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

FIERRAVANTI-WELLS () (): I present Delegated legislation monitor 15 of 2021 of the Standing Committee for the Scrutiny of Delegated Legislation, and I move:

That the Senate take note of the report.

I rise to speak to the tabling of the committee's Delegated legislation monitor 15 of 2021. The first instrument I would like to draw to the Senate's attention is the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021. As senators would be well aware, the emergency declaration in relation to COVID-19 was first made on 18 March 2020. This instrument extends the human biosecurity emergency period for a further three months, until 17 December 2021. This means that the emergency period has now been extended on six separate occasions with no opportunity for parliamentary oversight through the disallowance process.

The effect of this declaration is that the Minister for Health can continue to determine emergency requirements and give directions that he deems necessary to prevent or control COVID-19. The committee is extremely concerned that significant measures at the Commonwealth level, such as the ban on Australian citizens travelling overseas and the India travel pause, have not been subject to parliamentary oversight. During the committee's hearings last year, evidence was provided regarding the cascading effects of the declaration of a Commonwealth pandemic emergency on state and territory laws. Whilst there are differing laws, the continued presence of the pandemic emergency period has given succour to the imposition of harsh and draconian measures which, similarly, have had little or no scrutiny by state and territory parliaments. Moreover, the continued extension of the emergency period at the Commonwealth level signals to the states that it remains appropriate for restrictive state public health orders to remain in force. Conversely, an end to the Commonwealth emergency period would send a strong message that it is time to return to some level of normality.

It is the committee's view that emergency delegated legislation must be subject to appropriate parliamentary oversight. Continuing to make instruments under the Biosecurity Act which are exempt from the disallowance undermines parliament's constitutional role as the primary institution responsible for making law. The committee appreciates that during an emergency urgent and decisive action must be taken. However, we are now well into the second year of this pandemic, and that excuse is no longer valid. Parliament needs oversight over these critical decisions now and into the future.

In the committee's previous monitor, the committee sought Minister Hunt's advice about whether the government would consider amending the Biosecurity Act to provide that any future emergency determinations and extensions to the emergency period would be subject to disallowance. Yesterday, Minister Hunt advised that he considers that such amendments are not necessary. For these reasons, not only will the committee be seeking the minister's advice about this instrument's exemption from disallowance, but the committee also intends to move amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021, which is currently before the parliament, to reflect the committee's unanimous view that any future determinations and extensions should be subject to disallowance.

I would like to further note that in December last year the committee tabled its interim report of its inquiry into the exemption of delegated legislation from parliamentary oversight, which details the concerns which I have raised again today. It is with deep concern that I advise the chamber that the government has still not responded to this report 10 months later, despite the urgent and significant concerns detailed in this report. On this note, I thank the chamber for agreeing to an order for the production of documents earlier today requiring this response to be tabled on the next sitting day.

The second instrument I raise is the Legislation (Exemptions and Other Matters) Amendment (2021 Measures No. 1) Regulations 2021. This instrument amends the Legislation (Exemptions and Other Matters) Regulation 2015 to extend exemptions to disallowance and sunsetting in relation to certain legislative instruments. This includes extending an exemption from disallowance for instructions given under the Air Services Regulations 2019 and an exemption of motor vehicle standards under the Road Vehicle Standards Act 2018 from sunsetting. The committee considers that exemptions from essential parliamentary oversight mechanisms such as disallowance and sunsetting should be outlined in primary rather than delegated legislation and soundly justified in the explanatory materials.

Further, as acknowledged by the chamber in June, exemptions from these crucial oversight mechanisms should only be made in the most limited circumstances. The committee has previously raised these concerns with the Attorney-General. However, the committee considers the AG's response did not sufficiently address these concerns, particularly about the justification for these exemptions and their inclusion in delegated legislation. It is unsatisfactory that the committee's detailed scrutiny, concerns and recommendations in this report about the inappropriateness of most existing exemptions from disallowance appear to have been wholly disregarded in the making of this instrument. For this reason, the committee is seeking the AG's further advice regarding why these exemptions from parliamentary oversight are appropriate and necessary and, if they truly are necessary, whether they can at least be included in primary legislation.

