Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

by leave—I also wish to speak on the tabling of the Scrutiny of Delegated Legislation Committee annual report 2020. For almost 90 years, the Scrutiny of Delegated Legislation Committee has operated on a genuinely non-partisan basis to scrutinise delegated legislation against the technical scrutiny principles set out in standing order 23. In doing so, the committee plays an essential role in ensuring, on behalf of the Senate, that executive-made laws comply with the fundamental principles of the separation of powers and the rule of law. The 2020 annual report documents a significant year in the committee's history. In 2020, the committee began examining instruments in accordance with new scrutiny principles as agreed by the Senate in December 2019. As part of its regular scrutiny work, the committee examined 1,194 disallowable legislative instruments and 14 delegated legislation monitors. Approximately 20 per cent of these instruments raised technical scrutiny concerns.

In line with the committee's new work practices, the committee secretariat has begun seeking information directly from agencies in order to assist the committee in determining whether it is necessary to address the issue with the relevant minister. This two-streamed approach has enabled the committee to focus its attention on the most significant scrutiny issues raised at the ministerial level, while allowing other issues to be efficiently resolved at the agency level. The majority of the concerns raised by the committee at the ministerial level related to matters more appropriate for parliamentary enactment and restrictions on parliamentary oversight. These instruments often modified the operation of or provided an exemption to primary legislation. The committee has a longstanding concern that such significant matters should be included in primary legislation, which is subject to a greater level of parliamentary oversight, rather than in delegated legislation.

In particular, since October 2020, the committee has been engaging with the Treasurer in relation to the significant number of Treasury portfolio instruments, particularly instruments made by ASIC, which modify or exempt persons or entities from the operation of primary legislation. I acknowledge that the Treasurer is engaging with the committee on an ongoing basis to resolve the committee's concerns. I note also that this is a systemic concern that the committee will continue to raise in the future.

In addition to its regular scrutiny work, the annual report highlights the committee's inquiry into the exemption of delegated legislation from parliamentary oversight. The committee's decision to undertake this inquiry was based on three principal factors: the committee's 2019 inquiry into parliamentary scrutiny of delegated legislation; the increasing proportion of delegated legislation exempt from disallowance; and the use of delegated legislation to respond to the COVID-19 pandemic. Increasing amounts of delegated legislation which are exempt from disallowance have been made in recent years. For example, in 2020, 17.4 per cent of delegated legislation was exempt from disallowance. The committee will continue to monitor this concerning issue into the future, particularly under its new power to examine instruments which are exempt from disallowance.

The committee made 18 recommendations in its interim report, which was tabled in December 2020. These recommendations are aimed at improving parliamentary oversight of delegated legislation in times of emergency. In making these recommendations, the committee noted that its concerns about parliamentary oversight of delegated legislation made during emergencies are not limited to the COVID-19 emergency or to the actions of any particular government. Rather, the committee considers that parliament and governments of all political persuasions have contributed to a system of laws, procedures and practices which diminish parliament's capacity to oversee executive lawmaking. The committee continued this important work into 2021, tabling its final inquiry report earlier this year. That report will be discussed in the 2021 annual report.

I take this opportunity to draw to the chamber's attention the fact that the government's response to the interim report is now overdue by several months. The committee is concerned that this is contrary to Senate procedural resolution 44, which requires the government to table a response to committee reports within three months.

I now turn to another aspect of the committee's new practices: the conduct of private briefings with ministers and officials. In 2020 this proved to be a particularly effective means of resolving the committee's technical scrutiny concerns. On 5 March 2020 the committee met with senior officials from the Australian Taxation Office and Treasury to discuss the committee's concerns about the availability of independent merits review of decisions made by the Commissioner of Taxation. Following this meeting the government undertook to progress amendments to the Taxation Administration Act to extend the availability of merits review to decisions made under instruments other than regulations. I am pleased to report that this undertaking was implemented when the Treasury Laws Amendment (2020 Measures No. 6) Bill 2020 received royal assent on 17 December 2020. I thank officials and the government for their constructive engagement with the committee on this matter.

Finally, noting the committee's longstanding practice of undertaking its scrutiny in a non-partisan and consensual way, I would again like to take this opportunity to thank my current and former scrutiny committee colleagues for their commitment to the committee's important work. With these comments, I commend the committee's annual report 2020 to the Senate.

Question agreed to.