John Williams (NSW, National Party) Share this | Hansard source

I thank the Senate. I make the statement on behalf of the Regulations and Ordinances Committee in relation to my intention to withdraw the notice of motion proposing the disallowance of the Financial Framework (Supplementary Powers) Amendment (Industry, Innovation and Science Measures No. 2) Regulation 2016. Scrutiny principle of the committee's terms of reference requires the committee to ensure that an instrument is made in accordance with statute. This principle requires that instruments are made in accordance with their authorising act as well as any constitutional or other applicable legal requirements. The committee notes that in the Williams No. 2 case the High Court confirmed that a constitutional head of power is required to support Commonwealth spending programs. As such, the committee requires that the explanatory statement for all instruments specifying programs for the purpose of section 32B of the Financial Framework (Supplementary Powers) Amendment (Industry, Innovation and Science Measures No. 2) Regulation 2016 explicitly state for each new program the constitutional authority for the expenditure.

This means that where multiple heads of legislative powers are relied on in an instrument to support a program or initiative the committee expects an explanatory statement to provide a clear and explicit statement of the relevance and operation of each head of power relied on. This enables the Regulations and Ordinance Committee to effectively undertake its scrutiny of such regulations. Noting the information provided in relation to this instrument by the minister to date, the committee has resolved on this occasion to withdraw the protection notice of motion. However, in light of the committee's concerns regarding the absence of a clear and explicit statement of the relevance and operations of each constitutional head of power relied on to support the Commonwealth spending authorised by the instrument, the committee has requested further information on this matter in its Delegated legislation monitor No. 2 of 2017.

The committee also wishes to remind ministers that the Senate has rejected government claims that there is a longstanding practice of not disclosing privileged legal advice to conserve the Commonwealth's legal and constitutional interests.