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

reports on the committee's consideration of 35 legislative instruments registered between 2 May and 11 May 2026. In this monitor, the committee has concluded its examination of the Electoral and Referendum Regulations 2026. This instrument prescribes who can access and use electoral roll information and for what purpose. The instrument also provides for several matters regarding electronically assisted voting for sight impaired persons and Antarctic electors.

In Delegated Legislation Monitor No. 5 of 2026, the committee sought the minister's advice regarding the inclusion of criminal offences in delegated legislation, privacy, the availability of review under the instrument and the consultation on the instrument. In Delegated Legislation Monitor No. 6 of 2026, the committee concluded its consideration of some of these issues based on the initial advice received from the minister but sought the minister's further advice regarding the inclusion of offence-specific defences that reverse the evidential burden of proof, as well as consultation with persons likely to be affected by the instrument. In response, the minister explained the factors that support the reversal of evidential burden of proof in each of the relevant provisions by referencing the Attorney-General's Department Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

In particular, the minister noted that the prohibited conduct, which relates to interference with the electronically assisted voting process and electronic voting hardware and software, may erode trust in democratic processes and thereby pose a grave danger to public health or safety. The minister also noted the relatively low penalties that apply to contraventions of these offences, which are a factor that supports the appropriateness of reversing the evidential burden of proof. The committee welcomes the minister's undertaking to amend the explanatory statement to include this additional information.

The minister also provided further detail about the consultation undertaken in relation to the instrument. The minister advised that the department consulted extensively with the Australian Electoral Commission and was informed by their experience as the service provider for electronically assisted voting, particularly in relation to the experience of sight impaired voters and Antarctic electors. The minister undertook to amend the explanatory statement to the instrument to include this information and the information provided in the Minister's initial response of 27 May 2026. On behalf of the committee, I thank the minister for his engagement with the committee and undertakings to amend the explanatory statement to the instrument.

I'd also like to take this opportunity to raise awareness of the committee's scrutiny principles and expectations outlined in Senate standing order 23. Having previously discussed scrutiny principles A to I, today I would like to discuss principle J. Under this principle, the committee assesses whether legislative instruments contain matters more appropriate for parliamentary enactment through primary legislation. The committee's view is that significant matters should be included in primary legislation, which is subject to a greater level of parliamentary oversight than delegated legislation. The committee is particularly concerned with instruments that impose significant penalties, impose taxes or levies, or establish significant elements of a program of national significance or of a regulatory scheme.

In its examination of instruments that impose significant penalties, the committee is particularly concerned about the inclusion in delegated legislation of custodial penalties, as well as penalties over 50 penalty units for individuals and over 250 penalty units for corporations. The committee expects explanatory statements to instruments that contain custodial or significant penalties to justify the inclusion of these penalties by reference to the Attorney-General's Department's A guide to framing Commonwealth offences, infringement notices and enforcement powers. The committee also expects the explanatory statement to explain the legislative authority to impose the penalties, why the penalties are appropriate to the relevant offences and why it is considered necessary and appropriate to include the penalties in delegated legislation.

The committee considers that the levying of taxation is a fundamental function of the parliament, and therefore considers that taxes should generally be imposed by primary legislation. If an instrument imposes a tax or levy, the committee expects that the instrument deal solely with that matter and be accompanied by an explanatory statement that sets out key details such as the legislative authority for the tax or levy, and any limits that apply.

When scrutinising instruments that set out elements of a significant program or scheme, the committee will look closely at whether the instrument provides for significant expenditure for programs of national significance. The committee will also scrutinise whether the instrument contains key definitions or contains provisions that set out significant elements governing the operation of a regulatory program or scheme that may be more appropriate for inclusion in primary law. In these cases, the committee expects explanatory statements to instruments that contain significant matters to include a detailed explanation as to why it's considered necessary and appropriate to include these matters in delegated, rather than primary, legislation. The committee generally does not consider operational flexibility or urgency, on their own, to constitute a sufficient justification for including significant matters in delegated legislation. Noting that including significant matters in delegated legislation reduces the limits of parliamentary scrutiny over important programs and schemes, I draw senators' attention to the committee's longstanding views on this issue, which are set out in the committee's published guidelines.

Finally, I report on the status of undertakings made to the committee by departments and ministers. The committee continues to monitor the implementation of outstanding undertakings, and I am pleased to advise that four undertakings have been implemented in the most recent reporting period, while seven remain outstanding for more than 90 days. The committee is particularly pleased to report to the Senate that no undertakings currently remain outstanding for more than 12 months. The committee has observed a sustained improvement in the timely implementation of undertakings, noting that undertakings to amend instruments and explanatory materials are the key mechanism the committee employs to address scrutiny concerns. The committee encourages departments and agencies to continue to progress undertakings in a timely manner and as a priority.

I thank you for your valuable contribution to that committee, Acting Deputy President Scarr. It's a pleasure to work with you and other senators who are dedicated to the proper service of the nation, making sure that people who need to access these pieces of legislation, should they seek to defend themselves in a case of law, can find materials that they need at that point when they investigate the delegated legislation. With these comments, I commend the committee's Delegated legislation monitor: monitor 7 of 2026 to the Senate.