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Wednesday, 31 October 2012
Page: 8676


Senator IAN MACDONALD (Queensland) (16:45): I present the 13th report and Alert Digest No. 13 of the Senate Standing Committee for the Scrutiny of Bills.

Ordered that the report be printed.

Senator IAN MACDONALD: Now that there is agreement that the report be printed so everyone can read it, I now move:

That the Senate take note of the report.

I thank the secretariat and the legal advisor on the quite brilliant work they do in assisting the Standing Committee for the Scrutiny of Bills. I reiterate what a professional job the committee secretariat and the legal advisor Mr Leighton McDonald do in looking through so many bits of legislation that come before this parliament and in looking at them to determine if they do unduly trespass on the personal rights and liberties of Australians, whether they have an inappropriate delegation of legislative power, whether they unduly restrict the rights of citizens, whether they give too much discretionary power to delegation of legislative power or whether there is retrospective application. These are the sorts of things that the committee looks at.

The committee in its report today highlights a number of bills. The committee always acts in a very non-partisan way. We do not get into the rights and wrongs of the bill itself but simply alert other senators to provisions of bills that might impinge upon the rights that we have as Australian citizens and which the Standing Committee for the Scrutiny of Bills is specifically asked to look at. I urge all senators to read the report. I will briefly mention a couple of the matters that are referred to in the report.

The Fair Entitlements Guarantee Bill 2012 has a delegation of legislative power. It is proposed in the bill to cover the costs associated with the payment of advances to former employees whose employer becomes bankrupt. The appropriation could also apply to any additional schemes introduced, which can be done by regulation. The explanatory memorandum argues that a standing appropriation is necessary because the volume of payments is unknown and it will provide certainty. The committee noted that argument in the explanatory memorandum, but went back to the government to seek advice on whether the government thought a sunset clause should be considered, especially as new schemes can be introduced.

Similarly, in the Fair Work Amendment (Transfer of Business) Bill 2012, the committee alerts the Senate to proposed subsection 768CA, which would enable the making of regulations that may modify the provisions of this act or the transitional act. So this act is giving power to the regulatory process; that is, the primary legislation can be amended simply by regulations. That is regrettably all too common in legislation. It is referred to as the Henry VIII clause for the reason that Henry VIII used to have a parliament but he provided in it that laws of parliament could be amended by regulation. Not that my history of how the government worked in those days is all that good—

Senator Farrell: Just think back to the Howard years!

Senator IAN MACDONALD: I can tell you, Senator, in the short time I have been involved with the scrutiny of bills committee this time around it seems so many more issues are being raised by the scrutiny of bills committee in relation to these sorts of Henry VIII provisions and others.

Senator Boyce: Voters are going to come up with a Henry VIII solution for your government!

Senator IAN MACDONALD: You mean chop off their heads! Senator Boyce, you have led me into that. Henry VIII only chopped off the heads of certain people. You are leading me into territory where I should not go. I will be pilloried should I respond further to your interjection. Getting back to the Henry VIII clause in the Fair Work Amendment (Transfer of Business) Bill, the committee has pointed out that the explanatory memorandum did not give any reason as to why it should be that the executive government, by regulation, could change the primary legislation passed by this parliament. So, it is not whether the committee gets involved in whether that is good, bad or indifferent; it simply points it out. The committee has resolved to seek advice from the minister whether there is a justification for it. When the justification comes from the minister—and I suspect there will be a justification—that will be presented to the parliament. I mention those couple of things as a short indication of the work done by the committee in alerting the Senate to matters which should be considered when the Senate considers these bills in their more substantive form.

Question agreed to.