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Wednesday, 23 November 2011
Page: 9402


Senator FIFIELD (VictoriaManager of Opposition Business in the Senate) (16:47): I present the 14th report of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No.14 of 2011, dated 23 November 2011.

Ordered that the report be printed.

Senator FIFIELD: I also present an interim report of the committee on the future direction and role of the committee.

Ordered that the report be printed.

Senator FIFIELD: I move:

That the Senate adopt the recommendation of the report relating to an extension of time for the inquiry.

Question agreed to.

Senator FIFIELD: May I say how gratified I am that there is such obvious interest in Alert Digest No.14 of 2011 and in the committee's 14th report of 2011, which have just been tabled. I move:

That the Senate take note of the documents.

In tabling the committee's Alert Digest No. 14 of 2011, I draw the Senate's attention to several matters relating to the proposed commencement of provisions with retrospective effect.

The committee's longstanding view in relation to retrospective commencement and effect is that, although the principles which underpin the rule of law are not absolute, the case for retrospective changes to laws which will adversely affect any person—and particularly those creating or confirming liability—should establish that exceptional circumstances exist.

The Deterring People Smuggling Bill seeks to clarify the meaning of the phrase 'no lawful right to come to Australia' as it relates to people-smuggling offences, with effect from December 1999.

The stated purpose of the proposed amendments is to 'address doubt that may be raised about convictions that have already been made under the existing provisions'. However, the amendments would pre-empt judicial interpretation of the existing provisions and could constitute a retrospective substantive change to the law, albeit as a matter of construction rather than as an amendment to the elements of the offence.

The committee is concerned that the justification outlined in the explanatory memorandum requires further explanation and the committee intends seeking advice from the minister about this issue.

I also take this opportunity to draw the Senate's attention to an emerging area of interest relating to the limited availability of merits review when governments use contractors to provide goods or services.

The Telecommunications Universal Service Management Agency Bill seeks to change the regulatory approach to 'public interest telecommunications services' to respond to a change in the structure of the market associated with the rollout of the NBN. The change involves moving to contract arrangements, or providing grants of financial assistance, to provide public interest services.

This would mean that public interest requirements will be enforced through contract law rather than the existing model of standard regulatory enforcement mechanisms. The purpose is intended to ensure that public interest obligations are maintained in a changing market structure. However, it could mean that persons aggrieved by a breach of the obligations are no longer able to obtain merits review because the person is not a party to the relevant contract between the new Telecommunications Universal Service Management Agency and the contractor or grant recipient.

The committee intends to seek the minister's advice about what review mechanisms are available in these circumstances. It is also my pleasure today to acknowledge the Scrutiny of Bills Committee's 30th anniversary. To mark the occasion, I am tabling the committee's interim report into its future role and direction.

The committee has not encountered any difficulties that have significantly hindered its work and it does not hold any grave concerns about the operation of standing order 24. The committee is proud of its work and its principled approach to ensuring that technical accountability standards are applied to all proposed legislation.

However, after 30 years it is considered that it is indeed worth revisiting the framework for the scrutiny of bills to ensure that the committee is well placed to continue to work effectively for the years to come.

The interim report does not express a concluded view on any topics, but identifies the themes the committee intends examining in further detail before presenting its final report by 30 April 2012. The committee welcomes input on any matters relating to its work, and particularly the areas it outlines in the interim report, including the scrutiny of framework bills and national scheme legislation, the committee's approach to its work, the committee's powers and sanctions and ways in which to improve communication about technical scrutiny issues.

In conclusion, I commend the committee's Alert Digest No. 14, the 14th report and the interim report into the committee's future role and direction to the Senate. I hope that all future tablings by the Scrutiny of Bills Committee enjoy the same interest from the gallery.

Question agreed to.