Deborah O'Neill (NSW, Australian Labor Party) Share this | Hansard source

I move:

That the Senate take note of the Senate Standing Committee for the Scrutiny of Delegated Legislation annual report 2023.

This report was presented out of sitting on 17 May. I would like to take this opportunity to highlight the scrutiny work and engagement of the committee in 2023 across the 15 delegated legislation monitors tabled in 2023. The committee considered 1,885 legislative instruments, of which 363 raised scrutiny concerns, which is a slightly lower proportion of instruments raising concerns compared to 2022. I also want to acknowledge that, while I'm giving this report as the Chair of the Scrutiny of Delegated Legislation Committee, this work was really done under the leadership of Senator Linda White, ably assisted in her absence by Senator Scarr. I want to acknowledge those colleagues for their work in doing this important scrutiny.

In 2023, there was a significant increase in scrutiny issues raised at the ministerial level, with 101 scrutiny issues raised, compared to 65 in 2022. Concerns raised with the relevant minister most often related to the availability of independent merits review in delegated legislation. I wish to emphasise the committee's expectation under this principle that, where an instrument empowers a decision-maker to make discretionary decisions which have the capacity to affect a person's rights, liberties, obligations or interests, those decisions should ordinarily be subject to independent merits review. Therefore, the explanatory statement to any instrument including such powers should explain whether the independent merits review is available and, if it is not, the characteristics of the relevant decision which justify their exclusion from the merits review by reference to the Administrative Review Council's guide, entitled What decisions should be subject to merit review?

Chapter 3 of the annual report contains case studies of some of the most significant scrutiny concerns the committee had in 2023. For example, the committee raised numerous concerns in relation to Public Service Regulations 2023, including regarding the adequacy of consultation. The committee was concerned that, although the instruments set out matters directly relevant to the employment and promotion of Australian Public Service employees and review of APS actions, those affected by the instrument were not consulted. However, the committee was pleased to conclude its examination of this instrument following engagement with the Minister for the Public Service, who undertook to consult more broadly with stakeholders, including the Community and Public Sector Union, on proposed further amendments to the instrument. The committee thanks the minister for her engagement and cooperation. The committee reiterates the importance of ensuring consultation with those likely to be affected by an instrument and with experts prior to the instrument being made and continues to monitor this scrutiny issue in 2024.

The committee held four private briefings in 2023, including a private briefing with the Australian Law Reform Commission on 20 April 2023. In light of its inquiry into financial services legislation which details proposed multiple corporations and financial services laws, that proposed model includes recommending a single scoping order containing class exemptions to primary legislation and thematic law books detailing specific areas of law which would both be subject to sunsetting.

I wish to reiterate the committee's expectations that, where exemptions or modifications are included in delegated legislation, they should be time-limited to facilitate regular parliamentary scrutiny and so they do not operate as de facto amendments to primary legislation. While the committee's view is that a time limit of three to five years is generally appropriate, it considers that at a very minimum such instruments should be subject to the 10-year sunsetting period.

Additionally, the committee continued its ongoing engagement in relation to longstanding systemic concerns about a number of Treasury portfolio instruments that create ongoing exemptions to the operation of the primary legislation. This included holding a private briefing with the Assistant Treasurer and his department on 10 March 2023 to discuss the committee's concerns. Following this engagement, the committee was pleased to note the more frequent inclusion of sunsetting in relation to the duration of such instruments, which is in line with the committee's minimum expectations in this regard.

Throughout 2023 the committee continued its engagement regarding legislative instruments exempted from disallowance under the Biosecurity Act. The committee's longstanding view is that all instruments should be subject to appropriate parliamentary oversight with limited exemptions from disallowance. Where an instrument is exempt, the committee expects a detailed justification to be included in the explanatory statement. The disallowance process is a vital tool for the parliament to appropriately debate and scrutinise delegated legislation.

In 2023 the committee, via its secretariat, continued to engage directly with relevant agencies to gather information or seek clarification to resolve minor technical scrutiny concerns. I remind ministers and their agencies that the committee's guidelines set out the committee's work practices as well as its expectation in relation to each technical scrutiny principle and how these matters should be addressed when preparing explanatory statements to legislative instruments. The guidelines are available from the secretariat and the committee's website.

I also wish to acknowledge the ongoing assistance of ministers and agencies. The response of ministers and agencies to the committee's inquiries is critical to ensuring the committee can perform its scrutiny function effectively.

On behalf of the committee, I would like to thank the committee's former and current legal advisers, Associate Professor Andrew Edgar and Professor Lorne Neudorf, as well as the committee secretariat for their assistance in 2023. As I indicated, I want to acknowledge the great work of former senator White, who chaired this committee between 3 August 2022 and 29 February 2024. I commend the annual report of 2023 to the Senate.

Debate adjourned.

The Senate Standing Committee for the Scrutiny of Delegated Legislation's Delegated legislation monitor 5 of2024 was presented out of sitting on 17 March. I move:

That the Senate take note of the report.

It reports on the committee's consideration of 164 legislative instruments registered between 28 February and 25 March 2024.

I'd like to draw the chamber's attention to the committee's comments on the Migration Amendment (Bridging Visa Conditions) Regulations 2023. The instrument amends a number of existing conditions and specifies two new conditions applying to bridging class WR visas in certain circumstances. The committee previously sought the advice of the Minister for Immigration, Citizenship and Multicultural Affairs about the factors that the minister takes into account in relation to whether a visa condition prescribed in the regulations is 'not reasonably necessary' for protection in the community, as well as safeguards on this discretion, such as independent merits review. The committee thanks the minister for providing advice about the relevant factors taken into account and advising that merits review is available in relation to decisions not to grant a bridging visa not subject to a prescribed condition. The committee is now seeking the ministers' advice about whether the explanatory statement can be amended to provide clarity with regard to these matters.

The committee is also seeking the minister's further advice about the consultation that was undertaken in relation to this instrument. While the minister advised of roundtable discussions with relevant stakeholders following commencement of the instrument, the committee is seeking further advice regarding the outcomes of these discussions and whether the consideration could be given a further legislative amendment to address the feedback provided. In this regard, I wish to emphasise the committee's expectation, under scrutiny principle (d) and the Legislation Act, that consultation be undertaken prior to a legislative instrument being made.

I would also like to draw the chamber's attention to the committee's comments in relation to the Biosecurity (Electronic Decisions) Determination 2023. The committee expects that, where instruments facilitate automated discretionary decision-making, there will be safeguards in place to ensure that the decision-maker exercises their discretionary powers personally and that the explanatory statement would justify why the use of automated decision-making is necessary and appropriate. In this instance, the committee had sought advice of the Minister for Agriculture, Fisheries and Forestry on the operation of a number of safeguards as set out in the Biosecurity Act in relation to the automated decision-making facilitated by the instrument.

The committee thanks the minister for his engagement and welcomes his detailed advice regarding the operation of these safeguards, including to ensure computer program decisions meet the objects of the Biosecurity Act, as well as the process for review and audit of automated decision-making. The committee is now seeking further advice from the minister as to whether this information can be incorporated into the instrument's explanatory statement.

To facilitate ongoing engagement with the relevant ministers about these scrutiny concerns, the committee has resolved to place a 'protective' notice of motion to disallow both instruments. This provides the committee and each minister further time to resolve the remaining scrutiny concerns.

Finally, I would like to draw the chamber's attention to the committee's concluding comments on the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment (Chapter 21 Amendments) Instrument 2024, which has the effect of creating ongoing exemptions to a number of obligations in the Anti-Money Laundering and Counter-Terrorism Financing Act.

Debate interrupted.