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

I present the Delegated legislation monitor No. 4 of 2025 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 to speak in response to the monitor that I have just described on the record. It reports on the committee's consideration of no fewer than 596 legislative instruments registered between 1 March and 24 July 2025. In this monitor, the committee has commented on one new instrument and one concluded instrument.

The new instrument that the committee has commented on is the Help to Buy program 2025. This instrument directs Housing Australia in relation to performance of its functions under the Help to Buy Act 2024 in administering the Help to Buy program. This program aims to assist eligible Australians to purchase new or existing homes by accessing an equity contribution from the Commonwealth. The committee is seeking the minister's advice regarding this instrument under a number of scrutiny principles. The instrument confers a range of broad discretionary powers on Housing Australia to administer the program. However, the relevant factors to which it must or may have regard in exercising those powers and the definition of terms central to its discretion under those powers are in fact unclear.

Examples of the provisions which the committee is raising concerns about include subsection 29(1) and subsection 30(1) of the instrument, which require Housing Australia to exempt a participant from complying with a requirement for participation in the scheme if it is satisfied that it is impractical for the participant to meet the relevant requirement due to circumstances, including hardship, or on other compassionate grounds. However, neither the instrument nor its explanatory statement provide factors that Housing Australia may or must have regard to in determining whether it's satisfied that circumstances exist to exempt the participant from complying with the relevant requirement.

Under scrutiny principle (c), the committee expects that instruments conferring broad discretionary powers should set out the matters to be considered by the decision-maker in exercising that discretion and the source of any relevant safeguards or limitations. In this instance, even though many of the provisions which the committee is raising concerns about are beneficial in nature, it is nonetheless expected that discretionary terms such as 'hardship' and 'on other compassionate grounds' are sufficiently explained in the explanatory statement to ensure users of the law can gain a clear understanding of the instrument and how it may affect them.

Repeatedly, neither the instrument nor the explanatory statement addresses whether independent merits review is available for the discretionary decisions under the instrument in line with the committee's expectations under scrutiny principle (i). Noting the potential impact which discretionary decisions may have on the rights of obligations and interests of applicants to and participants in the Help to Buy program, the committee is requesting the minister's advice confirming whether discretionary decisions under the instrument are subject to independent merits review and, if not, what characteristics of those decisions justify the exclusion of review by reference to the Administrative Review Council's guidance document entitled What decisions should be subject to merit review?

The committee also considers that the instrument provides for significant elements of a regulatory scheme that are more appropriate for parliamentary enactment under scrutiny principle (j). This includes defining key terms such as 'eligible applicant' and 'eligible property', which are matters essential to determining whether a Help to Buy arrangement under the Help to Buy program can lawfully be made.

In addition, the committee considers that the Help to Buy program is a program of national significance. Accordingly, the committee is seeking the minister's advice as to why it was considered necessary and appropriate to include these significant elements of the regulatory scheme in delegated rather than primary legislation.

Additionally, the committee is pleased to conclude its examination of the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024 in this monitor. This instrument aims to ensure that offshore petroleum and greenhouse gas storage activities are undertaken in a way that reduces the risks to the health and safety of persons at or near offshore petroleum and greenhouse facilities to a level as low as reasonably practicable. The committee has been engaging with the Minister for Resources since monitor 1 of 2025 in relation to several scrutiny concerns. The committee thanks the minister for her recent undertaking to amend the instrument's explanatory statement to include advice she previously provided regarding the exclusion of independent merits review and the justification for including significant penalties in delegated legislation under scrutiny principles (i) and (j).

This parliament, the committee is continuing to monitor the implementation of outstanding undertakings. The committee is pleased to advise that nine undertakings have been implemented in this monitor's reporting period, while 17 undertakings remain outstanding for more than 90 days. I advise the chamber that I will be taking the opportunity at the beginning of the parliament to write to all ministers and agency heads to inform them about the committee's work and draw their attention to all outstanding undertakings within their portfolio or department, noting that the committee expects such undertakings to be implemented in a timely manner.

I would also like to take this opportunity to continue to raise awareness of the committee's scrutiny principles and expectations outlined in Senate standing order 23. In previous tabling statements, I have discussed principles (a) to (d). Today I would like to discuss principle (e), which relates to clarity of drafting. Under this principle, the committee scrutinises each legislative instrument as to whether the drafting is defective or unclear. The committee is particularly concerned with instruments that contain errors or unclear drafting which are likely to affect the meaning or interpretation of the instrument or where instruments do not clearly define key terms. This is of particular concern as unclear drafting or errors may affect the meaning or interpretation of an instrument in such a way that it may prevent persons, including those directly affected by the law, from understanding their rights and obligations.

Under principle (e), the committee expects that instruments and explanatory statements are drafted in such a way that they are clear and intelligible to all persons and that individuals' rights and obligations are clear. Further, key terms including specialist terms and legal terms should be clearly defined in the instrument and its explanatory statement. Where the definition of a key term is sourced from other legislation, the source provision should also be cited in the instrument's explanatory statement.

I am pleased to note that the committee raised concerns under principle (e) a total of seven times in 2024, which is a decrease from 11 times in 2023. However, the committee has recently identified two instruments which contain errors in their explanatory statements which may affect the interpretation of the instruments. I would therefore like to take this opportunity to emphasise, at the commencement of the 48th Parliament, the importance of accurate drafting for instruments and their explanatory statements. While concerns regarding clarity of drafting and drafting errors are relatively infrequent, noting their potential to impact the interpretation and understanding of the law, the committee will continue to monitor this issue and draw attention to its expectations under principle (e).

If I can speak in plain Aussie straight talk: in the work that the committee does, we seek to make sure that Australians who are affected by the laws that we create are able to go and find out all about how the law works to be able to understand it and to be able to access the information that they need at that point to progress in the way that the law accords. That's what it's about: making sure that access to law is available and that the law is clear, particularly with regard to delegated legislation. That's our purpose. It's in service of the nation, and I'm delighted to be chair of the committee with a very illustrious group of senators alongside me to do this important work.

With these comments, I commend the committee's Delegated legislation monitor: monitor 4 of 2025 to the Senate.

Question agreed to.