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

I rise to speak to the tabling of the Scrutiny of Delegation Legislation Committee's Delegated legislation monitorNo. 8 of 2025. This monitor reports on the committee's consideration of 98 legislative instruments registered between 24 September and 21 October 2025. In this monitor the committee has commented on two concluded instruments and one new instrument. The committee has concluded its examination of the Competition and Consumer (Notification of Acquisitions) Determination 2025. This instrument supports the new merger control regime that was introduced in 2024 through amendments to the Competition and Consumer Act 2010. Part 6 of the instrument sets out the content and format of the notifications and public benefit application forms prescribed under the Competition and Consumer Act 2010 and the information and documents required to accompany these forms.

Under scrutiny principle (a), the committee expects that instruments are made in accordance with their enabling acts and otherwise comply with all legislative requirements. In addition, Senate standing order 23(4A) empowers the committee to scrutinise legislative instruments that are exempt from disallowance, including whether it's appropriate for those instruments to be exempt.

In this case, the committee raised concerns about the legal basis for exempting only part 6 of the instrument from disallowance. Part 6 is made under sections 51ABY and 51ABZQ of the Competition and Consumer Act. Those sections also provide that any 'legislative instrument' made under them is not subject to disallowance. The other nine parts of the instrument are made under different enabling provisions within the Competition and Consumer Act and are subject to disallowance.

Paragraph 44(2)(a) of the Legislation Act 2003 provides for two distinct circumstances in which an act may declare or have the effect that the usual parliamentary disallowance process does not apply—that is, to a 'legislative instrument' as a whole or to 'a provision of a legislative instrument'. In this case, subsections 51ABY(7) and 51ABZQ(6) of the Competition and Consumer Act provide that the usual disallowance process does not apply to 'the instrument' and make no reference to only certain provisions of an instrument being exempt from disallowance. As such, it was unclear to the committee whether the Competition and Consumer Act authorises the exemption of only part 6 of the instrument from disallowance.

The committee sought advice on this matter and received responses from the Assistant Minister for Productivity, Competition, Charities and Treasury about the instrument on three occasions. Most recently, in Delegated Legislation Monitor 7 of 2025, the committee asked whether the assistant minister would consider repealing and remaking the instrument as two separate instruments. The assistant minister responded on 4 November 2025, advising that he would remake the instruments as two separate instruments.

In Delegated Legislation Monitor 8 of 2025, the committee thanked the assistant minister for his constructive engagement on this matter and noted that the assistant minister's undertaking addresses the committee's scrutiny concerns. Nevertheless, the committee reiterated its view that it is unclear as to the legal authority for exempting only part 6 of the instrument from disallowance. The committee also noted that it considers combining exempt and non-exempt provisions in a single instrument to be undesirable drafting practice, even where it is legally authorised. This is because such an approach has the potential to undermine clarity and to limit parliamentary oversight of provisions subject to disallowance.

The committee has also concluded its examination of the Help to Buy Program Directions 2025. This instrument directs Housing Australia in the performance of its functions in administering the Help to Buy program under the Help to Buy Act 2024.

The committee previously raised scrutiny concerns and, on two occasions, sought advice from the Minister for Housing in relation to broad discretionary powers conferred on Housing Australia by the instrument. In particular, the committee was concerned that several terms central to Housing Australia's discretion were unclear. The minister provided examples of the intended meaning of these terms and advised that Housing Australia would publish relevant guidelines and would implement policies and procedures to apply these concepts. The committee requested that the minister amend the instrument's explanatory statement to include this information. The minister subsequently agreed to this, and Treasury advised the committee on 18 November 2025 that this undertaking had been implemented. The committee welcomes the implementation of this undertaking and thanks the minister for her prompt engagement on this matter.

Finally, Delegated Legislation Monitor 8 of 2025 includes committee comments on the Aged Care Rules 2025. This instrument, which is 666 pages in length and accompanied by a 729 page explanatory statement, was made under the Aged Care Act 2024. It sets out specific requirements relating to the new aged-care framework. This includes care and services obligations, pricing and payment arrangements, complaints handling, compliance and enforcement processes, and aged-care provider registration requirements. Noting the length and the complexity of this instrument, I would like to take this opportunity to thank, on behalf of the committee, the committee's legal adviser and secretariat for their diligent and prompt work on this complex matter.

In monitor 8, the committee has raised a number of scrutiny concerns about the rules, including the automation of certain administrative decisions, the conferral of broad discretionary powers, coercive powers, privacy and independent merits review. The committee has sought a response from the Minister for Aged Care and Seniors about these concerns. Additionally, the committee has resolved to bring to the attention of the Senate concerns identified under scrutiny principle (j) about the inclusion of significant elements of a regulatory scheme. I wish to take this opportunity to further draw the Senate's attention to the committee's comments in relation to this particular scrutiny matter.

The rules contain numerous provisions that appear to be central to the aged-care framework. For example, the rules prescribe an aged-care code of conduct and aged-care quality standards. As per the act, the code imposes conduct requirements on registered providers, responsible persons and aged-care workers, while the standards include enforceable measures that relate to the quality of funded aged-care services. Under the act, compliance with both the code and standards is a condition of registration for registered providers. Noncompliance may result in the imposition of civil penalties and could affect an aged-care provider's registration status.

Additionally, the rules supply content for several terms that appear to be central to the operation of the aged-care regulatory framework. For example, while the act broadly defines the term 'restrictive practice' as any practice or intervention that restricts an individual's rights or freedom of movement, much of the content of this term is prescribed within the rules. For instance, the rules specify chemical, environmental, mechanical and physical restraints and the use of seclusion as forms of restrictive practices. Requirements for the use of a restrictive practice are also included within the rules, rather than the act, including the use of restrictive practices on persons who have been assessed as unable to provide informed consent. Key safeguards are also prescribed within the rules, such as the requirement that restrictive practices be used as a measure of last resort and only to the extent necessary.

Finally, key provisions relating to the funding of aged-care services are set out within rules, rather than the act. Under the scheme established by the Aged Care Act, individuals accessing funded aged-care services will have those services funded through Commonwealth contributions or, depending on the individual's means, through individual contributions and fees. Chapters 7 to 10 of the rules provide much of the detail as to how this funding framework is to operate in practice. Given the importance of the Aged Care Code of Conduct, the Aged Care Quality Standards, the funding of the aged-care scheme and key terms such as 'restrictive practice', the committee is concerned that the explanatory statement does not provide sufficient justification for the inclusion of these significant matters in the rules, rather than in the primary legislation. While the committee has resolved not to seek further advice on this occasion, it has resolved to draw this matter to the attention of the Senate under Senate standing order 23(4).

In concluding my remarks, I would like to take this opportunity to emphasise the importance of comprehensively justifying any significant matters which are proposed for inclusion within delegated legislation, rather than primary legislation. The committee's consideration of this issue is underpinned by the importance of ensuring proper parliamentary oversight over all matters covered by legislation, noting the central constitutional role of the parliament as lawmaker in chief. The committee will continue to monitor this important issue in its scrutiny of future instruments. With these comments, I commend the Delegated legislation monitor No. 8 of 2025 to the Senate and move:

That the Senate take note of the report.

Question agreed to.