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Scrutiny of Delegated Legislation—Senate Standing Committee—Delegated legislation monitor 1 of 2022, dated 25 January 2022


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The Senate

Standing Committee for the Scrutiny of Delegated Legislation

Delegated Legislation Monitor

Monitor 1 of 2022

25 Ja

nuary 2022

ii

© Commonwealth of Australia 2022

I

SSN: 2652-4139 (print)

ISSN: 2652-4147 (online)

This document was prepared by the Senate Standing Committee for the Scrutiny of Delegated Legislation and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Membership of the committee

Current members

Senator the Hon Concetta Fierravanti-Wells (Chair) New South Wales, LP Senator the Hon Kim Carr (Deputy Chair) Victoria, ALP

Senator Raff Ciccone Victoria, ALP

Senator Perin Davey New South Wales, NATS

Senator Karen Grogan South Australia, ALP

Senator Paul Scarr Queensland, LP

Secretariat

Mr Glenn Ryall, Secretary Ms Hannah Wilkins, Principal Research Officer Ms Anika Khwaja, Principal Research Officer Mr Anthony Todd, Senior Research Officer Ms Anita Zovak, Legislative Research Officer

Committee legal adviser

Associate Professor Andrew Edgar

Committee contact details

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3066 Email: sdlc.sen@aph.gov.au Website: http://www.aph.gov.au/senate_sdlc

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Contents

Membership of the committee ..................................................................... iii

Introduction ................................................................................................. vii

Chapter 1 - Instruments raising significant scrutiny concerns ........................ 1

Part 1 - Disallowable instruments raising significant scrutiny issues .................... 1

Part 2 - Exempt instruments raising significant scrutiny issues............................. 2

Advance to the Finance Minister Determinations ................................................. 2

Various instruments made under the Biosecurity Act 2015 .................................. 7

Chapter 2 - Matters of interest to the Senate .............................................. 11

Chapter 3 - Scrutiny of Commonwealth expenditure ................................... 13

Chapter 4 - Scrutiny of instruments exempt from disallowance .................. 23

Instruments which meet the committee's expectations ..................................... 23

Instruments which do not meet the committee's expectations ......................... 24

Appendix A - New matters ........................................................................... 27

Ministerial engagement ....................................................................................... 27

Agency engagement ............................................................................................. 28

Appendix B - Ongoing matters ..................................................................... 33

Ministerial engagement ....................................................................................... 33

Agency engagement ............................................................................................. 35

Appendix C - Concluded matters .................................................................. 37

Ministerial engagement ....................................................................................... 37

Agency engagement ............................................................................................. 38

Appendix D - Undertakings .......................................................................... 39

Outstanding undertakings .................................................................................... 39

Implemented undertakings .................................................................................. 44

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Introduction

The Senate Standing Committee for the Scrutiny of Delegated Legislation, formerly the Senate Standing Committee on Regulations and Ordinances, was established in 1932. The role of the committee is to examine the technical qualities of all legislative instruments, and to decide whether they comply with the committee's non-partisan scrutiny principles.

Terms of reference

The committee's scrutiny principles are set out in Senate standing order 23(3) which requires the committee to scrutinise each instrument as to whether:

(a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;

(b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;

(c) it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;

(d) those likely to be affected by the instrument were adequately consulted in relation to it;

(e) its drafting is defective or unclear;

(f) it, and any document it incorporates, may be freely accessed and used;

(g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;

(h) it trespasses unduly on personal rights and liberties;

(i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;

(j) it contains matters more appropriate for parliamentary enactment; and

(k) in the case of an instrument exempt from sunsetting, it is appropriate for the instrument to be exempt from sunsetting;

(l) in the case of an instrument that amends or modifies the operation of primary legislation, or exempts persons or entities from the operation of primary legislation, the instrument is in force only for as long as is strictly necessary; and

(m) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.

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Senate standing order 23(4) also requires the committee to scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate.

Senate standing order 23(4A) provides that the committee may, for the purpose of reporting on its terms of reference, consider instruments made under the authority of Acts of the Parliament that are not subject to disallowance. For such instruments the committee may also consider whether it is appropriate for the instrument to be exempt from disallowance.

Nature of the committee's scrutiny

The committee's work may be broadly described as technical legislative scrutiny. In this regard, the committee does not examine the policy merits of delegated legislation. However, if the committee determines that an instrument raises significant issues, it may write to the relevant legislation committee to alert that committee to the instrument, or otherwise draw the instrument to the attention of the Senate.

Where an instrument does not appear to comply with the committee's technical scrutiny principles, the committee's usual approach is to correspond with the responsible minister or relevant agency to seek further explanation or clarification of the matter at issue. The committee may also seek an undertaking for specific action to address its scrutiny concerns.

The committee reports on instruments which are exempt from disallowance, including whether they meet the committee’s expectations under standing order 23, in Part 2 of Chapter 1 and in Chapter 4 of the Delegated Legislation Monitor.

The committee's work is supported by the processes for the registration, tabling and disallowance of legislative instruments under the Legislation Act 2003.1

Publications

The committee's usual practice is to table a report, the Delegated Legislation Monitor, each Senate sitting week. The monitor provides an overview of the committee's scrutiny of legislative instruments for the prescribed period. Legislative instruments detailed in the monitor are also listed in the 'Index of instruments' on the committee's website.2

1 For further information on the disallowance process and the work of the committee see Odgers' Australian Senate Practice, 14th Edition (2016), Chapter 15.

2 Index of instruments, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Scrutiny_of_Delegated_Legislation/Index.

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Ministerial correspondence

The committee undertakes formal correspondence with ministers in order to resolve more significant scrutiny concerns. Ministerial correspondence is published on the committee's website.3

Agency correspondence

The committee undertakes informal correspondence with agencies via its secretariat to gather information about potential scrutiny concerns. This correspondence assists the committee in deciding whether it is necessary to seek further advice from the relevant minister about those concerns. Agency correspondence is not published; however, a record of the instrument, scrutiny issue and status of the correspondence is included in Appendix A (new matters), Appendix B (ongoing matters) and Appendix C (concluded matters) in the monitor.

Guidelines

Guidelines relating to the committee's scrutiny principles are published on the committee's website.4

General information

The Federal Register of Legislation should be consulted for the text of instruments, explanatory statements, and associated information.5

The Senate Disallowable Instruments List provides a listing of tabled instruments for which disallowance motions may be moved in the Senate.6

The Disallowance Alert records all notices of motion for the disallowance of instruments, and their progress and eventual outcome.7

3 See https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Scrutiny_of_Delegated_Legislation/Monitor.

4 See https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Scrutiny_of_Delegated_Legislation/Guidelines.

5 See Australian Government, Federal Register of Legislation, www.legislation.gov.au.

6 Parliament of Australia, Senate Disallowable Instruments List, http://www.aph.gov.au/Parli amentary_Business/Bills_Legislation/leginstruments/Senate_Disallowable_Instruments_List.

7 Disallowance Alert 2021, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Disallowance_Alert_2021.

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Instruments considered in this monitor

The committee examined 161 legislative instruments registered on the Federal Register of Legislation between 23 October 2021 and 26 November 2021. This included 135 disallowable instruments and 26 instruments exempt from disallowance.

This monitor identifies the instruments registered in this period about which the committee has or had scrutiny concerns. It also identifies instruments registered before this period in relation to which the committee is continuing to engage with the relevant minister or agency, or has concluded its examination.

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Chapter 1

Instruments raising significant scrutiny concerns 1.1 This chapter details the instruments which raise significant scrutiny concerns in relation to which the committee is seeking further information from the relevant minister or of which the committee has concluded its examination.

1.2 This chapter is divided into two parts. Part 1 deals with instruments subject to disallowance and Part 2 deals with instruments which are exempt from disallowance.

Part 1

Disallowable instruments raising significant scrutiny issues 1.1 There are no disallowable instruments raising significant scrutiny concerns for inclusion in this part of the Monitor.

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Part 2

Exempt instruments raising significant scrutiny issues 1.3 This part details those instruments exempt from disallowance which raise particularly significant scrutiny concerns in relation to the appropriateness of their exemption from disallowance under Senate standing order 23(4A). Where necessary, the committee additionally raises scrutiny concerns in relation to its scrutiny principles set out in Senate standing order 23(3)(3).

