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Tuesday, 7 May 1985
Page: 1480


Senator CHANEY (Leader of the Opposition)(10.18) —That brings me to the amendments which I wish to move on behalf of the Opposition. I make some comments arising from those of Senator Button a few minutes ago when he referred to the necessity for the Authority to make subjective judgments. I acknowledge that the Authority is going to have to make judgments and that they are necessarily subjective, but I also ask the Minister to consider the amendment that I wish to put forward in light of the fact that the Authority is also disbursing $150m of taxpayers' funds and, with the best will in the world, genuine cases of misunderstanding and injustice can arise and errors can be made. In that spirit I raise the amendments that I am bringing forward, one of them in particular. I have had no indication from either the Government or the Australian Democrats as to their attitude to the first amendment. Therefore, I would like to deal with that separately and deal with the second one after that has been disposed of.

The first amendment which has been circulated proposes to insert a new sub-section after proposed new section 26M, which is an important section because it deals with guidelines for policies and practices of the Authority. We have here a piece of legislation which says that grants may be made to eligible companies for the development of eligible products, and there are extensive definitions and so on. If one looks at proposed new section 26M, one finds that the shape of the framework which is provided by the Act is capable of very substantial variation by ministerial direction. I think it is necessary to read proposed new section 26M (1). It states:

The Minister may, from time to time, by notice in writing . . . give directions to the Authority with respect to the policies and practices to be followed by the Authority in the performance of its functions, and the exercise of its powers, under this Part (including, without limiting the generality of the foregoing, the policies and practices to be followed by the Authority with respect to the entering into by the Authority of grant agreements and provisions to be included in such agreements), and the Authority shall comply with any such directions that are in force.

It is important to note that the Government, very properly, in proposed sub-section (2) proposes that those notices should be available to the public and will be published in the Commonwealth of Australia Gazette along with any revocations, additions and subtractions.


Senator Button —And sub-section (3).


Senator CHANEY —I agree that proposed sub-section (3) prevents the Minister from giving a direction to the Authority in relation to a particular company. It seems to me from my reading of proposed new section 26M (1) that the Minister will be given very wide powers indeed with respect to these directions. He is empowered to 'give directions to the Authority with respect to . . . the performance of its functions, and the exercise of its powers'. Those words are used in proposed new section 26M. Whilst the Minister may say that this is no more than a question of the policy which is being followed and therefore it is not a matter which needs any parliamentary supervision, I think that it goes a little beyond that. What we really have in the existing provisions of proposed sub-section (1) is a power to direct the Authority generally in the performance of its functions and the exercise of its powers.

I turn back to the definition section. We have a wide definition of 'automotive development project'. Senator Puplick was quite critical of the breadth of that definition which permits, for example, design work that is primarily related to style. However, the legal framework which this Act provides is very broad and the Opposition is not seeking to limit it. Under proposed section 26M, as it is presently worded, it seems to me that it would be possible for the Minister to issue guidelines which would excise substantial sections of the definition of 'automotive development project'. The Minister could simply exclude plant manufacturers from grants. He could exclude component manufacturers from grants. There is no limit to the extent to which the framework which is provided by the Act could be written down by the Minister issuing guidelines. For that reason I move:

(1) Page 10, clause 8, proposed new section 26M, after sub-section (3), add the following sub-section:

''(4) Section 48 (except paragraphs (1) (a) and (b) and sub-section (2)) and section 49 of the Acts Interpretation Act 1901 apply to directions given under sub-section (1) as if the references in those sections to regulations were references to directions and the references to the making of regulations were references to the giving of directions.''.

All that the amendment proposes is to make the directions which are issued by the Minister and published in the Commonwealth of Australia Gazette subject to parliamentary disallowance. I say to the Minister that in considering whether the Opposition should put forward that amendment it gave consideration to the possibility that it might disrupt the administration of the Act. It is not the wish of the Opposition to do that. At the same time, it is the wish of the Opposition that there should be some parliamentary discipline, not just on this Minister-I in no way personalise it to Senator Button-but on any Minister who might wish to change the basic scope of the Act by the issuance of directions. That is a matter which may be justified; it may be a matter with which Parliament would agree, but to put it totally beyond the power of Parliament to control effectively what I regard as an amendment to this Act is wrong. On that basis I ask the Government-I certainly ask the Australian Democrats-to support the proposition that parliamentary disallowance is appropriate because effectively the Minister has regulation-type powers. The powers which are given to issue guidelines could just as easily and just as naturally have been put in the form of regulations which would have been subject to disallowance. I believe it is reasonable that where the effect of ministerial directions, regulations, guidelines or whatever they may be called, is potentially to alter the substance of the legislation as against what the Minister may like to describe as policy, that is properly subject to parliamentary disallowance.

I have said that the Opposition is concerned not to put forward amendments which could disrupt the administration of the Act. As I understand it, the 15 sitting days during which the directions would be subject to disallowance if this amendment were adopted would not be a period in which the Government or the Authority would be unable to act. The actions of the Authority, pursuant to any guidelines prior to dissolution, would be valid. The Authority would have the ability to go on doing its job. It is unlikely that the power would be called upon but there would be no question, for example, of the Authority's being unable to get on with the job in the current period. It would, as I understand the operation of the Acts Interpretation Act, be open to the Authority simply to carry out in accordance with the directions laid down by the Minister. Only subsequent actions subject to disallowance would be barred. I ask the Government to consider this amendment. It is in accordance with the principles which have often been supported in this place. I hope that the Government will be flexible with respect to this amendment.