Thursday, 25 November 2021
Scrutiny of Delegated Legislation Committee; Delegated Legislation Monitor
That the Senate take note of the report.
I would like to take this opportunity to again highlight the committee's significant concerns about the exemption of delegated legislation made under the Biosecurity Act from disallowance by the parliament. As senators would be aware, the initial emergency declaration in relation to COVID-19 was first made on 18 March 2020. Since that time, the government has made numerous pieces of delegated legislation which impact on the everyday lives of Australians. Chief amongst them is the overseas travel ban determination, which has severely restricted overseas travel by Australian citizens.
In the monitor I have just tabled, the committee has commented on an instrument which amends the overseas travel ban determination to remove the automatic exemption for persons who ordinarily reside in another country from the overseas travel ban. The committee is extremely concerned that this instrument not only engages several of the committee's scrutiny principles, including freedom of movement, conferral of discretionary powers, consultation and matters more appropriate for parliamentary enactment, but is also exempt from disallowance. It is the committee's view that emergency delegated legislation must be subject to appropriate parliamentary oversight. By continuing to make instruments under the Biosecurity Act which are exempt from disallowance, parliament's constitutional role as the primary institution responsible for making law is undermined.
The committee has been raising this issue since the beginning of the pandemic but has not received a sufficient response to the concerns it has raised. The committee has continually been advised that instruments made under the Biosecurity Act should not be subject to parliamentary oversight as this would undermine the government's ability to take urgent action to manage the threat to Australia posed by this pandemic. The committee appreciates that, during an emergency, it is necessary for governments to take urgent and decisive action. However, parliament must also have effective oversight of these critical decisions and retain the ability to scrutinise the actions of government.
On 18 November, the government finally tabled its responses to the committee's interim and final reports for the inquiry into the exemption of delegated legislation from parliamentary oversight. These government responses were tabled nearly 12 months after the committee's interim report was tabled in December last year. The committee is insulted—I repeat, insulted—by the brevity and the lack of real consideration included in these responses.
The committee has been engaging constructively with the government for over two years in these matters yet there has been little to no shift in the attitude of the government. The responses do not give due consideration to the Senate's unanimous support for the recent changes to the committee's standing orders, which provided for the scrutiny of exempt instruments, or the senate's view that delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances.
Of the 18 recommendations made in the interim report, the government has only agreed with one, related to the importance of parliamentary sittings in facilitating parliamentary oversight of delegated legislation in times of emergency. The committee is deeply concerned that the government has advised that it does not support any of the committee's recommendations related to providing that instruments made under the Biosecurity Act be made subject to disallowance.
The response makes several arguments in justifying why it is appropriate for instruments made under the Biosecurity Act to remain exempt from disallowance. However, each of these arguments has been previously found deficient by the committee. In the first instance, the response argues that governments around the world have taken unprecedented steps to contain the COVID-19 pandemic, noting that there is a time-limited opportunity to interrupt the transmission of the disease and to manage human health risks. The government emphasised that it needs the ability to take urgent and decisive action, and make technically and scientifically based decisions to reduce the potential number of cases and deaths in Australia and, subsequently, the burden on the Australian health system. However, the committee has consistently made the point that disallowable status of delegated legislation does not prevent the government from acting quickly and decisively, as it does not impede the immediate commencement and enforceability of an instrument.
In addition, COVID-19 delegated legislation in comparable overseas jurisdictions has largely been subject to parliamentary scrutiny procedure. The government also argues that the current framework under the Biosecurity Act includes controls on the making of delegated legislation, and that, in the case of an emergency determination, the delegated legislation can only operate for a limited period, being the duration of the biosecurity emergency period or human biosecurity emergency period. The committee considers this argument is flawed, as the duration of the human biosecurity emergency period is itself determined through an instrument which is exempt from disallowance. In addition, any extension of the emergency period is also exempt from disallowance and there is no limit on the number of times it can be extended.
The government response noted that the deliberate decision by the parliament not to make specified delegated legislation disallowable reflects the urgency required for such measures and the need to have certainty in the application of such measures to protect the Australian community from exposure to biosecurity risks. However, the biosecurity bill was only debated for approximately five hours in each house, and the focus of this debate was not related to those human biosecurity provisions which are now the subject of such significant scrutiny.
The response also suggests that if disallowance was available, it would undermine certainty, as people could not be sure that the measures would not be disallowed during the disallowance period. This argument falls down as it is well-established that the instances of the disallowance procedure resulting in disallowance by the parliament are very low. Senators, as elected representatives, would be well aware of any impact that disallowance would have and would consider such matters as part of their deliberations.
The committee considers that the possibility the Senate would disallow an instrument that would put at risk human health or undermine Australia's agricultural sector is so remote as to be fanciful. Instead, the committee considers that the disallowance process is an opportunity to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed on it by parliament. In relation to instruments made under the Biosecurity Act, the committee considers that the disallowance process is apt to facilitate appropriate debate and scrutiny of the use of emergency powers and would operate to ensure that such powers are not misused.
Finally, the government response points out that there are other accountability mechanisms in place to ensure such measures are appropriate and necessary, including Senate estimates, questions on notice and the Select Committee on COVID-19. Although these accountability mechanisms do exist, I emphasise that our system of representative democracy requires elected representatives to have an opportunity to scrutinise and, if necessary, repeal executive-made law.