Advance to the Finance Minister Determinations

FRL No. F2021L01581; F2021L01771; F2021L01795; F2022L000281

Purpose F2021L01581: to determine that the departmental item for

Outcome 2 for the Department of Finance is increased by $218 million.

F2021L01771: to determine that the administered item for Outcome 1 for the National Recovery and Resilience Agency is increased by $66 million.

F2021L01795: to determine that the departmental item for Outcome 2 for the Department of Finance is increased by $403 million.

F2022L00028: to determine that the administered item for Outcome 1 for the National Recovery and Resilience Agency is increased by $920 million.

Authorising legislation Appropriation Act (No. 1) 2021-2022 (F2022L00028)

Appropriation Act (No. 2) 2021-2022 (F2021L01581, F2021L01771 and F2021L01795)

Portfolio Department of Finance

Source of exemption Subsection 10(4) of Appropriation Act (No. 1) 2021-2022

Subsection 12(4) of Appropriation Act (No. 2) 2021-2022

Overview

1.4 The Advance to the Finance Minister (AFM) is a provision in the annual Appropriation Acts which enables the Finance Minister to provide additional appropriation to agencies throughout the financial year. An AFM may only be issued by the Finance Minister if satisfied that there is an urgent need for expenditure that is either not provided for or has been insufficiently provided for in the existing

1 Accessible on the Federal Register of Legislation at https://www.legislation.gov.au/.

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appropriations of the agency. The additional appropriation is provided by means of a determination that is exempt from disallowance by the Parliament.2

1.5 Section 10 of Appropriation Act (No. 1) 2021-2022 permits the Finance Minister, by non-disallowable legislative instrument, to effectively amend Schedule 1 to the Act to make provision for urgent expenditure up to a total limit of $2 billion. Section 12 of Appropriation Act (No. 2) 2021-2022 similarly permits the Finance Minister, by non-disallowable legislative instrument, to effectively amend Schedule 2 to that Act to make provision for certain urgent expenditure up to a total limit of $3 billion.

1.6 Advance to the Finance Minister Determination (No. 1 of 2021-2022) [F2021L01581] provides additional funding of $218 million to the Department of Finance to support the construction of Centres for National Resilience at Mickleham in Victoria, Pinkenba in Queensland and Bullsbrook in Western Australia to provide additional quarantine capacity for international travellers to Australia in light of the COVID-19 pandemic. A second allocation to support this construction was made by Advance to the Finance Minister Determination (No. 3 of 2021-2022) [F2021L01795], which provides a further $403 million.

1.7 Advance to the Finance Minister Determination (No. 2 of 2021-2022) [F2021L01771] provides additional funding of $66 million to the National Recovery and Resilience Agency to support the extension of the availability of the Pandemic Leave Disaster Payment until 30 June 2022. This figure is expanded by Advance to the Finance Minister Determination (No. 4 of 2021-2022) [F2022L00028], which provides a further $920 million.

1.8 The instruments are exempt from disallowance under subsection 10(4) of Appropriation Act (No. 1) 2021-2022 and subsection 12(4) of Appropriation Act (No. 2) 2021-2022, as applicable.

Scrutiny concerns

Exemption from disallowance

1.9 Under standing order 23(4A) the committee will scrutinise instruments exempt from disallowance to determine whether the exemption is appropriate.

1.10 At a minimum, the committee expects all explanatory statements to exempt instruments to identify the source of the exemption and to justify why the exemption is appropriate in the context of the instrument. The committee's scrutiny concerns under standing order 23(4A) will be heightened where an instrument also engages the committee's scrutiny concerns under principles (a) to (m) of standing order 23.

2 For a list of AFMs see https://www.finance.gov.au/publications/advance-to-the-finance-minister.

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Committee comment

1.11 The exemption of AFM determinations from disallowance in times of emergency was considered by the committee in its inquiry into the exemption of delegated legislation from parliamentary oversight. In particular, the interim report commented on the extraordinary amount of additional public funds that were made available under the AFM provisions to combat the COVID-19 pandemic, which had increased from $675 million to $40 billion.3

1.12 In the final report of the inquiry the committee also raised concerns about the use of AFMs more generally. When Parliament passes the enabling provisions for the making of AFM determinations, a constraint is imposed by providing that the power to make a determination can only be exercised ‘if the Finance Minister is satisfied that there is an urgent need for expenditure’. However, a decision of the High Court in 2017 has watered down this constraint to the point where it is of no substantive effect.4 The committee considers that the exemption of AFM determinations from disallowance leaves the Parliament with little recourse when the delegated power is used contrary to the expressed intent of the Parliament.

1.13 The committee notes the Finance Minister’s advice, set out in his letter to the committee of 10 March 2021, in which he outlines a number of reasons as to why AFM determinations should not be subject to disallowance. The committee is not persuaded that providing for AFM determinations to be disallowable would delay otherwise urgent expenditure or would fundamentally frustrate the operation of the AFM mechanism. In this regard, the committee notes that additional funds would become available for urgent expenditure immediately after the relevant AFM determination was registered on the Federal Register of Legislation. Until such time as a disallowance motion was passed by either House, funds could be validly spent under the AFM.

1.14 The committee acknowledges concerns that disallowance of an AFM could leave entities short of the funds that they need to carry out expenditure unrelated to the purposes of the AFM. Nevertheless, the committee maintains its view set out in the interim and final inquiry reports. If the AFM is used for a genuine emergency situation, the likelihood of it subsequently being disallowed would be virtually non-existent, and not sufficient to justify an exemption from disallowance. The potential for disallowance would simply operate to ensure that the AFM is only utilised in genuinely urgently circumstances, as intended by the Parliament.

3 Senate Standing Committee for the Scrutiny of Delegated Legislation, interim report of the inquiry into the exemption of delegated legislation from parliamentary oversight, 2 December 2020, 4.78. As noted above, the limit in the most recent Appropriation Bills was $5 billion in total.

4 Wilkie v Commonwealth (2017) 263 CLR 487. See Anne Twomey, ‘A tale of two cases: Wilkie v Commonwealth and Re Canavan’, Australian Law Journal, vol. 92, no. 1, 2018, pp. 17-21.

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1.15 In this regard, the committee notes that senators and members, as elected representatives, would be made aware of any impact that disallowance would have and would consider such matters as part of their deliberations and their accountability to their electors. The committee considers that the disallowance process is an opportunity to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed upon it by the Parliament.

1.16 The committee acknowledges and welcomes the transparency and accountability mechanisms announced by the former Finance Minister in relation to the extraordinary COVID-19 AFM provisions.5 Although the committee has been concerned that these mechanisms are not enshrined in legislation, the committee welcomes the Finance Minister’s indication that these transparency measures will be continuing practices.6

1.17 In his letter of 10 March 2021, the Finance Minister also noted that other accountability mechanisms may be utilised by parliamentarians should they wish to signal disagreement with an AFM, including member’s or senator’s statements, general business motions, urgency motions, matters of public importance and adjournment speeches. While acknowledging the value and importance of these general accountability mechanisms, as well as the specific AFM mechanisms described above, the committee considers that our system of representative democracy also requires elected representatives to have an opportunity to scrutinise and, if necessary, repeal executive-made law.

1.18 The committee therefore draws these instruments to the attention of the Senate as they effectively amend the relevant Appropriation Acts to increase the amount of funds available to:

• the National Recovery and Resilience Agency by a total of $986 million, for

the provision of the Pandemic Leave Disaster Payment; and

• the Department of Finance by a total of $621 million, to support the

construction of quarantine facilities known as Centres for National Resilience

without the opportunity for appropriate parliamentary oversight through the disallowance process.

5 These mechanisms include issuing a media release each week an AFM is allocated and seeking the concurrence of the Shadow Finance Minister, on behalf of the Opposition, for any proposed allocation of an AFM over $1 billion. The committee acknowledges that the agreement of the Shadow Finance Minister was sought, and received, prior to the making of Advance to the Finance Minister Determination (No. 4 of 2021-2022) [F2022L00028].

6 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2021, pp 8-11 and Scrutiny Digest 13 of 2021, pp 20-21.

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1.19 The committee also reiterates its recommendation, as set out in the final report of the inquiry into the exemption of delegated legislation from parliamentary oversight, that future Advance to the Finance Minister determinations be disallowable legislative instruments.

