Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

At the outset, I'll say that I do support the bill, and that is certainly the opposition's position. However, I also support everything that Senator Whish-Wilson just said in relation to the scrutiny process. This is an issue which is going to be progressed in some form over the life of this parliament. All senators in this place need to closely reflect upon it now, because there will become a time when these matters in relation to biosecurity legislation—indeed, any other legislation that exempts instruments from a disallowance process—are going to have to be considered by each and every senator in this place. Senator Whish-Wilson is absolutely correct: this chamber has a scrutiny roll. That's part of our function in Australia's parliamentary democracy, and I'm deeply concerned at the systemic nature in which instruments are put forward through various pieces of legislation which are not subject to the disallowance process.

For those who may be listening to this debate, I'll tease out the importance of this issue. We have a piece of legislation before this place, and we'll all vote on that piece of legislation. And that piece of legislation will then give the executive, the ministers, the ability to make instruments and issue delegated legislation. That delegated legislation can have a material impact on the freedoms and lives of people in our society. There's a process called a disallowance process, which means each piece of that delegated legislation is scrutinised by a committee of this place, called the Committee for the Scrutiny of Delegated Legislation, and an assessment is made as to whether or not it's constitutional, as to whether or not it falls within the powers of the legislation under which it was made, as to whether or not sufficient consultation was made with all relevant stakeholders, as to whether or not it's clear on the face of it—or if it's uncertain. That scrutiny process is extraordinarily important. In my experience, in the last parliament and this parliament, serving on both of the scrutiny committees, that process leads to better law.

We have all seen firsthand how, when that scrutiny process is mobilised, instruments are amended, additional consultation may be made and instruments can be withdrawn because of scrutiny concerns which are raised by this chamber. So the arguments in relation to this matter—the minister and the department are making arguments that the instruments under this act should not be subject to disallowance process—are not persuasive. Those arguments actually undercut our system of parliament and our democracy, because it is our role as senators to scrutinise the laws which are made. When this chamber doesn't have the power to initiate that disallowance process, then that scrutiny role is undercut. As Senator Whish-Wilson said, it's very, very rare for instruments to be subject to disallowance motions and to actually be disallowed for the very reason that the scrutiny committee engages in a process with the relevant minister and with the department to make sure the instrument complies with the scrutiny principles. So it is very rare for an instrument to be disallowed.

I've said it previously in this chamber and I'll say it for as long as I'm in this chamber: the instruments which are made by ministers, made by departments, under various pieces of legislation should be subject to disallowance processes. I agree with Senator Whish-Wilson that the argument that something is particularly scientific or technical, and therefore senators in this place don't have the capacity to assess it, doesn't wash. It's not persuasive. All of us consider legislation every day which is based on a whole range of different evidence, including scientific and technical evidence, commercial evidence and social evidence. That's our job. There is a latent paternalism in the concept that 'we can't let it go to the senators because we might not get the result we want'. From my perspective, that is simply inappropriate, and it's up to us as senators to push back on that.

I would like to have seen this be one occasion when those arguments could have been further prosecuted, but there are time constraints. I think it is important that the scrutiny committees act with a degree of unanimity in pushing these matters forward in order to maximise the opportunity for the best result. That is something which I will be working towards—I hope with the support of other senators.

I will take this opportunity to read some excerpts from the report of the Senate Standing Committee for the Scrutiny of Delegated Legislation inquiry into the exemption of delegated legislation from parliamentary oversight. These quotes from leading Australian experts underline the importance of the points made by Senator Whish-Wilson and the points which I am making. This is a quote from Professor Twomey, who is one of Australia's leading constitutional law experts:

…legislative power is conferred upon Parliament by the Constitution and to abdicate that power would be to breach that constitutional conferral of power on Parliament. Accordingly, Parliament must retain control over its delegated legislative power and be in a position to supervise the exercise of delegated legislative powers in order to be effective in exercising that control.

