Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Hansard source

The difficulty that I have with one of the implications behind the question—and it may not be the intention—is the suggestion that the commissioner would not do the right thing. The government's view is that it is appropriate for there to be discretion. When you are determining a document to comply with a regulatory requirement you would not want that to be mandatory, because you would want to make sure that a person is considering whether that document should comply with it. If it should comply then they have the discretion to do that. If the commissioner is doing the right thing, and we operate on the basis that they will, I do not think the issue that you raise is going to be a problem. With the alternative construction of 'will', you would still have to have an assessment against criteria, which arguably becomes a more legal type of test—'I can only do this if this ticks all these boxes'. What you have here is discretion. The commissioner has to have regard to a range of factors, but the government thinks it is appropriate for the commissioner to have discretion.