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Various instruments made under the Biosecurity Act 2015

FRL No. F2021L01462; F2021L01463; F2021L01484; F2021L01555; F2021L01572; F2021L01578; F2021L015867

Purpose Various purposes responding to the COVID-19 pandemic

Authorising legislation Biosecurity Act 2015

Portfolio Health

Source of exemption Subsections 44(3), 51(4) and 477(2) of the Biosecurity Act 2015

Overview

1.20 Subsections 44(2), 51(2) and 477(1) of the Biosecurity Act 2015 (the Biosecurity Act) empower the minister to determine entry requirements, preventative biosecurity measures and emergency requirements during a human biosecurity emergency period, respectively. These seven instruments were made under the Biosecurity Act in response to the COVID-19 pandemic and introduce a range of measures, including specifying the requirements to travel in and out of Australian territories, and measures to prevent persons from entering or leaving designated remote areas in the Northern Territory.8

1.21 These instruments are exempt from disallowance by subsections 44(3), 51(4) and 477(2) of the Biosecurity Act.

7 Accessible on the Federal Register of Legislation at https://www.legislation.gov.au/.

8 Biosecurity Legislation Amendment (Incoming International Flights) Determination 2021 [F2021L01462], Biosecurity (Human Coronavirus with Pandemic Potential) Amendment (No. 2) Determination 2021 [F2021L01463], Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2021 [F2021L01484], Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Repeal Determination 2021 [F2021L01555], Biosecurity (Emergency Requirements—Remote Communities) Determination 2021 [F2021L01572], Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 1) Determination 2021 [F2021L01578] and Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 2) Determination 2021 [F2021L01586].

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Scrutiny concerns

Exemption from disallowance9

1.22 The committee has set out its significant scrutiny concerns in relation to legislative instruments made under the Biosecurity Act which are exempt from disallowance in detail in Chapter 1 of Delegated Legislation Monitor 14 of 202110and Delegated Legislation Monitor 16 of 2021.11 The committee's broader concerns about the exemption from disallowance of emergency legislative instruments are set out in detail in the interim report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight.12

1.23 It remains the committee's view that emergency delegated legislation should be subject to appropriate parliamentary oversight, with limited exemptions from disallowance. Where an instrument is exempt from disallowance, the committee expects that a detailed justification will be included in the explanatory statement.

1.24 As the committee has previously emphasised, this approach upholds the Parliament's constitutional role as the primary institution responsible for making law and scrutinising possible encroachments on personal rights and liberties.

1.25 These seven instruments made under the Biosecurity Act introduce significant measures which impact the public, including temporarily imposing stringent requirements to travel and restricting the movement of people in and out of certain remote communities in the Northern Territory, effectively 'locking down' identified areas. The justification provided for the exemption from disallowance remains the same for each instrument—that the risk of disallowance would inhibit the Commonwealth's ability to act urgently on public health advice to manage a

9 Scrutiny principle: Senate standing order 23(3)(4A).

10 Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 14 of 2021, 29 September 2021, pp. 14-21. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated _Legislation/Monitor.

11 Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 16 of 2021, 25 November 2021, pp. 3-10. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated _Legislation/Monitor.

12 Senate Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight: Interim Report, 2 December 2020. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated _Legislation/Exemptfromoversight/Interim_report.

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human biosecurity risk that could threaten or harm human health, as it would create uncertainty as to whether the instrument might be disallowed.13

1.26 As set out in the committee's previous Delegated Legislation Monitors, the committee does not accept the need to act urgently or to avoid potential uncertainty on their own to be an adequate justification for the exemption of delegated legislation from parliamentary oversight. In particular, the committee notes that the disallowance procedure would not inhibit the immediate commencement of the instruments. In this regard, the committee does not consider that making a legislative instrument subject to disallowance would, of itself, prevent the government from taking immediate and decisive action in response to a significant emergency.

1.27 The committee considers the disallowance process to be an opportunity to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed upon it by the Parliament. In relation to these instruments, which impose significant requirements on the Australian public, the committee considers that the disallowance process is necessary to facilitate appropriate debate and scrutiny of the use of emergency powers and would operate to ensure that such powers are not misused.

1.28 The committee appreciates that during an emergency it is necessary for governments to take urgent and decisive action. However, Parliament must also have effective oversight of these critical decisions and retain the ability to scrutinise the actions of governments.

1.29 The committee notes that to date, the government has failed to substantively engage with the committee's significant concerns and continues to make instruments under the Biosecurity Act which are exempt from disallowance and fails to provide an adequate explanation for why it is necessary to do so.

1.30 Further, the committee is deeply concerned that the government has advised that it does not support any of the committee's recommendations in relation to providing for the disallowance of instruments made under the Biosecurity Act as set out in the interim report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight. Of the 18 recommendations in the interim report, the committee regrets that the government only agreed to one.

13 In addition, for the Biosecurity (Emergency Requirements—Remote Communities) Determination 2021 [F2021L01572] and the Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 1) Determination 2021 [F2021L01578], the justification for the exemption also indicates that the risk of disallowance is more significant as the 'remote communities are made up of Aboriginal and Torres Strait Islander peoples who are at a high risk of adverse human health outcomes as a result of exposure to a listed human disease'.

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1.31 The committee will continue to rigorously pursue this matter in accordance with the mandate provided by the Senate when it agreed to amend standing order 23 to allow the committee to consider exempt instruments and report on instruments made the Biosecurity Act which are exempt from disallowance.

1.32 In light of the above, the committee reiterates its view that amendments should be made to:

• section 44 of the Biosecurity Act to provide that any determinations setting

out entry requirements in the future will be subject to disallowance;

• section 51 of the Biosecurity Act to provide that any determinations setting

out preventative biosecurity measures in the future will be subject to disallowance;

• section 476 of the Biosecurity Act to provide that any future variations to

extend a human biosecurity emergency period will be subject to disallowance; and

• section 477 of the Biosecurity Act to provide that any determinations

setting out emergency requirements in the future will be subject to disallowance.

1.33 If the government is not amenable to moving such amendments, the committee intends to move its own amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 which is currently before the Parliament, to ensure that future legislative instruments made under the Biosecurity Act are subject to disallowance.14

1.34 Additionally, the committee will continue to draw legislative instruments made under the Biosecurity Act which are exempt from disallowance to the attention of the Senate in future Delegated Legislation Monitors, as necessary.

14 The committee's proposed amendments to the bill were circulated in the Senate on 2 December 2021, see sheet 1475 available at: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Resul t?bId=r6776.

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Chapter 2

Matters of interest to the Senate 2.1 Senate standing order 23(4) requires the committee to scrutinise each instrument to determine whether the Senate's attention should be drawn to it on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate.

2.2 This chapter identifies the instruments which the committee has resolved to draw to the attention of the Senate and the relevant legislation committee under standing order 23(4), with the exception of instruments which specify significant executive expenditure, which are listed in Chapter 3.1

2.3 There are no instruments which the committee has resolved to draw to the attention of the Senate and the relevant legislation committee under standing order 23(4) in this Delegated Legislation Monitor.

1 Details of all instruments which the committee has resolved to draw to the attention of the Senate under standing order 23(4) are published on the committee's website: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated _Legislation/Matters_of_interest_to_the_Senate.

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Chapter 3

Scrutiny of Commonwealth expenditure

3.1 The Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act) and the Industry Research and Development Act 1986 (IRD Act) authorise the Commonwealth to spend public money on grants and programs specified in instruments made under those Acts. Consequently, the specification of expenditure in an instrument made under these Acts effectively authorises the Commonwealth to spend public moneys on the relevant grant or program. The scrutiny of such instruments is a key aspect of parliamentary scrutiny and control of Commonwealth expenditure.1

3.2 To facilitate such scrutiny, this chapter draws the Senate's attention to the nature and extent of Commonwealth expenditure that is authorised by the FF(SP) Act and the IRD Act and specified in delegated legislation made under those Acts.2

3.3 The tables below outline the expenditure specified in legislative instruments registered between 23 October 2021 and 26 November 2021.

3.4 The committee has resolved to write to the relevant legislation committees to alert those committees to the expenditure listed below that falls within their area of portfolio responsibility. The committee does so under standing order 23(4) which requires the committee to scrutinise each instrument to determine whether the Senate's attention should be drawn to it on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate.

