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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.64 On 21 March 2024, the House of Representatives agreed to 95 Government amendments, and the Attorney-General, the Honourable Mark Dreyfus KC MP, tabled two supplementary explanatory memoranda relating to those amendments. The bill, as amended, will now be considered by the Senate.
1.65 In agreeing to amendment no. 8 on sheet UP104, the House of Representatives amended proposed paragraph 336P(2)(l) of the Migration Act 1958, in item 120 of Schedule 2 to the bill. That paragraph, in the bill as introduced, disapplied section 294 of the proposed Administrative Review Tribunal Act, with respect to Administrative Review Tribunal review of migration and reviewable protection decisions. The effect of this is that a person who applies to the Tribunal for review of such a decision cannot make an application to the Attorney‑General for legal or financial assistance. The committee raised its concerns as to the impact of this provision on an applicant’s procedural fairness rights in Scrutiny Digest 2 of 2024.[35] The committee has received a response from the Attorney-General to its concerns, which is reported on in this digest.[36]
1.66 The amendment agreed to by the House of Representatives replaces proposed paragraph 336P(2)(l) of the Migration Act to the effect that applications for legal or financial assistance may be made with respect to the review of a decision referred to the guidance and appeals panel by the President of the Tribunal.
1.67 The committee welcomes this amendment, while reiterating its concerns relating to the inability of applicants to apply for legal or financial assistance in respect of reviews of such decisions more generally.
1.68 On 20 March 2024, the Senate agreed to 12 amendments to the bill (5 Australian Greens, 7 Independent (Senator David Pocock) and 1 Independent (Senator Thorpe)). The amendments were agreed to by the House of Representatives on 21 March 2024 and the bill has now passed both houses of the Parliament.
1.69 The Australian Greens amendment on sheet 2469 inserts section 11A into the Australian Research Council Act 2001 to require the minister to cause an independent review to be conducted of the functions, size and membership of the board. A report of the review must be given to the minister, but there is no requirement for that report to be tabled in the Parliament.
1.70 The committee notes that not providing for the report to be tabled in the Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in the Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not otherwise available. As such, the committee expects there to be appropriate justification for not including a requirement for review reports to be so tabled. In this case, no justification was provided in the debate on the amendment.
1.71 Noting the impact on parliamentary scrutiny of not providing for the review report to be tabled in Parliament, the committee requests the minister’s advice as to whether section 11A of the Australian Research Council Act 2001 can be amended at a future date to provide that the review report be tabled in each House of the Parliament.
1.72 On 20 March 2024, the House of Representatives agreed to a Government amendment to the bill, a supplementary memorandum relating to which was tabled by the Deputy Prime Minister and Minister for Defence (the Honourable Richard Marles MP) the previous day. The bill is currently before the Senate, having been read a first time in the Senate on 21 March 2024.
1.73 The amendments insert four offence-specific defences relating to the offence provided in subsection 83.3(1) of the Criminal Code, which relates to military-style training involving foreign government principals (subsections 83.3(1A), (1B), (1C) and (1D)). Each such defence carries a reversal of the evidential burden of proof.
1.74 The committee’s expectation is that each offence-specific defence should be justified by reference to the principles set out in the Guide to Framing Commonwealth Offences.[37] Although the supplementary explanatory memorandum suggests for each defence that a defendant would have access to relevant evidential material,[38] it is not suggested in any case that the relevant matters would be peculiarly within the knowledge of the defendant or significantly more difficult and costly for the prosecution to disprove.
1.75 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of a defendant charged with an offence under subsection 83.3(1) of the Criminal Code carrying an evidential burden of proof in relation to the matters in subsections 83.3(1A), (1B), (1C) and (1D).
The committee makes no comment on amendments made or explanatory materials relating to the following bills:
• Administrative Review Tribunal Bill 2023
• On 21 March 2024, the House of Representatives agreed to 116 Government amendments, and the Attorney-General, the Honourable Mark Dreyfus KC MP, tabled two supplementary explanatory memoranda relating to the amendments.
• Defence Trade Controls Amendment Bill 2023
• On 20 March 2024, the House of Representatives agreed to 36 Government amendments to the bill and the Deputy Prime Minister and Minister for Defence, the Honourable Richard Marles MP, presented a supplementary explanatory memorandum relating to those amendments.
• National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Bill 2024
• On 21 March 2024, the Senate agreed to six Opposition amendments to the bill.
[34] This report can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments and explanatory materials, Scrutiny Digest 5 of 2024 [2024] AUSStaCSBSD 74.
[35] Senate Scrutiny of Bills Committee, Scrutiny Digest 2 of 2024 (7 February 2024) pp. 15–16.
[36] See pp. 36–37.
[37] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50–51.
[38] Supplementary explanatory memorandum, pp. 6–8.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/74.html