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Wednesday, 24 September 1997
Page: 6811

Senator HARRADINE(10.29 a.m.) —The title of the bill that the Senate is discussing at the moment is the Legislative Instruments Bill 1996 . That is enough to turn anybody off and people can go to sleep. But it is a very important piece of legislation because, at the least, it goes to the very heart of the separation of powers between the executive, the legislature and the judiciary. It is very important. I have said this year after year after year: it is most important that parliament does have proper oversight of executive government actions. That is part of our democracy. It is not proper for unelected persons to determine, without reference to parliament, issues which are legislative in character.

I am going to deliver a speech to the Senate on behalf of Senator Colston, who would have dearly liked to have been here today. He has had a longstanding interest and commitment to the work of the Standing Committee on Regulations and Ordinances. He was a chairman of the Regulations and Ordinances Committee on two occasions for more than three years and deputy chairman since the 1996 election. He is able to speak with deep knowledge about the issues involved. Under those circumstances, it is my privilege to express his views to the Senate, which happen also to be mine and happen to be those generally of the committee.

The Regulations and Ordinances Committee is the committee which, on behalf of the rest of us in the Senate, scrutinises legislative instruments to ensure that they comply with the highest standards of parliamentary propriety and personal rights. The committee's annual reports and other reports to the Senate indicate that it has experienced considerable success in improving the quality of legislative instruments. Laws made by the executive under the authority of a parliamentary enactment can have the same effect upon individuals as the provisions in their enabling act.

Indeed, the effect upon individual members of the public may be more immediate because the parent act will often set out only the broad principles of a legislative scheme while the actual administrative details are filled in by legislative instruments made by ministers or by public servants. Let me say that this is no reflection on the work of public servants in this regard. They have a very important and onerous task to perform.

Because of this either immediate or long-term effect on individuals, it is important that any relevant umbrella legislation, such as the present Legislative Instruments Bill, should include the widest and strongest provisions for parliamentary scrutiny of these instruments. The existing provisions relating to legislative instruments are covered by only six pages of the Acts Interpretation Act 1901 and three pages of the Statutory Rules Publication Act 1903. On the other hand, the bill that is currently before us is 113 pages long. Perhaps the most important question now is whether the rights of parliament and, therefore, the people are protected adequately by the proposed new scheme and whether the tenfold increase in statutory provision does not include any measures which dilute, diminish or otherwise derogate from those rights.

In this context, Senator Colston, who prepared this second reading stage speech, recalled that the previous 1994 version of this bill provided that only the whole of a regulation could be disallowed. Under that bill, it would not have been possible to disallow a single provision of an instrument. This serious reduction in the power of the parliament was fortunately detected by the Regulations and Ordinances Committee and has now been rectified in the current bill.

The committee does not oppose the bill. The chairman of the committee, Senator O'Chee, has to run around the course here today. I must say that I have read Senator O'Chee's speeches to the various fora on the particular areas, and I was most impressed. In respect of the current bill, Senator O'Chee reported to the Senate on 21 November 1996 and 23 June 1997 that the bill would generally improve parliamentary scrutiny of legislative instruments.

Senator O'Chee also pointed out, however, that there are several areas where the bill unacceptably removes from parliament what should be its natural and appropriate powers in respect of supervision of these instruments. Senator O'Chee's statements described these areas of concern and Senator Colston had circulated amendments which addressed these concerns and which the committee believes may be necessary to preserve the legislative supremacy of the parliament.

One of the most disturbing areas of concern is provisions in the bill and circulated government amendments which would remove from the operation of the bill instruments in respect of employment by the Commonwealth. These instruments include Remuneration Tribunal determinations and determinations at present made under the Public Service Act and the Defence Act. At present, these instruments are subject to varying degrees of parliamentary scrutiny.

In expanding further on these classes of instruments, Senator Colston has given some instances of problems which the committee has found. Remuneration Tribunal determinations set terms and conditions of employment for ministers, judges, senators, members of the House of Representatives, Public Service secretaries and heads and members of government statutory authorities. Under the government amendments, these determinations would not be subject to full parliamentary control. In addition, Public Service determinations and Defence determinations provide for allowances and other conditions of service for scores of thousands of Commonwealth public servants and members of the Australian Defence Force.

The Regulations and Ordinances Committee has in fact extracted some concessions from the government in respect of these instruments. The problem is that the government amendments relate to specific provisions which are likely to disappear with the proposed repeal of the present Public Service Act. I think that is an important question which we would need to consider in the committee stage. If this happens there will be no scrutiny at all of these instruments.

Government amendments also give some concessions in respect of the Remuneration Tribunal determinations but these are still excluded from the bill. The minister has informed the committee that the reason for this is that it would be `unfair', to use the minister's words, to expect the upper levels of Commonwealth employment to be subject to the full vigour of parliamentary scrutiny. My amendments will provide for legislative instruments affecting Commonwealth employment to be subject to the bill. When I say `my amendments', I mean Senator Colston's amendments, which I will be moving. I notice that one or two of them are similar to one or two of the opposition's amendments.

I will now give some details of actual industrial relations type instruments scrutinised by the committee. One such case which was the subject of a special report to the Senate involved the rights of Commonwealth public servants. Our late colleague Senator Olive Zakharov took an extremely close interest in this particular case. An official of the Department of Industrial Relations, with no meaningful consultation with those affected, made a determination which entrenched an injustice for some 30,000 members of the Australian Public Service. Also, the explanatory statement for the determination did not describe its nature or effect. The Regulations and Ordinances Committee ascertained that the official had made the determination in defiance of a recent report by the Merit Protection and Review Agency which advised that the position was unfair, inequitable and obviously anomalous.

