Senate debates

Wednesday, 15 August 2018


Regulations and Ordinances Committee; Delegated Legislation Monitor

4:28 pm

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

I present Delegated Legislation Monitor No. 8 of 2018 of the Standing Committee and Regulation and Ordinances. I move:

That the Senate take note of the report.

I rise to speak briefly on the tabling of the Senate Standing Committee on Regulations and Ordinances Delegated Legislation Monitor No. 8 of 2018. One of their committee's scrutiny principles under Senate standing order No. 23 requires the committee to consider whether a legislative instrument contains matters more appropriate for parliamentary enactment—that is, matters that should be enacted via an act of parliament rather than delegated legislation.

In this monitor, the committee has drawn the attention of the Senate to several instruments of delegated legislation which contain significant matter of law or change to the law. One is the migration fast-track applicant class instrument, which makes a new class of unauthorised maritime arrivals subject to the fast-track process for consideration of their protection applications. This would apply to persons who have already applied for protection visas and have been rejected, where the High Court or Federal Circuit Court has declared that the original assessment was not made according to law. If those people are now permitted to re-apply for protection, they'll only be able to do so as fast-track applicants, with the limited rights of merits review. The committee has expressed concern on several previous occasions about ensuring appropriate parliamentary oversight of changes to migration law. In this case, the committee also notes that the change to the definition of fast-track applicants will have a significant impact on the rights of affected persons and potentially on the relationship between the executive and the judiciary.

Another significant instrument is the rules of the National Redress Scheme for Institutional Child Sexual Abuse. The rules provide for a number of significant matters relating to the operation of the scheme, including abuse not covered by the scheme, eligibility of redress for certain persons and disclosure of protection information. Two more instruments prescribe charges for the manufacture and import of emissions controlled products—effectively levying taxes via delegated legislation. The committee takes the position that levying taxation is one of the most fundamental functions of parliament and should be done via primary rather than delegated legislation.

Finally, the committee has noted a set of instruments which determine various matters relating to the new targeted compliance framework for the people claiming or receiving welfare payments. Matters dealt with in this instrument include how to determine whether a person has undertaken adequate job search efforts, whether they have a reasonable excuse for non-compliance with their obligations, and circumstances in which welfare payments may be reduced or cancelled.

In relation to all of these instruments, the committee's comments are consistent with those of the Senate Scrutiny of Bills Committee. In each case, the Scrutiny of Bills Committee expressed concerns about the powers to delegate these matters to legislative instruments, which are not subject to the full parliamentary process of debate and consideration. The Senate Standing Committee on Regulations and Ordinances draws the attention of the Senate to its view that the significant change to the law should be made in primary rather than delegated legislation. I commend the Delegated Legislation Monitor No. 8 of 2018 to the Senate.

Question agreed to.