Senator ELLISON (Minister for Justice and Customs) (1:47 PM) —I thank senators for their contribution to a bill which has had a longstanding history, as has been alluded to. The Legislative Instruments Bill 2003 will introduce a comprehensive regime for the management of and public access to Commonwealth legislative instruments. That begs the question: what is a legislative instrument?

The bill's definition of a legislative instrument is designed to ensure that all instruments of a legislative character come under the bill's regime unless expressly exempted. The definition focuses on the character of an instrument rather than what it is called. The bill defines a legislative instrument as being an instrument in writing that is of a legislative character basis made in the exercise of a power delegated by parliament. The proposed legislation provides further guidance by explaining that an instrument is taken to be of a legislative character if it determines the law or alters the content of the law rather than applying the law in a particular case and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right.

The bill contains other mechanisms to provide certainty as to whether an instrument is legislative and, hence, subject to the requirements of the bill. All instruments in certain specified categories are treated as legislative. Regulations, statutory rules, proclamations and disallowable instruments are some examples. For other instruments the Attorney-General can issue a certificate resolving whether, as a matter of law, the instrument is legislative. Once an instrument is placed on the Federal Register of Legislative Instruments it becomes conclusively legislative. This can be a way of resolving uncertainty about the nature of an instrument.

So what we have is a bill which introduces a comprehensive regime for the management of and public access to Commonwealth legislative instruments, a very important aspect in any good governance of any community. Such a regime is well overdue, and I think that point has been made by the other speakers as well. This bill has been substantially revised and simplified to take advantage of changes in technology and to remove potentially adverse impacts on efficient and effective administration. The revision process also involved consideration of issues raised by the opposition, and the bill takes into account a number of those concerns.

The bills were referred to the Senate Standing Committee on Regulations and Ordinances for inquiry, and the report from that inquiry was tabled on 16 October this year. I thank the committee for work undertaken in inquiring into and reporting on the bills. I also acknowledge that the report was produced in a tight time frame and provides a comprehensive analysis of the bills before the Senate today. The committee made 13 recommendations and the government has proposed legislative amendments to address six of those recommendations. The government believes that the remaining seven recommendations can be given effect to without legislative amendment. Firstly, the government accepted the committee's recommendations that the following three matters be included in the review of the bills three years after commencement. They are: parliamentary amendments which make legislative instruments disallowable where those legislative instruments are made under a bill which establishes or amends a national scheme of legislation; the operation of the consultation provisions in the regulatory impact statement process; and appropriate ways in which incorporated material might be made accessible.

The government has no objection to the committee's recommendation that the principal regulations implementing the proposed bill should stand referred to the committee in the same terms as the bill, but it believes that it is a matter for the Senate to be determined at the appropriate time. The committee recommended that the explanatory memorandum for a bill that establishes or amends a national scheme of legislation should state whether legislative instruments that may be made under the bill are disallowable or not. The government agrees that it would be useful for an explanatory memorandum to provide this information. The Attorney-General's Department will consult with the Department of the Prime Minister and Cabinet to include this requirement in the legislation handbook.

The government accepts the recommendation that the Attorney-General's Department not make provision for the electronic lodgment of legislative instruments for tabling in the parliament. The government, however, proposes retaining the provision to allow for this method of tabling in the future, if thought appropriate. The current requirement for tabling hard copies will not change without consultation with the Department of the House of Representatives and the Department of the Senate. Ultimately, the regulations could be disallowed if they were made without agreement.

The government has considered clarifying the meaning of the term `provision' in the disallowance provisions in the bill. The government has resolved that the term `provision' is as neutral and precise a term as possible and that trying to define it could unintentionally limit rather than clarify the disallowance powers.

In relation to the committee's recommendation that departments and agencies provide a list to the parliament of those existing instruments that they do not intend to register, the government emphasises that the bill contains a statutory obligation on rule makers to lodge all existing legislative instruments. If they do not register an instrument in the required time, the instrument ceases to exist. The government believes that this statutory obligation plus principles of responsible government and the Public Service code of conduct will ensure that the existing instrument will be registered. The Attorney-General's Department will monitor this and provide an annual report to parliament on the back-capturing process. The government accepts the committee's recommendation that the Attorney-General's Department monitor the back-capturing of existing legislative instruments. The department will maintain an annual statistical return on instruments that have been back-captured.

As I stated at the outset, this is a regime which is well overdue. It provides a comprehensive scheme for the management of, and public access to, Commonwealth legislative instruments. This is important not only for the good governance of Australia but also for transparency in government—and, of course, it provides legislation which covers the delegation of powers by parliament. It is all very well for parliament to enact laws and debate them in this chamber and the other place but, where the delegation of those powers is made, it is important that there be a regime for the management of those powers and public access to them, because, as I have just described, those instruments impact on the lives of average Australians. That goes to the very extent of regulating the duties and rights of your average citizen.

The bills have been a long time coming—there has been long history behind these bills—but the government believes that they are something that had to be got right. Of course, there will be amendments during the committee stage, as Senator Greig has alluded to, and I look forward to the contributions from the opposition and Democrats. I commend the bills to the Senate.

Question agreed to.

Bills read a second time.

Ordered that consideration of these bills in Committee of the Whole be made an order of the day for a later hour.

Sitting suspended from 1.57 p.m. to 2.00 p.m.