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

I seek leave to make a statement beyond one minute.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Leave is granted.

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

Thank you. I present Delegated legislation monitor No. 11 of 2024 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence, and I move:

That the Senate take note of the report.

I rise with some pride in the work that this committee is doing to address Delegated legislation monitor No. 11. This monitor reports on the committee's considerations of 69 legislative instruments registered between 23 July and 15 August 2024. I note my committee member Senator Paul Scarr in the chamber and thank him for his goodwill and his integrity in the way in which we discuss these matters. It's a great committee to be a part of.

In this monitor, the committee has concluded its examination of the Recycling and Waste Reduction (Export—Waste Paper and Cardboard) Rules 2024. The committee has been engaging with the Minister for the Environment and Water on this instrument since monitor 6. The instrument regulates the export of mixed wastepaper and cardboard from Australia. It requires exporters to hold a wastepaper and cardboard export licence, which carries obligations including recordkeeping. The instrument also provides matters the ministers may or must consider in making decisions relating to an export license, including to accept an undertaking to pay a license fee.

In monitors 6 and 9, the committee sought further information from the minister about a broad discretionary power included in the instrument. The instrument provides that a fee charged for a wastepaper and cardboard export license, renewal or variation is taken to have been paid if the minister has accepted an undertaking to pay the fee. The instrument requires a minister not to accept an undertaking unless the minister has regard to a number of factors, including 'any other matter considered relevant'. The minister previously advised that the factors relevant to determining 'any other matter' may be unique and not easily identified; however, the committee pursued the matter, seeking more substantive guidance on factors, including examples. The minister responded by providing helpful examples of some matters that may be relevant to determining whether to accept an undertaking that a fee will be paid, including the reason the liability has not been paid and Australia's relations with the importing country.

The committee welcomes the minister's undertaking to amend the explanatory statement to include the advice provided to the committee about the broad discretionary power. The committee notes it does not expect explanatory statements to include an exhaustive list of relative factors and considerations for a decision-making power; however, to help users of the law better understand their rights and exactly how the instrument operates, it is important to include examples of relevant matters that may be taken into account. On the basis of the minister's undertaking, the committee is pleased to conclude on this matter.

The committee also raised scrutiny concerns about the nature and scope of personal information that may be collected under the instrument and about applicable privacy protections. The instrument requires license holders to keep certain records, including documents that demonstrate the licence holder's compliance with the enabling act, and the committee considered information previously provided by the minister on the nature and scope of personal information collected as part of this recordkeeping requirement and privacy safeguards. We asked the minister whether this information could be included in the explanatory statement. The committee thanks the minister for her subsequent undertaking to amend the explanatory statement to include this information. On the basis of the minister's undertakings to update the explanatory statement, the committee is pleased to conclude its consideration of this instrument and thanks the minister for her engagement with the committee. The committee has also resolved to withdraw the motion to disallow the instrument, and I gave the chamber notice of the committee's intention to withdraw earlier today.

I am pleased to advise the chamber that the number of undertakings that have been outstanding for more than 90 days has continued to decrease—to 21 in this monitor. In the past sitting fortnight alone, 16 undertakings have been implemented. The committee welcomes the ongoing engagement from agencies and ministers and their commitment to the timely implementation of undertakings. The committee is continuing to closely monitor outstanding undertakings in line with its new practice.

I would also like to take this opportunity to raise awareness of the committee's scrutiny principles and expectations. It's an assumption that senators know the role of the scrutiny of delegated legislation committee, but that is not always the case. It is an important part of the way in which laws are made and managed in this place. The role of the committee is actually to assess both disallowable and exempt legislative instruments, set against a set of scrutiny principles that focus on compliance with statutory requirements, the protection of individual rights and liberties, and principles of parliamentary oversight. The committee's 13 scrutiny principles are actually outlined in Senate standing order No. 23. It makes very clear, for those who are organising a response to the committee, what is required for us to be able to consider what is being proposed by the department or the minister.

The committee has also published guidelines on its website that outline the committee's expectations as to how each of the scrutiny principles may be addressed in an instrument's explanatory statement. The first of these principles, principle (a), asserts that delegated legislation has the same force of law as an act but its making must be first authorised by an act of this parliament. Part of the committee's scrutiny work is to assess whether delegated legislation is made in accordance with its enabling legislation and complies with other legislated requirements, such as whether there are any limitations or preconditions to making the instrument. The committee then examines all explanatory statements to check that these required matters are actually addressed.

For example, the committee expects that all explanatory statements set out the enabling act and provision that provide the authority to make the instrument. If the enabling act states that the instrument can only be made once statutory preconditions are met, the explanatory statement should set out what those preconditions are and how they were achieved before making the instrument. Principle (a) ensures delegated legislation has been legally made under primary legislation and that the explanatory statement clearly explains this. Under principle (a), the committee will also assess whether explanatory statements meet the requirements set out in section 15J of the Legislation Act. This section requires certain information to be included in an explanatory statement, such as the purpose and operation of the instrument. The committee expects all explanatory statements to include this information as well as how the consultation requirement under section 17 of the Legislation Act has been satisfied.

Other Legislation Act requirements that may be relevant include explaining whether any part of that instrument operates retrospectively and, if so, whether there is any disadvantage to the cohort affected by the instrument. By assessing explanatory statements against the Legislation Act requirements, the committee can ensure that these important accompanying materials explain the operation and effect of legislative instruments for users of the law. Let's not forget that the users of the law are the Australian people. This is about making sure that they can find out what it is that they have to comply with. It's as simple as that. That's really what we do.

Further, the committee scrutinises each legislative instrument under principle (b) to determine whether it's constitutionally valid, including whether it appears to be supported by a constitutional head of legislative power. This principle is most often relevant for delegated legislation that authorises expenditure on grants or programs—so this bit's about the money. To be clear, questions of constitutional validity are for courts to determine. However, the committee may raise constitutional concerns or questions to the attention of the Senate in particular circumstances. Where an instrument authorises expenditure, the committee expects that the explanatory statement will clearly identify the constitutional head of power that is relied on to support the expenditure and explain how those heads of power apply to the grant or program to provide authority for the expenditure.

Principle (b) is also relevant to the committee in identifying possible infringements on the separation of powers, doctrine or the implied freedom of political communication. In these cases, the committee expects that the explanatory statement will clearly justify how these important constitutional measures are not infringed upon. I advise the chamber that going forward I will continue to use this time to explain the committee's scrutiny principles in a public place and hopefully in an accessible way in order to inform not just the chamber but those listening, the Australian people, of the committee's expectations with regard to explanatory statements to legislative instruments. It sounds very complex and very detailed, but it's about making sure Australians can get the information they need when they're engaging with the law through delegated legislation. It's with these comments that I commend the committee's Delegated legislation monitor 11 of 2024 to the Senate.

Debate adjourned.