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

I present Delegated legislation monitor: monitor 5 of 2026 of the Senate Standing Committee for the Scrutiny of Delegated Legislation and move:

That the Senate take note of the report.

I rise to speak to the tabling of the Standing Committee for the Scrutiny of Delegated Legislation's Delegated legislation monitor: monitor 5 of 2026. This monitor reports on the committee's consideration of 184 legislative instruments registered between 11 February and 22 March 2026. In this monitor, the committee has commented on four new instruments.

The first instrument is the Biosecurity (Electronic Decisions–Goods) Determination 2026. This instrument enables decisions under prescribed provisions of the Biosecurity Act 2015 to be made an authorised computer program. Under Senate standing order 23(3)(c) and (m), the committee scrutinises instruments that facilitate automated decision-making, particularly by reference to whether such instruments fetter the exercise of discretionary powers or raise other technical scrutiny concerns, such as limiting parliamentary oversight.

The committee's view is that instruments should not provide for the complete automation of discretionary decisions, but where they do, they should be accompanied by explanatory materials that explain in detail the nature of the decisions and applicable safeguards.

The explanatory statement for the instrument explains that the decisions that would be automated under the instrument are routine and less complex, involving facts that can be reliably established without interpreting or evaluating evidence. The explanatory statement also notes that decisions made by computer program may be substituted with a decision of a biosecurity officer when satisfied that the decision is inconsistent with the objects of the Biosecurity Act or where another decision is more appropriate.

While the committee welcomes these important safeguards, it remains concerned that other protections described in the explanatory statement are contained in policy, business rules and other instructional materials rather than in legislation and, as such, are not subject to systematic parliamentary scrutiny. For these reasons, the committee has sought the advice of the Minister for Agriculture, Fisheries and Forestry about how the safeguards outlined in the explanatory statement will be maintained and reviewed to ensure that they remain fit for purpose over time. The committee has also sought the minister's advice about whether consideration has been given to key recommendations of the Royal Commission into the Robodebt Scheme regarding the use of automated decision-making.

The second instrument that the committee has commented on is the Electoral and Referendum Regulations 2026. This instrument prescribes authorities and permitted purposes in relation to access and use of electoral roll information and provides for matters regarding electronically assisted voting for sight impaired persons and Antarctic electors.

The instrument contains five provisions which appear to create criminal offences subject to penalties. While the text of the instrument itself refers to these provisions as 'offences', the explanatory statement refers to some of these provisions as 'civil penalty offences' and to others as 'offences of strict liability'. As such, it is unclear to the committee whether these provisions are intended to be criminal offences or civil penalty provisions. The committee has therefore sought the advice of the Special Minister of State to clarify the drafting of these offences.

The committee has also sought the minister's advice in relation to the provisions which impose strict liability. Strict liability offences are offences for which guilt may be established without proof of intention or a similar mental state, subject to the defence of honest and reasonable mistake of fact. The committee's longstanding view is that strict liability undermines the presumption of innocence. As such, the committee expects explanatory statements for instruments that contain strict liability offences to explain why those provisions are considered necessary and appropriate. The explanatory statement for this instrument provides no guidance in this respect.

Furthermore, several offence provisions in the instrument contain defences that reverse the evidential burden of proof by requiring the defendant to raise evidence that suggests a reasonable possibility that those defences are made out. The committee considers that these provisions also undermine the presumption of innocence and should be accompanied by explanatory materials that explain why such an approach is necessary and appropriate, how the subject matter of the defence is peculiarly within the knowledge of the defendant and why it would be significantly more burdensome for the prosecution to disprove the subject of the defence than for the defence to establish it. As the explanatory statement for this instrument is largely silent on these matters, the committee has sought the minister's advice.

