Senator BOLKUS(9.50 a.m.) —I rise in general support of the Legislative Instruments Bill 1996 , for in many ways the bill that we are discussing this morning is a bill which Labor, believe it or not, introduced in the previous parliament. Two years down the track we are still dealing with the legislation of the previous Labor government.

Senator Harradine —It was 1994, actually.

Senator BOLKUS —It was 1994, in fact, so we have only been three years in deliberations on this particular concept. As the minister representing the Attorney-General pointed out in her second reading speech in this place, this bill arose from a report of the Administrative Review Council, a report entitled Rule Making by Commonwealth Agencies .

When in government Labor responded to that report by introducing our bill, as Senator Harradine said, in 1994. There was consultation on it. It was referred to a number of parliamentary committees, including the House of Representatives Standing Committee on Legal and Constitutional Affairs. As a result, a number of amendments were made to the 1994 bill. That bill lapsed and now, of course, we have this particular bill, which in many respects is little different from the 1994 bill. If anyone wants evidence to that effect, they can compare the second reading speech of this Attorney-General with the second reading speech attached to the bill in 1994.

As I said, we will give general support to this legislation, but we have some concerns about it. There are some differences between the 1994 bill and the 1996 bill. We have some concerns about this particular bill, and we will be moving some amendments.

The first concern is in respect to the definition of a legislative instrument—what constitutes a legislative instrument. The 1996 bill adopts an inclusive definition. The 1994 bill provided an exhaustive definition. By being inclusive, the 1996 bill generally encompasses instruments that come within the scope of the 1994 bill. However, the 1996 bill requires those instruments to have a `legislative character', whereas the 1994 bill merely required them to be `binding in their application'.

Whilst the 1996 bill is less precise in its application, the definition is, as I said, broadly consistent with the intent of the 1994 bill and, to the extent that there is a discrepancy between the bills, the 1996 bill is likely to capture a broader range of instruments than the former one.

We have some concerns that this broader and less precise definition may give rise to potentially extensive and expensive litigation as to what is or what is not a legislative instrument. As many senators would know, the legal textbooks are littered with cases that have sought to clarify this often very fine and technical distinction.

We do not wish to see necessary dedicated legislation frustrated as a result of such litigation. Further, the costs of such litigation will be borne not only by government but by those that the government claims it wants to assist, and particularly small business.

We are concerned about this, and this particular extension to the definition, but we do say at this stage that this matter is one that will be monitored by us and will be highlighted as a key issue for examination when the bill is reviewed in three years time.

I will now move to the first of our amendments, which goes to the question of Attorney-General's certificates. The 1996 bill picks up a provision of the 1994 bill which allows the Attorney to issue a certificate to the effect that an instrument is not legislative in character. The 1994 bill provided for parliamentary review and disallowance of decisions by the Attorney-General so certifying. It excluded review, including under the Administrative Decisions (Judicial Review) Act 1977. The 1996 bill removes the ability for parliament to review the decision but makes it subject to judicial review under the AD(JR) Act.

The report of the House of Representatives Standing Committee on Legal and Constitutional Affairs on the 1994 bill recommended that parliamentary review be maintained. This report and recommendation has been supported by some government backbenchers, including Senator O'Chee, who was then Chair of the Senate Standing Committee on Regulations and Ordinances.

Given the difficult legal issues surrounding whether an instrument is legislative in character, the Labor Party believes that it would be inappropriate to leave these matters for judicial review alone. We believe this because, firstly, what we are concerned about here is an expression by parliament as to the character of an instrument having force in its own right. We recognise that the history of the legislative executive distinction is as much one of practice as it is of settled law, and that to remove the legislature from this evolving process is to ignore the history of the development of common law in this area. We think the parliament does have a role to play in the actual characterisation of the instruments that we are talking about and, as a consequence, that it should maintain an interest and role in the process.

Secondly, we recognise that judicial review of a decision by the Attorney may be costly. It will be inaccessible, and will become even more costly and inaccessible, particularly for ordinary Australians to pursue a particular decision. Parliamentary review, of course, provides another avenue for consideration of this decision and, more often than not, it is a less costly one.

