In tabling the Committee’s Alert Digest No. 9 of 2009 and Eighth Report of 2009, I draw the Senate’s attention to the substantial number of ‘Henry VIII’ clauses in some of the bills discussed in the Alert Digest, particularly the National Consumer Credit Protection Bill 2009.

Since its establishment, the Committee has consistently drawn attention to ‘Henry VIII’ clauses and other provisions which (expressly or otherwise) permit subordinate legislation to amend or take precedence over primary legislation. Such provisions clearly involve a delegation of legislative power and are usually a matter of concern to the Committee under principle (1)(a)(iv) of its terms of reference.

The extent to which ‘Henry VIII’ clauses have been used to change powers, entitlements and obligations conferred by the principal legislation in the National Consumer Credit Protection Bill is of particular concern. The bill contains so many ‘Henry VIII’ clauses that it has not been possible for the Committee to provide commentary in relation to all of them.

The Committee has necessarily focused its commentary on those ‘Henry VIII’ clauses in the bill that have not been accompanied by any explanations for their need in the explanatory memorandum. Where the need and justification for the clauses have been explained in the explanatory memorandum - noting, in this context, that the bill gives effect to COAG agreement - the Committee has not made any specific comments.

The Committee has also commented on the use of ‘Henry VIII’ clauses (and, in some cases, the use of other broad regulation-making powers which enable the determination of significant matters in delegated legislation) in the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009, the Australian Wine and Brandy Corporation Amendment Bill 2009, the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009, the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009, and the Personal Property Securities Law Bill 2009.

The Committee does not condone the use of ‘Henry VIII’ clauses as a standard drafting practice, even in cases where the explanatory memorandum provides reasons for that use. The Committee certainly accepts these clauses in some circumstances. For example, regulations may provide for the modification of provisions in a principal Act regarding transitional, application or saving matters to facilitate a smooth transition from an old scheme to a new scheme. The Committee considers that this type of provision may be necessary to deal with unexpected or minor transitional matters arising after the relevant Act has passed.

However, the current practice of using regulations to potentially alter fundamental functions, powers, obligations, entitlements and rights conferred by a principal piece of legislation is cause for concern to the Committee. Accordingly, the Committee is of the view that the appropriateness of such a legislative approach should be considered in due course by the Senate as a whole.

I commend the Committee’s Alert Digest No. 9 of 2009 and Eighth Report of 2009 to the Senate.