Chapter 4Case Studies
4.1This chapter includes examples of the committee's work during 2022. The case studies provide examples of the committee’s work to illustrate:
the committee's approach to its scrutiny role;
the committee's role in identifying matters of concern as assessed against the scrutiny principles outlined in standing order 24(1)(a) and in obtaining relevant information which informs the legislative process; and
the committee's role in providing the foundation for amendments to provisions and improvements to the content of explanatory material.
Case studies
Emergency Response Fund Amendment (Disaster Ready Fund) Bill 2022
4.1The Emergency Response Fund Amendment (Disaster Ready Fund) Bill 2022 was introduced in the House of Representatives on 7 September 2022. Proposed section 34A of the bill required ministers to seek advice from the Future Fund Board on the impact of a proposed adjustment to the amount that may be debited from the Disaster Ready Fund (the maximum disbursement amount), which could only be done by legislative instrument. The bill did not make provision for a requirement that the advice be tabled in Parliament. The committee initially commented on the bill in Scrutiny Digest 5 of 2022.
4.2The explanatory materials accompanying the bill did not appear to explain why the advice was not required to be tabled in Parliament, nor did it explain whether the advice would be publicly available. Noting the impact on parliamentary scrutiny of not requiring documents to be tabled in Parliament, the committee requested the minister's advice as to whether the bill could be amended to make such a requirement.However, the minister advised in relation to the committee’s scrutiny concerns in Scrutiny Digest 5 of 2022 that the reasons for an adjustment to the amount would be set out in the explanatory statement accompanying any legislative instrument made under proposed section 34A.
4.3In response to the committee, the minister advised that:
Any legislative instruments that propose an amendment to the maximum disbursement amount would be accompanied by an explanatory statement, which would describe the reasons for the proposed amendment. This would include an overview of the Ministers’ consultation with the Borad and how the Board’s advice was taken into consideration. This explanatory material would set out a broad range of relevant factors being considered, rather than being limited to the advice of the Board in respect of its investment functions and obligations.
[…]
Further, the Bill would not preclude the Finance Minister from publishing the Board’s advice, including under existing section 55 of the amended Act, providing the advice did not contain any commercial or sensitive information.
4.4The committee remained concerned that without a provision requiring the tabling of the advice, opportunities for debate and parliamentary scrutiny regarding this matter that would otherwise be available to parliamentarians are removed. However, the committee noted the minister’s advice that the advice documents may contain commercial or sensitive information and instead requested that the minister undertake to include, in the explanatory statement accompanying an instrument made under proposed section 34A, high-level information including:
an overview of the responsible Ministers' consultation with the Minister for Emergency Management; a summary of the Future Fund Board's advice with any sensitive information removed;
how the Future Fund Board's advice was taken into account;
if the responsible Ministers depart from the Future Fund Board's advice, the reasons for this; and
other relevant factors considered.
4.5This ensures that a level of parliamentary oversight is still maintained over adjustments to the maximum amount that may be debited from the Disaster Ready Fund.
4.2In a further response to the committee, the minister undertook to implement the committee's recommendations. On 23 November 2022, the Senate agreed to one opposition amendment to the bill. The bill passed in the Senate on 23 November 2022.
4.3The committee considered the amendments in Scrutiny Digest 8 of 2022, and welcomed the amendments which addressed the committee's scrutiny concerns.
National Anti-Corruption Commission Bill 2022
4.4The National Anti-Corruption Commission Bill 2022 was introduced in the House of Representatives on 28 September 2022. The bill sought to empower the Commissioner to investigate and report on corruption issues that occurred prior to the commencement of the bill. The committee initially commented on the bill in Scrutiny Digest 6 of 2022.
4.5Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this instance, the explanatory memorandum stated that:
It is appropriate that the Commissioner is able to investigate allegations of serious or systemic corrupt conduct that occurred before the NACC was established. This reflects the fact that the definition would not impose new standards of conduct in public administration, but would reflect long‑standing community expectations of public officials, including the expectation to act in the public interest. It is possible that certain conduct involving public officials could have fallen short of these existing expectations before the NACC was established … the Commissioner would only be able to make a finding of corrupt conduct if the conduct fell within one of the limbs of the definition, at the time it occurred
4.6The committee acknowledged that the intention of the bill was to expose corruption in public administration and recommended that the explanatory memorandum be updated to explain why it was appropriate to allow the bill to have retrospective application. The committee also recommended providing a more detailed list of examples of the kinds of conduct of a public official that is likely to constitute 'corruption of any other kind', noting the importance of this definition for the overall operation of the bill in the explanatory memorandum.
4.7 In response to the committee, the Attorney-General advised that the government would omit the provision in relation to the retrospective application of the proposed legislation. The bill passed in the Senate on 30November 2022.