mechanism where there would be proper discussion about making sure that the fundamental principles of parliamentary democracy are actually upheld.


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