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

I present Delegated legislation monitor No. 7 of 2024and move:

That the Senate take note of the report.

Monitor 7 reports on the Scrutiny of Delegated Legislation Committee's consideration of 42 legislative instruments registered between 14 May and 23 May 2024.

I would first like to draw the chamber's attention to the committee's comments on the Jervis Bay Territory Rural Fire Rules 2024. The instrument is made under the Jervis Bay Territory Rural Fire Ordinance 2014, to provide for fire management services to the Jervis Bay Territory. The committee previously sought the advice of the Minister for Regional Development, Local Government and Territories in relation to broad discretionary powers conferred on the minister, including to impose conditions on a person's listing on the Jervis Bay Territory Rural Fire Service member register and determine whether a member is 'a fit and proper person'. The instrument and its explanatory statement did not meet the committee's expectations under scrutiny principle (c), that instruments conferring discretionary powers on a person should set out the factors which the person must consider in exercising the discretion.

The committee welcomes the minister's recent advice that conditions typically imposed on member listings relate to the individual's physical limitations or health conditions. The committee thanks the minister for helpfully providing an example to illustrate circumstances in which a condition would be imposed on a member's listing. This includes imposing a condition to prevent a fire service member with asthma from attending a bushfire incident, and instead assigning the person alternative duties. The committee is now seeking the minister's advice about whether the explanatory statement can be amended to include this useful information.

The committee also sought the minister's advice on whether the explanatory statement can be updated to include other helpful information provided relating to a source to access applicable service standards which are referenced through the instrument, and the applicability of privacy frameworks and safeguards including the Privacy Act.

The instrument also empowers the minister to make decisions in relation to whether a person is a fit and proper person. While the committee notes the minister's advice that broad ministerial powers are necessarily proportionate to the significant powers that fire brigade members are empowered with in exercising their duties, the committee is seeking further justification as to why the minister's broad discretionary powers are necessary and appropriate. The committee has also asked whether an example could be provided to illustrate how the minister may, in practice, determine that a person is not a fit and proper person and the factors that may be considered in making this decision.

The committee also sought the minister's advice on the definition of the terms 'careless' and 'inefficient' in the context of a fire service member committing a breach of discipline in discharging their duties. The committee raised scrutiny concerns, as it was unclear how the terms would be interpreted and applied to disciplinary actions. The minister noted that the arrangements for the Jervis Bay Territory rural fire service reflect New South Wales Rural Fire Service arrangements and legislation and that, accordingly, it would not be desirable to define the terms 'careless' and 'inefficient' in case of inadvertently creating inconsistencies between the two bodies of legislation.

While the committee acknowledges the importance of uniformity between legislation, how the terms would apply in practice remains unclear. The committee expects that key terms of an instrument be clearly defined so that individuals to whom the instrument applies can fully understand their rights and obligations. This is particularly important for this instrument, as the relevant terms relate to breaches of discipline and to disciplinary actions taken against a fire service member. The committee thanks the minister for her advice thus far and looks forward to engaging further on this matter and other scrutiny concerns raised in relation to this instrument.

I would also like to draw the chamber's attention to the committee's concluding comments in relation to the Biosecurity (Electronic Decisions) Determination 2023. The committee has been engaging with the Minister for Agriculture, Fisheries and Forestry since Delegated legislation monitor 1 of 2024 about a range of scrutiny concerns regarding safeguards for the use of automated decision-making under the instrument. The minister has since implemented an undertaking to amend the explanatory statements to include further detail provided in relation to automated decision-making. The committee has now concluded its examination of this instrument and has resolved to withdraw the notice of motion to disallow the instrument. The committee thanks the minister for his prompt implementation of the undertaking and would like to note that it considers that the explanatory statement to the instrument provides an example of the best-practice approach to explaining the use of automated decision-making. The committee is of the view that this could be of considerable assistance to other ministers and those interested in the area of the automation of any decision-making.

With those comments, I commend the committee's Delegated legislation monitor 7 of 2024 to the Senate.