Fatima Payman (WA, Australia's Voice) Share this | Hansard source

Yes, I can speak it to. It will be short. This amendment would amend part 4 of schedule 2 of this bill, which inserts a proposed schedule 6 into the Aged Care (Consequential and Transitional Provisions) Act 2024. This schedule would allow the minister to modify the legislative framework of aged care by legislative instrument while the transition to the new Aged Care Act is underway. This is a consequential schedule that empowers the minister to legislate without reference to the parliament. While it is important that the transition to the new aged-care framework goes as smoothly as possible, it is also important that this power is scrutinised by parliament.

The amendment on sheet 3393 adds a clause to the proposed schedule 6 to allow the Senate Community Affairs Legislation Committee to review any rules made under schedule 6 without the need for the Senate to refer the matter to it first. This committee can do so within three months of a rule or rules made under the schedule being tabled in the Senate. In a previous draft of this amendment, the choice of the committee to review a rule or rules was instead an obligation. This would have meant, even if a rule was made that was as simple as fixing a drafting error or making a minor technical amendment, the committee would have been required to review it and report to the Senate. By substituting 'must' with 'may' this amendment allows the committee the freedom to decide whether a rule is worthy of inquiry.

For some senators, this may raise a concern that, by not forcing the committee to review every rule, the committee, which is a government controlled one, could choose to not review rules that, for example, the government or the minister do not wish them to review but that are consequential. If the word 'must' is used and the committee was presented with what, in its view, was an inconsequential rule, the committee could elect to report this finding without being required to consider the rule any further. If the word 'may' is used, the committee would be free to not consider a rule it deemed inconsequential without the need to produce a report of finding for each inconsequential rule that is made. In essence, the committee would in either situation retain the power to determine to what extent it wished to inquire into rules.

The use of 'may' rather than 'must' recognises that the committee's time and resources are limited and offers the committee flexibility in deciding which rules it wishes to report on. This amendment will increase the accountability of the minister in exercising his powers under this act, and I would urge my fellow senators to support it.