The Attorney has argued that parliamentary review may be inappropriate as the issue is ultimately one for judicial determination. But, let's face it, a lot of the decisions that we are taking here could ultimately be ones for judicial determination, but the parliament does not resile from having a role to play in respect of so many decisions that could and do ultimately flow on to the judicial parts of our system.

Under our proposal, it is likely that it would be the Attorney of the day and not an individual citizen who would be most likely to challenge such a determination by the parliament. For practical or political reasons, the Attorney might elect not to do so. An Attorney, of course, would want to be reasonably sure of his or her prospects of success before incurring the cost of such a legal challenge. We think it is better if such a dispute be resolved wherever possible between the arms of government rather than having ordinary citizens put to the expense of a legal challenge.

I note, in this context, that the 1994 bill expressly excluded judicial review of a certificate issued by the Attorney. The House of Representatives standing committee review of the legislation rightly pointed out the anomaly that, whilst the review of the AD(JR) Act was not available, the bill did not exclude review of a decision to issue a certificate pursuant to a prerogative writ under the original jurisdiction of the High Court or section 39B of the Judiciary Act.

In retrospect, we did have an unsatisfactory situation in the 1994 bill, and it was a situation which acted as an unnecessary barrier to the legitimate challenge to the validity of these certificates. As I have said, we are moving these amendments today not only to support the inclusion of the ADJR review but also to maintain parliamentary review of an Attorney-General's decision.

I now move on to consultation coverage. The 1996 bill extends the range of instruments upon which consultation must be sought so as to include not only those legislative instruments which directly affect business but also those which have a significant indirect effect on business.

I note that the 1994 bill limited the application of the consultation mechanism to legislative instruments that had a direct effect. The limitation was proposed so that time could be given to assess the effectiveness of consultation mechanisms before consideration was actually given to extending the range of legislative instruments to which they apply. The 1996 bill is not inconsistent with that approach, although it is undoubtedly more adventurous, and we support these changes.

In respect of the consultation process, part 3 of the 1996 bill proposes a two-stage review process overseen by the prescribed regulatory review body, which I understand will be the Office of Regulation and Review. This body must certify the adequacy of consultation on a legislative instrument. The first stage requires that comment be sought from representative bodies of those affected. This is to be conducted prior to development of the legislative instrument. The second stage requires public advertisement and occurs after the legislative instrument is developed. The 1996 bill also makes consultation decisions subject to review under the AD(JR) Act.

This process will be considerably more onerous than the one-stage post-development consultation process required under the 1994 bill. The 1994 bill excluded ADJR review of the consultation process. Whilst this process is more onerous, it is submitted on our part that it should be supported as representing best practice. However, ADJR review of that mechanism could—and we should note this—be used by any organised lobby as a means to frustrate the making of necessary legislative instruments. I think the government should bear this in mind as their legislation takes effect.

In this context, it is noted that the ability to frustrate the development of an instrument is somewhat more limited because of a failure to consult in compliance with part 3 of the bill, but does not affect the ultimate validity of a legislative instrument. Notwithstanding this, I think it is fair to say that the ability to frustrate the development of an instrument by this means should not be understated.

As noted, the 1994 bill excluded ADJR review of the consultation process. However, such a provision would not prevent judicial review of that process because of the availability of common law administration review, which is, of course, protected through the original jurisdiction of the High Court under the constitution and section 39B of the Judiciary Act. We do have some concerns with this particular proposal but, as I said earlier, we will not be opposing these changes.

I move now to the second set of Labor amendments: Labor amendment 5 which goes to the legislative instrument proposal. The 1996 bill generally widens the information that must be included in a legislative instrument proposal. The so-called LIP will now contain a fuller analysis of the options available to achieve the purpose underlying a legislative instrument and the relative merits of alternative approaches. A LIP is required to take into account the indirect social and economic costs and benefits of a proposal. However, in detailing an inclusive list of matters that need to be taken into account, the government has not listed environmental matters, as were listed in the 1994 legislation. I note that this particular change does not necessarily exclude the consideration of environmental matters but is symbolically very significant. It is another indication that this government does not take environmental and social concerns as seriously as it should.

We believe the parliament should explicitly refer to environmental concerns as a matter to be taken into account in the drawing up of a legislative instrument proposal. As a consequence, our amendment will not limit the generality of other matters that a decision maker may decide to take into account but will explicitly include environmental matters.

