House of Representatives Speech- Regulatory Powers (Standard Provisions) Bill 2014

The Regulatory Powers (Standard Provisions) Bill 2014 is, in effect, an initiative of the last Labor government. A bill in substantially identical terms was introduced into the parliament by the then Attorney-General, the Hon. Nicola Roxon MP, but it lapsed at the end of the 43rd Parliament. That bill had the same name. It was the Regulatory Powers (Standard Provisions) Bill 2012.

The Regulatory Powers (Standard Provisions) Bill 2014 is, in effect, an initiative of the last Labor government. A bill in substantially identical terms was introduced into the parliament by the then Attorney-General, the Hon. Nicola Roxon MP, but it lapsed at the end of the 43rd Parliament. That bill had the same name. It was the Regulatory Powers (Standard Provisions) Bill 2012.

This bill is an important part of the former Labor government's legacy on regulatory reform. It stands in very sharp contrast to the empty rhetoric of the Abbott government's 'repeal day' that we saw back in March. That was the supposed bonfire of regulation, which, of course, fizzled. It was a media stunt that involved the repeal of several hundred inoperative provisions, a manoeuvre which did not in any real sense cut red tape or deliver savings to the community. This bill, by contrast—a Labor initiative—will simplify operative legislation. What the bill will do is reduce inconsistency and duplication across regulatory regimes. The bill will not only simplify and streamline the statute books but will make it easier for individuals to access and understand the law. It could reduce the size of a new Commonwealth act—setting up, for example, a new agency—by up to 80 pages. The bill is one of the initiatives of the Labor government's Clearer Laws project. The Clearer Laws project was designed to increase access to justice and improve the accessibility, equity, efficiency and effectiveness of the federal justice system by simplifying and streamlining the statute book.

The bill is based on existing provisions in Commonwealth laws, including the Crimes Act 1914. It is consistent with Aguide to framing Commonwealth offences, civil penalties and enforcement powers approved by the Labor government's Minister for Home Affairs in September 2011. It is also the subject of a drafting direction, an instruction issued by First Parliamentary Counsel, which requires all drafters to comply with the direction. This too will ensure a consistent approach is taken to the bill's provisions.

The bill is a law of general application for the enforcement of regulatory regimes that other acts must refer to and trigger for the bill's provisions to apply. It is a regulatory device which we now see in the criminal code. It is possible to point to other parts of the Commonwealth statute book where this device is used—where, by setting up a set of standard provisions, it is possible for the drafter of legislation that comes after to, simply by reference, incorporate those standard provisions in the new law which is to be made.

As the Labor government had intended, the bill will be implemented in three careful stages. To activate the bill's provisions, new or existing Commonwealth laws must expressly apply the relevant provisions and specify other requisite information such as persons who are authorised to exercise the applicable powers.

The bill will provide greater clarity for agencies that utilise regulatory powers, and for Australians and Australian businesses that are the subject of a regulatory regime. Currently, agencies with a regulatory function may enforce a number of different regulatory regimes, each of which may have different governing legislation. Similarly, businesses may be subject to a number of different regulatory regimes that have slightly different enforcement and investigatory powers. It is to be hoped that, over time, many Commonwealth agencies will find themselves in a position to adopt this standard regime. Obviously, that will have the potential to both simplify and improve the comprehension of the powers exercised by Commonwealth agencies.

The powers that the bill provides will only be available to a regulatory agency if their governing legislation triggers or engages the bill. The powers contained in the bill can be triggered in whole or in part by a regulatory agency's governing legislation. For example, a regulatory agency's governing legislation may be amended to trigger only the part of the bill that deals with enforceable undertakings.

Showing that this bill represents quite a long history of consideration by this parliament, the Senate Legal and Constitutional Affairs Legislation Committee has looked at this bill not once but twice. It looked at the Regulatory Powers (Standard Provisions) Bill 2012 and made a recommendation dealing with the point I have just mentioned. In the previous version of the bill, it had provided for the standard provisions to be triggered by a regulation. The Senate Legal and Constitutional Affairs Legislation Committee thought it appropriate that, rather than having the provisions triggered by regulation, the provisions would not be triggered other than by legislation in order to ensure that there was full parliamentary oversight of this. Their recommendation that the standard provisions only be triggered through primary legislation has been picked up in the bill which is now before the House. The Senate Legal and Constitutional Affairs Legislation Committee, having now looked at the Regulatory Powers (Standard Provisions) Bill 2014, observes that that has occurred and expresses satisfaction that the recommendation that they made on the 2012 bill has now been picked up.

It is obviously the case that some regulatory agencies' powers go beyond the scope of the standard suite of regulatory functions that are provided in this bill. One could point to agencies like the Australian Federal Police or the Australian Security Intelligence Organisation, which require specialised regulatory powers. They will continue to exercise powers under the specific laws that establish those organisations and confer powers on them. It is not envisaged that agencies like the Australian Federal Police or the Australian Security Intelligence Organisation would need to trigger any of the standard provisions that we see in this bill.

The small number of submissions that were made to the Legal and Constitutional Affairs Legislation Committee in relation to the current bill included a submission from the Fair Work Ombudsman and a submission from ASIC which were, in essence, making the point that I have just made—that not all of the powers in the standard set of provisions are going to be entirely appropriate for every single agency. It is for that reason that this structure provides for not all of the standard provisions to be adopted. You can have the situation that an agency might adopt none or some or all of the standard set of provisions that are included in this bill.

I can say that this bill is real regulatory reform; it is not the hollow stunt of the government's self-described 'bonfire of regulations' that we had back in March. It is a bonfire which fizzled. But I fear that the government remains caught up in their own rhetoric of red tape and deregulation. There is a need to cut through the government's empty rhetoric about supposed red tape and deregulation to examine in every case what is actually proposed. I fear, at this stage, that the government is still, for example, proceeding with its proposed repeal of the Independent National Security Legislation Monitor—something that the government announced on its repeal day. That office, the Independent National Security Legislation Monitor, is responsible for reviewing quite onerous legislation in the national security area to ensure that the restrictions that are imposed by that legislation are still necessary. In a very real sense, the Independent National Security Legislation Monitor is responsible for an ongoing kind of regulatory reform. It is a body that is directed at removing unnecessary laws and regulation. I can say that the Independent National Security Legislation Monitor, in his final report tabled last week, cuts through the government's rhetoric about red tape and deregulation.