Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present the ninth report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 12 of 2006, dated 18 October 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 12 of 2006, I would like to draw senators’ attention to the committee’s consideration of the Environment and Heritage Legislation Amendment Bill (No. 1) 2006. The fact that the committee’s comments on this bill run to some 12 pages should speak for itself, but I would like to take a few moments to highlight some very significant concerns raised by the committee.

Amongst other things, this bill seeks to expand the range of enforcement powers and penalties which can be applied under the Environment Protection and Biodiversity Conservation Act 1999. These include more than 30 strict liability offences, a great many of which are accompanied by periods of imprisonment and fines well in excess of the accepted cap of 60 penalty units for these types of offences; provisions for the detention of suspected foreign offenders; the power to search individuals and their clothing without a warrant; and the power to conduct strip searches, again, without a warrant.

By any standards these are significant and intrusive powers and should only be conferred in exceptional and specific circumstances. The committee expects that proposals for the inclusion of such powers in legislation should be accompanied by detailed explanation and justification in the explanatory memorandum and also by appropriate safeguards. The explanatory memorandum for this bill falls well short of this expectation.

The committee notes that in many instances, the proposed provisions appear to be consistent with model provisions set out in the Crimes Act 1914. However, what is frequently missing is the justification for applying those types of provisions in these particular circumstances. In other instances, such as in the case of the search powers to be included by clauses 8 and 17 of new schedule 1 to the act, the explanatory memorandum advises that the provisions are modelled closely on sections of the Migration Act 1958 and the Fisheries Management Act 1991. Again, what is missing is a detailed justification of why these exceptional powers are required in these specific circumstances.

This is a source of some frustration to the committee, as it commented in detail on the legislative proposals which inserted these powers into the Migration Act. In commenting on the Migration Legislation Amendment (Immigration Detainees) Bill 2001 and the Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001, the committee expressed its longstanding concern about the appropriateness of conferring police powers on persons other than police officers and the appropriateness of applying a power to search persons under arrest to persons under detention. On that occasion, the risks that the committee perceived were partly tempered by the development of a draft protocol for strip searching of immigration detainees by the then Minister for Immigration and Multicultural Affairs and the Attorney-General. The committee has found no reference to similar safeguards in the explanatory memorandum to this bill.

To borrow exceptional powers from another regulatory context and to seek to apply them without due rigour or detailed justification in a different regulatory context is simply not sustainable, and there is no excuse for it. There is ample advice available to those charged with drafting legislation and, more significantly in this case, explanatory memoranda. The Office of Parliamentary Counsel publishes its drafting instructions, and these highlight many areas of concern to this committee and the parliament and how to address them. The committee has set out its views on offence, penalty and enforcement provisions in its fourth report of 2000, which dealt with entry and search provisions in Commonwealth legislation, and in its sixth report of 2002, which dealt with the application of absolute and strict liability offences in Commonwealth legislation.

More recently, in February 2004, the Minister for Justice and Customs issued A guide to framing Commonwealth offences, civil penalties and enforcement powers. This guide consolidates policy, principles and advice relevant to framing these types of provisions. It draws on a broad range of sources, including Commonwealth legislation, Model Criminal Code reports and the committee’s own reports and Alert Digests.

The committee is aware that this guide is underpinned by a consultative process aimed at ensuring that offence, penalty and enforcement provisions are framed in a sound, effective and coherent manner. This process requires the explanation and justification of the proposed amendments in order to secure the agreement of the Minister for Justice and Customs.

Unfortunately, on this occasion, little of this explanation and justification has made its way into the explanatory memorandum for the benefit of the committee, the parliament and the general public. The committee has therefore raised its concerns with the minister and sought his advice. Pending the receipt of this advice, I draw this particular bill to the attention of everyone in the Senate.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

I also speak to Senator Robert Ray’s motion. This explanatory memorandum is probably one of the most appalling I have ever seen in the short time I have been in the Senate. It discloses no motivation, no reasoning and no justification for some of the most draconian powers that this parliament can conceivably and possibly enact: rights of search and seizure without warrant and rights of personal frisking without warrant. This is under the umbrella of a piece of environmental protection legislation, the Environment and Heritage Legislation Amendment Bill (No. 1) 2006. The draftsman discloses an obliviousness to the conventions, formalities, reports and guidelines that have been laid down over a very long period of time with respect to the propriety of the administration of powers and penalties. We have some 31 strict liability offences carrying penalties of up to seven years imprisonment. Again, under the umbrella of an environmental protection act, I find that very interesting, particularly in the face of the explanatory memorandum disclosing no real reason or explanation for that.

