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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.57 On 19 August 2024 the Senate agreed to 19 Opposition amendments, two Jacqui Lambie Network amendments and three Independent (Senator David Pocock) amendments in relation to the bill.
1.58 Amendments to item 9 of Schedule 1 provide that civil penalty provisions will apply retrospectively to conduct from 1 July 2024. The bill previously provided that the civil penalty provisions applied retrospectively to conduct from 17 July 2024.
1.59 Further amendments insert section 323MA to provide for a definition of ‘removed persons’, who cannot become an officer or employee in an organisation or branch of an organisation without a certificate granted by the Fair Work Commission. The amendments provide that a person can be declared a removed person dependant on conduct taken from 1 July 2024, prior to commencement of the Act. Civil penalties apply for persons who fail to comply.
1.60 The committee reiterates its concerns as set out in Scrutiny Digest 9 of 2024[58] as to the appropriateness of retrospectively applying civil penalty provisions to conduct that may have occurred prior to the commencement of the Act. The committee considers that this amendment heightens these concerns by expanding the retrospective application to further past conduct.
1.61 The committee also has concerns about providing that a person can be declared a ‘removed person’ for conduct that may have occurred prior to the commencement of the Act.
1.62 The bill also provides that a minister may determine a scheme for the administration of the Construction and General Division and its branches of the Construction, Forestry and Maritime Employees Union. It provides that the minister may do so by a legislative instrument that is not subject to disallowance. The committee previously raised scrutiny concerns about leaving these significant matters to non-disallowable delegated legislation. Amendments made to the bill insert new subsection 323B(4A) which provides that the administration scheme can also provide for ‘any other matters the minister considers appropriate’.
1.63 The committee reiterates its concerns as set out in Scrutiny Digest 9 of 2024 as to the appropriateness of providing for significant matters in a non-disallowable instrument. The committee considers that this amendment heightens these concerns as it expands the scope of significant matters that can be set out in a legislative instrument that is exempt from parliamentary scrutiny.
1.64 However, in light of the fact that this bill has received the Royal Assent the committee makes no further comment on this bill.
1.65 On 22 August 2024 the Senate agreed to 53 Government amendments, 14 Opposition amendments and 3 Independent (Senator Thorpe) amendments in relation to the bill.
1.66 The committee has concerns in relation to Government amendments which provide for significant matters in relation to the scheme to be left to delegated legislation made under the National Disability Insurance Scheme Act 2013. Further, it appears that a range of Government amendments to the bill may relate to discretionary decision-making powers, such as the insertion of proposed new subsections 10(6) – (8). However, there has been no information provided in the supplementary explanatory memoranda relating to the Government amendments to indicate whether merits review exists for these decisions.
1.67 The committee reiterates its concerns as set out in Scrutiny Digest 7 of 2024[59] as to the appropriateness of the extensive rule making powers in the National Disability Insurance Scheme Act 2013.
1.68 In light of the fact that the bill has passed both Houses of Parliament the committee makes no further comment in relation to this matter.
1.69 On 22 August 2024 the Senate agreed to six Australian Greens amendments and six Independent (Senator Thorpe) amendments in relation to the bill.
1.70 Clause 68 of the bill has been amended to provide that the minister must table in the Parliament a copy of the report on the review of the operation of Part 5 of the Net Zero Economy Authority Act 2024. The committee welcomes this amendment which addresses one of the scrutiny concerns raised by the committee in Scrutiny Digest 6 of 2024.[60]
[57] This section can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments and explanatory materials, Scrutiny Digest 11 of 2024; [2024] AUSStaCSBSD 179.
[58] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 8–15.
[59] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2024 (14 August 2024) pp. 61 and 96–100.
[60] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2024 (15 May 2024) pp. 33-37.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/179.html