Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

At the request of Senator Dan Smith, I present Scrutiny Digest 13 of 2023 of the Standing Committee for the Scrutiny of Bills together with ministerial correspondence. I move that the Senate take note of the report and seek leave to incorporate the tabling statement into Hansard.

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 13 of 2023.

The Digest contains the committee's assessment of all bills recently introduced into the Parliament.

Scrutiny Digest 13 of 2023 reports on the committee's consideration of 14 bills which were introduced into the Parliament between the 16th and the 20th of October. The committee has identified scrutiny concerns in relation to 6 newly introduced bills.

I would like to draw the Senate's attention in particular to the committee's comments on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (the Fair Work Bill)and the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (the Hate Symbols Bill).

In relation to the Fair Work Bill, the committee is concerned that certain powers in the bill will be infringing upon this Parliament's ability to maintain oversight of the executive's actions.

The bill provides that a number of determinations made by the Fair Work Commission will be legislative instruments which are exempt from disallowance. Disallowance is the primary means by which the Parliament exercises control over the legislative power that it has delegated to the executive. As such, the committee is requesting the Minister for Employment and Workplace Relations' advice as to why this exemption is appropriate. Similarly, the committee has noted that the bill provides for digital labour platform deactivation code and road transport industry termination codes to be made by legislative instrument. These are significant matters being set out in delegated legislation that is not subject to the same full range of parliamentary scrutiny applies to primary legislation. The committee has also requested the minister's advice as to the necessity and appropriateness of leaving these matters to delegated legislation.

The committee is also concerned that aspects of the bill trespasses on personal rights and liberties. The committee has commented on a number of provisions that raise concerns including: the imposition of penalties on conduct undertaken prior to commencement of the bill; significant penalties for offences with strict and absolute liability elements; the abrogation of the privilege against self-incrimination; and procedural fairness. These matters relate to fundamental common law rights that should only be limited in exceptional circumstances. The committee has requested the minister's detailed advice as to the necessity and appropriateness of these provisions.

The committee has also reiterated its concerns regarding the Hate Symbols Bill in a response entry following correspondence received from the Attorney-General. In Scrutiny Digest 9 of 2023, the committee noted that the bill raised a number of concerns relating to trespasses on personal rights and liberties.

These included various reversed evidential burdens which require the defendant to adduce evidence as to certain matters. At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence beyond reasonable doubt, and these reversed evidential burdens of proof subvert this important common law protection.

The committee also raised concerns in relation to provisions that are drafted in broad terms that may result in the criminalisation of ordinary behaviours. In this Digest, the committee has requested the Attorney-General's further justification as to the imposition of reversed evidential burdens and the use of broad offence provisions that are not defined with sufficient specificity, such as the term 'access'.

Additionally, the committee remains concerned at the increasing trend of limiting parliamentary oversight. This Parliament should be concerned that instruments made under the bill proscribing terrorist organisations are exempt from sunsetting. The committee has again asked the minister to justify this exemption from sunsetting and the significant limits these place on the ability of parliament to review subsequent instruments. Disallowance is an effective tool but exempting instruments from sunsetting means that parliament is only limited to a single opportunity for scrutiny.

On that note, the committee has also drawn this matter to the attention of the Scrutiny of Delegated Legislation Committee

With these comments, I commend the committee's Scrutiny Digest13 of 2023 to the Senate.