COMMITTEES
Senator CICCONE (Victoria) (17:31): I just wanted to add some remarks as well, in addition to Senator Smith's fine contribution about the Senate Standing Committee for the Scrutiny of Bills. Senator Scarr: Smith D! Senator CICCONE: Smith D, yes, just to be very clear—D Smith, not M Smith.
It's not often that I get into this place and speak about this committee, and I probably should. Quite a few people outside this building have asked me about the work that it does and how important it is. In fact, I think one of the most important committees in this place—as a house of review—is the Senate Standing Committee for the Scrutiny of Bills.
Another committee with similar functions is the Senate Standing Committee for the Scrutiny of Delegated Legislation, which I served on in a previous parliament. While not an expert in these matters, I have been learning for some time about the excellent work that we do as a committee, aided by a very excellent secretariat. For the benefit of those watching this externally, I just wanted to quickly go through some of the principles that this committee has to look at when we do look at these pieces of legislation every week.
As you can see, we have very extensive reports that we provide to this chamber. In essence, the scrutiny of bills committee's work is vital. It's vital because it has to assess the proposed legislation before it against a set of standards that cover individual rights, liberties and obligations, as well as the rule of law and parliamentary scrutiny.
These are fundamental to the integrity of our democracy and to the ways that laws are passed, and they affect the daily lives of everyday Australians. Senators should also be reminded that the committee scrutinises each bill before it against five very broad scrutiny principles that are determined by the Senate. I think it is fair to say that, regardless of who is in government, sometimes members of the executive or those who work to serve the executive, the public servants, forget about these scrutiny principles.
Something that this committee is constantly doing is writing to ministers and their departments, reminding departments and reminding those that draft legislation of these principles that need to be adhered to. If we are doing our job when we look at these bills, we are not making comments on the merits of the bill; we are scrutinising the bill against that set of standards that we, as a Senate, have all agreed to.
To fulfil this objective, the committee scrutinises each bill against five board scrutiny principles, as I've said. The standing orders require the committee to scrutinise each bill and inform the Senate about whether those bills may, for instance, trespass unduly on personal rights and liberties; whether they make rights, liberties or obligations unduly dependent on insufficiently defined administrative powers; whether they make rights, liberties or obligations unduly dependent upon non-reviewable decisions; and whether they inappropriately delegate legislative powers or insufficiently subject the exercise of legislation power to parliamentary scrutiny.
These are constant issues that we always are not just debating but also reporting back to the Senate for consideration before it decides to pass laws. The committee very much takes a bipartisan approach to the scrutiny function. That is one of the key pillars of the committee, to be frank.
Regardless of the principles, the fact that we can sit here in this chamber and actually have a bipartisan approach, a bipartisan report, speaks volumes about the work, the dedication and the commitment that those of us assembled on the committee have and the respect that we have for this place, the Senate, the house of review. Senators from the government, the opposition and the crossbench work together to identify scrutiny concerns, seek their remedy where appropriate and raise them here so that each bill may be properly considered.
And where concerns are raised, the committee seeks further information from ministers. We then bring those matters to the attention of the Senate so that all senators are equipped to properly consider the legislation before us. While the committee provides its views on a bill at a level of compliance with the principles I mentioned earlier, it is important to emphasise that the committee does not evaluate bills holistically as this is the role of the legislation committees.
The identification of a scrutiny concern by the committee is not an expression of support or opposition to a bill. Sometimes that does get lost in translation, particularly when there are reports in the media. Where certain senators might support or go against the report or bill, that doesn't mean we're supporting the merits of the bill or are opposed to it.
Rather, it is one of several considerations that should inform the deliberations in this chamber as senators. Again, as a house of review, we should consider the merits separate to the principles that we have set and agreed to as a Senate as part of each bill that comes before us. To understand the importance of the committee's work, it is useful to expand on its formal mandate, and these are the functions of the scrutiny of bills committee that are set out in Senate standing order No. 24.
That standing order directs the committee to assess the bills against a set of accountability standards that focus on the impact of proposed legislation on individual rights, on liberties and obligations, on whether those laws adhere to the rule of law and the extent to which they maintain appropriate levels of parliamentary oversight. Those standards are given practical effect for each of those five key principles.
Firstly, just to go into a little bit more detail, the first consideration on the committee is whether a bill unduly trespasses on personal rights and liberties. This goes to the core of our responsibility as legislators to ensure that in pursuing legitimate policy objectives we do not impose disproportionate or unjustified burdens on individuals. Secondly, it examines whether rights, liberties or obligations are dependent on insufficiently defined administrative powers, and that is something that this committee has constantly had to put in writing to ministers and their departments.
Parliament must be clear when it delegates authority to the executive, and that authority must be appropriately constrained. Thirdly, the committee considers whether decisions made under the legislation are subject to appropriate review. Access to merits review or judicial review is fundamental to fairness and accountability in our legal system.
And sorry to put Senator Bragg to sleep! He's yawning quite a bit there on the other side, but bear with me for a few more minutes. Senator Scarr: Don't take it personally, it's past his bedtime!
Senator CICCONE: No, I'm not taking it personally. But it is important to remind the good senators in this place, members like yourself and Senator Smith and others— Senator Marielle Smith: D Smith. Senator CICCONE: D Smith, thank you M Smith—who are on the committee of the work we do to make sure we are scrutinising every single piece of legislation and each bill that comes before this set of principles agreed to at the start of every parliament.
Fourthly, it assesses whether legislative powers are being inappropriately delegated. While delegated legislation is necessary, it is a feature of modern governance, it must not be used to bypass scrutiny of this parliament. Lastly, the committee considers whether the exercise of legislative power is subject to sufficient parliamentary scrutiny.
This ensures that the parliament must retain oversight of how laws are made, implemented and enforced. In essence, these principles are not merely ones that are designed in theory. They are applied in practice.
They are applied in a disciplined and methodological way to make sure that each sitting week we are assessing each set of legislation in the way that we had agreed to at the start of the parliament. Every bill introduced in the parliament must be examined in this way, supported by detailed legislative and legal analysis. The committee also meets regularly to consider these provisions.
Those concerns that we raise as a committee are then published in what we call the scrutiny digest, which is tabled in the Senate, typically each sitting week, so that all senators are aware of the potential issues of legislation before we then proceed to dealing with them in consideration. Where concerns arise, the committee engages directly with ministers, seeking further explanation or justification, and this dialogue is a critical part of the process.
Importantly, the committee does not seek to make final determinations on the merits of the bill. Rather, its role is to act as an early warning system to identify the risk, highlight the potential overreach and ensure that those matters are brought to the attention of senators. On that note, I will leave my contributions there.