The instrument also contains several provisions that provide for the use of personal information on the electoral roll by prescribed bodies for prescribed purposes. While the explanatory statement explains safeguards that apply to the use of this information under the Commonwealth Electoral Act 1918, it does not, contrary to the expectations of the committee, explain why prescribing these authorities and purposes is necessary and appropriate nor whether the Privacy Act 1988 or other legislative or policy safeguards apply. The committee has sought the minister's advice in this regard.

Furthermore, the instrument creates a framework for sight impaired persons and Antarctic electors to register and be assessed for electronically assisted voting. However, the explanatory statement does not explain whether decisions made regarding registration and voting eligibility may be reviewed. Given the potential for these decisions to impact a person's ability to vote, the committee has requested the minister's advice on the availability of independent review and other safeguards. Finally, the committee has sought the minister's advice in relation to consultation on the instrument, as it's not clear from the explanatory statement, contrary to the committee's expectations, what the outcomes of consultation were, whether external consultation was undertaken and, if not, why it was not considered necessary.

The third instrument that the committee has commented on is the Trans-Tasman Mutual Recognition Amendment (Tobacco Laws) Regulations 2026. This instrument exempts the Public Health (Tobacco and Other Products) Act 2023 from the operation of the Trans-Tasman Mutual Recognition Act 1997 on an ongoing basis. Under Senate standing order 23(3)(l), the committee scrutinises instruments that amend the operation of primary legislation. The committee has a longstanding expectation that amendments to primary legislation be made through primary law. In this regard, the committee is concerned that, as this instrument directly amends the Trans-Tasman Mutual Recognition Act 1997 on an ongoing basis, it limits parliamentary oversight of the amendment and may subvert the appropriate relationship between parliament and the executive. Therefore, under Senate standing order 23(4), the committee draws the attention of the Senate to the amendment of the Trans-Tasman Mutual Recognition Act 1997 via delegated legislation.

The committee has also sought the advice of the Treasurer in relation to Treasury Laws Amendment (Payday Superannuation) Regulations 2026. Under Senate standing order 23(3)(j), the committee considers whether instruments contain matters more appropriate for parliamentary enactment. In this instance, the instrument prescribes exemptions for certain kinds of employees and payments from the superannuation guarantee framework which were previously contained in part in the Superannuation Guarantee (Administration) Act 1992. The explanatory statement explains that these matters have been moved to delegated legislation to improve readability or because they are specific and technical matters.

However, the committee does not generally consider operational flexibility or legislative readability alone to constitute sufficient justification for including matters previously contained in primary legislation in delegated legislation. As such, the committee has sought the advice of the Treasurer about why it was considered necessary and appropriate for the instrument to consolidate these exemptions in delegated legislation. Finally, I advise the chamber that the committee has resolved to place a protective notice of motion to disallow the Treasury Laws Amendment (Payday Superannuation) Regulations 2026 and the Biosecurity (Electronic Decisions–Goods) Determination 2026.

I'd like to take this opportunity to note that, while the committee ordinarily endeavours to engage with ministers prior to the disallowance period expiring, this is the first occasion the committee is raising scrutiny concerns in relation to both instruments. However, in keeping with the committee's longstanding practice, the committee has lodged these disallowance notices in order to facilitate additional time for the committee to engage with the minister on the scrutiny issues identified with a view to resolving those concerns. The committee has also resolved to place a notice of motion to disallow the High Court Amendment (Fees) Rules 2026.

It came to the committee's attention that the instrument was mistakenly categorised as exempt from disallowance when provided to the Senate for tabling. As the High Court Amendment (Fees) Rules 2026 is a disallowable instrument and the disallowance period expires today, the committee agreed to lodge a notice of motion to disallow the instrument to provide an opportunity for all senators to consider the instrument and preserve their right to disallow the instrument. I therefore draw the Senate's attention to this instrument and advise that the committee intends to withdraw the notice of motion to disallow prior to the expiration of 15 sitting days. With these comments, I commend the committee's delegated legislation monitor 5 of 2026 to the Senate. (Time expired)

Question agreed to.