Senator BARTLETT (5:14 PM) —The bill we are debating today is the Judiciary Amendment Bill 1998 , which has been reintroduced after having lapsed due to the federal election last October and which has been examined in depth by my Democrat colleague Senator Stott Despoja. My comments today are also on behalf of her and the Democrats as a whole. The Democrats as a party have been consistently opposed to economic rationalism. We view this bill with continuing suspicion. The Democrats have opposed, and will continue to oppose, privatisation unless it can be manifestly shown in a public inquiry that there is a clear public benefit in that process. Competition for competition's sake does not justify a divestment of public assets or a loss of public control over those assets. We believe the Australian Government Solicitor is just such an asset. The continuing high quality of legal advice and scholarship is something to be applauded.

At its core this bill seeks to establish the Australian Government Solicitor as a statutory authority separate from the Attorney-General's Department and sets out the constitution, functions and powers of the AGS, including the persons and bodies for whom the AGS may provide. In essence, the Australian Government Solicitor will now function as a statutory body rather than an arm of the department of the Attorney-General. While this process is not privatisation, it is certainly a form of corporatisation. It forms a move away from the direction of ensuring adequate public control of public institutions. The Australian Democrats continue to support a vibrant public sector and will continue to oppose the mean-spirited view that the public sector is inherently bad, a view frequently espoused by the proponents of competition policy and privatisation reforms.

However, we cannot ignore or hide from what has happened over the last few years in what was previously a very vibrant public sector, and this bill has to be considered in this context. In the last five years over 200,000 public sector jobs have disappeared as funding for many core services has dried up. Instead of slowing, the winding back of the public sector looks set to continue as competition policy, contracting out, corporatisation and privatisation move further into top gear. That means more job losses, lower levels of services, especially in regional areas, higher prices for many services and the potential reduction in the public and parliamentary oversight of what were previously publicly controlled resources.

In the Senate the Democrats have provided, and will continue to provide, a strong voice as the defenders of a legitimate and valid role for the public sector. We will continue to demand a proper justification for what are essentially ideologically driven reforms and insist that the interests of the community and the public must be made paramount.

The Democrats oppose the contracting out of essential government services where this will lead to less accountability, higher costs to the public or a lowering of standards and access. We are concerned that that may be the case in the circumstances we are discussing in this legislation. We will also continue to defend the independence of the Public Service and oppose efforts to politicise the Public Service through short-term contract employment or linking salary to the achievement of government objectives. The Democrats have frequently expressed our deep regret and strong concern at the massive run-down of Australia's public sector infrastructure, funding for which is now at a 40-year low.

We have also repeatedly expressed our support for a strong accountability regime for public sector service delivery including performance standards, a liberal freedom of information regime without ministerial intervention and ready access to the ombudsman scheme. This regime should also apply to corporatised and contracted out public services. We will seek to ensure that those principles apply as much as possible to public services even when they have been corporatised and contracted out because we believe they are fundamental principles. That is the reason that the Democrats as a party have spoken strongly in defence of a legitimate and valid role for the public sector. We believe that the office of the Australian Government Solicitor is one that does have a valuable and important public role.

In the first part of his speech last night, Senator Cooney alluded to the AGS being a place of excellence. I would like to add my support to the comments he made. In the past—and I expect it will be in the future—the Australian Government Solicitor has been a centre of legal excellence. Some of our brightest legal public servants have served within this institution. There is, in the view of the Democrats, no demonstrated imperative to alter the present mix.

In his second reading speech some time back now, the Attorney-General said:

The reforms will contribute to the delivery of more efficient and effective legal service to the Commonwealth.

I must say that the Australian Democrats remain to be convinced about that assertion. Competition does not necessarily mean efficiency. On that point, I must question what exactly the Attorney means. Are we to take the Attorney to mean that the present arrangements in the AGS are lacking in that efficiency and are not effective? I find that assertion fairly difficult to accredit, given the obvious high esteem that the AGS is presently held in and the obvious heavy reliance that the Commonwealth placed on the AGS in the past and currently does and will with inevitable future litigation to which the Commonwealth is a party.

Indeed, the Attorney did make a salient point:

The AGS is not, and cannot be, the same as privately owned law firms. Its unique value to government is based on its government ownership and its expertise in delivering consistent and coordinated legal services to government clients.

The Australian Democrats could not agree more with that assertion, but as part of that we also see strong value in the AGS remaining fully within the Public Service. The Attorney suggests that there are legitimate areas of work that the AGS should be engaged in. He cites public international law matters, advice to cabinet, constitutional law and matters concerning national security. The Democrats are in total agreement with that assertion. That is why if this bill passes the second reading stage the Democrats will be moving amendments that enshrine those areas of legal practice. That relates to amendments which have already been circulated in the chamber.