On the issue of disallowance, I note that since the changes to the committee's standing orders came into effect on 1 July, the committee has so far considered 35 instruments which are exempt from disallowance. Of these 35, only one has met the committee's standards and is appropriately exempt. That is less than three per cent, and it is not good enough. This is an issue that the committee will continue to rigorously pursue into the future.

Finally, I would like to mention the Australian Renewable Energy Agency (Implementing the Technology Investment Roadmap) Regulations 2021. The chamber will recall disallowing a similar instrument on 22 June last year. In this monitor, the committee draws the Senate's attention to a third instrument made under the ARENA Act, the Australian Renewable Energy Agency (General Funding Strategy) Determination 2021. Concerningly, this is yet another significant instrument that is exempt from disallowance.

The committee has the same concerns in relation to all three ARENA instruments, noting all three are made under the ARENA Act, the object of which is to improve the competitiveness and supply of renewable energy in Australia. The committee is recommending that the Senate disallow the Technology Investment Roadmap regulations for two primary reasons. First, on the basis that they may be expanding the remit of the Australian Renewable Energy Agency beyond the power of its enabling legislation. Secondly, we are concerned that the regulations deal with the significant matter of expanding the jurisdiction of ARENA from investing in renewable energy technologies to programs relating to energy efficiency and low-emissions technology. It is therefore the committee's strong view that the measures set out in the regulations are more appropriate for parliamentary enactment.

Before concluding, I would like to briefly update the Senate on the committee's consideration of the Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 3) Regulations 2021. The committee is very cognisant of the concerns that have been raised in relation to this, including with the committee directly. I expect many colleagues also share these concerns. The instrument amends the Australian Charities and Not-for-profits Commission Regulation 2013 to alter certain governance standards relating to charities' engagement in or promotion of unlawful activities.

The committee's most significant outstanding scrutiny concerns centre on a provision of the instrument which requires charities to maintain reasonable internal control procedures to ensure that its resources are neither used, nor continue to be used, to actively promote another entity's unlawful acts or omissions. The committee is concerned that this provision appears to enable the ACNC Commissioner to exercise a broad discretion in determining compliance with the governance standards. In addition, the lack of clarity on what will constitute reasonable internal control procedures may inhibit charities' ability to understand their obligations under the instrument. Due to these substantive scrutiny concerns, the committee is recommending that the Senate disallow the instrument. With these comments, I commend the committee's Delegated legislation monitor: Monitor 15 of 2021 to the Senate.

Kim Carr (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I would like to say a few words in support of the Chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation; I am the deputy chair of the committee. This is a committee with a long history in this place. Throughout its 90 years of work, the Standing Committee for the Scrutiny of Delegated Legislation has played an essential role in ensuring that there is effective parliamentary scrutiny of executive-made laws. It's a role that all of us in this chamber have a constitutional obligation to undertake. We are, of course, to quote Odgers, a 'house of review and reflection'. It is in this tradition that this committee has conducted its work on a bipartisan basis, with a focus on holding the executive's exercise of lawmaking powers to account.

In its 90-year history, the committee has never taken the unprecedented action that we are seeing before the Senate today, in concurrence with a statement that's been made by the Deputy Chair of the Senate Standing Committee for the Scrutiny of Bills about matters rising from the Biosecurity Act 2015. Senator Dean Smith, as the acting chair of that committee, had a statement to the chamber incorporated into Hansard shortly before these remarks. Parliament's role in overseeing the delegated legislation made in response to COVID-19 has unquestionably been constrained since the beginning of the pandemic. The powers of the Biosecurity Act have been the government's main legislative vehicle, and this has allowed the minister for health to make a human biosecurity emergency declaration, with its provisions to take effect despite any other law.

