COMMITTEES

Senator DEAN SMITH (Western Australia) (17:17): I return to the tabling of Scrutiny digest No. 4 of the Senate Standing Committee for the Scrutiny of Bills and seek leave to incorporate my tabling statement into Hansard. Leave granted. The statement read as follows— As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny Digest 4 of 2025.

This Digest contains the committee's consideration of 63 bills introduced between 25 March 2025 to 31 July 2025. A number of bills which had lapsed at the dissolution of the 47th Parliament were restored to the notice paper and have been included in the committee's consideration in this Digest. The committee has commented on 20 new bills.

In this Digest, the committee has raised a number of concerns in relation to parliamentary scrutiny. For example, in relation to the Early Childhood Education and Care (Strengthening Regulation of Early Education) Bill 2025, the committee noted that the bill passed both Houses of Parliament within eight days of its introduction. This truncated period between introduction and passage may not have afforded parliamentarians sufficient time for parliamentary scrutiny and debate, which would have been of particular significance as this bill, now an Act, has an impact on personal rights and liberties.

Another instance that the committee has commented on relates to the deferral and removal of sunsetting in relation to the Help to Buy program Australian Security Intelligence Organisation Amendment Bill (No. 1) 2025 and Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025. The first bill seeks to defer the sunsetting clause applicable to a range of coercive powers contained within the compulsory questioning warrant regime to a later date, while the second bill would eventually remove this sunset clause altogether, making the powers permanent in their application.

Sunset clauses play a vital role in ensuring adequate parliamentary scrutiny of measures that are temporary and extraordinary prior to their becoming permanent. However, once made permanent, any further review of the compulsory questioning regime would occur only at the discretion of the Parliamentary Joint Committee on Intelligence and Security. The committee has commented, seeking further advice from the minister as to the necessity and appropriateness of the deferral and eventual removal of the sunset clause and notes its concerns in relation to the discretionary nature of the review of the compulsory questioning warrant regime.

Finally, in relation to the Aged Care and Other Legislation Amendment Bill 2025, the committee has expressed concerns about the inclusion of significant matters in delegated legislation and the use of Henry VIII clauses, which allow delegated legislation to modify the operation of primary legislation. The committee's consistent view has been that the inclusion of significant matters, such as the capacity to affect rights, interests or obligations, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided in the explanatory memorandum.

This is also the case where delegated legislation is permitted to modify the operation of primary legislation. In relation to this bill, the committee has noted concerns as to delegated legislation expanding matters defined on the face of the primary legislation, such as by prescribing a class of persons who may act as guardians for aged care recipients or by prescribing decisions under the Aged Care Act 2024 that may be made with the use of a computer program.

The committee has sought the minister's advice as to the necessity and appropriateness of including these matters in delegated legislation and whether the bill can be amended to provide high-level guidance on these matters. While the committee has acknowledged the generally complex nature of this bill and the intention to use Henry VIII clauses to ensure persons are not unintentionally disadvantaged by this scheme, the committee has also expressed concerns about the broad powers available to the minister to create rules that can modify the operation of the primary legislation, which can apply retrospectively.

The committee has sought the minister's advice on whether this power can be constrained by providing further criteria as to when this power may be exercised and limiting the period within which it is exercised. With these comments, I commend the committee's Scrutiny Digest4 of 2025 to the Senate.