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Codes of Practice and Incorporated Documents

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Legislative Assembly 9 March 2022

Mr MORRIS (Mornington) (18:32): It is a pleasure to join the debate on the Conservation, Forests and Lands Amendment Bill 2022. Many people say, ‘It’s been an interesting debate’, but I have genuinely found this to be an interesting debate and perhaps a low point in the manner in which we operate as a legislature.

Now, I am not having a crack at any of the speakers on any side, but there have been all sorts of commentary. The ruling is that it is a very wide debate —and again, I am not reflecting on the Chair in any way, because the precedent, I am sure, was established much earlier in the debate. We have had contributions about little penguins.

We have had contributions from this side on the timber industry. We just heard lots about the Mornington Peninsula, and I am tempted to take up a few of the points the member for Nepean made, but I will resist the temptation. And we have also heard great slabs, I am sure, quoted from the briefing books.

The reality is most of the contributions that have been made actually have said nothing about the bill. The suggestion that these amendments incorporate the precautionary principle, incorporate the actual detail, could not be further from the truth.

That is the reality. I mean, the amendment is—I have not bothered to count up the words, but it looks like perhaps 100 words in an amendment to section 31 of the Conservation, Forests and Lands Act 1987, and it is a variation on an existing power that relates to codes of practice.

That is all it is. It is a variation to that power. It does not do anything else. Yes, it potentially provides capacity for the minister to then take further action. It sets up the framework. But it does not do any of the things that have been claimed for it during the time I have been in the chamber.

It effectively says that an incorporated document is not only incorporated in the form that it is when it is incorporated but can be subsequently varied, and it gives that flexibility. And then the bulk of the words in this amendment are simply talking about the requirement to gazette the code of practice when it is varied and that it does not come into effect until it is gazetted.

There is no doubt that the timber industry has been a central part of this discussion, and that has played out in the contributions. Indeed there was a fairly long slab in the second-reading speech that talked about what the minister intended to do with the code in terms of the management provisions and whether they should be an incorporated document or whether they should be formally part of the code. But again, while that was a big slab of the second-reading speech, it is not part of the bill before us today; it is not actually what the bill does.

I do have some concerns about the form in which this particular amendment, as minimal as it may be, is being presented and the fact that we are dealing with a discrete bill to add a handful of words into an existing act, on the one hand. I cannot immediately recall the title of the bill that was dealt with last sitting week which incorporated a raft of amendments to a range of justice matters that were so broad that when we were briefed on the bill individual advisers were not able to talk about other sections of the bill, because were the responsibility of a different minister. The only common feature in that legislation was it was in the same department, but it was a very disparate range of matters. And now one sitting week later we are dealing with a bill that simply inserts a handful of words into existing legislation.

But the difficulty I have with this particular bill is not that it is complex. Someone said earlier—I cannot recall who it was—that it is complex. It is not complex. It is 100 words, for goodness sake. It is not complex.

The issue I have is about what it does, because if you work through the impact of the words, what it is effectively saying is that an incorporated document can change but it does not change the code. It really gets down to the point of where the threshold is. How substantial do the changes to an incorporated document need to be before they constitute a change of the code? We do not know that.

A concern I have had basically since I first stood up in this place in 2006 is the fact that so rarely do we actually as legislators have the opportunity to question legislation.

If you read the Scrutiny of Acts and Regulations Committee report on this, it notes that it has an issue—if I can find the report—potentially with the parliamentary oversight. The committee will correspond with the minister and ask some questions about how that will be worked through in the context of section 32 of the act. That is a significant question in the consideration of this bill, which we as legislators should have the opportunity to ask.

But of course the reality is we never get to consideration in detail, so we do not have the opportunity to consider and ask about the impact of this clause. I think that is a problem. Yes, it was certainly a Liberal government that introduced the government business program, the guillotine, but it was in response to ongoing bad behaviour, ongoing overnight sittings and just a complete rort of the opportunity to consider matters in detail.

We have now gone the other way, where we get 10 minutes to speak on a bill no matter what the complexity is and we cannot ask any questions. I think it is very, very difficult for anyone, whether you are government or opposition, to say you are doing your job, you are scrutinising legislation appropriately, when we have the system that we do now. It is a criticism that arises out of questions that come up in this bill.

It will not affect me, clearly, but I think we really do need to have a look at whether we are in fact carrying out our duties and the duties that the Victorian public think we should be carrying out when we process legislation in this way.

The other issue with the potential reduction in parliamentary oversight is again one that is becoming more and more obvious. We have had a series of bills come through where there is an effective dumbing down of legislation. What previously would have been in legislation is in fact inserted into regulation. What would previously have been inserted into regulation goes into a code of practice. The reality is that the only people that win out of that are the Victorian bureaucracy, because they take up the powers that this Parliament is ceding to them by taking that approach.

It is important that we recognise this Parliament and passage through this Parliament should not be considered a mere formality. Processing legislation through this Parliament should not be a rubber stamp, and that is pretty much where we are at the moment.

There are legitimate questions about the impact of legislation, as few the words are, and the opportunity is not there to get that clarification which I think it otherwise deserves.

As others have said, the opposition will not be opposing the bill; however, there are some significant not only process issues but practical issues so we know exactly what the impact is. And as the debate has demonstrated, there is a breadth of opinion on that.