In the very brief time that I have—and I do not want to take up too much time on this—can I say that the 2004 guide called A guide to framing Commonwealth offences, civil penalties and enforcement powers, as set out by Senator Ray, has simply been ignored. It makes me wonder whether the departmental draftsman is aware of this provision. Further to that, on the committee’s sixth report of 2002, as cited by Senator Ray, Application of absolute and strict liability offences in Commonwealth legislation, again I would say the same thing: the draftsman is oblivious to this document, which is apparent on the face of the style and import of the terms and clauses contained within this piece of legislation.

Strict liability offences are throughout the proposed act. The commencement date is contingent on a number of pieces of state legislation, which causes me concern. There is the abrogation of the privilege against self-incrimination by inserting a new section 486J into the Environment Protection and Biodiversity Conservation Act. Again, these are at the pinnacle of the exercise of Commonwealth legislative power and, again, under the umbrella of an environmental protection act, with no explanation. I really do not want to go on, other than to say that I think this legislation should go back to the drawing board.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I do not normally speak to reports of the Senate Standing Committee for the Scrutiny of Bills. My colleague Senator Murray does an excellent job on that committee—as does everybody on the committee, I might say. It is one of those committees that, in general, does not get much scrutiny or attention, but it does perform a very important role, along with the Senate Standing Committee on Regulations and Ordinances. But I do want to speak to this report on this occasion and to make an exception, because this is an exception. I concur with the comments that have already been made, and I urge all senators—but, given the reality of the chamber at the moment, particularly government senators—to really look at this closely. The legislation in question here, the Environment and Heritage Legislation Amendment Bill (No. 1) 2006, which is the amendment bill to the EPBC Act, is before the Senate Standing Committee on Environment, Communications, Information Technology and the Arts, of which I am deputy chair. I will certainly ensure that the committee takes on board this report. But I do think it is worth noting and repeating Senator Johnston’s comment—for example, that this is the most appalling explanatory memorandum he has ever seen.

It is worth noting that, because the government—the department—have been foreshadowing the relevant legislation for months and months. I presume they have been spending a very long time putting it together. Yet, in what is sadly becoming an all too common occurrence, the legislation was, at the insistence of the government, referred to the committee before the bill had even been tabled—before people had a chance to see how big the bill was or to get any idea of its content beyond just the very general policy goals. It was already referred to the committee with the reporting date insisted upon of 17 November, which is in a non-sitting period. Indeed, we could not even get the extra non-sitting week to get a reporting date of 24 November.

When the government have months and months to put together their legislation, including their explanatory memorandum, and it comes down to something that Senator Johnston himself, on the government side, says is the most appalling explanatory memorandum he has ever seen, then you really have to wonder. But the government do that and then try and force the committee that has the job of examining the totality of the legislation—not just the narrow constructs that the Scrutiny of Bills Committee has to do but the totality of it—and say, ‘You’ve got to do it within a month.’ Two weeks of that month is already taken up with sittings and estimates committees. They even insist: ‘We won’t even let you have an extra week, because if you want to make amendments we’ve got to have enough time to write them, get them approved and all that sort of process.’ If they get the legislation or the explanatory material so wrong to start with, apparently, then that does not give great confidence about them getting any amendments right in such a short time frame. But they have given themselves almost as much time to allow for drafting of any amendments based on recommendations as the committee gets to look at the whole bill.