1 For further information see the committee's guideline on Scrutiny of Commonwealth expenditure and Chapter 7 of the report of the committee's inquiry, Parliamentary scrutiny of delegated legislation.

2 Details of all instruments which specify Commonwealth expenditure are published on the committee's website: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated _Legislation/Scrutiny_of_Commonwealth_expenditure.

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Instrument Grant/ Program Amount Description Portfolio

committee

Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 4) Regulations 2021 [F2021L01494]

Grant to MultiLit Pty Limited

$8 million over four years from 2021-22 Funding will be provided for a grant to MultiLit Pty Limited

to provide phonics-based programs to support literacy outcomes for students, particularly Aboriginal and Torres Strait Islander students.

Senate Education and Employment Legislation Committee

Grant to Together for Humanity Foundation Limited

$8.1 million over four years from 2021-22

Funding will be provided for a grant to Together for Humanity Foundation Limited to deliver the Inclusion for Connected Youth and Communities Initiative, which includes intercultural solutions, programs and resources for students, teachers and school communities and related research.

Senate Education and Employment Legislation Committee

Explicit Instruction Teaching Program

$9.9 million over four years from 2021-22.

Funding will be provided to support training for teachers at educationally disadvantaged primary schools to enable them to adopt explicit instruction teaching methods in relation to literacy, numeracy and science to improve skills and knowledge, particularly Aboriginal and Torres Strait Islander students.

Senate Education and Employment Legislation Committee

Online Formative Assessment Initiative

The initiative is one of eight national policy initiatives under the National School Reform Agreement (NSRA) with $35 million over two years from 2021-22 allocated for the NSRA initiatives

Funding will be provided to facilitate access to online teaching resources, tools, student assessments, professional learning and other support for teachers.

Senate Education and Employment Legislation Committee

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Instrument Grant/ Program Amount Description Portfolio

committee

School

Partnerships to Improve Educational Outcomes for Indigenous Students in Remote Schools

$25.9 million over four years from 2021-22

Funding will be provided for school partnerships to improve educational outcomes for Indigenous students in remote schools.

Senate Education and Employment Legislation Committee

Migrant Skills

Incentives

$19.7 million over three years from 2021-22

Funding will be provided for incentives to increase the number of skilled migrants who can contribute to the Australian workforce at an appropriate skill level, by funding the development, promotion and provision of skills assessment, employability assessments and skills training.

Senate Education and Employment Legislation Committee

Skills for

Education and Employment Program

$512.5 million over four years from 2021-22

Funding will be provided for language, literacy, numeracy and digital skills training to eligible job seekers to assist their prospects for further education and employment opportunities.

Senate Education and Employment Legislation Committee

VET system

improvements $292.5 million over four years from 2021-22

Funding will be provided for improvements to the vocational education and training system, including new industry engagement arrangements.

Senate Education and Employment Legislation Committee

Financial Framework (Supplementary Powers) Amendment (Health Measures No. 7) Regulations 2021 [F2021L01500]

Safeguarding the Integrity of Australian Sport— Australia’s international anti-doping commitments

$1.8 million over two years from 2021-22

Funding will be provided for Australia’s contributions to the Oceania Regional Anti-Doping Organisation, the United Nations Educational, Scientific and Cultural Organization Fund for the Elimination of Doping in Sport and the World Anti-Doping Agency to fulfil Australia’s international anti-doping commitments.

Senate Community Affairs Legislation Committee

16

Instrument Grant/ Program Amount Description Portfolio

committee

Financial Framework (Supplementary Powers) Amendment (Industry, Science, Energy and Resources Measures No. 1) Regulations 2021 [F2021L01495]

International Climate Action $103.9 million in total, comprising:

• $59.9 million over five years from 2021-22; and

• $44 million over ten years from 2021-22

Funding will be provided to:

• establish a high-integrity carbon offset scheme in the Indo-Pacific (the scheme) ($59.9 million); and

• establish a larger number of partnerships under the scheme, with a focus on building capacity to meet Paris Agreement-era emissions reporting and transparency standards ($44 million).

Senate Environment and Communications Legislation Committee

Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development and Communications Measures No. 5) Regulations 2021 [F2021L01507]

Emerging Aviation Technologies Partnerships Program

$32.6 million over two years from 2021-22

Funding will be provided to deliver measures to encourage and enable the development and deployment of emerging aviation technologies (such as electric engines, drones, and electric vertical take-off and landing vehicles) to enhance the competitiveness, efficiency and reliability of Australian aviation, including by expanding employment in the aviation sector; improving supply chain and market efficiency; and improving connections with regional and remote, including Indigenous, communities.

S enate Rural and

Regional Affairs and Transport Legislation Committee

Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 8) Regulations 2021 [F2021L01499]

Initiatives addressing child sexual abuse, such as those under the National Strategy to Prevent and Respond to Child Sexual Abuse

$146 million over four years from 2021-22 (initial funding)

Funding will be provided to:

• expand the role of the National Office for Child Safety to deliver the National Strategy to Prevent and Respond to Child Sexual Abuse;

• build child safe cultures through awareness raising and education campaigns;

Senate Finance and Public Administration Legislation Committee

17

Instrument Grant/ Program Amount Description Portfolio

committee

• improve support services for victims and survivors of child sexual abuse;

• establish a national support service for non-offending family members of child sexual abuse offenders;

• enhance national approaches to supporting children with harmful sexual behaviours;

• prevent first-time and recurring child sexual abuse offending;

• enhance and expand legal assistance services for victims and survivors of child sexual abuse; and

• strengthen regional policy, legislative and operational responses to counter child sexual abuse.

Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 10) Regulations 2021 [F2021L01609]

Australia Day Celebrations $26.7 million in 2021-22

Funding will be provided to the National Australia Day Council Limited to deliver a grants program that supports Australia Day events (up to $16.9 million in 2021-22) and a communications campaign to promote Australia Day ($9.8 million in 2021-22 for the 2022 Australia Day campaign).

Senate Finance and Public Administration Legislation Committee

Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 4) Regulations 2021 [F2021L01498]

Care and Support Workforce National Campaign

$13.3 million in 2021-22 for the campaign and $9.8 million over two years from 2021-22 for the campaign extension

Funding will be provided for a communications campaign to increase public awareness of the employment opportunities available in the care and support sector, including in aged care, disability support and veterans’ care.

Senate Community Affairs Legislation Committee

18

Instrument Grant/ Program Amount Description Portfolio

committee

Cashless welfare support services

$47.5 million over four years from 2021-22

Funding will be provided to support to Cashless Debit Card participants, including:

• access to services to address family violence and substance abuse including drug and alcohol and rehabilitation;

• job readiness programs, training, education and employment-related services and support;

• mental health services via providing training assessments for people with mental illness and treatment, rehabilitation and case management services;

• support services to families with children aged 18 years and under to promote safety and wellbeing of those children;

• targeted youth activities, mentoring programs, community engagement and participation;

• financial capability building services, financial counselling and digital literacy; and

• community level infrastructure and digital connectivity.

Senate Community Affairs Legislation Committee

National early childhood program for children with disability or developmental concerns

$17.9 million over four years from 2021-22

Funding will be provided to facilitate a range of disability specific information, linkages, workshops and community supports for young children aged 0 to 8 years with disability or developmental concerns, including by funding measures to:

Senate Community Affairs Legislation Committee

19

Instrument Grant/ Program Amount Description Portfolio

committee

• enable parents and carers to access information about their child’s development and early capacity-building supports; or

• help prepare children with disability or developmental concerns for school and other learning environments; or

• develop the skills and confidence of parents and carers to support their child’s learning and development and connect with services.

Industry Research and Development (Carbon Capture, Use and Storage Hubs and Technologies Program) Instrument 2021 [F2021L01593]

Carbon Capture, Use and Storage Hubs and Technologies Program

$250 million Funding will be provided to support:

• research, development and commercialisation of projects and technologies for:

o the capture of carbon dioxide for subsequent use or storage; and

o the use or storage of carbon dioxide;

• the identification of suitable locations for the storage of carbon dioxide; and

• the design and construction of shared infrastructure for the transport and storage of carbon dioxide.

