COMMITTEES

Senator DEAN SMITH (Western Australia) (17:26): I present Scrutiny digest5 of 2026 of the Standing Committee for the Scrutiny of Bills together with ministerial correspondence, and I move: That the Senate take note of the report. As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak on the tabling of the committee's Scrutiny digest 5 of 2026.

The digest contains the committee's consideration of six bills introduced between 10 March and 12 March 2026. The committee has commented on three new bills and concluded its consideration of four previously introduced bills. In particular, I wish to highlight the committee's comments in chapter 1 of the digest regarding the Migration Amendment (2026 Measures No. 1) Bill 2026, which was passed within three sitting days of its introduction on 10 March 2026.

While the timeline for the passage of legislation is appropriately a matter for the parliament, truncated parliamentary processes do diminish the committee's ability to undertake its usual scrutiny process. This includes engaging in dialogue with the executive to address any identified scrutiny concerns prior to debate in the Senate. Although on this occasion the committee was able to secure a timely response to its initial scrutiny inquiry by writing to the minister directly prior to debate, this has not lessened the seriousness of its underlying concerns.

The committee has raised significant concerns about the extent of parliamentary and judicial oversight of measures enacted by this legislation. For example, the bill exempts arrival controlled determinations and temporary restrictions of classes of temporary visa holders from entering Australia in specified circumstances from disallowance from the parliament.

Further, the committee has remarked on the minister's power to exempt certain noncitizens from the operation of an arrival controlled determination by issuing a permitted travel certificate. This minister or their delegates would not be required to consider exercising this power or to observe the basic principles of natural justice where they do. The combined effect of these measures is to substantially limit the utility of legal remedies that those affected by an arrival controlled determination may obtain through judicial review.

In both instances, the committee has observed that neither the explanatory memorandum or the minister's response to the preliminary scrutiny issues identified by the committee justify the significant limits on political and legal accountability that they impose. I also note the committee's comments on the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026, which relates to early scrutiny concerns identified by the committee.

Amendments proposed by this bill seek to defer the sunsetting of three warrant regimes under the Crimes Act 1914 and the Surveillance Devices Act 2004, being extended for three years until 4 September 2029. Such warrants authorise the Australian Federal Police or the Australian Criminal Intelligence Commission to take over online accounts; alter, copy, add or delete data on target computers; and access devices and networks used by suspected criminal networks.

The committee has previously highlighted, in its Scrutiny digest 1 of 2021, elements of these warrant regimes that may give rise to undue trespass on individual rights and liberties. In this instance it is considered deferral of these regimes from sunsetting warrants greater justification than has been provided. The committee also sought detailed advice about the proposed use of evidentiary certificates in criminal proceedings involving serious drug offences under part 9.1 of the Criminal Code.

These certificates—which constitute prima facie, or evidence of the matters they contain—effectively reverse the evidential burden of proof by placing the onus on a defendant to rebut those matters. The committee has also noted that the bill would permit additional matters that could be certified to be expanded by delegated legislation without clear safeguards, constraint or justification.

As these measures may interfere with the common law right to be presumed innocent until proven guilty, the committee has requested further information be provided to it by the Attorney-General. With these comments, I commend the committee's Scrutiny digest 5of 2026 to the Senate for its consideration.