Linda Reynolds (WA, Liberal Party) Share this | Hansard source

On behalf of Senator O'Neill, the Chair of the Senate Standing Committee for the Scrutiny of Delegated Legislation, I present Delegated legislation monitor 12 of 2024, together with ministerial correspondence, and I move:

That the Senate take note of the report.

In tabling this report, I would first like to draw the chamber's attention to a new matter raised in the monitor concerning the Explosives Regulations 2024. This instrument replaces two previous explosives regulations and condenses them into a single modernised instrument. The committee is seeking the Minister for Defence's advice on a number of scrutiny concerns, including the broad delegation of administrative powers under the instrument. The cohort of delegates under the instrument extends to Australian Public Service delegates below the senior executive service level. The explanatory statement does not address why it is necessary and appropriate to provide for such broad delegation and whether delegates exercising the powers will be required to have appropriate skills, qualifications and experience. This does not align with the committee's expectations for explanatory statements to comprehensively justify the delegation of administrative powers and functions, particularly when these powers are delegated below the SES level.

The committee is also seeking the minister's advice as to the inclusion of significant matters in the instrument. The enabling act provides that the contravention of regulation provisions constitutes a criminal offence under the act, punishable by imprisonment or a fine. While the act provides this skeleton framework for criminal offences, the instrument prescribes the substantive content of the offences. As a result, the committee considers that these provisions prescribe significant matters which are better suited for primary legislation. The committee has asked the minister why it is necessary and appropriate to provide for the content of criminal offences in delegated legislation in this instance. The committee looks forward to engaging with the Minister for Defence on this matter and on each of these scrutiny concerns outlined in the monitor.

Another new matter raised in this monitor is in relation to the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024. This instrument determines the scheme for administration of the CFMEU Construction and General Division and its branches. The committee has raised several scrutiny concerns including in relation to broad discretionary powers for the scheme administrator, the delegation of these powers by any nominated person and the possible collection, use or disclosure of personal information.

The latter point concerns privacy, which some provisions in the instrument appear to engage. This includes a power of the administrator to keep and maintain a register of CFMEU members. The committee considers this is likely to include the collection, use or disclosure of members' personal information. Where an instrument provides for this, the committee expects the explanatory statement will clarify the nature and scope of the information collected and any applicable safeguards that protect personal information. The committee looks forward to engaging with the Attorney-General on each of the matters outlined in the monitor.

In addition, the committee resolved to draw two matters to the attention of the Senate in relation to this instrument. Firstly, there was the Attorney-General's justification for not undertaking consultation with persons likely to be affected by the instrument. The explanatory statement notes that, given the urgent need to determine whether to place the division and its branches into administration, it was not reasonably practicable to undertake consultation. Secondly, the instrument was accompanied by a single-page explanatory statement which meet the legislated minimum requirements but did not provide any information about the operation of the instrument. The committee emphasises the importance of explanatory statements to understand the purpose, operation and effect of an instrument, particularly noting how an individual's rights and interests may be affected by the law. Accordingly, the committee draws its concerns regarding the adequacy of explanatory statements to the attention of the Senate.

In monitor 12, the committee also noted the significant matters included in the Fair Work Legislation Amendment (Closing Loopholes) Regulations 2024. The instrument provides for exemptions from the operation of primary legislation which are not time limited, as well as key definitions and significant elements of a regulatory scheme relating to road transport contractors. The committee considers that exceptions to primary legislation and significant matters of a regulatory scheme are more appropriate for parliamentary enactment. Where these types of matters are included in delegated legislation, the committee expects them to be time limited or subject to sunsetting provisions for the minimum level of parliamentary oversight. The instrument's explanatory statement should also explain why it is considered necessary and appropriate to do so—which I note has not occurred for this instrument. The committee has therefore resolved to draw its concerns about the inclusion of such matters in delegated legislation to the attention of the Senate.

In this monitor the committee has also sought further advice from the Minister for Health and Aged Care in relation to three instruments made under the Therapeutic Goods Act to implement vaping reforms. The committee previously raised scrutiny concerns about the conferral of broad discretionary powers, including coercive powers. The minister has since advised he can arrange to repeal the provisions of concern, and the committee is seeking the minister's undertaking to do so. The committee is also asking whether the explanatory statement can be amended to include the information provided by the minister about why it is necessary and appropriate for the instrument to include additional exemptions to offensives found in the enabling act.

The committee is also continuing to engage with the minister on the Therapeutic Goods Legislation Amendment (Vaping Reforms) Regulations 2024. The committee is requesting further detail on specific factors to be considered in exercising broad discretionary powers under items 4 and 28 of the instrument, including for an authorised officer to enter premises. Advice is also being sought on amending the explanatory statement to include the information provided by the minister relating to the intention of the instrument and the definitions of 'authorised officer' and 'authorised person'. The committee considers that this information would be useful to include in the explanatory statement to guide users of the law in understanding how the instrument operates and who is conferred powers under it. This committee would like to thank the Minister of Health and Aged Care for his ongoing engagement in these matters.

Finally, the committee is seeking further information from the Minister for Home Affairs in relation to automated decision-making under the Migration (Designated Migration Law—Visa Condition 8208) Determination. The committee looks forward to receiving further information from the minister in relation to the potential operation of a computer program to make visa decisions as permitted by the instrument.

Further, I'm pleased to advise the chamber that the number of undertakings that have been outstanding for more than 90 days in the monitor is 14, down from 21 in the previous monitor. Seven new undertakings have been made by ministers or agencies to address the committee's scrutiny concerns, and 12 have been implemented within the last three weeks. The committee is very pleased to see that the recent undertakings have been implemented in a timely manner.

With these comments, I commend the committee's Delegated legislation monitor No. 12 of 2024 to the Senate.

Question agreed to.