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

I present the Delegated legislation monitor 1 of 2025 of the Standing Committee for the Scrutiny of Delegated Legislation together with ministerial correspondence. I move:

That the Senate take note of the report.

I rise to speak to the tabling of Delegated legislation monitor 1 of 2025, which reports on the committee's consideration of 274 legislative instruments registered between 29 October and 15 December 2024.

In this monitor, the committee has commented on four new instruments, including the Competition and Consumer (Industry Codes—Franchising) Regulations 2024. This instrument remakes its 2014 predecessor and prescribes an industry code with includes changes to implement the government's response to the Independent Review of the Franchising Code of Conduct. The explanatory statement provides that the purpose of the code is to regulate the conduct of participants in franchising, in particular to address the power imbalance between franchisors and actual or prospective franchisees.

The committee has resolved to draw its concerns relating to this instrument to the chamber's attention, under standing order 23(4). As the instrument prescribes a mandatory industry code to regulate the code of conduct of franchising participants, the committee considers that this instrument provides for significant matters that are more appropriate for parliamentary enactment under scrutiny principle (j). The committee notes the instrument's explanatory statement explains that prescribing these matters in delegated legislation is enabled by the Competition and Consumer Act 2010 and that the instrument replicates the previous code.

The instrument also sets out civil penalty provisions for contravening the code. The provisions concern matters that are significant in nature, including a prohibition on entering into a franchise agreement that includes a restraint of trade clause. Most of the provisions impose 600 penalty units, while others set out civil penalties of $500,000 for persons who are not a body corporate, or pecuniary penalties that may be higher than $10 million. While the explanatory statement justifies the appropriateness of these high penalties, the committee remains concerned as a matter of principle about the significant amount of these penalties. The penalties far exceed the committee's expectations for maximum penalty amounts in delegated legislation, which are 50 penalty units for individuals and 250 penalty units for corporations.

The committee is therefore drawing the inclusion of significant elements of a regulatory scheme and significant civil penalties in this instrument to the attention of the Senate.

The committee has also commented on the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 and the Fair Work (Road Transport Industry Termination Code) Instrument 2024 in this monitor. The Fair Work Act 2009 includes a framework for dealing with the unfair deactivation or unfair termination of regulated workers and requires the Minister for Employment and Workplace Relations to make these codes. This includes providing that a person has been unfairly deactivated or terminated if the Fair Work Commission is satisfied that the deactivation or termination was inconsistent with the relevant code.

The committee has commented on these instruments as they prescribe significant elements of the unfair deactivation and termination framework, as opposed to merely matters of detail. This includes by setting out the entire process that digital labour platform operators and regulated road transport businesses must follow when deactivating or terminating a worker. The codes are integral to the Fair Work Commission's determination of whether an unfair deactivation or termination occurred, and the measures in the code may have a significant impact on the rights and interests of affected workers, operators and businesses. The committee therefore considers these measures to be more appropriate for primary legislation so that they are subject to a higher level of parliamentary oversight. In light of this, the committee has resolved to draw the inclusion of significant matters of a regulatory scheme in these two instruments to the Senate's attention under standing order 23(4).

In this monitor, the committee is seeking the Minister for Resources's advice in relation to the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024. The purpose of this instrument is to ensure that offshore petroleum and greenhouse gas storage activities are undertaken in a way that reduces health and safety risks for persons at or near such facilities.

The committee has raised several scrutiny concerns with this instrument, including whether independent merits review is available for discretionary decisions made under the instrument which have the capacity to impact on individuals' rights or obligations. Neither the instrument nor the explanatory statement clarifies whether such decisions made by the relevant authority, NOPSEMA, under the instrument are subject to merits review and, if not, what characteristics of these decisions justify excluding merits review. The committee expects that the exclusion of merits review should be justified by referring to the criteria set out in the Administrative Review Council's guidance document entitled What decisions should be subject to merits review?

The committee is also seeking the minister's advice about a no-invalidity clause in the instrument. The provision states that a failure by NOPSEMA to give a facility operator written notice of its decision whether to accept or reject a submitted revised safety case within 30 days of receipt does not invalidate its decision. As this is not set out in the explanatory statement, the committee is requesting the minister's advice about three matters: firstly, the circumstances in which, and likelihood, that NOPSEMA may exceed the time limit for making decisions; secondly, applicable safeguards; and, thirdly, why this no-invalidity clause is necessary and appropriate for inclusion in the instrument. The committee looks forward to engaging with the minister on this instrument.

Monitor 1 of 2025 also includes two ongoing matters. The first is the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024. The committee has been engaging with the Attorney-General on this instrument since monitor 12 of 2024. The committee thanks the Attorney-General for his undertakings to amend the explanatory statement to include information previously provided in response to the committee's concerns, including about retrospective effect and delegation of administrative powers. However, the committee is seeking further advice about whether the explanatory statement can be amended to include information previously provided about merits review, privacy and discretionary powers. The committee is also seeking specific justification for the exclusion of merits review under the instrument by reference to the criteria in the Administrative Review Council's guidance document.

The second ongoing matter concerns the National Land (Road Transport) (Parking) Rules 2024. The committee welcomes the minister's undertakings to amend the explanatory statement to include information previously provided, including about discretionary powers and privacy. The committee is now seeking further advice about skills, qualifications and experience of delegates at executive levels 1 and 2 at the National Capital Authority. The committee is also querying whether there is specific legal authority for the instrument to delegate the National Capital Authority chief executive's powers and functions which arise under the authorising instrument, the National Land (Road Transport) Ordinance 2014.

Lastly, the committee is concluding its examination of the Therapeutic Goods Legislation Amendment (Vaping Reforms) Regulations 2024, following an undertaking made by the Minister for Health and Aged Care to amend the explanatory statement to include information about the scope, necessity and appropriateness of immunity from liability afforded by the instrument. The committee also resolved to withdraw the notice of motion to disallow the instrument and thanks the minister for his engagement on this instrument.

The committee would also like to thank the agencies and ministers that have continued to provide updates to the committee secretariat on the progress of implementing outstanding undertakings since the last monitor was tabled in late November 2024. I am pleased to be able to advise the chamber that the number of undertakings that have been outstanding for more than 90 days has remained steady, at 19, with 17 undertakings implemented since 26 November 2024. I reiterate the committee's expectation that undertakings are implemented in a timely manner, and I note that the committee will continue to closely monitor the implementation of outstanding undertakings in 2025.

With these comments, I thank my colleagues for their ongoing hard work on this important committee, including Senator Reynolds, who I note is in the chamber. I commend the committee's Delegated legislation monitor 1 of 2025 to the Senate.

Debate adjourned.