Wednesday, 23 November 2022
Scrutiny of Bills Committee; Scrutiny Digest
I present, on behalf of Senator Dean Smith, the Scrutiny digest 7 of 2022 from the Senate Standing Committee for the Scrutiny of Bills and I move:
That the Senate take note of the report.
Question agreed to.
by leave—on behalf of Senator Dean Smith I present the tabling statement.
The statement read as follows
As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny Digest 7 of 2022.
The Digest contains the committee's assessment of all bills recently introduced into the Parliament. Each bill is assessed against the committee's technical scrutiny 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 has a strong and longstanding commitment to non-partisanship and, accordingly, the Digest does not consider the policy merits of bills.
Scrutiny Digest 7 of 2022 reports on the committee's consideration of 20 bills which were introduced into the Parliament during recent sitting weeks as well as amendments introduced in relation to 9 bills.
The committee has identified potential scrutiny concerns in relation to 8 newly introduced bills. The Digest also contains the committee's comments on recent ministerial responses in relation to 5 bills.
I particularly wish to highlight the committee's comments in relation to the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022. Among other things, the bill seeks to amend the Biosecurity Act to introduce 3 new exemption from disallowance provisions. The committee raised scrutiny concerns in relation to these provisions in Digest 6 of 2022 and has now received the minister's response.
The committee has longstanding scrutiny concerns regarding provisions in the Biosecurity Act which allow delegated legislation to be exempt from parliamentary disallowance. Scrutiny principle (v) requires the committee to report in respect of bills which insufficiently subject the exercise of legislative power to parliamentary scrutiny.
Exemptions from disallowance undermine the ability of Parliament to properly undertake its scrutiny functions and, therefore, have significant implications for the system of responsible and representative government established by the Constitution and for the maintenance of Parliament's constitutionally conferred law-making functions. Any exemption from disallowance should be considered in the context of its interaction with these twin considerations.
The importance of disallowance was recognised by the Senate in June 2021 when it resolved that all delegated legislation should be subject to disallowance unless there are exceptional circumstances justifying an exemption. The Senate also resolved that any claim that circumstances justify such an exemption should be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.
In Scrutiny Digest 6 of 2022, the committee requested the Minister for Agriculture, Fisheries and Forestry's advice as to whether the bill can be amended to provide that the 3 new instrument-making powers are subject to disallowance. Additionally, the committee recently wrote to the Minister for Agriculture, Fisheries and Forestry and the Minister for Health and Aged Care seeking advice as to whether the Biosecurity Act itself can be amended so that all instruments made under the Act are subject to disallowance. The committee also had the opportunity to discuss these matters with departmental officials at a private briefing of the committee.
Both ministers have advised that, in their opinion, no amendments are necessary.
Several arguments have been made justifying why it is appropriate for instruments made under the Biosecurity Act to remain exempt from disallowance. The committee has disagreed with all of these justifications. Justifications have, for example, focussed on the need for government to take urgent, decisive action based on scientific and technical considerations. However, the committee has consistently emphasised that an instrument being subject to the usual parliamentary disallowance process does not prevent the government from acting quickly and decisively as it does not impede the immediate commencement and enforceability of an instrument. Further, the committee has emphasised that Parliament is capable of understanding scientific or technical issues. The committee has noted that the mere fact that a matter is scientific or technical is not an adequate justification for removing democratic oversight over a law of the Commonwealth.
The Minister for Agriculture, Fisheries and Forestry has also argued that disallowance of some instruments, or the mere possibility of disallowance, would undermine certainty and have significant regulatory impact. However, the committee has consistently made the point that, while disallowance is rare in practice, the process itself is an important opportunity for the Parliament to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed upon it by the Parliament. In addition, parliamentarians are accountable to their electors in relation to how they exercise their law-making function and are perfectly capable of considering any impact that disallowance would have as part of their deliberations over an instrument.
I take this opportunity to emphasise that the committee's concerns relate to matters of technical scrutiny and not to matters of policy. 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 will continue to actively consider multiple options to emphasise and enforce its strong and consistent views in relation to the exemption from disallowance provisions that are found in both the biosecurity bill that is currently before the Parliament and in the Biosecurity Act as a whole.
I encourage all parliamentarians to carefully consider the committee's analysis of exemption from disallowance provisions in the Biosecurity Act.
With these comments, I commend the committee's Scrutiny Digest 7 of 2022 to the Senate.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.