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Wednesday, 13 November 2002
Page: 6251


Senator McLUCAS (4:20 PM) —I present the 14th report of 2002 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 13 of 2002, dated 13 November 2002.

Ordered that the report be printed.


Senator McLUCAS —I seek leave to move a motion in relation to the report.

Leave granted.


Senator McLUCAS —I move:

That the Senate take note of the report.

The most noteworthy aspect of the committee's 14th report of 2002 is the continuation of its scrutiny of the Transport Safety Investigation Bill 2002. Earlier reports of the committee advised that there were possible concerns with the bill in relation to delegation of power and search and entry provisions. The committee reported that the provisions were such that a briefing by departmental officers would be appropriate. After the briefing the committee further reported that it did not accept a central proposition put by the departmental officers, that it had refined its concerns and that it would again write to the minister.

The committee has now received a response from the minister, the Hon. John Anderson, Deputy Prime Minister and Minister for Transport and Regional Services, in which Mr Anderson advises that he will seek amendments to the bill and the draft regulations which will address the matters raised by our committee. The committee is most grateful for this cooperation, which demonstrates a commitment to the committee's principles of personal rights and parliamentary propriety. The amendments which the minister proposes will all improve core personal rights. It is worth while examining each of the matters in relation to which amendments will be made, because they illustrate different and significant aspects of the work of the committee.

The first area of amendment will provide a major enhancement of safeguards in relation to the power in the bill to enter certain premises without a warrant—by force if necessary. As the bill presently stands, this power is exercisable by a delegate who may be any person at all, subject only to the executive director being satisfied that the delegate is a suitable person to exercise them. The amendments will include a reference to regulations specifying requirements such as briefing and training in entry, search and seizure powers for persons to whom it is proposed to delegate these powers. This will be a considerable improvement from the present drafting, which is based on a subjective power unconstrained by objective criteria. As such, the present provision may come within the committee's terms of reference both because it breaches personal rights and because it insufficiently defines administrative powers. The proposed amended provision will, however, be similar to another clause of the bill which limits and controls exercise of power.

The next amendment relates to the equally important subject of the notification of rights. The committee considers that bills should provide not only for suitable safeguards and protections but also for appropriate notification of these to persons who may be adversely affected. This, however, is an area where the present provisions of the bill are deficient. The bill does provide for photographic identity cards in the prescribed form for those people who exercise specified powers, which is an essential first step. This beneficial provision is, however, diluted by the following clause which requires the identity card to be produced only if the occupier of the relevant premises asks for this to be done. The minister has now advised that an amendment will require an identity card to be produced when exercising premises powers and for reasonable steps to be taken to notify any occupier of the premises of the purpose of the entry.

The present bill is also defective in that it does not provide for an owner or occupier of premises to be advised of their rights in relation to entry and search which, as noted above, may be without a warrant or consent and by force. This is a significant omission. The effect of even the best legislative safeguards is reduced or even negated if they are not communicated to those whom they are intended to protect. Here again, the minister has undertaken to propose an amendment which will provide for the regulations to specify the rights and obligations of occupiers and for the bill to require occupiers to be informed of these when their premises are affected. This will be another major enhancement of personal rights.

The committee was particularly concerned at the breadth and number of situations which, under the present bill, are subject to entry without warrant. In this context, powers which are given to public officials should be limited to as narrow an ambit as possible consistent with policy objectives. Here also, the proposed amendments will significantly improve the present provisions of the bill, limiting entry without warrant to matters including only accidents and serious incidents. This is a preferable position to the existing wider application of the power.

The final undertaking by the minister is to impose another limit on the exercise of the power to enter without a warrant. The existing power in the bill is not limited and controlled by the usual condition that it must be exercised only on reasonable grounds. The minister has agreed to sponsor such an amendment which, together with the other amendments outlined above, will provide an integrated group of safeguards in relation to search and entry provisions in the bill. The committee emphasises again its appreciation for the minister's undertakings.

At its meeting this morning, the committee also discussed its participation at the fifth Australasian and Pacific Conference on the Scrutiny of Bills and the eighth Australasian and Pacific Conference on Delegated Legislation to be held in Hobart on 4 to 6 February 2003. These conferences are a useful means of sharing experiences with our state and territory legislative scrutiny colleagues. In the case of the Scrutiny of Bills Committee, they are also significant because of our pioneering role in the field. The committee has decided to prepare a report for the conference on its work during the three years since the last conference and to present two papers.

The first paper will be on entry, search and seizure provisions, which is an area where the committee has done considerable work and that represents one of the most important aspects of personal rights and liberties. Part of the paper will include the minister's undertakings mentioned earlier in this statement as an example of the improvements in legislation which result from effective legislative scrutiny. The second paper will address regulation-making powers in Commonwealth bills. The days are long gone when bills simply provided for regulations to be made where `necessary or convenient'. Bills now often require detailed and esoteric regulations to be made, which raise issues of parliamentary propriety. The committee is confident that the report and the two papers will give a comprehensive account to the conference of its work. The committee in due course will report to the Senate on the conference proceedings.

Question agreed to.