More than enough ministerial discretion

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More than enough ministerial discretionThe rushed progress of the Northern Territory ‘emergency response’ legislation through Parliament during the past fortnight raises major concerns about whether Australia's parliamentary processes ensure adequate scrutiny of proposed legislation.

Flawed process produces flawed outcomes. Everyone would like to see good results emerge from the new Commonwealth commitment to addressing major problems affecting child welfare in indigenous communities. It is unfortunate, however, that the input of all relevant parties was not channelled towards this end, and that Parliamentary processes were not allowed full play.

From the broad announcement of radical measures on 21 June to the passage of the legislation through the Senate on 17 August, flaws in the process have been evident. Stakeholders struggled to understand the detail of the measures in this significant announcement policy shift. They have had to rely on information gleaned from media sources.

The announcement and subsequent developments could only be described as ‘policy on the trot’. The legislation — over 500 pages spread across five bills — was available to most politicians less than 24 hours before being tabled and passed in the House of Representatives on 7 August.

After significant public pressure the legislation was referred to the Senate’s Legal and Constitutional Committee with a hearing date of 10 August and a reporting deadline of 13 August. Despite the short notice and absence of any call for submissions, over 150 submissions were made to this inquiry.

Catholic Social Services Australia (CSSA) called on the Senate to defer consideration of the Bills for two months, in order to allow Senators enough time to read, consult on, and fully consider the implications of the legislation.

During the one-day Senate Committee hearing it was apparent that Senators and witnesses alike had been unable to work through the extensive legislation. But even so, the Committee recommended passage of the Bills unamended. The majority Committee’s view is expressed in only four pages, including recommendations.

In the debate which followed the tabling of the Committee’s Report, other important issues emerged as community groups raised concerns and Greens and Democrats Senators delved more deeply into the implications of the legislation.

Of the many concerns, four were outlined in a submission by CSSA to the Senate Inquiry.

First, CSSA identified the need for more extensive consultation, and for genuine Parliamentary scrutiny, if the outcomes were to be workable and beneficial.

More than enough ministerial discretionSecondly, CSSA objected to the introduction of racial discrimination into the welfare payment system. Some parties criticised other racially discriminatory aspects of the Bills as well. But in its subsequent report, the Senate Legal and Constitutional Affairs Committee did not provide a compelling response to the significant criticism of the Bills’ racially discriminatory aspects, and of designation of such aspects as 'special measures' under the Racial Discrimination Act (Cth) and the International Convention on the Elimination of Racial Discrimination. Merely asserting something is insufficient when qualifying a law with serious discriminatory aspects as a 'special measure'. Australia’s hard-earned reputation as a supporter of human rights worldwide will count for little if domestic legislation discriminating against indigenous Australians allows that they are 'excluded' from domestic anti-discrimination legislation. And at international law, such purported 'exclusion' will not excuse violations of the Convention on the Elimination of Racial Discrimination.

Thirdly, CSSA raised concerns regarding the ‘quarantining’ of welfare payments. But the majority Committee report expressed no view as to the merits of the scheme, except to recommend that the Commonwealth Government make clear what was meant by ‘unsatisfactory school attendance'  (something not done in the relevant Bill). This surely cannot pass as adequate Parliamentary scrutiny of this radical change to our welfare payments system, particularly as no evidence has been provided to justify such a measure.

Fourthly, CSSA raised previously-expressed concerns (echoed in 2006 by the same Senate Committee which inquired into the current legislative package) that the proposed sentencing provisions were likely to discriminate against indigenous people and other cultural minorities, while not helping to redress child abuse.

Of particular concern are the extraordinary discretionary powers afforded the responsible Minister. Two examples concern 'community service entities' and the 'quarantining' system.

The legislation authorises the Minister to direct a ‘community services entity’ to give up its assets to the Commonwealth or a third party, or to admit to its meetings a Ministerially-appointed ‘observer’ —provided that the entity has been funded by the Commonwealth or Northern Territory Government to provide services in a ‘business management area’. The definition of ‘community services entity’ is expected to cover most Indigenous organisations delivering services to remote Indigenous communities in the Northern Territory. The definition will also extend to ‘any other person or entity’ in the area that is so specified by the Minister by legislative instrument (in a form neither disallowable nor subject to any sunset provision).

It was apparent from last week’s Senate debate that there are very few limits to these extremely broad powers regarding ‘community service entities’ — apart from those conveyed by any reassurances which may be received from time to time from incumbent Ministers.

Exactly which people will be affected by quarantining, and how the system will work, is not spelled out in sufficient detail in the legislation. Further details are to be set out in legislative instruments to be made by the Minister, including the vital definition of ‘unsatisfactory school attendance’ which will trigger quarantining of welfare payments of the parents of relevant school children. Such instruments are subject to little Parliamentary scrutiny.

The extent of Ministerial discretion regarding quarantining rules is particularly disturbing in relation to quarantining in Northern Territory areas because affected people on welfare payments will be unable to appeal to the Social Security Appeals Tribunal.

 

 

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Well said Frank. The replacement of the rule of law with arbitrary executive authority is a feature of the Howard government's term of office. Process is no longer important, it's outcomes that matter. When Howard said (in relation to the Tasmanian hospital) that people were less interested in systems than in outcomes, he might just as well have said that the end justifies the means. Time to re-read 'A Man for All Seasons".
Warwick | 28 August 2007


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