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Monday, 2 December 2002
Page: 6889

Senator BARNETT (8:24 PM) —I rise to express perhaps another angle on this debate, which brings into play the whole status of the guidelines and where they sit in this legislation. Without getting into the detail, I want to go through a number of points. First of all, the concerns that Senator Harradine has with other senators in this chamber relate to the fact that this is in the guidelines; it is not enforced in law. But you would assume, and we can take it that it is the government's position, that the guidelines are a condition of the licence. The licence must be abided by and, as a result of that, the guidelines must also be abided by. If there is a breach of the guidelines then there will be a breach of the licence conditions. An offence will necessarily flow from that if there is a breach under this bill, and breaches have penalties such as imprisonment for up to five years or a financial penalty.

The point that this leads us to is: what status do these guidelines actually have? As Senator Hogg says, in law they clearly have little to no status unless they become, as foreshadowed in an amendment by Senator Collins, a disallowable instrument or they come underneath the regulation as a disallowable instrument. I would like the government to seriously consider making the guidelines a disallowable instrument to give them some legal effect, otherwise you are basically saying, `You can be subject to a criminal penalty of up to five years imprisonment simply for the breach of guidelines which may change from time to time and for which there is no force of law.' It is like signing a blank cheque. It is a very dangerous position to be in.

It is essentially very bad law, and very bad law making, to accept the fact that these are guidelines and that it is going to be covered, in any event, under those guidelines when they do not have the force of law and they are not referred to this parliament in terms of being a disallowable instrument or having the status of a regulation. So I ask the government to carefully consider that and, in particular, consider also this bigger issue of giving these guidelines the force of law and making them a disallowable instrument, because that is another question. It needs very serious consideration, because there are a number of clauses, such as clauses 8, 11 and, I think, 21, where the bill refers to the guidelines in a very open-ended way. For example, clause 11(2) says:

(b) such other code or document as is prescribed by the regulations in addition to, or instead of, the code mentioned in paragraph (a), as in force from time to time.

For goodness sake, this is so open-ended, so open to abuse and so open to the infringement of the rights of the general public, that it is very concerning. These issues that I have foreshadowed need to be carefully considered and addressed as soon as possible by a response from the government which takes them into account. I have mentioned clauses 8, 11 and 21 and if the government could have a look at those, that would be good. I do support the amendment moved by Senator Harradine. It does make sense. It enshrines in legislation that which is fair, proper and reasonable. For the sake of brevity, I will leave it at that.

Question put:

That the amendment (Senator Harradine's) be agreed to.