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

I present Delegated legislation monitor 6 of 2024 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence received by the committee. I move:

That the Senate take note of the report.

I rise to speak to this tabling of the Senate Standing Committee for the Scrutiny of Delegated Legislation Delegated legislation monitor 6 of 2024.

The monitor reports on the committee's consideration of 143 legislative instruments registered between 26 March and 13 May 2024. This includes 129 disallowable instruments and 14 instruments exempt from disallowance.

I would first like to draw the chamber's attention to the Recycling and Waste Reduction (Export—Waste Paper and Cardboard) Rules 2024. The instrument regulates the export of mixed waste paper and cardboard from Australia and forms part of a new regime to regulate the export of waste materials.

In this monitor, the committee is raising a number of scrutiny concerns including in relation to offences of strict liability provided for by the instrument. Under Senate standing order 23(3)(h), the committee must consider whether an instrument trespasses unduly on personal rights and liberties, such as whether it provides for matters relating to strict liability offences. Further, under Senate standing order 23(3)(j), the committee must consider whether an instrument contains matters more appropriate for parliamentary enactment, including where an instrument imposes significant penalties or sets out significant elements of a regulatory scheme. The committee is raising scrutiny concerns in this regard as the contravention of particular conditions provided for in the instrument triggers civil and criminal penalties for strict liability offences under the Recycling and Waste Reduction Act. The committee is therefore seeking the minister's advice about why it is considered necessary and appropriate for delegated legislation to include content of strict liability offences that carry such significant criminal and civil penalties.

The committee also notes that the Recycling and Waste Reduction 2020 was previously reported on by the Senate Standing Committee for the Scrutiny of Bills in relation to leaving a number of significant matters of the legislative framework to delegated legislation, including what kind of waste material will be 'regulated waste material' for the purposes of the new regime and conditions that will apply for the export of regulated waste material. This instrument defines waste paper and cardboard as 'regulated waste material' and prescribes conditions for export of this material. Accordingly, the committee is seeking the minister's advice about why it is considered necessary and appropriate for delegated legislation to include content of strict liability offences that carry significant criminal and civil penalties, and the inclusion of significant matters including in relation to prescribing the kind of material that is 'regulated waste material' and conditions for export.

I would also like to draw the chamber's attention to the committee's comments in relation to the Migration Amendment (Bridging Visas) Regulations 2024. The committee is raising scrutiny concerns as the explanatory statement to the instrument does not address whether merits review is available for a decision made under regulation 2.25AB of the Migration Regulations, of which the instrument amends the operation. It appears to the committee that merits review is available for decisions made under regulation 2.25AB, and accordingly it is seeking the Minister for Immigration, Citizenship and Multicultural Affairs' advice as to whether the explanatory statement can be amended to clarify this and specify any other safeguards or limitations that apply to the exercise of the minister's power.

The committee notes it has raised similar concerns in relation to the Migration Amendment (Bridging Visa Conditions) Regulations 2023, which the committee has been engaging with the Minister for Immigration, Citizenship and Multicultural Affairs on since Delegated legislation monitor 1 of 2024. On behalf of the committee, I'd like to reiterate the committee's expectation that explanatory statements must provide details of any state safeguards or limitations that apply to the exercise of a minister's powers or functions, including the availability of the review mechanisms. In this monitor, the committee has resolved to conclude it's examinations of the Migration Amendment (Bridging Visa Conditions) Regulations 2023. One of the committee's scrutiny concerns in relation to this instrument concerned the information provided in the explanatory statement regarding consultation and the committee's expectations under Senate standing order 23(3)(d). In this instance, the explanatory statement to the instrument indicated that the Office of Impact Analysis and other Commonwealth agencies were consulted in relation to the instrument, but it did not specify which agencies were consulted or whether any persons likely to be affected by the instrument or experts were consulted.

The committee thanks the minister for his advice detailing roundtable discussion with three key stakeholders for the purposes of information sharing in relation to the instrument's operation; however, it remains unclear to the committee why a broader range of stakeholders were not consulted, including those representing the interests of the individuals most likely to be affected by the instrument. It also appears to the committee that the nature of the roundtable discussions did not amount to consultation in line with its expectations. The consultation process is a critical part of making delegated legislation, as it is the only opportunity for stakeholders to participate in the process and to provide input, particularly for those who may be affected by the instrument.

The committee is also concerned that it has raised similar matters in this monitor regarding another instrument in the same portfolio, the Migration Amendment (Bridging Visas) Regulations 2023. The committee considers tabling statements to be a useful tool by which the committee can draw the Senate's attention to specific scrutiny concerns about delegated legislation, such as inadequate consultation. This approach is informed by the Westminster parliament, where the UK Secondary Legislation Scrutiny Committee is empowered to draw the special attention of the House of Lords to an instrument on the basis:

… that there appear to be inadequacies in the consultation process which relates to the instrument.

The committee has resolved to draw its concerns regarding the consultation undertaken in relation to the Migration Amendment (Bridging Visas) Regulations 2023 to the attention of the Senate.

I would also like to take this opportunity to reiterate the committee's expectation that explanatory statements include details of the consultation undertaken on the specific instrument, including who was consulted and the outcomes of that consultation. The committee expects that genuine consultation will take place with those likely to be affected by an instrument and/or relevant experts prior to an instrument being made. The committee will continue to closely monitor legislative instruments to ensure they meet legislative consultation requirements and the committee's clear expectations.

Finally, in this monitor the committee concluded its consideration of the Offshore Petroleum and Greenhouse Gas Storage (Greenhouse Gas Injection and Storage) Regulations 2023. The measures in the instrument facilitate and regulate safe and sustainable greenhouse gas injection and storage operations in offshore areas. The committee raised scrutiny concerns with the instrument in delegated legislation monitors 1 and 2. One of the committee's scrutiny concerns related to the scope of discretionary powers under the instrument that enabled the minister, in deciding whether to approve a draft site plan or a variation to a site plan, to have regard to 'any other matters' they considered relevant. In engaging with the committee on this matter, the minister provided two responses advising on constraints of the scope of the powers and providing examples of what might constitute 'any other matters'.

Following her first response, the minister undertook to amend the explanatory statement to the instrument to reflect the detail provided in her response. The minister has since undertaken to further amend the explanatory statement to include the information provided in her second response, including detailed examples of 'any other matters'. The committee thanks the minister for her undertakings to address the committee's scrutiny concerns and meet the committee's expectations that, where an instrument confers discretionary powers on a person, the explanatory statement to the instrument should set out the factors which the person must consider in exercising the discretion. With these comments, I commend the committee's Delegated legislation monitor No. 6 of 2024 to the Senate.

Question agreed to.