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Thursday, 21 August 2003
Page: 19288

Mr WILLIAMS (Attorney-General) (12:11 PM) —I thank the honourable members for Barton and Kooyong for their very positive contributions to the cognate debate on the Legislative Instruments Bill 2003 and the Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003. Since 1992, when the Administrative Review Council produced the Rule making by Commonwealth agencies report just mentioned by the member for Kooyong, there has been considerable time and effort spent by both the government and the opposition on trying to establish a comprehensive regime for the management of Commonwealth legislative instruments. There has been no disagreement about the need for such a regime, but there is also no disagreement about the need to introduce a consistent approach to the registering, tabling, scrutinising and sunsetting of Commonwealth legislative instruments. More than 10 years and three bills after the report, I am confident that the Legislative Instruments Bill 2003 will produce the anticipated regime.

As long ago as 1997 the shadow minister for heritage and territories, the member for Banks, expressed the view that it was getting to the stage where he was starting have nightmares over the Legislative Instruments Bill 1996. Almost six years later I am hopeful that this version of the bill will not produce the same response and that the member for Banks will be able to rest easy at night. There is considerable merit in this revised version of the bill. As I said at the beginning of the second reading debate, the government is not simply reintroducing a bill that has previously failed; the bill has been substantially revised to take into account a number of issues previously raised by the opposition, and it has been simplified to remove potentially adverse impacts on efficient and effective administration.

This bill establishes the federal register of legislative instruments. It will consist of a database of legislative instruments, explanatory statements and compilations and will be publicly accessible via the Internet. There will be considerable benefit to the community and business in having full access to all Commonwealth legislative instruments in an authoritative form. Previous versions of the bill proposed to establish mandatory processes to ensure that proper consultation took place before a legislative instrument was made. This resulted in considerable debate about when such mandatory procedures were appropriate and when exemptions were required. The 2003 version of the bill continues to emphasise the importance of consultation. To ensure that appropriate consultation is undertaken, the explanatory statement for each legislative instrument, which is tabled with the instrument, must set out a description of that consultation. The government believes that this approach to the consultation properly places the issue of its adequacy in the hands of the parliament and not the courts.

As with the earlier versions of the bill there will be enhanced parliamentary scrutiny of legislative instruments, because all registered legislative instruments will be tabled. There will also be enhanced parliamentary scrutiny, as all legislative instruments will be subject to a disallowance regime unless they are specifically exempted from that regime. This will reverse the current default position that applies today, where an instrument is not a disallowable instrument unless the enabling legislation says so. Because of the change in this default position there is a need to have a number of targeted exemptions where the instruments have always been and continue to be properly within the control of the executive. However, it is not the government's intention to fundamentally alter the balance between the executive and the parliament. When parliament is considering legislation that enables the making of instruments, it is up to the parliament to determine whether such instruments should or should not be subject to a disallowance regime.

I also wish to emphasise the revised approach to sunsetting. The sunsetting period has been extended to 10 years in recognition of the adverse impact that a short sunset period would have on the community, businesses and the machinery of government. This version of the bill also enables either house of parliament, by resolution, to exempt nominated legislative instruments from sunsetting. Furthermore, the revised bill requires that a list of instruments that are due to sunset must be tabled 18 months before that time and that rule makers be advised of which instruments are due for sunsetting.

I take this opportunity to thank the opposition and particularly the member for Barton for the pragmatic approach taken to the debate on the Legislative Instruments Bill 2003. While the concepts addressed by the bill are not new and some have claimed it to be the least sexy topic in Australia, I believe that we have the foundations for finally implementing the long overdue regime for the effective management of Commonwealth legislative instruments. To achieve this goal, the bills have been referred to the Senate Standing Committee on Regulations and Ordinances for inquiry and report by 3 October 2003. While it is not the first time that that committee has considered a legislative instruments bill, I am confident that this version of the bill addresses many of the concerns previously raised. I acknowledge that the Legislative Instruments Bill has had a somewhat chequered history, but I look forward to continuing the spirit of cooperation with both the Senate standing committee and the opposition with a view to achieving passage of this bill before the end of the year.

The member for Barton made a couple of points to which I wish to respond. He referred to the question that had been previously raised, in respect of other versions of the bill, of the possibility of parliamentary disallowance of the Attorney-General's certificate. The government welcomes the spirit of compromise expressed by the member for Barton in accepting that the Attorney-General's certificate be subject to judicial review and not be subject to parliamentary allowance. In saying that, I point out that the Attorney-General's certificate is actually a legal opinion. It is a somewhat odd concept to me that parliamentary disallowance of a legal opinion should be enacted. Judicial review, on the other hand, is entirely appropriate.

In relation to consultation, the member for Barton gave an example of where he believed consultation might—in the past, if there had been a bill—have been improved. I do not wish to comment on the particular speculative circumstances that he was referring to, but I emphasise the importance of consultation and welcome his support of the proposed consultation regime. As I have said, the extent of consultation that has or has not taken place must be set out in the explanatory statement and would therefore be subject to parliamentary scrutiny. I commend the bill to the Main Committee.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.