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Thursday, 5 March 1998
Page: 532

Mr WILLIAMS (Attorney-General) (9:53 AM) —I move:

That the bill be now read a second time.

The Legislative Instruments Bill 1996 [No. 2] is a major reform of the processes for the making, publication, scrutiny and sunsetting of Commonwealth delegated legislation. As part of its law and justice and new deal for small business policies, the government undertook to introduce a legislative instruments bill, with limited exemptions and specific provision for five-year sunsetting of regulations. This bill implements those policies. In addition, the bill performs a gatekeeper role in relation to legislative instruments by preventing the unchecked proliferation of delegated legislation.

The previous government had introduced the Legislative Instruments Bill 1994. That bill was considered by several parliamentary committees, including the House of Representatives Standing Committee on Legal and Constitutional Affairs, and many suggestions for change were made. The bill was awaiting passage in the Senate when parliament was prorogued prior to the 1996 election. The extent of scrutiny to which the 1994 bill was subjected is indicative of the importance of this legislative reform.

The Legislative Instruments Bill 1996 drew on that earlier work. In particular, this bill overcame the deficiencies of the 1994 bill by the introduction of a structured sunsetting regime, more structured consultation principles and processes that had been developed in the Council of Australian Governments, and the reduction of the exemptions from the operation of the bill. The bill represents the best achievable package of reforms. It represents a significant shift in control over delegated legislation back towards the parliament and increases government accountability through improved access and consultation mechanisms.

This is the same bill that was introduced into the House of Representatives on 24 June 1996 and passed by that House on 11 September 1996. The bill was introduced into the Senate on 8 October 1996 and, notwithstanding the strong general support of the Senate for the bill, finally passed on 25 September 1997 with 18 government and 35 other amendments. A large number of the non-government amendments emasculated the stringent consultation principles and processes and removed the sunsetting regime.

On 17 November 1997, the House of Representatives considered the Senate amendments and returned the bill to the Senate. The House accepted the government amendments but rejected the other Senate amendments. The House accepted that many of the non-government amendments were unnecessary and the major amendments made aspects of the bill unworkable. Further, the House also passed some additional government amendments. On 5 December 1997, after the Senate had again considered the bill and amendments and insisted on its previous amendments, the House finally laid the bill aside.

The government is reintroducing this bill because it has a mandate to enact it and has a clear commitment to it. The government believes that the people of Australia have an expectation of a right of access to all legislation applying to them and that they have a right to participate in the development of all delegated legislation being made which will or might affect them.

The government's law and justice policy statement commits the government to ensuring that the consultation process under the bill would include the preparation of a regulatory impact statement which would clearly indicate the objectives of the proposed regulation, the alternatives for achieving those objectives, the costs and benefits of each alternative and the reason for the adoption of the measure advanced. This bill gives effect to that commitment and is welcomed by the business community and, no doubt, the broader community. The regulatory burden on business, and small business in particular, has been a major impediment to business efficiency and the creation of more jobs, and should be significantly diminished as a result of this bill.

The government will not accept amendment of the bill which would alter the principles of the bill or reduce the compliance requirements that rule-makers will need to follow. The parliament expects no less accountability and information for legislation made pursuant to delegated powers than is available for primary legislation. As I have said, there is broad support for this legislation. What is disturbing in this matter is that both Houses have considered and passed each of the provisions of this bill and yet were unable to agree on passage of the bill as a whole. It is the classic case of playing politics to try and get concessions from government which restricts the government's capacity to control its important programs. This was evident in the delay in passage of the provisions relating to non-disallowance of certain migration instruments and the exemption from the regime of a limited range of public sector terms and conditions instruments.

The Chair of the Senate Standing Committee on Regulations and Ordinances has sought to remove exemptions from disallowance for instruments made under national schemes of legislation and proclamations under the Quarantine Act. I met with the Chair on these matters on a number of occasions and explained why I could not accede to his proposals. I have also written to the Chair setting out the reasons for my position and those letters have been tabled in the Senate.

The views on national schemes of legislation are founded on the Regulations and Ordinances Committee's position paper about scrutiny of national scheme legislation which canvasses the desirability of uniform scrutiny principles for national schemes. My depart ment made a substantial submission on an earlier issues paper on this subject, drawing attention to a range of difficulties that needed to be considered. I understand that the committee is currently considering a draft of its report in the matter. To remove the exemption for national scheme legislation at this time would be premature without knowing the committee's approach, the rationale for it and whether implementation of the committee's report is desirable, as it has major significance for both the Commonwealth and the states. Knowing the present uncertainty about final arrangements for a uniform scrutiny regime, clause 72 of the bill provides specifically for issues arising from national schemes of legislation to be considered in the course of the review of the operation of the legislative instruments legislation. That is the only appropriate way to approach the issue at this time.

The exemptions for quarantine proclamations are necessary because they are the only way to provide specific control mechanisms to prevent the entry and spread of disease and pests affecting humans, animals and plants in Australia. Typically, the detailed conditions under which importation of a particular commodity from a particular country or region may be allowed are set out in protocols developed by the Australian Quarantine and Inspection Service within the scope of the relevant quarantine proclamation. Each set of protocol conditions is developed on the basis of consideration of relevant scientific information and risk analysis.

Quarantine proclamations have never been subject to disallowance by the parliament. This approach is being continued in the bill on the basis that it is not appropriate to task the legislature to consider whether to disallow such highly technical instruments. Remedies on alleged procedural defects in the making of these instruments are available under the Administrative Decisions (Judicial Review) Act 1977.

Sunsetting of delegated legislation is an important component of the government's policy on regulation review. It will ensure that business regulation is reduced to the minimum necessary for effective accountability and control and that remaining delegated legislation is regularly considered for appropriateness, currency, effectiveness and necessity. The Administrative Review Council's report Rule making by Commonwealth agencies which led to this legislation recommended that all existing principal instruments of a legislative character and all instruments subject to the Legislative Instruments Act should be sunsetted.

The House committee, in its report on the 1994 bill, which did not provide for sunsetting, recognised the resources issues associated with sunsetting and recommended that a sunsetting regime be introduced in relation to all existing and future legislative instruments as soon as possible. The House committee's report Clearer Commonwealth law, and the Access to Justice Advisory Committee's report Access to justice also supported the early introduction of a sunsetting program.

This bill gives effect to the government's policy of ensuring that all new regulations are subject to a five-year sunset clause. This is an important policy that the government cannot, and will not, back away from. It is part of a range of policies that remove unnecessary burdens from the business community and benefit the whole community. I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Laurie Ferguson) adjourned.