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Wednesday, 11 September 1996
Page: 4084


Mr WILLIAMS (Attorney-General and Minister for Justice)(11.29 a.m.) —in reply—It is pleasing to see that the Legislative Instruments Bill 1996 has support across the chamber. It will provide an enhanced basis for parliamentary scrutiny of legislative instruments. It will, as a number of speakers have mentioned, return some role and responsibility to parliament from the executive in the making of delegated legislation.

It also brings into parliamentary view a considerable increase in the volume of material that will need to be considered in parliament. That, in itself, is likely to create other problems which will need to be addressed in the appropriate way. I think appropriate consideration needs to be given to the role of the Senate Standing Committee on Regulations and Ordinances. That has been a very important committee over the years. I believe that, with the passage of this legislation, it will become a bulwark for the community's interests.

The two houses, and the House of Representatives in particular, also have important roles in the scrutiny of instruments under the bill and that also will be a procedural matter to be looked at in the future. The willingness of the executive to allow motions for disallowance to be given appropriate debate will be a matter that will have to be considered by those controlling parliamentary business. It will also be a matter for the hard-pressed Senate in its dealing with its business.

Before turning to comment on some of the contributions made by members in debate, I join with others in commending a number of bodies who have been instrumental in the bill's reaching this stage and who have made important contributions.

First, I think it should be mentioned that the origin of the bill was a report of the Administrative Review Council going back to 1992. The chair of the committee at that time, Professor Cheryl Saunders, maintained an interest—although she subsequently ceased to be chair—and was a witness before the House of Representatives Standing Committee on Legal and Constitutional Affairs in its consideration of the bill. I join with the member for Banks (Mr Melham) in commending the continued work of the officers of the Attorney-General's Department who have laboured mightily over this piece of legislation. There are two Senate committees that have considered the bill—the Senate Standing Committee on Regulations and Ordinances and the Senate Scrutiny of Bills Committee. They have both delivered reports. Probably the most important report, however, is the one that is being mentioned most frequently in debate here—that of the House of Representatives Standing Committee on Legal and Constitutional Affairs. That committee reported in September 1995 on the 1994 bill. I join with the member for Mitchell (Mr Cadman) in commending the member for Banks on his chairmanship of that committee, the committee members for their work and, I might add, the witnesses who appeared before it. I can recall some very valuable contributions made by experts which have been taken up in the report and are now reflected in the bill.

It will be necessary, I think, for virtually all arms of government to give serious consideration to the implications of this bill for the administration of the department. In addition, it will be necessary for each of the relevant Houses and for a number of committees to consider how the implications of this bill will be dealt with.

I thank all the members who have spoken on this bill; each has supported the bill. A number have made some comments or criticisms, some more detailed than others. The member for Barton (Mr McClelland) raised the issue—it was probably a fairly obvious one—of why the consultation requirement is limited to business. I think this is a matter that has been addressed at considerable length in the deliberations that have preceded the debate in this House. There is very good reason for extension of the provisions of the bill to all aspects of government.

There is, recognisably, resistance in the public service to the introduction of such new requirements holus-bolus. The decision was taken fairly early on by the previous government that, as a first step, the act should extend its consultation requirements to legislation affecting business. While there are strong arguments for the view that it should apply to all legislation, we have maintained that decision and have strengthened the resolution that this bill should in due course be seen as inevitably applying to all departments and all aspects of government involved in the making of delegated legislation. The immediate impact on those areas affecting business will, I think, convince the other departments of the desirability of the consultation process for other forms of legislation.

The member for Banks raised three points reflecting what he foreshadowed would be raised by the shadow Attorney-General, Senator Bolkus, in debate in the Senate. It is a matter of some regret to me that the debate on those issues in this House is not full, in order for me to address those matters of concern.

The first point mentioned was the Attorney-General's certificate. I presume, given what the member for Banks was saying, that the shadow Attorney-General has in mind the certificate, under clause 8 of the bill, as to whether a proposed instrument is a legislative instrument or not. There has been a lot of debate, particularly in the House of Representatives committee, as to the manner in which the certificate should be dealt with and, in fact, whether there should be a certificate at all.