Senate Environment and Communications Legislation Committee

20

Instrument Grant/ Program Amount Description Portfolio

committee

Industry Research and Development (Northern Australia Development Program) Instrument 2021 [F2021L01508]

Northern Australia Development Program

$111.9 million over five years from 2021-22

Funding will be provided for:

• Northern Australia Business Development Grants: This element will provide grant funding to northern Australia Small to Medium Enterprises (SMEs), including Indigenous organisations, to take the next step to diversify or grow their business. This may involve grants for activities such as acquiring infrastructure and assets, feasibility studies, business planning and marketing activities.

• Northern Australia Industry Transformation Grants: This element will provide grant funding to medium to large businesses aiming to establish a new industry or significantly grow the value of an existing industry and contribute to transformational change in a northern Australian region.

• Strengthening Northern Australia Business Advisory Services: This will provide eligible northern Australian businesses who apply for grants through the Program with access to support from an expert facilitator, and / or workshops to build long term resilience and business strength. Funding will be provided to the Department in a direct allocation to deliver this element of the Program through the established frameworks of the Department of Industry, Science, Energy

Senate Economics Legislation Committee

21

Instrument Grant/ Program Amount Description Portfolio

committee

and Resources. The service will connect SMEs with the capabilities and networks they need to grow. It will be provided through a network of independent business experts, who work closely with clients to determine the businesses needs and how best to achieve them in the short, medium and long term.

•

Industry Research and Development (Soil Program) Instrument 2021 [F2021L01509]

Soil Program $96.7 million Funding will be provided to improve the understanding of Australia’s soil condition and how to better manage it, assess the impact of land management practices on soil and assist farmers to improve their productivity and profitability, including by:

• supporting researchers to conduct research relating to soil science by providing funding through Soil Science Challenge Grants ($20 million);

• supporting the development and implementation of an accreditation program for soil practitioners and education resources relevant to the accreditation program, by providing funding to the Australian Society of Soil Science Incorporated (also known as Soil Science Australia) (up to $1 million);

• encouraging soil data owners to share soil data by providing payments ($21.3 million); and

Senate Rural and Regional Affairs and Transport Legislation Committee

22

Instrument Grant/ Program Amount Description Portfolio

committee

• enabling the collection of soil samples, including by land managers, and ac

credited laboratories to t

est the soil samples, analyse the test results a

nd provide the data obtained from the testing and analysis to the Commonwealth ($54.4 m

illion).

Industry Research and Development (Supporting Agricultural Showmen and Women Program) Instrument 2021 [F2021L01558]

Supporting Agricultural Showmen and Women Program

$4.3 million in 2021-22 (initial funding)

Funding will be provided to:

• the Victorian Showmen’s Guild to pay rental costs and ground administration fees charged by Australian agricultural show societies for the participation of travelling show businesses in agricultural shows; and

• Australian agricultural show guilds to pay for the guild fees of travelling show businesses.

Senate Rural and Regional Affairs and Transport Legislation Committee

23

Chapter 4

Scrutiny of instruments exempt from disallowance 4.1 Senate standing order 23(4A) provides that the committee may, for the purpose of reporting on its terms of reference, consider instruments made under the authority of Acts of the Parliament that are not subject to disallowance. For such instruments the committee may also consider whether it is appropriate for the instrument to be exempt from disallowance.

4.2 This chapter identifies the instruments exempt from disallowance which the committee has resolved to draw to the attention of the Senate and the relevant minister under standing order 23(4A), in relation to the appropriateness of their exemption from disallowance.

4.3 The committee has considered all legislative instruments which are exempt from disallowance registered on the Federal Register of Legislation between 23 October 2021 and 26 November 2021. The sections below identify those instruments which meet or do not meet the committee’s expectations under standing order 23(4A).

4.4 The instruments may not meet the committee's expectations because:

• the explanatory statement accompanying the instrument does not contain a

sufficient explanation for why the instrument is exempt from disallowance and therefore the committee has not been able to assess whether it is appropriate for the instrument to be exempt from disallowance; or

• a substantive explanation for exemption is provided but the committee

considers that the explanation does not meet the Senate's requirement that exemptions should only be made in exceptional circumstances and will only be justified in rare cases.1

Instruments which meet the committee's expectations

4.5 The following instruments meet the committee's expectations under standing order 23(4A).

Instrument Portfolio

Health Insurance (Extended Medicare Safety Net) Amendment (Indexation) Determination 2021 [F2021L01590] Health

1 Senate resolution 53B: Delegated legislation—disallowance and sunsetting, agreed to on 16 June 2021, https://www.aph.gov.au/Parliamentary_Business/Chamber_documents/Senate_chamber_do cuments/standingorders/d00/Resolutions_expressing_opinions_of_the_Senate/.

24

Instruments which do not meet the committee's expectations

4.6 The following instruments do not meet the committee's expectations under standing order 23(4A).

Instrument Portfolio

Advance to the Finance Minister Determination (No. 1 of 2021-2022) [F2021L01581] Finance

Advance to the Finance Minister Determination (No. 2 of 2021-2022) [F2021L01771] 2 Finance

Advance to the Finance Minister Determination (No. 3 of 2021-2022) [F2021L01795] 3 Finance

Advance to the Finance Minister Determination (No. 4 of 2021-2022) [F2022L00028] 4 Finance

Australian Airspace Policy Statement 2021 [F2021L01589] Infrastructure,

Transport, Regional Development and Communications

Australian Medical Research and Innovation Strategy 2021-2026 Determination 2021 [F2021L01522] Finance

Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 1) Determination 2021 [F2021L01578] Health

Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 2) Determination 2021 [F2021L01586] Health

Biosecurity (Emergency Requirements—Remote Communities) Determination 2021 [F2021L01572] Health

Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2021 [F2021L01484] Health

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Repeal Determination 2021 [F2021L01555]

Health

Biosecurity (Human Coronavirus with Pandemic Potential) Amendment (No. 2) Determination 2021 [F2021L01463] Health

Biosecurity Legislation Amendment (Incoming International Flights) Determination 2021 [F2021L01462] Health

CASA OAR 064/21 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2021 [F2021L01618] Infrastructure, Transport, Regional

Development and Communications

2 This instrument was registered on 13 December 2021.

3 This instrument was registered on 16 December 2021.

4 This instrument was registered on 14 January 2022.

25

Instrument Portfolio

Discovery Program Grant Guidelines (2021 edition) [F2021L01510] Education, Skills and Employment

Federal Financial Relations (General Purpose Financial Assistance—2021-22 Payment No. 5) Determination 2021 [F2021L01574] Treasury

Federal Financial Relations (National Partnership Payments—2021-22 Payment No. 5) Determination 2021 [F2021L01515] Treasury

Federal Financial Relations (National Partnership Payments—2021-22 Payment No. 6) Determination 2021 [F2021L01577] Treasury

Migration (Arrangements for Protection, Refugee and Humanitarian visas) Amendment Instrument (LIN 21/079) 2021 [F2021L01562] Home Affairs

Migration (Class of persons—Refugee and Humanitarian (Class XB) visa) Instrument (LIN 21/080) 2021 [F2021L01569] Home Affairs

Migration (ICC Men's T20 World Cup 2022 and FIFA Women's World Cup 2023— AGEEs) Instrument (LIN 21/049) 2021 [F2021L01550] Home Affairs

Migration (Income Threshold and Exemptions for Subclass 189 Visa (New Zealand Stream)) Amendment Instrument (LIN 21/048) 2021 [F2021L01544] Home Affairs

Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 [F2021L01505] Home Affairs

Migration (Priority consideration for certain Visitor (Class FA) visa applications) Instrument (LIN 21/074) 2021 [F2021L01602] Home Affairs

Migration (VAC refunds for certain Prospective Marriage visas) Amendment Instrument (LIN 21/071) 2021 [F2021L01467] Home Affairs

Standard No. 1 of 2016 The Setting of Interchange Fees in the Designated Credit Card Schemes and Net Payments to Issuers Variation 2021 [F2021L01573] Treasury

Standard No. 2 of 2016 The Setting of Interchange Fees in the Designated Debit and Prepaid Card Schemes and Net Payments to Issuers Variation 2021 [F2021L01575] Treasury

Standard No. 3 of 2016 Scheme Rules Relating to Merchant Pricing for Credit, Debit and Prepaid Card Transactions Variation 2021 [F2021L01576] Treasury

Senator the Hon Concetta Fierravanti-Wells Chair Senate Standing Committee for the Scrutiny of Delegated Legislation

27

Appendix A New matters

5.1 The committee engages with relevant ministers and agencies to attempt to resolve its concerns about scrutiny issues raised by disallowable legislative instruments. This appendix documents the committee's new scrutiny concerns in relation to legislative instruments registered on the Federal Register of Legislation between 23 October 2021 and 26 November 2021.

