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Wednesday, 15 June 2011
Page: 2885

Senator PARRY (Tasmania—Chief Opposition Whip in the Senate and Deputy Manager of Opposition Business in the Senate) (15:50): At the request of Senator Coonan, the Chair of the Standing Committee for the Scrutiny of Bills, I present the committee's fifth report. I also lay on the table Scrutiny of Bills Alert Digest No. 5 of 2011.

Ordered that the report be printed.

Senator PARRY: I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee's Alert Digest No.5 of 2011 and its Fifth Report of 2011, I particularly draw the Senate's attention to the Committee's comments on the:

Migration Amendments (Strengthening the Character Test and Other Provisions) Bill;

Appropriation Bill (No.2); and

Child Support (Registration and Collection) Amendment Bill;

The Committee has raised three issues under Standing Order 24 in relation to the Migration (Character Test) Bill. These all give rise to concerns that provisions in the bill may trespass unduly on personal rights and liberties.

The first concern is that the proposed increase in penalty from 3 years to 5 years for the use of a 'weapon' may be disproportionate because the definition of 'weapon' is so broad that a person could be found to threaten to use a thing to inflict bodily injury without there being any real or significant risk that injury may in fact result.

The second concern is that the current 'character test' provisions already allow past and present criminal conduct to be taken into account and the new provisions could lead to circum­stances in which relatively minor criminal behaviour is used to justify the exercise of these powers without the need for any assessment of the circumstances and details of the offence. Again, the Scrutiny Committee is concerned about whether this is a proportionate response.

The third concern relates to the com­mencement of the 'character test' provisions. The bill provides that they will operate from 26 April, which is the date on which the Minister announ­ced his intention to make these changes. This means that the 'character test' provisions will operate retrospectively, even though the laws could have serious consequences for individuals.

The Committee consistently draws attention to reliance on Ministerial announcements which contain an implicit requirement that persons arrange their affairs in accordance with such announcements rather than in accordance with the law. This approach undermines the principle that the law is made by Parliament, not by the Executive. The practice is of particular concern in the context of the application of laws which have the capacity to affect significant individual interests.

The Committee will seek further information from the Minister about the need for these provisions. In addition, if the 'character test' provisions are considered indispensible, the Committee will request advice about whether it is appropriate to at least limit the types of offences or to specify a minimum term of imprisonment applying to the relevant offences.

The Committee would also like to draw the Senate's attention to its comments in Alert Digest No. 5 on Appropriation Bill No. 2. This Bill is usually for Budget appropriations from the Consolidated Revenue Fund that are not the ordinary annual services of government, but this year it also includes amendments to the Commonwealth Inscribed Stock Act 1911.

The Committee is concerned to ensure that the CIS Act amendments receive sufficient parlia­mentary scrutiny and therefore brings these provisions to the attention of Senators.

In relation to its Fifth Report, the Committee has continuing concerns regarding the Child Support Amendment Bill. A key provision of the bill provides capacity for the Child Support Registrar to delegate all powers and functions to perform his or her duties, including to persons outside the Australian Public Service. The justification for the provision is that it seeks to enable more efficient service delivery, including allowing for the outsourcing of debt collection services.

The Committee previously raised concerns about the breadth of the delegation and that it may have the effect of limiting the application of administrative and judicial review and complaint mechanisms in respect of delegations to persons outside the public service.

In her reply the Minister responded to the issues raised, including expressing the view that the delegation would not change availability of administrative review, that review mechanisms provided by the Act would remain subject to judicial review, and the Registrar would retain a power to review and alter decisions of a delegate.

The Committee thanks the Minister for her response, but remains concerned about the extent and scope of the delegation. The Committee is also not certain that outsourcing to persons outside the public service would, in all circumstances, remain subject to judicial review.

The Committee will seek further advice from the Minister about the proposed delegation power, including whether consideration can be given to the provision of more specific powers of delegation.

In relation to scrutiny concerns raised in previous Digests, the Committee has received replies to the issues it raised in relation to the Customs Amendment (Export Controls and Other Measures) Bill, the Customs Tariff Amendment (2012 Harmonized System Changes) Bill and the Tertiary Education Quality and Standards Agency Bill.

The Committee thanks all Ministers for their responses.

The full details of these matters are available in the Alert Digest and report I am tabling today, and I commend the Committee's Alert Digest No. 5 of 2011 and Fifth Report of 2011 to the Senate.

Question agreed to.