Shadow Portfolio — 24 March 2026

The Leader of the Opposition in the Senate, Senator Cash, used the second reading and committee of the whole consideration of the Commonwealth Entities Legislation Amendment Bill 2026 to mount the most sustained parliamentary attack on executive overreach in recent Senate sittings — opposing the bill outright and pursuing clause-by-clause interrogation of each mechanism the Opposition argues erodes independent institutional governance [TA-260323-senate-573d70b7987f:s136].

The Opposition's core charge is structural: the bill relocates power from parliament, where decisions are transparent and subject to disallowance, to ministerial discretion, where they are secret and beyond parliamentary reach. The critique is not incidental but methodical, applied across four distinct mechanisms. First, the performance standards regime allows a responsible minister to draft binding standards for statutory office holders that form the basis for termination — yet the bill expressly excludes these standards from the definition of a legislative instrument, placing them outside disallowance and automatic tabling requirements [TA-260323-senate-573d70b7987f:s136].

The bill contains no publication requirement, no requirement to give reasons for termination, and no safeguards against retrospective amendment of standards to engineer a finding of unsatisfactory performance [TA-260324-senate-dd516f85acd4:s012]. The Opposition pressed the government on compliance with Barratt v Howard 1999 — which holds statutory office holders are not removable at pleasure absent clear legislative authority — but the minister declined to address the case or confirm whether legal advice existed.

Second, the suspension provisions present an asymmetric transparency picture. The Director of Safeguards at the Australian Safeguards and Non-Proliferation Office attracts a gazette notification requirement on suspension; the CEOs of Austrade and the Australian Council for International Agricultural Research, and the Parliamentary Counsel, do not [TA-260324-senate-dd516f85acd4:s072].

No maximum suspension duration is set in the legislation, the threshold of "best interests of the agency" is not defined, and procedural fairness obligations rest on common law rather than statute.

Third, the bill introduces for the first time a power for the Attorney-General to issue "general directions" to the Office of Parliamentary Counsel — the body responsible for all Commonwealth legislative drafting, including confidential work for non-government senators and members. The term "general direction" is not exhaustively defined. Directions are not legislative instruments, carry no mandatory tabling or publication requirement, and need not be in writing [TA-260324-senate-dd516f85acd4:s110].

The bill does not expressly prohibit directions addressing drafting priorities, sequencing, standard clauses, or workload reporting to the Attorney-General — precisely the forms of influence the Opposition argued would compromise the Office's institutional independence.

Fourth, the ASNO dimension introduces an international-obligations dimension. While the Director of Safeguards is exempted from the unsatisfactory performance termination ground — reflecting the director's independence under nuclear safeguards obligations — the bill introduces a ministerial suspension power over that office for the first time. The government confirmed it did not consult the International Atomic Energy Agency or Australia's defence partners before doing so [TA-260324-senate-dd516f85acd4:s144].

The bill contains no safeguards designed to prevent suspension from undermining ASNO's operational independence, despite the government's agreement that such independence is critical to Australia's international nuclear safeguards credibility.

The procedural dimension reinforces the substantive critique. The Opposition sought committee referral on 5 March 2026; the government declined and took the bill to the floor. Senator Cash characterised that refusal as compounding the bill's transparency deficit — a government unwilling to subject to expert scrutiny legislation that itself removes parliamentary visibility over executive action.

The Opposition has announced it will not support the bill and indicated it will continue to pursue committee scrutiny despite the pre-floor refusal. The consistency of the pattern across all four mechanisms — performance standards not defined, not published, not tabled; suspension thresholds not defined, not time-limited; directions to OPC not required to be written, published, or tabled — is the Opposition's central argument that this is not a modernisation measure but a deliberate expansion of executive secrecy.