The background to it is that it was felt, in the formulation of the bill, that many departments would have difficulty in determining whether an instrument was of a legislative character or not. In order to assist departments faced with that sort of decision, it was felt that some mechanism for determination ought to be introduced. The mechanism chosen was a certificate by the Attorney-General as to whether an instrument was legislative or not in character. The question then arose as to how that should be reviewed or how that should be reviewable. A lot of debate went on as to whether that was a decision which should be subject to parliamentary disallowance or should be subject to judicial review. I think the initial view of the House of Representatives committee was that it should be subject to both.

I can recall some very interesting debate as to the nature of the decision of the Attorney-General and whether that, in itself, would be a legislative act. It involved authorities such as Professor Stan Hotop, Professor Dennis Pearce and Professor Cheryl Saunders. I think, in the end, the committee ended up somewhat confused as to what the outcome should be. The view I formed—after reflecting considerably and then abandoning all the advice—was that the Attorney-General's certificate should be seen simply for what it is: it is a legal opinion as to whether an instrument is legislative in character or not. It is, in effect, legal advice.

Legal opinions, in my view, are not appropriate for parliamentary review. You cannot invite parliament to disallow an opinion because, in order to reach that opinion, it is really going to have to form a legal opinion itself. While it does that frequently, that is not an appropriate function for a corporate body such as the House or a committee of the House. It is a function that is undertaken with some difficulty.

The Administrative Decisions (Judicial Review) Act method of review is a process designed specifically to determine legal questions. On that basis, it seems to me that the Attorney-General's certificate is very appropriately reviewable by the Federal Court on an ADJR application. It is on that basis that the bill now reflects that point of view: parliamentary disallowance is not provided for and ADJR review is contemplated.

The second point raised by the member for Banks concerned the ADJR implications of the consultation process. There are a number of decisions of an administrative character to be made in the course of the consultation process, which have the potential to be brought under review under the Administrative Decisions (Judicial Review) Act.

It is easy to assert that this could be used for stonewalling by a lobby group. But I think, on reflection, it is more of a floodgates argument than one with real meat. There are many situations where a determined opponent can bring an ADJR application for review of an administrative decision. But, in the end, it is a matter that can be dealt with readily and quickly if it is without merit. If it is not without merit, then it is appropriate for it to be determined by the Federal Court.

For my part, I offer some scepticism to the suggestion that there will be blocking by lobby groups, where legislative instrument proposals are put forward. I recognise that it is certainly a possibility, but ADJR applications are legal proceedings in superior courts: they are not lightly brought and they are not lightly maintained and, in addition, they are quite expensive. I suggest that it would be appropriate for the ADJR freedom to be continued. In the review process that is contemplated within the three years of operation of the bill, that particular point can be examined.

The next point raised by the member for Banks on behalf of the shadow Attorney-General, Senator Bolkus, related to the exemption from consultation of instruments required because of an issue of national security. The suggestion is made that there should be a certificate by the Attorney-General. I really question whether that is likely to have any practical effect. The practical situation is that the issue of national security is likely to emanate from Foreign Affairs, Defence or perhaps even agencies within the Attorney-General's portfolio. It is an issue that is of some significance and will obviously have to be the subject of a determination.

In the ordinary course of events, under this piece of legislation, that determination would probably be made by either the Attorney-General or a delegate of the Attorney-General. It would be subject to judicial review under section 29 and, therefore, the effect of having a certificate of the Attorney-General, which would be subject to judicial review, is already there. I really wonder whether there is any substance in the point, but perhaps we will have to wait until the shadow Attorney-General details his argument in order for us to understand exactly what it is.

The member for Dickson (Mr Tony Smith) referred to the exemption from consultations for certain instruments made in consequence of obligations of the Commonwealth under an international agreement—section 28(1)(3). This provides that the rule maker is not required to comply with the consultation provisions, if the rule maker is satisfied that the instrument merely meets an obligation of the Commonwealth under an international agreement by repeating or adopting the terms of all or part of an instrument for which the agreement provides, or to which the agreement makes reference.