3.42 Professor Twomey argues the mechanism of control and supervision is the process of tabling and disallowance.

I give another quote, from section 3.44 of this report, from Professor Kristen Rundle, a co-director of the Centre for Comparative Constitutional Studies at Melbourne Law School. She said:

…disallowance is not just a technical process that your committee [Scrutiny of Delegated Legislation Committee] can instigate; it's actually a principle that serves the operation of our constitutional order and, specifically, the centrality of Parliament's lawmaking powers within it…it is not simply a presumption that can be rebutted when convenient…

That is my concern in this case. Senator Ciccone, who is in the chamber, serves on at least one of the scrutiny committees. I'm not sure whether he serves on both of them with me. Senator Ciccone will be well familiar with these arguments. It cannot be rebutted just when convenient, but that's what we're hearing from the relevant department in this case. I'll give another quote from the report, again from Professor Twomey:

Parliament would completely abdicate its responsibility if it was unable to change the laws that provided for the delegated legislation.

And it goes on. There is another quote from Professor Kristen Rundle which really sums it up and underlines the concern I have that there's been a systemic shift over time to make delegated legislation not subject to the disallowance process and, therefore, not subject to the scrutiny of the Senate. She said, 'There's a cultural shift needed here, back towards the primacy of parliament.' A cultural shift is needed.

It concerns me deeply that we, the elected representatives appearing here in the Senate to represent our communities, will have our scrutiny role undercut, abdicated and eliminated if instruments aren't subject to disallowance. Consider that the disallowance principles apply to whether or not the instrument has been made in accordance with the act. That is not a scientific or technical issue; that is whether a minister who issues an instrument under an act has the power to do that. Isn't that something which you'd expect the Senate to scrutinise? Why shouldn't the Senate scrutinise that? The argument is absurd—absolutely absurd. Whether or not a constitutional power has been exercised—isn't that question something we should scrutinise here, as the Senate? Doesn't that go to the absolute core of our responsibilities? Whether or not there has been adequate consultation with respect to an instrument, again, goes to the core of our responsibilities. Has the minister consulted with members of our community who are going to be most impacted by these instruments? So many people in the Australian community have been impacted by instruments made under the Biosecurity Act, especially during the COVID pandemic. There needs to be consultation with respect to these instruments. Does the instrument inappropriately infringe upon the rights and liberties of Australian citizens? Isn't that something which we should be scrutinising? Of course it is. It can't be left to the departments. It can't be left to the executive, in terms of the minister. There needs to be a check and balance. That's how our system works or should work.

In closing, I'll refer to some of the arguments that are sometimes used to justify this. In terms of emergencies, we all understand that in certain biosecurity situations there can be an emergency and the department or the minister needs to act quickly. The disallowance process does not prevent that. The instrument is issued, the action is taken and it has effect from the moment when the action is taken. What the disallowance process means is that once the instrument is issued the exercise of that delegated lawmaking power is then scrutinised. In the very unlikely event—Senator Whish-Wilson gave you the numbers—that the issue can't be resolved through discussions between the Senate, the scrutiny committee and the minister, there's a disallowance motion, which is put on the floor of the Senate.

It's at that point that each and every one of the 76 senators here can make their own assessment with respect to the arguments as to whether or not the instrument should be in place. That's our job. There will be scientific and technical arguments. Of course there will be. There will be financial arguments. There will be social arguments. There will be arguments with respect to people's freedoms and liberties et cetera. Of course there will be. That's our job, and we do that every day.

It is only if a majority of the senators in this place believe that instrument should be disallowed that it is disallowed. That's the only situation in which it's disallowed, and that is an extremely rare event. I would have thought that the Australian community would be very concerned if a majority of senators came to that view and were deprived of their ability to actually disallow an instrument in that circumstance. What would that say about our system if a majority of senators in this place believed an instrument was inappropriate and should be disallowed, and we were deprived of our ability to actually cast a vote and put it into action? It's a major concern.

This is a systemic issue. It needs a solution. It's certainly something on which I am very interested in pursuing discussions with colleagues all across the chamber in order to rectify this matter, because it's simply not good enough. It's not good enough that we continue to see legislation introduced in this place which has instruments which are not subject to the disallowance processes, depriving the Australian people of the scrutiny process which goes to the heart of this place. With that, I'll conclude my comments. I've talked to many of my friends in this chamber about these issues, and a lot of my concerns and Senator Whish-Wilson's concerns, as he articulated, are shared by many in this chamber. I recommend all senators continue reflecting on this. It's something we need to bring to a head at some stage. We need to bring it to a head and make some material action to assert the importance of this Senate and the scrutiny processes which go to the heart of our role.