As my colleague Senator Andrew Murray in particular and all other Democrat senators have asserted many times in the past, parliamentary scrutiny of the executive, of the government, is essential in maintaining the health of our democratic institutions. To that end, I note with considerable interest the comments made by the Attorney regarding effective scrutiny of legal service directions that are capable of applying either generally to Commonwealth legal work or specifically to work being performed in relation to a particular matter. In a letter to the Scrutiny of Bills Committee, the Attorney noted:

The Government considers it appropriate for Legal Services Directions that are of a legislative character (these are most likely to be the Directions of general application) to be subject to Parliamentary scrutiny. When the Bill was drafted it was expected that Directions of a legislative character would be subject to Parliamentary scrutiny under the Legislative Instruments Bill. The Government remains of the view that this would be the most effective process for subjecting Directions of a legislative character to effective Parliamentary scrutiny.

The Australian Democrats are pleased to hear that, but there is something essential in the Attorney's response which has been left out, and that is that the Legislative Instruments Bill did not pass the last parliament. In fact the House of Representatives has not yet dealt with the 30 or so amendments to the bill that were made by the Senate. One of those amendments was to ensure that the Attorney-General could not, by certificate alone, determine that what would otherwise be a legislative instrument under the bill—and therefore disallowable—was not in fact a legislative instrument. Clearly if such a provision were to be enacted, then effective parliamentary scrutiny could be signed away by the stroke of a pen. So the Attorney is not really telling us the whole story in his response to the Scrutiny of Bills Committee.

I think it is worth mentioning the importance of the Scrutiny of Bills Committee, which examines legislation not on the grounds of policy but according to basic fundamental parliamentary principles and basic principles of justice. It performs a very valuable and often very underrated role in ensuring the effective law making of this parliament. It is for that reason that its deliberations and the information it provides when it does find an area of importance in the bill should be paid attention to and given proper consideration.

I have had the good fortune of being on the Senate Regulations and Ordinances Committee since the election. That committee scrutinises an enormous number of legislative instruments, of disallowable instruments. It is definitely not high profile work, it is not necessarily exciting work in many senses, but it is absolutely crucial work. Being part of that committee highlights just how huge the amount of delegated legislation has become in recent times compared with what occurred in the earlier years of this parliament since Federation. It shows how widespread the use of delegated legislation is and it shows how important it is to ensure that the sorts of things that are done through those mechanisms are subject to some form of scrutiny—a form of scrutiny that is not as adequate as the full parliamentary scrutiny which occurs with legislation, but which at least provides some opportunity for consideration of what is being done and an opportunity to pursue amendment or prevention of inappropriate things being done.

The record of that committee over many years highlights not only that it is important to scrutinise legislative instruments but also the fact that, often not for any deliberate or Machiavellian purpose but simply through drafting errors or mistakes, the instruments do not achieve what they are intended to or have unintended consequences or go beyond the reach that is suggested by them. If that occurs already in a notable number of the instruments that are provided and scrutinised by that committee, then it does give cause for concern that we are potentially leaving open another whole area where the Attorney-General can determine something not to be a legislative instrument and can therefore remove it from any form of scrutiny at all. That is inappropriate not just in terms of what may be undesirable policy actions but in terms of a check and balance, a review over the basic effectiveness of what is being done.

The Democrats therefore support the position taken by the Scrutiny of Bills Committee as appeared in the Alert Digest, which states:

The committee is concerned that the process favoured by the Government for effective scrutiny of Legal Service Directions is dependent on a Bill, the Legislative Instruments Bill, which has been in existence in one form or another since 1994 but has not yet passed into law. Until the Legislative Instruments Bill is passed into law, the committee favours, at least as an interim measure, provision for Parliamentary scrutiny of these Directions in the Judiciary Amendment Bill.

The Australian Democrats support that position and we will be moving an amendment accordingly.

I am a bit perplexed at the government's position in relation to this issue, which I am sure will be outlined a bit further when the amendments come on for debate in the committee stage. One cannot assert that a raft of legal services such as national security will not be tendered out and then the government will not be prepared to put their legislation where their rhetoric is. Nor is it possible, on one hand, to claim support for parliamentary scrutiny and then, on the other hand, say, `We will have to wait for that in another bill.' It is just not a credible response.

The Senate has heard a lot in the last day or two about the concern of the Democrats, certainly about the amount of faith and trust we can put in the government's word if they guarantee that something will appear at a future date. Without revisiting debates about the youth wages legislation and guarantees about the Youth Allowance and tax packages and that sort of thing, certainly there is an increased degree of concern amongst the Democrats about how much we can be sure that what is said is going to be done will actually be done. For that reason also I think it makes it dangerous to simply rely on a bill that is yet to be passed to deal with a matter which is relevant today in the legislation that we are dealing with now.

In conclusion, I emphasise that the Democrats remain unconvinced of the imperative of this bill. We recognise the direction that many Public Service bodies have gone in in recent years and the way that this is in some ways just part of that process, and that is a direction that the Democrats have not supported. Nonetheless, that is what the government has persisted with doing. We continue to have concerns that, if this bill passes the second reading stage, amendments need to be made to ensure that accountability and transparency will be enhanced across all arms of the Public Service. Therefore, our amendments, which, as I said previously, have already been circulated, will be moved to assert that position.