Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I present the sixth report of 2008 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 6 of 2008, dated 25 June 2008.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to have my tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No. 6 of 2008 and Sixth Report of 2008, I would like to present a bouquet and a brickbat.

The bouquet goes to the authors of the explanatory memorandum to the Great Barrier Reef Marine Park and Other Legislation Bill 2008.  This bill includes numerous provisions that create offences of strict or absolute liability.  In each case, the explanatory memorandum to the bill provides a justification for the imposition of strict or absolute liability and demonstrates that, in framing these provisions, the architects of the bill have considered the principles outlined in the Scrutiny of Bills Committee’s Sixth Report of 2002 and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

The explanatory memorandum also provides a clear justification for the commencement on Proclamation of Schedules 4, 5 and 6 to the bill, and explains whether provisions advising that an instrument ‘is not a legislative instrument’ are declaratory or not.

As a result of the quality of this explanatory memorandum, despite numerous provisions falling within the Committee’s terms of reference, the Committee has only sought advice from the Minister on one aspect of the bill, namely a provision which allows regulations under the Great Barrier Reef Marine Park Act 1975, to incorporate matters as in force from time to time.  The Committee has sought the Minister’s advice whether there might be some limit put on the exercise of this power.

In contrast, a large brickbat goes to the authors of the explanatory memorandum to the package of four Offshore Petroleum Amendment bills.

The main bill in this package, the Offshore Petroleum Amendment (Greenhouse Gas Storage) Bill 2008, also includes numerous strict liability provisions.  However, in this case, the explanatory memorandum is frequently silent on the rationale for imposing strict liability.  As a result, the Committee has had to seek advice from the Minister about these provisions, as the explanatory memorandum does not include sufficient information to allow the Committee to make a decision about whether the imposition of strict liability appears reasonable in the circumstances.

This bill also includes numerous provisions declaring a direction, notice or instrument not to be a legislative instrument. But, unlike the explanatory memorandum to the Great Barrier Reef Marine Park and Other Legislation Bill 2008, this explanatory memorandum is silent on the nature of these provisions. This silence is despite paragraph 38 of Drafting Direction No. 3.8, issued by the Office of Parliamentary Counsel, clearly advising that:

To assist the Senate Scrutiny of Bills Committee to understand the reasons for an instrument not being a legislative instrument, you should provide some guidance to your instructors about including an appropriate explanation in the explanatory memorandum.

Among other problems, the commencement clauses in these four Offshore Petroleum bills also caused the Committee considerable consternation.

These provisions commonly link commencement of provisions in these bills to the commencement of provisions in other Acts, which in turn were linked to commencement provisions in yet more Acts. For example, to ascertain when Schedule 1 to the Offshore Petroleum Amendment (Greenhouse Gas Storage) Bill 2008 is to commence, it was necessary to refer to the commencement provisions in, firstly, the Offshore Petroleum Amendment (Miscellaneous Measures) Act 2008, followed by the commencement provisions in the Offshore Petroleum Act 2006.

The explanatory memorandum was silent on the commencement provisions and provided no justification for delayed commencement or commencement on Proclamation. As a result, the Committee has had to seek the advice of the Minister as to exactly when the provisions of these bills are expected to commence and why this information has not been included in the explanatory memorandum.

The Scrutiny of Bills Committee places considerable reliance on explanatory memoranda in determining whether or not provisions in bills raise concerns within its terms of reference. If the explanatory memoranda are lacking, then the Committee must seek additional advice from Ministers, creating additional work for all concerned.

It is disappointing that, despite the Office of Parliamentary Counsel Drafting Directions clearly articulating the requirements of the Scrutiny of Bills Committee in relation to many of these matters, explanatory memoranda of such poor quality continue to be presented to the Parliament.

I commend the Committee’s Sixth Report of 2008 and Alert Digest No. 6 of 2008 to the Senate.

Question agreed to.