Linda White (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present Delegated legislation monitor7 of 2023 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence relating to the report. I move:

That the Senate take note of the report.

I will briefly speak to the tabling of both Delegated legislation monitor7 of 2023 today and Delegated legislation monitor 6 of 2023, which the committee presented out of session on 2 June 2023. Delegated legislation monitor 7 reports on the committee's consideration of 108 legislative instruments registered between 16 May 2023 and 31 May 2023. Delegated legislation monitor 6 reported on the committee's consideration of 107 legislative instruments registered between 17 April 2023 and 15 May 2023.

I'd like to draw to the chamber's attention three instruments in the Treasury portfolio. The committee most recently commented on these instruments in monitor 6. These instruments are of particular concern to the committee because they create ongoing exemptions to primary legislation. These instruments are the Corporations Amendment (Design and Distribution Obligations—Income Management Regimes) Regulations 2023, the Corporations Amendment (Litigation Funding) Regulations 2022, and the Treasury Laws Amendment (Rationalising ASIC Instruments) Regulations 2022. These instruments contain ongoing exemptions to primary legislation via the Corporations Regulations 2001, which have been exempt from the sunsetting regime since 2017. Further, the rationalising ASIC regulations have the effect of moving exemptions that were previously time limited into regulations that operate indefinitely.

The committee has long been concerned about delegated legislation that modifies or creates ongoing exemptions to primary legislation. It's the committee's view that such measures should be set out in the primary legislation itself. However, when these measures are in delegated legislation they should be time limited in order to facilitate regular parliamentary scrutiny and so that they do not operate as de facto amendments to primary legislation. The committee's guidelines state that generally such measures should cease to operate no more than three years after they commence, to ensure appropriate parliamentary oversight.

The committee is engaged in extensive ongoing correspondence in relation to these instruments and detailed its concerns in previous delegated legislation monitors. Despite this extensive engagement, including holding two private briefings with the Assistant Treasurer and his department, the committee's scrutiny concerns have not been allayed. In Delegated legislation monitor6, the committee again wrote to the Assistant Treasurer about this issue. The committee sought advice about whether the Corporations Regulations 2001 could be subject to the usual 10-year sunsetting period. Alternatively, the committee asked whether the specific measures introduced by these instruments could be subject to a 10-year sunsetting period. The committee considers this to be a significant attempt to resolve this longstanding issue.

Noting the disallowance period is fast approaching for two of the three instruments being considered, the committee expresses its disappointment that its scrutiny concerns have not yet been adequately addressed and will continue to pursue this issue over the coming weeks. In the light of this, I would like to reiterate the importance of timely responses by ministers and departments. The committee aims to resolve its scrutiny concerns prior to disallowance of the relevant instrument. This can be difficult when responses are not provided within the time frames requested, affecting the committee's scrutiny process.

On another matter, on behalf of the committee I would also like to take this opportunity to note the assistance that Associate Professor Andrew Edgar has provided to the committee since 2018, when he was engaged as the committee's legal adviser. His knowledge and guidance have been invaluable, and we wish him all the best in his future endeavours as he moves on to take up other opportunities.

With these comments, I commend the committee's Delegated legislation monitor 7 of 2023 to the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

tor SCARR (—) (): I'd just like to associate myself with the chair's comments with respect to the scrutiny of delegated legislation committee. Firstly, with respect to Professor Edgar—starting on the good news story—Professor Edgar has provided outstanding support to the scrutiny of delegated legislation committee during this parliament and also the previous parliament, when I served on the committee. So I too would like to place on the record my thanks to Professor Edgar. He has been in the trenches with the committee and has really assisted us in defending those scrutiny principles, which, from my perspective, is all about protecting this institution and its importance in terms of our process. Thank you very much, Professor Edgar. Your service has been greatly appreciated.

I would also like to associate myself with Senator White's comments with respect to the Corporations Regulations. I commend the Assistant Treasurer for engaging with the committee and I think that should be noted. I compliment all those ministers and assistant ministers who have taken the time to meet with the committee. I think that's a very positive development. However, those scrutiny concerns remain in that we have a situation where the Corporations Regulations are not subject to sunsetting. I just do not think that's appropriate.

My next point is in relation to the Public Service Regulations 2023. These regulations are being remade after they were originally made in 1999, so there's been the effluxion of 24 years between the original making of those regulations and the remaking of those regulations. It is profoundly disappointing that there was a lack of consultation with all relevant stakeholders with respect to those regulations, and in particular with respect to consultation with the organisation representing the workers in that department, who I believe should have been consulted with regarding the remaking of those regulations.

From my perspective it is simply not good enough for the minister to say—speaking for the department, perhaps—that the regulations simply involved minor technical changes. That's not good enough. You actually need to go through consultation and provide an opportunity for all the stakeholders to consider regulations and come to their own view with respect to whether something is a minor change or a technical change. There are many examples of laws and regulations which are changed where the decision-maker or the policymaker says: 'These are just minor and technical changes,' but actually they're not. You don't have an opportunity to obtain the views of other stakeholders unless they're consulted. It was very disappointing in this case that the CPSU was not consulted with respect to these regulations. I find it difficult to understand why that would not have been the case. Whilst it's all well and good for the minister to acknowledge that in the future the CPSU will be consulted, it simply isn't good enough. They should have been consulted, that is my first point.

I also make the point that if you're remaking regulations after 24 years there is an opportunity to improve the regulations. But, again, that requires consultation. I would have thought the CPSU would have been one of the first stakeholders to be consulted. Again they were not consulted so the opportunity to improve the regulations was lost. That is profoundly disappointing. I hope that ministers across the board and departments across the board reflect on that and reflect on the expectations that the scrutiny committee has that relevant stakeholders are consulted, especially where regulations—delegated legislation—are being remade after a long period of time, as was the case in this respect.

In conclusion I associate myself with all of the other remarks that Senator White made.

Question agreed to.