Hon. Senators:

Honourable senators interjecting—

Kim Carr (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I ask colleagues in the corner there if they could, perhaps, reduce it to a loud shout.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Order, please!

Kim Carr (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

This, as I say, has allowed the minister for health to change any other piece of legislation within this Commonwealth. The minister is seeking now to extend the powers of the human biosecurity emergency declaration for a sixth time, notionally ending on 17 December 2021. I don't think we know if that is the last time that he will be seeking that. If it isn't, there's nothing this chamber can do about that, given that these instruments are not disallowable. The committee has previously raised significant concerns about the exemption from disallowance of legislative instruments made under the Biosecurity Act. The committee has suggested:

… amendments should be moved to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to amend section 476 of the Biosecurity Act to provide that any future variations to extend a human biosecurity emergency period will be subject to disallowance—

that is, subject to this chamber or the House of Representatives actually being able to address that matter.

In correspondence with the committee, the minister replied that he thought there had been extensive and robust debate through both houses of parliament when the bill was introduced in 2015 and that therefore the possibility of disallowance was not necessary. That bill, as debated in 2015, was essentially about fauna and flora, not about pandemics. Neither the bill nor the explanatory memorandum even mentioned the word 'pandemic', so it's hardly received the extensive debate that the minister contended. The House of Representatives and the Senate both spent about five hours considering that bill, a bill which has fundamentally changed the regulatory regime in this country and had the effect of changing the way in which the states and territories have dealt with that issue, right across the Commonwealth. With only minor amendments, the bill passed both houses of parliament on 14 May 2015.

As Senator Smith has pointed out in the chamber in a tabled statement, we're seeing more and more examples of coercive powers being bestowed upon a minister without parliamentary oversight. These include provisions where individuals are required to take medical examinations and provide body samples through that coercive power. Time and time again, in the correspondence from ministers, this action is taken in the name of so-called administrative flexibility. The committee has been told that it's being subject to disallowance would only undermine the government's ability to respond to emergency threats. The committee acknowledges there are genuine emergencies and that there should be exemptions in specific cases, but there should not a blanket principle of exemption or disallowance in all circumstances, which is the way in which this position is being put so often in the correspondence from ministerial officers.

It is unfortunate that we are seeing a contemptuous tone grow from the executive about the concerns that this committee and its sister committee have raised. For the first time in its history, the committee took the unprecedented step in 2020 of holding public hearings into the exemption of delegated legislation from parliamentary oversight, making 11 recommendations that, as the chair of the committee has already indicated, have not yet been responded to by the government. I note that the committee has moved a motion tonight to gain a commitment from the executive, and I'm advised by other members of the government that the government will respond. I look forward to that.

Parliament and the public should be able to rely upon proper public administration, but it should also be able to rely upon proper parliamentary scrutiny of that legislation. At the start of the pandemic, when a human biosecurity emergency was declared, the committee chose to facilitate public scrutiny of COVID-19-related delegated legislation. A table on the committee's website lists all the delegated legislation registered on the Federal Register of Legislation since 18 March 2020. As of 15 October 2021, 578 legislative instruments had been made in response to COVID-19. The committee has long stressed its concern about the growth of disallowable instruments and, of course, the issue of the way in which the executive is ruling by decree as a result of this fundamental change in the way in which legislation is moved through this parliament.

In March, the committee's inquiry reported that the volume of delegated legislation made each year had increased over time. From an average in the mid-1980s of around 850 disallowable instruments tabled each year, it currently sits at around 1,500 each year. This is not a trend we should be proud of, particularly when we consider the number of these instruments which cannot in any way be overturned through the processes of the parliament. That, to me, is a matter of deep concern. Senators, if we do not do our duty and take up our responsibilities to correct this dangerous state of affairs, we may rightly and properly be accused of negligence, and so we should be. I commend the report to the chamber.

Question agreed to.