Ministerial engagement

5.2 The committee is writing to the relevant minister about the scrutiny issues raised by the instruments listed below for the first time. Copies of the ministerial correspondence are available on the committee's website.1

Instrument Issue Status

Advance to the Finance Minister Determinations [F2021L01581] [F2021L01771] [F2021L01795] [F2022L00028] 2

Standing order 23(4A) exemption from disallowance Drawing to the attention of the Senate. 3

Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 [F2021L01422]

Principle (a) compliance with Legislation Act 2003—incorporation Seeking advice from the minister.

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2021 [F2021L01392]

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 2) 2021 [F2021L01561]

Principle (j) significant penalties in delegated legislation Seeking advice from the minister.

Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021 [F2021L01546]

Principle (m) parliamentary oversight Seeking advice from the minister.

Therapeutic Goods (Standard for Human Cell and Tissue Products—Donor Screening Requirements) (TGO 108) Order 2021 [F2021L01326]

Principle (e) clarity of drafting Seeking advice from the minister.

1 See www.aph.gov.au/senate_sdlc.

2 F2021L01771, F2021L01795 and F2022L00028 were registered after 26 November 2021.

3 See Chapter 1 for further details.

28

Instrument Issue Status

Treasury Laws Amendment (Greater Transparency of Proxy Advice) Regulations 2021 [F2021L01801] 4

Principle (e) clarity of drafting

Principle (j) matters more appropriate for parliamentary enactment

Principle (j) significant penalties in delegated legislation

Principle (l) modification of the operation of primary legislation

Principle (m) parliamentary oversight

Seeking advice from the Treasurer.

Various instruments made under the Biosecurity Act 2015 [F2021L01462] [F2021L01463] [F2021L01484] [F2021L01555] [F2021L01572] [F2021L01578] [F2021L01586]

Standing order 23(4A) exemption from disallowance Drawing to the attention of the Senate. 5

Agency engagement

5.3 The committee is engaging with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

Instrument Issue Status

Civil Aviation Order 48.1 Amendment Instrument 2021 (No. 1) [F2021L01610] Principle (k) exemption from sunsetting

Committee secretariat considering response.

Competition and Consumer Amendment (Consumer Data Right) Regulations 2021 [F2021L01617]

Principle (g) adequacy of explanatory materials

Principle (h) privacy

Principle (k) exemption from sunsetting

Principle (l) exemption from the operation of primary legislation

Committee secretariat considering response.

Corporations Amendment (Litigation Funding) Regulations 2021 [F2021L01608]

Principle (e) clarity of drafting Committee secretariat considering response.

4 This instrument was registered on 17 December 2021.

5 See Chapter 1 for further details.

29

Instrument Issue Status

Customs (Prohibited Imports) Amendment (Commercial Importation of Kava as Food) Regulations 2021 [F2021L01615]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Customs (Regional Comprehensive Economic Partnership Rules of Origin) Regulations 2021 [F2021L01503]

Principle (a) compliance with Legislation Act 2003—incorporation

Principle (f) incorporated materials freely accessible

Committee secretariat considering response.

Designs Amendment (Advisory Council on Intellectual Property Response) Regulations 2021 [F2021L01552]

Principle (e) clarity of drafting Seeking further advice from the agency.

Eddystone Point Lighthouse Heritage Management Plan 2021 [F2021L01587] Principle (a) compliance with Legislation Act 2003—incorporation

Committee secretariat considering response.

Fair Work Act 2009 Direction to Inspectors (November 2021) [F2021L01585]

Principle (a) compliance with Legislation Act 2003—incorporation Seeking advice from the agency.

Financial Framework (Supplementary Powers) Amendment (Defence Measures No. 2) Regulations 2021 [F2021L01497]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 4) Regulations 2021 [F2021L01494]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2021 [F2021L01496]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Health Measures No. 7) Regulations 2021 [F2021L01500]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Industry, Science, Energy and Resources Measures No. 1) Regulations 2021 [F2021L01495]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development and Communications Measures No. 5) Regulations 2021 [F2021L01507]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

30

Instrument Issue Status

Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 8) Regulations 2021 [F2021L01499]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 10) Regulations 2021 [F2021L01609]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 4) Regulations 2021 [F2021L01498]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Industry Research and Development (Northern Australia Development Program) Instrument 2021 [F2021L01508]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

Industry Research and Development (Supporting Agricultural Showmen and Women Program) Instrument 2021 [F2021L01558]

Principle (c) delegation of administrative powers and functions Committee secretariat considering response.

National Consumer Credit Protection Amendment (Small Business Exemption No. 2) Regulations 2021 [F2021L01540]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Reserve HFC Quotas) Regulations 2021 [F2021L01564]

Principle (i) availability of independent merits review Seeking advice from the agency.

Part 91, Part 133 and Part 138 Manuals of Standards — NVIS Amendments Instrument 2021 (No. 1) [F2021L01591]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Part 138 MOS Amendment Instrument 2021 (No. 1) [F2021L01595] Principle (k) exemption from sunsetting

Committee secretariat considering response.

Radiocommunications (Exemption - Corrective Services NSW) Determination 2021 [F2021L01613]

Principle (a) compliance with authorising legislation Committee secretariat considering response.

Recycling and Waste Reduction (Export— Waste Tyres) Rules 2021 [F2021L01482] Principle (i) availability of independent merits review

Seeking further advice from the agency.

Remuneration Tribunal Amendment Determination (No. 6) 2021 [F2021L01607]

Principle (k) exemption from sunsetting Committee secretariat considering response.

31

Instrument Issue Status

Southern Bluefin Tuna Fishery (Undercatch and Overcatch) (2020-2021 Season No. 2) Determination 2021 [F2021L01606]

Principle (g) adequacy of explanatory materials Committee secretariat considering response.

Telecommunications Code of Practice 2021 [F2021L01524] Principle (a) compliance with Legislation Act 2003—incorporation

Principle (c) conferral of discretionary powers

Principle (i) availability of independent merits review

Principle (m) legal certainty

Committee secretariat considering response.

Therapeutic Goods Legislation Amendment (2021 Measures No. 3) Regulations 2021 [F2021L01474]

Principle (g) adequacy of explanatory materials

Principle (h) privacy

Seeking advice from the agency.

Variation to Licence Area Plan - Albury Radio - 2021 (No. 1) [F2021L01583] Principle (k) exemption from sunsetting

Committee secretariat considering response.

Vehicle Standard (Australian Design Rule 98/00 - Advanced Emergency Braking for Passenger Vehicles and Light Goods Vehicles) 2021 [F2021L01518]

Principle (k) exemption from sunsetting Committee secretariat considering response.

Vehicle Standard (Australian Design Rule 98/01 - Advanced Emergency Braking for Passenger Vehicles and Light Goods Vehicles) 2021 [F2021L01519]

Principle (k) exemption from sunsetting Committee secretariat considering response.

33

Appendix B Ongoing matters

6.1 This appendix documents the committee's ongoing scrutiny concerns in relation to matters raised in previous Delegated Legislation Monitors. Instruments registered before 1 July 2021 have been marked with an asterisk and will continue to be scrutinised under the committee's previous scrutiny principles until they are concluded.1

Ministerial engagement

6.2 The committee is continuing to engage with the relevant minister about the scrutiny issues raised by the instruments listed below. Copies of the ministerial correspondence are available on the committee's website.2

Instrument Issue Status

Aged Care Legislation Amendment (Royal Commission Response No.1) Principles 2021 [F2021L00923]*

Principle (c) conferral of discretionary powers

Principle (e) clarity of drafting

Principle (j) matters more appropriate for parliamentary enactment

Principle (j) significant impact on personal rights and liberties

Seeking further advice from the minister.

Notice of motion to disallow placed on 18/10/2021.

Australian Renewable Energy Agency (General Funding Strategy) Determination 2021 [F2021L01191]

Standing order 23(4A) exemption from disallowance

Principle (a) compliance with authorising legislation

Seeking advice from the minister.