This should go beyond politics. We will all have different policy views about this particular piece of legislation, but this is the law we are making here. This stuff affects people’s lives. People get caught by the laws in all sorts of ways. You can always talk after the fact about what was or was not intended, but courts have to interpret the law. They might have a little bit of leeway, but they do not have that much. It is not just a game-playing or point-scoring process. If the parliament and particularly the Senate is to do its job in scrutinising legislation—in being a legislature, a law-making body—properly, we have to take reports like this seriously. To reinforce that, there are so many concerns expressed in this. I do not know if this is some sort of record, but 10 or 11 pages on one bill is pretty rare for this committee. Normally when they have concerns there are one or two pages. To have 10 or 11 pages worth of concerns about various aspects of the legislation—some of them procedural and not so serious, but some of them very serious—should send alarm bells. The Standing Committee for the Scrutiny of Bills, I would emphasise, is very much a non-partisan and non-policy committee. It simply scrutinises on the basis of basic legislative principles and basic appropriate standards for the drawing up of laws and for basic liberties—so basic they are deemed to be non-partisan.

The strict liability issue is one of those. As a nonlawyer, sometimes phrases like ‘strict liability’ and other types of liability go a bit over my head, and I am sure they do with the general community—they do not realise quite how significant it is when something becomes a strict liability offence. That is why you have committees like this and that is why you have guidelines regarding the application of absolute and strict liability. To repeat from those guidelines, which are in the report:

... strict liability should be introduced only after careful consideration on a case-by-case basis of all available options; it would not be proper to base strict liability on mere administrative convenience or rigid formula;

I frankly already have concerns that it is becoming just administrative convenience: ‘It is the easiest thing to do. It is already around the place. Let’s just put some more in. The more we put in, the more we can use it as precedent to justify even more.’ But even more crucial is the following guideline:

... strict liability offences should be applied only where the penalty does not include imprisonment and where there is a cap on monetary penalties ...

A strict liability offence basically means you are more likely to be convicted. If you are going to make it easier for people to be convicted of offences, unless you have an extremely good reason, they should not be for ones that are going to get people imprisoned. Yet on 31 different occasions here strict liability offences are put in place. In some of these cases there is a maximum penalty of seven years imprisonment or 420 penalty units—seven times the recommended maximum.

To do that once would, I am sure, draw the attention of and raise alarm bells with the committee. To do it 31 times and then not even actually explain why it is particularly necessary is a serious concern. Maybe there are very good reasons. It all goes back to treating the parliament and the public through the parliament with greater respect. It is, in my mind certainly, unavoidably intertwined with the growing practice of railroading major legislation—this legislation is 400 pages—through Senate committees in extremely short spaces of time with no consideration given to the committee’s other workload, let alone the totality of what is being put before them.

The other point I would make is that the government should not assume that people on this side of the chamber—because it is this piece of legislation, the EPBC Act—will always oppose what they are putting forward. If they actually make an effort to do the job properly and to take on board people’s concerns, they might actually find they get some support. They certainly did from the Democrats in regard to this legislation back in 1999—at great pain to us, I might say. It was something we paid a political price for. Because of that heritage, if you like, and having defended this legislation in the face of extraordinary attacks from some in the conservation movement for seven years, I am actually quite keen to try to find reasons to support attempts to keep it a solid act, as the minister is saying he is trying to do. But you make it impossible for people. How can one support what you are doing when there is not only the content of what you have here—this sort of strict liability free-for-all—but the process and the total contempt in preventing any sort of proper scrutiny, the total contempt in regard to even properly explaining the reasons why these sorts of things are being done? It simply makes it impossible for people who are actually wanting to find opportunities to support it to do so. I would really urged the minister, firstly, to open up his ears a little bit—

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

He’s in China.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

when he gets back from China, to the views of those who are at least interested in trying to work constructively with him on this stuff. I would also really urge all of the government senators to think about, firstly, this growing problem of major pieces of legislation being railroaded through committees at breakneck speed—which, as soon as we get to the committees, all senators, including government senators, complain about. Secondly, in particular in regard to this report, please try and take it on board. The work of this committee is not often paid as much attention as it should be. If there is one time when we are going to pay attention to what they are saying, let us make it this one.

Question agreed to.