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

I present Delegated legislation monitor: monitor 1 of 2026, together with ministerial correspondence, and I move:

That the Senate take note of the report.

I rise to speak to the tabling of the Senate Standing Committee for the Scrutiny of Delegated Legislation's Delegated legislation monitor: monitor 1 of 2026. This monitor reports on the committee's consideration of 155 legislative instruments registered between 22 October and 25 November 2025. In this monitor the committee has commented on two new instruments and one ongoing instrument.

The first new instrument that the committee has commented on is the Aged Care (Consequential and Transitional Provisions) (Aged Care Systems Modifications) Rules 2025. This instrument amends the Aged Care Act 2024 and the Aged Care Rules 2025 to, among other things, allow certain determinations to be corrected if they're deemed to be incorrect and to extend certain notice requirements.

The committee is raising concerns under scrutiny principle (l), which requires the committee to scrutinise instruments as to whether they amend or modify the operation of primary legislation. Such instruments may limit parliamentary oversight and subvert the appropriate relationship between parliament and the executive. In this case, the instrument directly modifies the Aged Care Act.

Beyond this, the committee is particularly concerned that the instrument inserts new provisions into the act which allow the minister to further prescribe matters through delegated legislation. The instrument then relies on these new powers to amend parts of the Aged Care Rules. For example, the instrument inserts the new subparagraph 317(1)(b)(i) into the Aged Care Act. This enables the minister to prescribe laws and programs that may provide a basis to establish that individual contribution rate determinations, income determinations and asset determinations are incorrect. The instrument then relies upon this provision to insert the new section 317-1 into the Aged Care Rules to prescribe these laws.

Where an instrument amends primary legislation, the committee's longstanding expectation is that this approach must be comprehensively justified in the instrument's explanatory statement and that the instrument itself should be time limited and operate no longer than strictly necessary. In this regard, the committee does note that the instrument will cease operation on 1 November 2026 and that the rule-making power itself ceases to have effect on 20 September 2026. The committee does consider that these safeguards are in line with its scrutiny expectations.

However, the explanatory statement does not sufficiently justify why it is considered necessary and appropriate to use delegated, rather than primary, legislation to modify the Aged Care Act, particularly to create new ministerial rule-making powers. This is especially pertinent as the instrument relates to means testing for funded aged-care services and therefore directly impacts Commonwealth expenditure and the ability of individual service recipients to access funded aged-care services.

The committee drew the inclusion of these funding provisions in delegated legislation to the attention of the Senate in Delegated legislation monitor: monitor 8 of 2025. The committee is therefore seeking the minister's advice as to whether further detail can be provided about why it is considered necessary and appropriate for the instrument to amend the Aged Care Act, particularly by introducing new rule-making powers into the act.

The second new instrument that the committee has commented on is the Australian Naval Nuclear Power Safety Regulations 2025. This instrument specifies, among other things, the process and requirements governing applications for Australian naval nuclear power safety licences. This includes matters that the Australian Naval Nuclear Power Safety Regulator needs to be satisfied of and to consider when issuing licences, the conditions that apply to such licences and matters related to licence suspensions. The committee has resolved to seek advice from the Minister for Defence in relation to scrutiny principles (e) and (g). Scrutiny principle (e) relates to the clarity of drafting, including the use of potentially unclear or undefined terms. Scrutiny principle (g) relates to the adequacy of an instrument's explanatory materials. The instrument appears to use a range of terms that are undefined or unclear. For example, subsection 80 (6) of the instrument provides that licence holders and other authorised persons must not construct an item that is important for nuclear safety unless they obtain approval from the Australian Naval Nuclear Power Safety Regulator.

However, neither the instrument nor the explanatory statement provide explicit guidance as to the intended meaning of this term 'important'. Furthermore, several unclear and undefined terms identified by the committee are contained in provisions that impose requirements or conditions upon licence holders and authorised persons. Breaches of these conditions may be subject to civil penalties or constitute offences subject to terms of imprisonment. Furthermore, these offences impose strict liability and, in certain respects, reverse the evidential burden of proof. The committee is therefore seeking the minister's advice about the intended definition of unclear and undefined terms in the instrument or examples of guidance in relation to the intended meaning of those terms for those who may at some point need to access the law.

Finally, the committee is seeking further advice from the Minister for Aged Care and Seniors regarding Aged Care Rules 2025. This interim instrument sets out requirements relating to the new aged-care framework, including care and service obligations, pricing and payment arrangements, complaints handling, compliance and enforcement processes and aged-care provider registration requirements. Delegated Legislation Monitor 8 of 2025 was the document in which the committee sought the minister's advice on the automation of administrative decisions and consultation; the incorporation of non-legislative documents into the instrument; conferral of board discretionary powers; privacy; coercive powers; and the availability of independent merits review in relation to the instrument.

On behalf of the committee, I would like to thank the minister for his positive and constructive response, which sets a high standard for committee engagement and was of great assistance to the committee. There was an extensive list of requirements that we asked the minister to respond to, and I acknowledge the presence in the chamber here of the deputy chair of the delegated legislation committee, Senator O'Sullivan. I think he concurs with me that we were pleased with the level of response, which, sadly, hasn't always been the case.

In particular, the committee welcomes the minister's advice in relation to automated decision-making under the instrument. The minister advised that automated decision-making is intended to only apply to decisions that are supported by objective and binary criteria and methods. More complex discretionary or subjective decisions will continue to be made by a human. The minister also advised that the department is working with other Commonwealth agencies towards the development of consistent best-practice arrangements for automated decision-making. The committee supports moves towards the development of a consistent framework across government services, particularly given the apparent increase in the number of provisions allowing for automated decision-making.

The committee also welcomes the minister's advice regarding the use of restrictive practices under the instrument. The instrument sets out several types of restrictive practices, including physical, mechanical and chemical restraints, and imposes conditions on their use except in emergencies. The minister advised that the use of restrictive practices is subject to various safeguards, including that restrictive practices may only be used as a last-resort measure for the shortest time necessary in a way that is proportionate to the risk and with informed consent obtained by supporting the person to make their own decisions wherever possible. The minister also advised that restrictive practices are subject to monitoring and reporting requirements. Furthermore, the minister explained the types of emergencies in which certain conditions on the use of restrictive practices will not apply. These include when an older person poses a physical risk to aged workers or other residents or where a safety incident such as a fire or flood takes place and restraint is required for an older person who may lack capacity to understand the risks.

The minister also noted that commonplace residential care activities, such as the risk of a resident falling out of bed, while significant and serious, should not be considered emergencies in the context of coercive powers. In light of this, the committee sought the minister's advice about whether the explanatory statement can be amended. The committee is also seeking further information from the minister on a number of other matters. With these comments, I commend the delegated legislation monitor No. 1 of 2026 to the Senate.