1 On 16 June 2021 the Senate adopted three recommendations of the final report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight that were directed to the Senate. As a result, from 1 July 2021, the standing orders of the Senate were amended to add two new scrutiny principles to the committee's terms of reference. In addition, the standing orders were amended to allow the committee to consider instruments which are exempt from disallowance.

2 See www.aph.gov.au/senate_sdlc.

34

Instrument Issue Status

Australian Renewable Energy Agency (Implementing the Technology Investment Roadmap) Regulations 2021 [F2021L01043]*

Principle (a) compliance with authorising legislation

Principle (a) compliance with Legislation Act 2003—same in substance

Principle (j) significant matters in delegated legislation

Notice of motion to disallow placed on 18/10/2021. The committee drew this instrument to the attention of the Senate and recommended disallowing the instrument in Delegated Legislation Monitor 14 of 2021.

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021 [F2021L01232]

Standing order 23(4A) exemption from disallowance Seeking advice from the minister.

Financial Framework (Supplementary Powers) Amendment (Health Measures No. 6) Regulations 2021 [F2021L01430]

Principle (c) delegation of administrative powers and functions

Principle (c) conferral of discretionary powers

Principle (h) privacy

Principle (i) availability of independent merits review

Principle (j) matters more appropriate for parliamentary enactment

Principle (m) parliamentary oversight

Seeking advice from the minister.

Financial Sector Reform (Hayne Royal Commission Response) (Hawking of Financial Products) Regulations 2021 [F2021L01080]

Principle (l) exemption from the operation of primary legislation

Principle (m) parliamentary oversight

Seeking further advice from the Treasurer.

Notice of motion to disallow placed on 22/11/2021.

Great Barrier Reef Marine Park Amendment (No-Anchoring Areas) Regulations 2021 [F2021L00843]*

Principle (a) compliance with Legislation Act 2003

Principle (m) parliamentary oversight

Seeking further advice from the minister.

Notice of motion to disallow placed on 18/10/2021.

Industry Research and Development (Supporting Critical Transmission Infrastructure Program) Instrument 2021 [F2021L01312]

Principle (m) parliamentary oversight Seeking advice from the minister.

Northern Australia Infrastructure Facility Investment Mandate Direction 2021 [F2021L00942]

Standing order 23(4A) exemption from disallowance Seeking further advice from the minister.

35

Agency engagement

6.3 The committee is continuing to engage with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

Instrument Issue Status

CASA EX83/21 - Part 121 and Part 91 of CASR - Supplementary Exemptions and Directions Instrument 2021 [F2021L01399]

Principle (a) compliance with Legislation Act 2003— incorporation

Committee secretariat considering response.

Minamata Convention on Mercury (Consequential Amendments) Regulations 2021 [F2021L01390]

Recycling and Waste Reduction (Mandatory Product Stewardship—Mercury-added Products) Rules 2021 [F2021L01393]

Industrial Chemicals (General) Amendment (Minamata Convention on Mercury) Rules 2021 [F2021L01411]

Principle (a) compliance with Legislation Act 2003— consultation

Principle (i) availability of independent merits review

Committee secretariat considering response.

37

Appendix C Concluded matters

7.1 This appendix records the instruments in relation to which the committee has concluded its inquiries, following correspondence with the relevant minister or agency.

Ministerial engagement

7.2 The committee has concluded its examination of the instruments listed below following correspondence with the relevant minister. Copies of the ministerial correspondence are available on the committee's website.1

Instrument Issue Status

Advance to the Finance Minister Determinations [F2021L01581] [F2021L01771] [F2021L01795] [F2022L00028] 2

Standing order 23(4A) exemption from disallowance Drawn to the attention of the Senate in Chapter 1 of this

Delegated Legislation Monitor.

Various instruments made under the Biosecurity Act 2015 [F2021L01462] [F2021L01463] [F2021L01484] [F2021L01555] [F2021L01572] [F2021L01578] [F2021L01586]

Standing order 23(4A) exemption from disallowance Drawn to the attention of the Senate in Chapter 1 of this

Delegated Legislation Monitor.

1 See www.aph.gov.au/senate_sdlc.

2 F2021L01771, F2021L01795 and F2022L00028 were registered after 26 November 2021.

38

Agency engagement

7.3 The committee has concluded its examination of the instruments listed below following informal correspondence with the relevant agencies via its secretariat.

Instrument Issue Status

ASIC Corporations (Amendment) Instrument 2021/848 [F2021L01425] Principle (d) consultation with persons affected

Concluded following response from the agency on 03/12/2021.

The Australian Securities and Investments Commission undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

Industry Research and Development (Daintree Microgrid Program) Instrument 2021 [F2021L01305]

Principle (d) consultation on specific instrument Concluded following response from the agency on 03/12/2021.

The Department of Industry, Science, Energy and Resources undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

Migration Amendment (Australian Agriculture Workers) Regulations 2021 [F2021L01366]

Principle (e) clarity of drafting Concluded following response from the agency on 02/12/2021.

The Department of Home Affairs undertook to amend the instrument and the explanatory statement to the instrument in response to the committee's scrutiny concerns.

Safety, Rehabilitation and Compensation (Definition of ACT Employee - COVID-19 Emergency Response Volunteers) Declaration 2021 [F2021L01440]

Principle (i) availability of independent merits review

Concluded following response from the agency on 01/12/2021.

Veterans’ Entitlements (Point Cook Firefighters) Determination 2021 [F2021L01265]

Principle (g) adequacy of explanatory materials Concluded following response from the agency on 03/12/2021.

The Department of Veterans’ Affairs undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

39

Appendix D Undertakings

8.1 From time to time, a minister or agency may make an undertaking to address the committee's scrutiny concerns. These may include, for example, an undertaking to amend a legislative instrument or an explanatory statement, or to review an Act or a departmental practice. The committee expects that, when a minister or agency has made an undertaking, it will be implemented in a timely manner. Accordingly, this appendix records outstanding ministerial and agency undertakings, and the undertakings implemented since the committee's last Delegated Legislation Monitor.

Outstanding undertakings

8.2 The following table records undertakings that the committee is aware remain outstanding, from oldest to newest. The committee draws these undertakings to the attention of the Senate.

Instrument Undertaking Date of

Undertaking

Competition and Consumer (Industry Codes—Dairy) Regulations 2019 [F2019L01610]

The Attorney-General undertook to commence an inquiry into good faith obligations in Commonwealth legislation in response to the committee's scrutiny concerns.

31/08/2020

Amendment of List of Exempt Native Specimens - Commission for the Conservation of Antarctic Marine Living Resources Exploratory Fisheries in Statistical Divisions 58.4.1 and 58.4.2 (the East Antarctica Fishery) and Statistical Subareas 88.1 and 88.2 (the Ross Sea Fishery), November 2020 [F2020L01484]

The Department of Agriculture, Water and the Environment undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

15/02/2021

Fisheries Levy (Torres Strait Prawn Fishery) Amendment (Levy Amount) Regulations (No. 2) 2020 [F2020L01620]

The Department of Agriculture, Water Resources and the Environment undertook to revoke the instrument in response to the committee’s scrutiny concerns.

16/03/2021

Corporations Amendment (Corporate Insolvency Reforms) Regulations 2020 [F2020L01654]

The Treasurer undertook to amend the instrument in response to the committee's scrutiny concerns.

09/04/2021

Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 [F2020L01614]

The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

20/04/2021

40

Instrument Undertaking Date of

Undertaking

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]

The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns.

21/05/2021

Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 10) 2021 [F2021L00305]

The Department of the Treasury undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

04/06/2021

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]

The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns.

08/06/2021

Law Enforcement Integrity Commissioner Amendment (Law Enforcement Agencies) Regulations 2020 [F2020L01506]

The Attorney-General undertook to amend the instrument in response to the committee's scrutiny concerns.

16/06/2021

Income Tax Assessment (1997 Act) Regulations 2021 [F2021L00206] The Department of the Treasury undertook to amend the explanatory statement to the

instrument in response to the committee's scrutiny concerns.

18/06/2021

Export Control Rules 2021 - various instruments [F2021L00312] [F2021L00317] [F2021L00334] [F2021L00304] [F2021L00315] [F2021L00310] [F2021L00308] [F2021L00313]

The Department of Agriculture, Water and the Environment undertook to amend the explanatory statements to the instruments in response to the committee's scrutiny concerns.