The next area where we have proposed amendments is consultation exemptions. Here there are a number of changes between the 1994 bill and the 1996 bill on the range of matters for which exemption from consultation may be granted. For instance, the 1996 bill does not provide for exemptions where, one, a legislative instrument is required urgently, two, significant or comparable public consultation on the instrument has already occurred, three, notice of the instrument would give an unfair advantage to particular individuals and, four, the Attorney-General certifies that public consultation would not be in the public interest.

Instead, the 1996 bill does provide for a range of exemptions where, for instance, the instrument is required in the interests of national security, in which case no certification by the Attorney-General is required. The instrument is an airworthiness directive. The instrument is a commencement proclamation. The decision maker proposes to make a 12-month temporary legislative instrument or the regulatory review body certifies that the LIP is adequate and otherwise waives part 3 consultation requirements where no such consultation is required by the enabling legislation, or agreement is comparable, or the costs of complying with part 3 outweigh the benefits to be obtained by the instrument. We believe that the 1996 bill is too restrictive in some cases and is open for abuse in others. Accordingly, we propose an alternative regime that accepts a number of the above changes whilst modifying others.

Firstly, we believe that an exemption should be available where the instrument is urgently required or where notice would give an unfair advantage to individuals. However, such an instrument should only have a 12-month temporary operation and should be certified by the regulatory review body as being necessary. Secondly, the exemptions for prior, significant or comparable public consultation should be retained, but we believe there should be a requirement that the regulatory review body certify that such consultation has indeed taken place. This will provide a central checking mechanism, thereby helping to prevent errant departments from getting around the consultation requirements.

Thirdly, the public interest tests, we believe, should be retained, thus eliminating the need for specific national security and airworthiness exemptions. In our amendment, we have included both these matters in a list of matters included within but not limiting the public interest test. We are concerned that, given the broad effect of this bill on legislative instruments, we do not wish to prejudice matters for which the public interest would militate against consultation pursuant to the bill.

Fourthly, we do support the exemption of commencement proclamations and, fifthly, the exemption for 12-month temporary instruments should otherwise be removed. There should be no need beyond those that I have already outlined for a temporary legislative instrument to be created. A provision of this nature is, we believe, open to widespread abuse. Finally, we believe the power of the regulatory review body to limit the consultation required should be retained as set out in the bill.

We have further amendments, for instance in respect to disallowance exemptions. The 1996 bill disallowance exemptions are similar to those contained in the 1994 bill, with three exceptions. These are three additional types of instruments which they exempt. They are certificates by the attorney extending the sunset period, proclamations under section 5 of the Flags Act and proclamations made under the Quarantine Act.

We support the exemptions of the Attorney-General's certificates. The exemption for proclamations under section 5 of the Flags Act will also be supported. However, in respect of the Quarantine Act, it is actually unclear as to why legislative instruments should be exempted from disallowance in this respect. The breach of such proclamations can give rise to considerable criminal penalties and we believe should not be included. In doing so, we note the view of Senator O'Chee who agrees with us in respect to this. Both Senator O'Chee and the Senate Standing Committee for the Scrutiny of Bills have raised concerns about the exclusion from disallowance of legislative instruments that arise under a national scheme of legislation. A similar exemption was contained in the 1994 bill. We believe that this exemption should, however, remain and we accept the government's position here.

Early backcapturing is another area where we support the government but, in respect of non-legislative instruments and sunsetting, we do have a range of amendments. I do not think there is enough time for me to go through them at this particular stage, but I could speak to those in the committee stage.

In conclusion, as I said at the outset, we support the introduction of the bill. We have a number of amendments to it. Much of the bill is similar to the bill introduced in 1994. We believe some of the amendments the government has made can be supported at this stage but, as I have set out to explain in a number of areas, we do have concerns. We will be moving amendments in accordance with the statements I have made in this particular stage of the debate.

I will finish here. I do not know whether it is opportune for us to go back to the previous legislation. Senator Brown is not in the chamber, so maybe it is not. Maybe we can continue with the second reading debate of this bill and return to the telecommunications interception bill later on.