Similarly, in its response to the final inquiry report, the government did not agree to any of the 11 recommendations made by the committee. It appears that the government has largely delayed considering the substantive concerns raised by the committee in relation to the disallowance framework until the upcoming statutory Review of the Legislation Act.
In conclusion, the committee considered that arguments against making delegated legislation disallowable must be balanced with the need to ensure adequate checks and balances on limitations to the personal rights and liberties of individuals. The committee maintains that the government should consider amending sections 476 and 477 of the Biosecurity Act, as set out in the monitor, to provide that any further future extensions to the human biosecurity emergency period and determinations setting out emergency requirements will be subject to disallowance. The committee reiterates that if the government is not amenable to moving such amendments it may consider moving its own amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to ensure appropriate parliamentary oversight. With these comments I commend the committee's Delegated Legislation Monitor 16 of 2021 to the Senate.
I would like to speak in support of the remarks of Senator Fierravanti-Wells, who is chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation. I emphasise to the chamber: this is a committee that operates on a bipartisan basis. In my direct experience it has demonstrated a commitment to working through issues carefully and in a considered way. There has been—along with the other scrutiny committees of this chamber—a renewed emphasis on providing proper transparency and accountability to the work of this parliament through this committee's leadership.
I can draw the attention of the chamber to the fact that the committee, after careful study and review—there have been a number of inquiries, changes to the standing orders and a number of mechanisms put in place to engage the executive on these questions—has advanced a bipartisan proposition that the biosecurity legislation should be amended by this chamber. There is a particular bill coming up, the Biosecurity Amendment (Enhanced Risk Management) Bill, that will provide the opportunity for that matter to be prosecuted.
These are the simple facts: from April last year there have been—I've mentioned figures of this type before—some 591 decrees issued around biosecurity and the Biosecurity Act. In particular, because of the nature of the act, under sections 477 and 476 there is a set of circumstances where this act overrides all other law in the Commonwealth. It has the effect of being able to change all other law in Australia. You might question how it could be that such legislation was put in place? As Senator Fierravanti-Wells has pointed out, we did so after only five hours of discussion in this chamber back in 2015, in circumstances where the word 'pandemic' wasn't used. It was a bill we were led to believe was about flora and fauna, not about changing the law—any law—should a minister decree it. As I have outlined, there have been some 591 occasions where decrees have been issued, most of which are not able to be amended or effected through this chamber through a disallowable instrument.
It strikes me that we have to emphasise that it's not about the right of government to act in an urgent way—and committee deliberations have always emphasised the fact that governments should have the right to act, particularly in terms of national health emergencies—but that any government's actions should be subject to parliamentary scrutiny. That's the substance of this conversation: should a government's actions in times of emergency be subject to parliamentary scrutiny?
It goes further than the actions of this parliament. These measures have been replicated in every other parliament across the Commonwealth—all the state parliaments. And while people are very anxious about what happens in the state parliaments, at least in the state of Victoria there is a requirement for parliamentary approval for an extension of a state of emergency. That does not occur here. It has now happened six times, effectively by the issuing of a press release by the Governor-General. These are measures that have the capacity to override, for instance, the telecommunications laws in this country, to track people using mobile phone towers. The next bill we'll see has the capacity to forcibly take body samples from people, infringing in the most basic way on civil liberties that we have expected to be upheld in this country and never questioned. There has been the issue about the right of travel and various other things. It may well be these matters are necessary in times of emergency. The question remains: should not the parliament make a judgement as to how long they should continue and under what circumstances they continue?
The proposition that's put is that ruling by decree is right because there are scientific and technical matters that we're all too stupid to understand—that's the inference that has been put to us—in circumstances whereby the balance between the technical and scientific issues invariably involves the question about restrictions on liberty. There's always a crossover. The question should legitimately be asked: 'Is that crossover appropriate in the circumstances, and does it continue to be appropriate in the circumstances?'
The other argument that is put is about how business needs certainty. Our largest trading partner, the People's Republic of China, does not provide the certainty that many people speak of, yet there doesn't seem to be any shortage of people wanting to do trade where the People's Republic of China. The idea that business is somehow or another so phased by the prospect that parliamentary democracy should impinge upon their right to trade strikes me as fallacious. What this is about is providing certainty for public servants to provide their decisions without parliamentary scrutiny.
Then there's the argument about whether or not there was a deliberative act by the parliament in setting these mechanisms in train. Clearly, that did not happen, yet it is presented to us as if it did happen. This is part of this regime. We now have a situation where the reports have come down from the committee, the government has responded in a completely contemptuous way once again, saying: 'We don't have to deal with these matters. We can continue on because it's custom and practice for us to act in this way.'
We have a situation where delegated legislation 30 years ago was occurring about 800 times a year and now it's up to 1,500 or 1,600 times a year, doubling over that period. This is increasingly becoming a major problem, because we have allowed it to become a major problem. Given that the overseas experience has been that we should have proper transparency and accountability, particularly in times of emergency—particularly in those circumstances—it strikes me that the recommendations of this committee are entitled to be supported. I'll be urging the chamber to do so, particularly given that these recommendations have been presented on all occasions in a bipartisan manner and it now seems that there is—from what I see in a media report—an attempt by some elements of the government to, essentially, maintain a control mechanism, not an engagement mechanism where there would be proper discussion about making sure that the fundamental principles of parliamentary democracy are actually upheld.