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

On behalf of the Chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation, I present the Delegated legislation monitor No. 9 of 2024 together with ministerial correspondence received by the committee. I move:

That the Senate take note of the report.

I rise to speak to the tabling of the Senate Standing Committee for the Scrutiny of Delegated Legislation's Delegated legislation monitor9 of 2024. This monitor reports on the committee's consideration of 20 legislative instruments registered between 26 on 27 June 2024. In this monitor, the committee has commented on one outstanding matter, the Recycling and Waste Reduction (Export—Waste Paper and Cardboard) Rules 2024. This instrument regulates the export of mixed waste paper and cardboard from Australia, including requiring exporters of these materials to hold a licence.

In monitor 6, the committee raised scrutiny concerns in relation to the use of raw discretionary power by the minister. Under the instrument, a fee for a waste paper and cardboard export licence, or its renewal or variation, is taken to have been paid where the minister has accepted an undertaking from the person to pay that fee. The minister also must not accept an undertaking unless they have considered the matters listed in the instrument, including any other matter the minister considers relevant.

In response to the committee's comments in monitor 6, the minister indicated that the factors that may be taken into account in exercising this discretion may be unique to an individual case and so are not easily identifiable or appropriate to express in the instrument. The minister also noted that the scope of the discretion is limited by principles of administrative law and statutory interpretation so that only relevant considerations can be taken into account.

The committee is now requesting the minister's further advice as to the factors that may be taken into account by the minister in making her decision. The committee is aware that the requirement to only consider relevant factors is a general principle of administrative law that applies to all the discretionary powers, and notes that this does not provide substantive guidance for users of the law. The committee reiterates the importance of guidance in explanatory statements to assist users of the law to understand their rights and obligations under provisions which allow for ministerial discretion.

The committee also raised scrutiny concerns that the instrument provides for significant matters in delegated legislation, including the element of strict liability offences, civil penalty provisions and the definition of regulated waste material. In response to the committee's request for advice in monitor 6, the minister advised that it was necessary and appropriate to include these matters in the delegated legislation because the enabling act is framework legislation and the intention was the delegated legislation would contain these matters.

The minister further advised that defining 'regulated waste material' in delegated legislation was necessary to allow 'flexibility for different regulatory controls' and to adapt to changing circumstances. While the committee does not ordinarily consider flexibility or consistency alone to be sufficient to justify including significant matters in legislation, the committee accepts that the enabling act provides for these matters in this case. The committee retains concerns that the matters the instrument includes go beyond filling in details of framework legislation and instead constitute significant matters of the scheme.

While the committee thanks the minister for her engagement on this matter, its longstanding view is that significant matters, including significant elements of offence provisions, should be included in primary legislation. The committee has consistently raised concerns about framework legislation that contains broad principles of a legislative scheme and relies on delegated legislation to set out significant elements of a scheme's scope and operation.

Providing for significant matters in primary legislation is crucial to preserving parliamentary oversight on important matters. Consequently, the committee has resolved to draw the inclusion of significant matters in this instrument to the attention of the Senate.

To enable additional time to resolve its scrutiny concerns, the committee has placed a protective notice of motion to disallow the instrument. The committee looks forward to engaging with the minister further on the matters outlined in the monitor.

I'm also pleased to report that following implementation of the committee's new practice to list all undertakings which remain outstanding for more than 90 days in the monitor, five outstanding undertakings have been implemented since 8 August. As at 16 August there has been one further undertaking added to the list of undertakings outstanding for more than 90 days, for a total of 28.

The committee thanks the agencies and ministers that have implemented undertakings over the last reporting period to address the committee's scrutiny concerns. The committee reiterates its expectations that undertakings are implemented in a timely manner by responsible agencies and that ministers provide regular updates to the committee secretariat on the progress of that implementation. With these comments, I commend the committee's Delegated legislation monitor No. 9 of 2024 to the Senate.