Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Foreign Affairs and Trade) Share this | Link to this | Hansard source

() (): I present Scrutiny digest 7 of 2025 of the Standing Committee for the Scrutiny of Bills, dated 5 November 2025, together with ministerial correspondence. I also seek leave to incorporate by tabling statement into Hansard.

Leave granted.

The incorporated speech read as follows—

As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny Digest 7 of 2025.

This Digest contains the committee's consideration of 14 bills introduced between 27 October 2025 to 30 October 2025 and amendments agreed during this period. The committee has commented on 6 new bills and 1 amendment, and concluded its consideration of 1 previously introduced bill.

I wish to take this opportunity to draw Senators' attention to the committee's comments on several bills that enable charges to be set in delegated legislation. While not the sole focus of this Digest, this recurring theme serves to illustrate why fees, charges or taxes in delegated legislation raise scrutiny concerns.

Among the most fundamental of the Parliament's functions is the making of laws that impose taxation. Under the Constitution laws imposing taxation must only deal with taxation and the Senate may not initiate or directly amend such laws. That the Constitution imposes such constraints underscores the significance of taxation—including duties of customs and excise—being legislated directly by the Parliament.

Where a bill permits the Executive to set charges, levies or duties by delegated legislation, the Parliament's oversight and scrutiny of these matters is reduced.

Clause 7 of the Environmental Protection and Biodiversity (General Charges Imposition) Bill 2025, for example,allow for charges to be prescribed by regulations in relation to any prescribed matters connected with the administration of the Environmental Protection and Biodiversity Conservation Act 1999.Identical provision is made by the Environmental Protection and Biodiversity (Customs Charges Imposition) Bill 2025 and the Environmental Protection and Biodiversity (Excise Charges Imposition) Bill 2025, albeit for customs or excise duties.

The committee's consistent scrutiny view has been that it is for the Parliament, rather than the makers of delegated legislation, to determine the rate of taxation. In this instance, the committee has welcomed that each of these charging bills explicitly require that charges must be no more than necessary for appropriate recovery of costs. However, the committee's expectation is that bills should themselves set an amount for any charge that may be characterised as general taxation. Where charges are to be set by delegated legislation, fixing calculation methods or maximum charges in primary legislation serves to ensure greater parliamentary scrutiny.

The committee is therefore seeking further information about how these charges are to be determined and whether it is necessary to do so in delegated legislation.

The committee also raises similar concerns in relation to the Environment Protection and Biodiversity Conservation (Restoration Charge Imposition) Bill 2025. The bill seeks to impose various charges relating to measures proposed in the Environment Protection Reform Bill 2025. It provides that the amounts of these charges, which must be more than zero, may be set out in regulations. The regulations may also provide the method to calculate the amount of these charges.

The committee is requesting information from the minister about the appropriateness of these matters being set in delegated legislation. The committee has enquired whether the maximum amount for these charges or further guidance about the calculation methods could be provided within the bill.

The bill would also require the minister to arrange regular independent reviews of all charging regulations made under the bill. While the reports from these reviews must be published on the department's website, there is no requirement that they be tabled in the Parliament. As this may further limit Parliament's scrutiny of the charges imposed by regulations, the committee is seeking the minister's advice about why these reports would not be tabled in Parliament.

I draw the Senate's attention to the fact that the Environment Protection Reform Bill 2025, introduced in the House of Representatives less than a week ago, has not been considered by the committee in this Digest. At 473 pages long, the bill is the largest to have been introduced during this Parliament. This is more than 300 pages longer than the second largest bill that has come before the 48th Parliament. The committee has agreed to consider the Environment Protection Reform Bill 2025 prior to the resumption of the Senate on 24 November.

With these comments, I commend the committee's Scrutiny Digest 7 of 2025 to the Senate.