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

I present Delegated legislation monitor No. 5 of 2025 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence, and move:

That the Senate take note of the report.

I rise to speak to the tabling of Delegated legislation monitor No. 5 of 2025. The monitor reports on the committee's consideration of 53 legislative instruments registered between 25 July and 11 August 2025.

In this monitor, the committee has commented on one new and one ongoing instrument. The new instrument that the committee has commented on is the Competition and Consumer (Notification of Acquisitions) Determination 2025. This instrument supports a new merger control system that was introduced in 2024 through amendments to the Competition and Consumer Act 2010. Under the merger control system, certain acquisitions of share or assets must be notified to the Australian Competition and Consumer Commission for assessment. Part 6 of the instrument determines the notification and public benefit application forms, and the information and documents required to accompany these forms.

The committee is raising concerns about the instrument's compliance with its enabling legislation, the Competition and Consumer Act, under scrutiny principle (a), and the appropriateness of disallowance under Senate standing order 23(4A). The explanatory statement to the instrument explains that part 6 has been made pursuant to subsections 51ABY(5) and 51ABZQ(5) of the act. The explanatory statement further states that any determination made pursuant to these sections is exempt from disallowance, and, therefore, part 6 of the instrument is exempt from disallowance. However, the remainder of the instrument appears to be disallowable. The act provides that a determination made under subsections 51ABY(5) or 51ABZQ(5) is a legislative instrument not subject to disallowance.

It appears to the committee that the intention of the act is that the exemption from disallowance applies to a standalone instrument. Therefore, an instrument which determines matters under these provisions is wholly exempt from disallowance. Accordingly the committee was unclear as to whether the act authorises the exemption of only part 6 from disallowance rather than the instrument as a whole.

The committee is therefore seeking the advice of the Assistant Minister for Productivity, Competition, Charities and Treasury as to the legal basis for exempting part 6 rather than the instrument as a whole from disallowance.

Additionally in this monitor, the committee is seeking further advice from the Minister for Housing regarding the Help to Buy Program Directions 2025. This instrument directs Housing Australia in relation to the performance of its functions under the Help to Buy Act 2024 in administering the Help to Buy program. In Delegated Legislation Monitor 4 of 2025, the committee sought the minister's advice in relation to a number of scrutiny principles, including incorporation of the intergovernmental agreement on the Help to Buy scheme under scrutiny principle (f). In response, the minister confirmed that the agreement is incorporated into the instrument and, whilst not currently publicly available, will be made freely available online. The minister also undertook to update the explanatory statement with these details. While the committee is pleased to conclude its examination of this issue, it reiterates that all documents incorporated into legislative instruments should be freely accessible at the time the instrument is made.

In monitor 4, the committee also raised concerns that the instrument confers a range of broad discretionary powers on Housing Australia. For example, subsections 29 (1) and 30 (1) require Housing Australia to exempt a participant from complying with a participation requirement if satisfied that it is impractical due to circumstances including hardship and other compassionate grounds. However, the committee was concerned that neither the instrument nor its explanatory statement set out the relevant factors or examples of factors that may be taken into account in exercising these powers, nor were there definitions of broad terms including 'hardship' or 'other compassionate grounds'. In her correspondence, the minister advised that the discretionary powers identified by the committee would be exercised with appropriate judgement, interpreting terms in accordance with their ordinary meaning and taking into account relevant circumstances and considerations. The minister also advised that Housing Australia would publish guidance material on the principle that would be considered when exercising these powers as well as the policies and procedures applying to these concepts.

Although the committee considers that this guidance may be helpful in future to assist actual and potential program participants, the committee remains concerned that currently neither the instrument nor the explanatory statement sets out the factors that may be taken into account or defines the key terms used in making these discretionary decisions. Accordingly, the committee is seeking the minister's further advice in this monitor as to the factors or examples of such factors that will be taken into account in making discretionary decisions under the instrument, as well as definitions or examples of key terms in those provisions, including 'hardship' and 'other compassionate grounds'.

Further, the committee previously sought the minister's advice as to whether an independent merits review is available for discretionary decisions under the instrument. In response, the minister advised that it is the government's intention to recommend to the Governor-General the making of regulations to allow for the review of a range of discretionary decisions by Housing Australia. While the committee is concluding its examination of the issue on this basis, it is requesting that the minister update the committee when these regulations have been made and notes its expectations that, if regulations do not provide for review of any decisions, the explanatory statement will justify this in line with the Administrative Review Council's guidance document, entitled 'What decisions should be subject to independent merit review?'

Finally, in monitor 4, the committee sought the minister's advice as to why it was considered necessary and appropriate to include significant elements of the Help to Buy scheme in delegated rather than primary legislation. While the committee acknowledges the minister's advice that legislative authority to provide for these matters in delegated legislation was given by the parliament when passing the Help to Buy legislation, the committee maintains its view that, as a matter of principle, significant elements of such schemes should be included in primary legislation to provide for a greater level of parliamentary oversight. Accordingly, the committee has resolved to draw the inclusion of significant matters of the Help to Buy scheme in delegated legislation to the attention of the Senate under standing order 23 (4).

The committee is continuing to monitor the implementation of outstanding undertakings and has recently resolved to report on undertakings that remain outstanding for more than 12 months.

The committee is pleased to advise that six undertakings have been implemented and six new undertakings have been made in this monitor's reporting period, while 13 remain outstanding for more than 90 days and two remain outstanding for more than two months. The committee will continue to monitor the implementation of outstanding undertakings and reminds ministers and agencies that the committee expects all 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 as outlined in Senate standing order 23. Today I would like to discuss principle (f), which relates to access and use. Under this principle, the committee scrutinises each legislative instrument as to whether it and any documents it incorporates may be freely accessed and used. A document is incorporated into an instrument by reference where the document is necessary to interpret, apply or otherwise use the instrument and may be incorporated as it exists at a fixed point in time or as in force from time to time. Under this principle, the committee expects that, where an instrument incorporates a document by reference, its explanatory statement will clearly and precisely specify the document, indicate how it may be freely obtained, the manner of incorporation and, if applicable, the legislative authority for incorporation from time to time.

This principle is underpinned by the committee's concern that individuals should be able to access the law to which they are subject—a fundamental principle. The committee's view is that any incorporated documents should not be subject to copyright, as this may inhibit access to the law. If instruments incorporate copyrighted materials, the committee expects the explanatory statement to justify this by addressing why it was considered necessary to use copyrighted material in an instrument or incorporated document, the impact of the use of copyrighted materials on access to the law and alternative mechanisms to access these materials. While concerns under this principle are relatively infrequent, noting their potential to impact on the ability of individuals to freely access to the law to which they are subject, the committee will continue to monitor this issue and draw attention to its expectations under principle (f), as I outlined earlier in relation to the Help to Buy program directions.

With these comments, I commend the committee's Delegated legislation monitor No. 5 of 2025 to the Senate.

Question agreed to.