The background to this goes back to the House of Representatives committee report. It considered the provision in the 1994 bill, which was in different terms. In the 1994 bill, it was contemplated that consultation would not be necessary where an obligation is imposed on the Commonwealth under an international agreement to make a legislative instrument. It was a much broader provision, and the committee was opposed to one in those terms.

Since the committee has reported, however, there have been significant reforms effected by the coalition government to the treaty-making processes, and there are significant mechanisms already in place for public consultation in relation to the entry into treaties. We have made provision for a treaties council, which will involve the states and territories and bodies making representations to them. We have made provision for the joint parliamentary treaties committee, which can review proposed international instruments, and for the tabling of proposed international instruments 15 days before they become binding on Australia.

In the light of that, there is significant opportunity for public consultation in relation to the entry into the obligation. That is not to say that that consultation will be the same as consultation in relation to a proposed regulation that would implement the international obligation. But there is some overlap in what would be dealt with in the two consultation processes. All that is set out in the proposed section 28 to be exempted is an instrument that merely repeats or adopts verbatim, in effect, the terms of the agreement in question. It is a very narrow exemption, and I think that it meets the requirement.

I note that the member for Curtin (Mr Rocher) also raised the issue of treaty obligations in his speech. I would suggest that the points he made would be met by the same arguments that I have sought to make to the point made by the member for Dickson.

The member for Dickson also mentioned the rules of court. Again, the rules of court were the subject of some considerable debate before the House of Representatives committee. There was an argument raised whether it constituted an intrusion on judicial independence for the parliament to be involved in the making of rules of court. That argument, I think, was rightly rejected.

But it is not true to suggest that rules of court are exempt. Under schedule 4, there are fairly extensive provisions under the Industrial Relations Act amending the statutes relating to the Family Court and the Federal Court. These will have the effect of requiring consultation to be modified to some extent, but, in general terms, it will be of the same nature as applies to other regulations. In our submission that is appropriately covered.

The member for Curtin has made a speech cogently arguing that public and private rulings, which were exempt from the consultation process under schedule 1 of the act, should be covered. That is an argument that was aired—


Mr Rocher —Public, only public.


Mr WILLIAMS —The member for Curtin corrects me. He is concerned only with public rulings. That is a matter which was aired at some length also in the House of Representatives committee. I would accept that there is considerable strength in the arguments he puts. The difficulty is, I think, that those rulings are increasingly voluminous and increasing in number. (Extension of time granted) I am indebted to the Main Committee. The huge volume and the very specialist nature of the various rulings raise special considerations. There is no doubt that there is a strong case for a requirement of public consultation. It is one that I would not attempt to argue against. Equally, I would not attempt to argue against the impact of the production of the number of rulings and their length, and the content of those rulings on small business, as well as big business and individuals.

However, in our desire to ensure that the Legislative Instruments Bill gets through quickly, we decided that it was appropriate to give further consideration to how the tax rulings might be dealt with. We have in contemplation, as was in contemplation by the previous government, a review of the operation of the bill within a three-year period and, in the course of that time, we hope we can deal with tax rulings.

There is a further problem which should be mentioned in relation to tax rulings. The need for such a huge number of tax rulings really arises out of the nature of the Income Tax Assessment Act and the related legislation itself. While one cannot be confident that the simplification writing program is likely to have major impact in the short term, it ought to have some impact which would obviate a need for the sorts of rulings that are required in the detailed provisions that exist in the present bill. That also is a matter that needs to be carefully considered in this context.

The Member for Curtin can rest assured that as far as I and the government are concerned we are anxious to fulfil the coalition policy to ensure that the regulations that apply to business are reduced in effect, in cost and in delay. The reform of the tax rulings will be seen as an important part of that, in due course.

I think I have dealt with each of the issues raised by the speakers, Mr Deputy Speaker. It may not be to the satisfaction of all the speakers; however, that is the answer that they will receive from me for the time being. I commend the bill to the House. I thank all those who spoke and supported the bill. I thank again all those who were involved in its genesis.

Question resolved in the affirmative.

Bill read a second time.