02/07/2021

Student Assistance Regulations 2021 [F2021L00201] The Minister for Families and Social Services undertook to amend the instrument in

response to the committee's scrutiny concerns.

The Minister for Families and Social Services undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

06/07/2021

Export Control (Wood and Woodchips) Rules 2021 [F2021L00318] The Minister for Agriculture and Northern Australia undertook to amend the explanatory

statement to the instrument in response to the committee's scrutiny concerns.

13/07/2021

Bankruptcy Regulations 2021 [F2021L00261] The Assistant Minister to the Attorney-General undertook to advise the committee of the

outcome of the government's targeted review of the appropriateness of modifying provisions currently prescribed in the instrument.

26/07/ 2021

41

Instrument Undertaking Date of

Undertaking

Paid Parental Leave Rules 2021 [F2021L00384] The Minister for Families and Social Services undertook to amend the explanatory

statement to the instrument in response to the committee's scrutiny concerns.

30/07/2021

ASIC Market Integrity Rules (Capital) 2021 [F2021L00765] The Department of the Treasury undertook to amend the instrument in response to the

committee's scrutiny concerns.

04/08/2021

Higher Education Standards Framework (Threshold Standards) 2021 [F2021L00488]

The Department of Education, Skills and Employment undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

09/08/2021

Higher Education Provider Approval No 1 of 2021 [F2021L00747] The Department of Education, Skills and Employment undertook to amend the

instrument in response to the committee's scrutiny concerns.

The Department of Education, Skills and Employment undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

12/08/2021

Recycling and Waste Reduction (Product Stewardship—Televisions and Computers) Rules 2021 [F2021L00624]

The Department of Agriculture, Water and the Environment undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

12/08/2021

Treasury Laws Amendment (Miscellaneous and Technical Amendments) Regulations 2021 [F2021L00848]

The Department of the Treasury undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

12/08/2021

Bankruptcy Regulations 2021 [F2021L00261] The Assistant Minister to the Attorney-General undertook to amend the instrument in

response to the committee's scrutiny concerns.

17/08/2021

Veterans' Entitlements (Counselling) Extended Eligibility Determination 2021 [F2021L00804]

The Department of Veterans' Affairs undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

23/08/2021

Aged Care Legislation Amendment (Care Recipients and Service Staff Vaccination Recording and Reporting) Principles 2021 [F2021L00981]

The Department of Health undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

07/09/2021

42

Instrument Undertaking Date of

Undertaking

Higher Education Provider Approval No 2 of 2021 [F2021L00965] The Department of Education, Skills and Employment undertook to amend the

instrument in response to the committee's scrutiny concerns.

The Department of Education, Skills and Employment undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

16/09/2021

Aged Care Legislation Amendment (Vaccination Information) Principles 2021 [F2021L01236]

The Department of Health undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

08/10/2021

Education Services for Overseas Students (Exempt Courses) Instrument 2021 [F2021L00877]

The Minister for Education and Youth undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

13/10/2021

Defence Honours and Awards Appeals Tribunal Procedural Rules 2021 [F2021L01318]

The Department of Defence undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

04/11/2021

Industry Research and Development (Modern Manufacturing Initiative Program) Instrument 2021 [F2021L00539]

The Minister for Industry, Energy and Emissions Reduction undertook to amend the instrument in response to the committee's scrutiny concerns.

04/11/2021

Therapeutic Goods (Standards for Biologicals—General and Specific Requirements) (TGO 109) Order 2021 [F2021L01332]

The Department of Health undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

04/11/2021

Aged Care Legislation Amendment (Improved Home Care Payment Administration) Instrument 2021 [F2021L01133]

The Department of Health undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

08/11/2021

Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 [F2021L01030]

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs undertook to amend the instrument in response to the committee's scrutiny concerns.

11/11/2021

Part 60 Manual of Standards Amendment Instrument 2021 (No. 1) [F2021L01303] The Civil Aviation Safety Authority undertook to amend the explanatory statement to the

instrument in response to the committee's scrutiny concerns.

12/11/ 2021

43

Instrument Undertaking Date of

Undertaking

Taxation Administration (Data Sharing— Relevant COVID-19 Business Support Program) Declaration 2021 [F2021L01157]

Taxation Administration (Data Sharing— Relevant COVID-19 Business Support Program) Amendment Declaration (No. 1) 2021 [F2021L01237]

The Treasurer undertook to amend the principal instrument in response to the committee's scrutiny concerns.

12/11/2021

Migration Amendment (Australian Agriculture Workers) Regulations 2021 [F2021L01366]

The Department of Home Affairs undertook to amend the instrument in response to the committee's scrutiny concerns.

The Department of Home Affairs undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

02/12/2021

ASIC Corporations (Amendment) Instrument 2021/848 [F2021L01425] The Australian Securities and Investments Commission undertook to amend the

explanatory statement to the instrument in response to the committee's scrutiny concerns.

03/12/2021

Industry Research and Development (Daintree Microgrid Program) Instrument 2021 [F2021L01305]

The Department of Industry, Science, Energy and Resources undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

03/12/2021

Veterans’ Entitlements (Point Cook Firefighters) Determination 2021 [F2021L01265]

The Department of Veterans’ Affairs undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

03/12/2021

44

Implemented undertakings

8.3 The following table records undertakings that the committee is aware have been implemented since the committee's last Delegated Legislation Monitor.

Instrument Undertaking Date

implemented

Taxation Administration (Remedial Power - Seasonal Labour Mobility Program) Determination 2020 [F2020L01474]

The Assistant Treasurer introduced the Corporate Collective Investment Vehicle Framework and Other Measures Bill 2021 into the House of Representatives which includes amendments to the taxation law in response to the committee's scrutiny concerns (see Part 2 of Schedule 8 to the bill).

25/11/2021

Medical and Midwife Indemnity Legislation Amendment (Run-off Claims) Rules 2021 [F2021L00950]

The Department of Health amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

01/12/2021

Road Vehicle Standards (Model Reports—Compliance with Standards) Determination 2021 [F2021L00838]

The Department of Infrastructure, Transport, Regional Development and Communications amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

03/12/2021

Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021 [F2021L00823]

Road Vehicle Standards (Verification of Road Vehicles) Determination 2021 [F2021L00850]

The Department of Infrastructure, Transport, Regional Development and Communications amended the explanatory statements to the instruments in response to the committee's scrutiny concerns.

03/12/2021

Aged Care Legislation Amendment (Service Staff Vaccination Recording and Reporting) Principles 2021 [F2021L00697]

The Department of Health amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

06/12/2021

Remuneration Tribunal Amendment Determination (No. 5) 2021 [F2021L01336]

The Remuneration Tribunal amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

06/12/2021

Telecommunications (Statutory Infrastructure Providers—Circumstances for Exceptions to Connection and Supply Obligations) Determination 2021 [F2021L00651]

The Minister for Communications, Urban Infrastructure and the Arts amended the instrument following consultation with stakeholders in response to the committee's scrutiny concerns.

06/12/2021

Child Care Subsidy Amendment (Coronavirus Response Measures No. 6) Minister’s Rules 2021 [F2021L01233]

The Department of Education, Skills and Employment amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

08/12/2021

45

Instrument Undertaking Date

implemented

Macquarie Island Toothfish Fishery (Total Allowable Catch) Determination 2021 [F2021L01152]

The Department of Agriculture, Water and the Environment amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

10/12/2021

Therapeutic Goods Amendment (Therapeutic Goods Advertising Code) Instrument (No. 5) 2021 [F2021L01317]

The Department of Health amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

14/12/2021

Civil Dispute Resolution Regulations 2021 [F2021L01031] The Attorney-General amended the instrument in response to the committee's

scrutiny concerns.

20/12/2021

Aged Care Legislation Amendment (Improved Home Care Payment Administration) Instrument 2021 [F2021L01133]

The Department of Health amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

22/12/2021

Disability (Access to Premises - Buildings) Amendment Standards 2020 [F2020L01245]

The Assistant Minister to the Attorney-General amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

05/01/2022

Australian Securities and Investments Commission Amendment (Deferred Sales Model) Regulations 2021 [F2021L01279]

The Department of the Treasury amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

18/01/2022