PUNITIVE LAWS - HALF FINISHED
I thank the committee and the secretariat for their work on this inquiry.
The government seeks, through this bill, to implement recommendation 2.10 of the Financial Services Royal Commission and recommendation 7.1 of the Tax Practitioners Board Review. The bill deals with aspects of misconduct and concerns disciplinary processes and penalties for financial advisors.
I support the goals of the bill, and I am generally satisfied with the provisions of the bill as they stand. However, the bill is only half finished. The regulations that deal with the detail (where the devil lies) are missing.
How can any parliamentarian vote for half law? I will not be.
The Senate Standing Committee for the Scrutiny of Delegated Legislation spoke concerningly in its 2019 report on Parliamentary Scrutiny of Delegated Legislation:
Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation (as opposed to Acts of Parliament). The volume of delegated legislation made each year has increased over time. For example, in the mid-1980s there were around 850 disallowable instruments tabled each year. By contrast, around 1,700 disallowable instruments are now made annually.
Section 1 of the Australian Constitution makes it clear that it is parliamentarians, in open view of the public, that make the laws of this land; not faceless bureaucrats sitting in offices that the public can’t peer into. Delegated legislation should only be utilised in very specific circumstances—it should not be standard practice.
The concerns about the job only being half done were raised by the Scrutiny of Bills Committee. Concerns about the job only being half done were raised by financial advisors. This is mentioned in the main report.
The Minister and the department need to up their game. Turning up to ask the parliament to pass half a law is disrespectful to the Parliament and disrespectful to those in the community who will be affected by the unwritten parts of the laws parliamentarians are being asked to give assent to.
This half-baked Bill is not fit to pass—as least not without seeing the proposed regulations that are to accompany it.
Recommendation: That the bill not be put to a vote until the regulations have also been put before the Parliament.
Senator Rex Patrick
Independent Senator for South Australia