When questioned by the late Senator Zakharov during a meeting with the committee, departmental officials revealed that they had known of the injustice for almost 20 years. I am pleased that this matter had a relatively satisfactory conclusion, with the Prime Minister and Minister for Finance agreeing to a one-line budget appropriation of $4.1 million to right the injustice. This case underscores that it is essential that the Senate, through the committee, continues to scrutinise these instruments and that the bill should provide for this. Thus the Senate was not only exercising its audit and control function over executive government decisions but it was exercising its important function to uphold the rights of individuals.

The committee has experienced many other problems with instruments of this type, almost all of which were made or supervised by officials of the Department of Industrial Relations. The committee has scrutinised Remuneration Tribunal determinations and Defence determinations which were void for invalid subdelegation; Defence and Public Service determinations void for prejudicial retrospectivity; a Public Service determination void because its drafting did not reflects legislative intent; and Defence and Public Service determinations where the maker did not comply with the requirements of the enabling act.

One Public Service determination had a corrigendum attached with sticky tape, while another had handwritten alterations with no initials, date or any other identifying mark. Another was neither signed nor dated. In respect of one Remuneration Tribunal determination the minister advised the committee that, on the one hand, it could be considered invalid while, on the other hand, it could be valid. These are all problems of validity. As well, the Regulations and Ordinances Committee has found problems with the substantive provisions of many of these instruments. The committee therefore believes that it is important for the Senate to continue its supervision of this type of instrument.

In this brief outline that I have presented to the Senate on behalf of Senator Colston I have dealt with only one type of delegated legislation, namely, instruments dealing with the terms and conditions of Commonwealth employees. I know that honourable senators will consider these matters carefully, as they have always done in respect of this very important function of the Senate which deals with the rights and privileges of individuals and the rights and responsibilities and privileges of the Senate in respect of audit and control of executive government decisions and upholding individual rights.

There will be a number of amendments but, as other honourable senators said, the government should be commended for bringing forward the bill. There are a number of amendments that Senator Colston would like the committee to consider. The bill in general makes important changes to the ability of the Senate to scrutinise and, if the Senate wishes, to disallow legislative instruments. Many of the changes are beneficial. I do commend the government in respect of that.

These changes will enhance the power of the Senate to supervise and control legislative instruments made by the executive. The beneficial changes include: an increase in the number and types of instruments subject to tabling and disallowance, many of which at present have no parliamentary oversight at all; legislative instruments to be tabled within six days instead of the present 15 days; statutory requirement to table explanatory statements; power to postpone disallowance motions for up to six months; backcapturing and sunsetting of legislative instruments, which will ensure continuing parliamentary review of legislative instruments.

The bill will also benefit the public by greater availability and access to legislative instruments and benefit the business community by mandatory consultation and impact assessment. The general thrust of the bill, therefore, will improve the position of the parliament and the public in relation to legislative instruments. Unfortunately, however, the bill includes a number of provisions which will diminish the role of the parliament in the new scheme, and it is these defects which Senator Colston's amendments and others that will be moved will address.

As we and the committee see it, there are four important defects in the bill. The bill provides for the Attorney-General to issue conclusive certificates as to whether a particular instrument is or is not legislative. Obviously, that is not a goer, and everybody knows it is not a goer. All we will have to do is say that those particular certificates should be subject to disallowance and that fixes that problem.

The bill excludes instruments which provide for national schemes of legislation—such as Corporations Law, the competition code, road transport reform and occupational, health and safety—from parliamentary disallowance. These schemes are likely to become more important, and it is inappropriate that parliament should not be able to scrutinise this legislation. Parliament should have the same option of disallowance of the instruments as it has over other legislative instruments, many of which are of far less consequence than national schemes. We are hearing more and more of national schemes, and I have the distinct feeling, which is supported in rather more technical terms by the Regulations and Ordinances Committee, that we are tending to lose control of those situations on behalf of those persons who elect us here.

Senator Murray —Like treaties.

Senator HARRADINE —Exactly, like treaties, as Senator Murray interjects. That is why I was so happy to originate the move to have a treaties committee way back. Thankfully it was taken up by somebody else with a bit more clout, and now there is a committee.

The bill excludes Quarantine Act declarations from disallowance. These declarations, which could severely disrupt the activities of individuals and businesses, provide for penalties of up to 10 years imprisonment and a fine of up to $100,000. The reason for excluding the declarations from parliamentary scrutiny is apparently that they are important and sensitive. This is, however, a reason in favour of disallowance, rather than the opposite.

The fourth major defect of the bill—an important defect in the bill, as the committee sees it—is that the bill at present provides expressly that regulations may exclude instruments providing for Commonwealth public sector conditions of employment from any parliamentary scrutiny at all. Following correspondence with the regulations and ordinances committee, the government has circulated amendments which go part of the way towards addressing this deficiency but in other ways makes the position worse. The amendments that will be moved by me on behalf of Senator Colston provide for full parliamentary scrutiny of these instruments and possible disallowance by either House.

I will not go into the details of it now as it is more appropriate to deal with those at the committee stage, but I do thank the work that has been done by the members of the regulations and ordinances committee over many years, including the fine work that Senator Colston has done on that committee. I do thank those members for continuing to work on behalf of the Senate in the best interests of our electors and, I believe, in the best interest of good governments of this country.