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

I present Delegated legislation monitor No. 6 of 2025 for the Senate 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 at this tabling of the Scrutiny of Delegated Legislation Committee's Delegated legislation monitor No. 6 of 2025. This monitor reports on the committee's consideration of 20 legislative instruments registered between 12 August and 19 August 2025. In this monitor the committee is seeking further advice in relation to the Competition and Consumer (Notification of Acquisitions) Determination 2025. This instrument supports the new merger control system, which was introduced in 2024 through amendments to the Competition and Consumer Act 2010. Under the merger control system, certain acquisitions of shares or assets must be notified to the Australian Competition and Consumer Commission for assessment. In particular, part VI of the instrument determines the notification and public benefit application forms and the information and documents required to accompany these forms.

In Delegated legislation monitor No. 5 of 2025, the committee first raised concerns about the instrument with the Assistant Minister for Productivity, Competition, Charities and Treasury in relation to 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). Specifically, the committee raised concerns and sought the assistant minister's advice as to the legal basis for exempting only part VI of the instrument from disallowance while the remainder of the instrument appeared to be disallowable. The committee thanks the assistant minister for his prompt correspondence and engagement on this matter. However, the committee retains scrutiny concerns and has resolved to seek further advice as to the legal basis for exempting part VI of the instrument, rather than the instrument as a whole, from disallowance.

In this regard, part VI of the instrument was made pursuant to subsections 51ABY(5) and 51ABZQ(5) of the Competition and Consumer Act. Under the act, 'a determination' made under these subsections is a 'legislative instrument' that is not subject to disallowance. The assistant minister's response included reference to subsection 44(2) of the Legislation Act 2003, which provides that an instrument or a provision of an instrument is not subject to disallowance if an act declares that to be the case. The minister advised that subsection 44(2) therefore accommodates cases such as this, where part of an instrument is not subject to disallowance. However, as subsections 51ABY(7) and 51ABZQ(6) of the Competition and Consumer Act referred to a 'legislative instrument' rather than the 'provision of a legislative instrument', it appears to the committee that this is not an instance where the enabling act specifically provides for an exemption from disallowance for a provision of the instrument. Accordingly, it remains unclear to the committee as to whether the Competition and Consumer Act authorises the exemption of only part 6 of the instrument from disallowance, and the committee would appreciate the assistant minister's further advice on this matter.

The committee continues to monitor the implementation of its outstanding undertakings. The committee is pleased to advise that one undertaking has been implemented in this monitor's reporting period; however, the committee notes that 16 undertakings remain outstanding for more than 90 days and three of these remain outstanding for more than 12 months. Moreover, the committee notes that there are seven undertakings in this reporting period which were made in 2024 and still remain outstanding. As we near the end of 2025, I'd like to take this opportunity to remind ministers and agencies who have made undertakings of the committee's expectations that undertakings given in response to the committee's scrutiny concerns should be implemented in a timely manner.

Finally, I would 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 my previous tabling statement, I discussed principle (f). Today I would like to discuss principle (g), which relates to the adequacy of explanatory materials. Under this principle, the committee scrutinises each legislative instrument as to whether the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument. The committee has long emphasised the role of explanatory statements as important materials to assist with interpretation of and, very importantly, access to the law. The committee considers that it is a fundamental rule of law principle that individuals are able to access and understand the law which they are subject to. Clear, detailed and accessible explanatory materials are essential to achieve this aim.

Under principle (g), the committee considers a range of matters. This includes requirements under subsection 15J(2) of the Legislation Act that explanatory statements to legislative instruments must to four things: explain the purpose and the operation of the instrument, describe any documents incorporated by reference, detail consultation undertaken during the preparation of the instrument, and, where the instrument is disallowable, contain a statement of compatibility with human rights. However, the committee also expects that explanatory statements explain a range of other matters, including the legislative authority pursuant to which the instrument was made; how any legislative preconditions were satisfied; the purpose, scope and necessity of broad discretionary powers or delegations of administrative powers and functions; the nature of and justification and safeguards for provisions that contain coercive powers, have retrospective effect or provide for the collection, use or disclosure of personal information; and the nature, extent and necessity of any automated decision-making.

As principle (g) overlaps with many of the committee's other scrutiny principles, issues relating to the adequacy of explanatory materials are frequently raised in conjunction with other scrutiny concerns. In this way, careful consideration of the committee expectations under principle (g) is vital to ensure that the explanatory materials contain sufficient explanation to address the committee's expectations under other scrutiny principles. Further, noting the importance of clear and informative explanatory materials on an individual's ability to access and interpret the law, the committee will continue to monitor this issue and draw attention to its expectations under this principle.

With these comments, I commend the committee's Delegated legislation monitor 6 of 2025 to the Senate.