Wednesday, 7 September 2022
Scrutiny of Bills Committee; Scrutiny Digest
I present Scrutiny digest No.4 of 2022 of the Standing Committee for the Scrutiny of Bills, and I move:
That the Senate take note of the report.
The Senate Standing Committee for the Scrutiny of Bills performs the vital role of examining all bills introduced into the parliament against a set of technical principles set out in standing order 24. These principles focus on the effect of proposed legislation on parliamentary scrutiny and individual rights, liberties and obligations.
Importantly, the committee does not consider the policy merits of bills or acts. As a result of this approach, the committee has a strong and longstanding commitment to nonpartisanship.
When the committee identifies potential scrutiny concerns with a bill, its usual process is to write to the relevant minister requesting information in relation to those concerns or requesting that certain actions be undertaken by the minister.
If ministerial responses are not provided within the requested time frame this can significantly impact the committee's ability to report on its scrutiny concerns while a bill is still before the parliament. The committee's expectation is therefore that responses be received from ministers in a timely fashion and prior to the bill being brought on for debate in the Senate.
Digest 4 of 2022 reports on the committee's consideration of 39 bills which were introduced into the parliament between 26 July and 4 August 2022 or restored to the Notice Paper during that period.
The committee has identified potential scrutiny concerns in relation to 13 bills, including seven private senators' and private members' bills.
In particular I wish to highlight the committee's comments in chapter 1 of the digest regarding the Aged Care Amendment (Implementing Care Reform) Bill 2022. Item 2 of schedule 1 to that bill introduces proposed subsection 54-1A into the Aged Care Act 1997. That section would require an approved provider to ensure that at least one registered nurse is on site and on duty at all times at an aged care residential facility. This new requirement would apply to all approved providers who are providing residential care or flexible care at a residential facility.
The committee has technical scrutiny concerns in relation to proposed subsections 54-1A(3) and (4) of the bill. These subsections provide a broad power to grant exemptions to the new registered nurse requirement using delegated legislation. The bill does not set out any detailed criteria to limit this broad instrument-making power, nor does the face of the bill include any guidance as to how the power may be exercised.
The committee has therefore requested the minister's advice as to why it is considered necessary to confer such broad instrument-making powers on the minister in relation to granting exemptions to this new requirement.
The committee has also asked the minister whether the bill can be amended to include at least high-level guidance on the face of the bill as to the circumstances in which an exemption may be granted and general guidance in relation to the conditions which may apply to an exemption. For example, the committee has suggested that it may be appropriate to include a requirement that any exemption is no longer valid if the circumstances under which it was originally granted no longer exist.
Importantly, and as I have already noted, the committee's concerns relate to matters of technical scrutiny. The committee does not express a view as to the underlying policy of a bill.
In addition, I note that two bills highlighted within digest 4 passed shortly after they were introduced. While the committee works to ensure that its comments on bills are available to all senators prior to the passage of a bill, this may not always be possible where bills are passed in short time frames. Bills which pass within short time frames can therefore significantly impact upon the technical scrutiny process of the Senate.
For example, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 passed both houses of parliament on 2 August, after being introduced the previous week. While the committee welcomed the inclusion of provisions within that bill which limited the scope of a broad power to delegate administrative powers, the committee also had significant scrutiny concerns in relation to other provisions within the bill. For example, the committee had significant concerns in relation to a provision which provides immunity from civil and criminal prosecution to individuals who have used restrictive practices on individuals within aged-care homes who lacked capacity to give informed consent. As the bill passed within a short time frame, the committee was not able to publish its comments on this, and other provisions, in time for consideration by the Senate.
The committee looks forward to engaging constructively with new ministers and other bill proponents in 47th Parliament to facilitate the resolution of technical legislative scrutiny concerns prior to the passage of bills.
With these comments, I commend the committee's Scrutiny digest No. 4 of 2022 to the Senate.
Question agreed to.