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Wednesday, 4 December 2002
Page: 7162

Senator MACKAY (3:42 PM) —On behalf of Senator McLucas, I present the 15th 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. 15 of 2002, dated 4 December 2002.

Ordered that the report be printed.

Senator MACKAY —I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The statement read as follows—

On 19 November 2002, I tabled on behalf of the Committee a special Alert Digest, No. 14 of 2002, the purpose of which was to comment on the Research Involving Embryos Bill 2002. Those comments related to the delegation of legislative power and the incorporation of material as in force from time to time. The Committee wrote to the Minister about these comments.

The Minister has now replied to the Committee's letter in time for it to finalise its consideration of this bill and to report on it today. The Committee is most grateful for the Minister's prompt response, which was of considerable assistance in its non-partisan scrutiny.

It is at this point that I should briefly describe the Committee's response when scrutinising provisions of bills which appear to delegate legislative power. The first step is to determine that the power in question is actually legislative and not administrative. For instance, in the same Research Involving Embryos Bill the Committee looked at some provisions for guidelines which it concluded were administrative. In such cases, the Committee under its terms of reference scrutinises the administrative provisions to ensure that the power is suitably defined and limited.

Assuming that the powers are in fact legislative, the next step is to ascertain whether it is appropriate to delegate the powers, or whether the powers are so significant that the bill itself should provide for their exercise. In relation to the Research Involving Embryos Bill the Committee made no comment under this head of its terms of reference.

The final step is then to determine whether the delegated legislative power is subject to adequate parliamentary scrutiny, which in most cases will mean that it will be subject to disallowance. It is in this context that the Committee scrutinises provisions which provide for the incorporation of extraneous material as in force from time to time. It is one thing for a bill to incorporate, say, a single discrete set of guidelines with legislative effect. It is quite another to provide that those guidelines may be amended with continuing legislative consequences. In this situation there may be a compelling case for full parliamentary control of each exercise of the power. The Acts Interpretation Act recognises this in the case of regulations, providing that they may incorporate existing extraneous material but not such material as existing from time to time. This provision may, however, be negatived by an express provision in primary legislation and I will come back to this later.

Applying these principles to the Research Involving Embryos Bill, the Committee identified two provisions for the delegation of legislative power. In both these cases, power was given to issue guidelines and codes of practice which, being legislative, it appeared should be subject to parliamentary scrutiny by possible disallowance. In both cases there was the additional consideration that the power included not only the initial legislative guidelines or codes, but also amendments as made and in force from time to time.

Clause 8 of the bill provides for the issue of guidelines with legislative effect, defining “proper consent” firstly by the Ethical Guidelines on Assisted Reproductive Technology issued by the NHMRC in 1996. That provision alone would have been acceptable, because those guidelines were identifiable and not subject to alteration. However, paragraph (b) then provides for the NHMRC to specify further guidelines, apparently from time to time, which will have continuing legislative effect but which will not be subject to parliamentary disallowance.

Clause 11 creates an offence of using an embryo which is not an excess ART embryo. Breach of this provision carries a penalty of up to five years' imprisonment, so it is clearly a serious matter. The Committee's comments on clause 11 relate to the definition of ART program, which is an integral part of the offence. Subclause 11(2) defines ART program as one which is carried out under a Code of Practice issued by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia, as in force from time to time. Alternatively, the subclause provides that an ART program is one carried out under any other code or document prescribed by the regulations, as that code or document is in force from time to time.

Clause 11 therefore effectively delegates legislative power initially to the RTA Committee, who are given authority to issue variations of the Code of Practice from time to time, each of which will, as noted above, form the basis of an offence punishable by a substantial term of imprisonment. It appears that none of these subsequent Codes of Practice will be subject to parliamentary scrutiny. The alternative power in clause 11 is for the regulations to prescribe any other code or document at all, produced by any person at all, and which will be in force as different versions are made from time to time. In this case the regulations are subject to disallowance, but the object of the provision is to subdelegate continuing legislative power which will not be scrutinised and controlled by Parliament.

The Minister's response to the Committee's comments on clause 8 advised that another Act required all NHMRC guidelines to be tabled within 15 sitting days of being made. The Committee report, however, concludes that while this is a substantial safeguard, it does not provide the same level of parliamentary control as possible disallowance.

The Minister also gave reasons why the guidelines should not be subject to disallowance. Firstly, the Minister advised that only a small part of the relevant guidelines would address matters related to the bill, to which the Committee replied that it would be possible to disallow only that part. Next, the Minister suggested that disallowance may affect the independence of the NHMRC, but the Committee did not agree that full parliamentary scrutiny of a continuing legislative power would do this. Lastly, the Minister advised that it would be unusual for guidelines made for the purposes of one Act to be disallowable for the purposes of another. The Committee noted, however, that something may be unusual but nevertheless be appropriate.

The Minister's response to the Committee's comments on subclause 11(2) provided helpful background information on the provision. The response, however, also advised that the Code of Practice itself cannot be made disallowable because it is made by a non-government body. The Committee makes no comment on this, but notes that the same result could be effected by the current formula in subclause 11(2), under which the regulations prescribe the code or other document, although not as in force from time to time. The regulations are then subject to full scrutiny. The Committee's report on the subclause concludes that as presently drafted the constituents of an offence provision punishable by up to 5 years' imprisonment may be determined by non-government bodies without parliamentary oversight or even knowledge.

The other main bill in the report is the Trade Practices Amendment (Liability for Recreational Services) Bill 2002, which concludes a scrutiny during which the Committee wrote twice to the Minister for advice. The Committee has now finished its consideration of this bill, which provides for corporations to exclude liability for death or injury in relation to the supply of recreational services. The Committee accepts that there are problems in this area which need to be addressed, but the question is to what extent these should affect the personal rights of those who use such services. The Minister's advice and the Committee's comments on it in the report present what I believe is a good survey of these difficult issues.

Finally, I would like to remind honourable Senators of the usual end of year breakfast sausage sizzle at which Senators and Ministers get together with Committee members in an informal way to celebrate another year of legislative scrutiny by the Committee and the Senate. It is, I believe, a measure of the non-partisan nature of the Committee and its work that we can hold such an event year after year. It illustrates that the Committee is interested only in personal rights and parliamentary propriety. On behalf of the Committee I would like to see as many of you as possible at the function, to which you have all received invitations.