COMMITTEES

Senator O'NEILL (New South Wales) (17:25): I present Delegated legislation monitor:monitor 7 of 2025of the Senate Standing Committee for the Scrutiny of Delegated Legislation together with ministerial correspondence, and I move: That the Senate take note of the report. This monitor reports on the committee's consideration of 204 legislative instruments registered between 20 August 2025 and 23 September 2025.

In this monitor, the committee has commented on two ongoing instruments. The first instrument that the committee commented on is the Competition and Consumer (Notification of Acquisitions) Determination 2025. This instrument supports the new merger control system that was introduced in 2024 through amendments to the Competition and Consumer Act 2010.

Under the merger control system, certain acquisitions of shares or assets must be notified to the Australian Competition and Consumer Commission for assessment. Part VI of the instrument determines the notification and public benefit application forms and the information and documents required to accompany these forms. In Delegated legislation monitor No. 5 of 2025, the committee first raised concerns with the Assistant Minister for Productivity, Competition, Charities and Treasury about the instrument's compliance with its enabling legislation, the Competition and Consumer Act, under scrutiny principle (a) and the appropriateness of disallowance under Senate standing order 23(4A).

Specifically, the committee raised concerns and sought the assistant minister's advice as to the legal basis for exempting only part VI of the instrument from disallowance while the remainder of the instrument appeared to be disallowable. The committee thanks the assistant minister for his ongoing engagement on this matter. However, the committee retains scrutiny concerns and has resolved to seek further advice as to the legal basis for exempting part VI, rather than the instrument as a whole, from disallowance.

In this regard, part VI of the instrument was made pursuant to subsections 51ABY(5) and 51ABZQ(5) of the Competition and Consumer Act. Under the act, a determination made under these subsections is a legislative instrument that is not subject to disallowance. In his most recent correspondence, the assistant minister reiterated his earlier advice and stated that paragraph 44(2)(a) of the Legislation Act 2003 effectively provides that disallowance does not apply in relation to a legislative instrument or provision thereof if an act declares or has the effect that section 42 does not apply and therefore accommodates cases such as this, where part of an instrument is not subject to disallowance.

The minister added that, in this case, the provisions of the Competition and Consumer Act have the effect that part VI of the instrument is exempt from disallowance. However, the committee understands that paragraph 44(2)(a) of the Legislation Act provides for two distinct circumstances in which an act may declare or have the effect that section 42 does not apply—that is, to a legislative instrument, as a whole, or to a provision of a legislative instrument.

In this case, subsections 51ABY(7) and 51ABZQ(6) of the Competition and Consumer Act provide that section 42 does not apply to the instrument and make no reference to only certain provisions of an instrument being exempt from disallowance. Accordingly, it remains unclear to the committee as to whether the Competition and Consumer Act authorises the exemption of only part VI of the instrument from disallowance.

The committee is therefore seeking further advice from the assistant minister about the matter. The committee is also requesting the assistant minister's advice about whether he would consider repealing or remaking the instrument as two separate instruments. This would allow part VI of the instrument to stand as an independent instrument exempt from disallowance and the remaining provisions to form a separate instrument subject to disallowance.

The second instrument that the committee has commented on is the Help to Buy Program Directions 2025. This instrument directs Housing Australia in relation to the performance of its functions under the Help to Buy Act 2024 in administering the Help to Buy program. This program aims to assist eligible Australians to purchase new or existing homes by accessing an equity contribution from the Commonwealth.

The committee first raised scrutiny concerns with the instrument in monitor 4 of 2025. The committee was concerned that the instrument conferred a range of broad, discretionary powers on Housing Australia to administer the program. However, the relevant factors which Housing Australia must or may have regard to in exercising those powers and the definitions of terms central to its discretion under those powers was unclear.

The provisions which the committee raised concerns about included subsections 29(1) and 30(1) of the instrument, which require Housing Australia to exempt a participant from complying with the requirement for participation in the scheme if satisfied that it is impractical for that participant to meet the relevant requirements due to circumstances including 'hardship' or 'on other compassionate grounds'.

However, neither the instrument nor its explanatory statement provided factors that Housing Australia may or must have regard to in determining whether it's satisfied that such circumstances exist. In her most recent correspondence, the minister reiterated advice previously provided that the instrument was intended to be principles based. Further, the minister indicated that it was her intention not to exhaustively set out every element and circumstance in which discretions could be exercised in favour of participants but rather to provide a framework to guide Housing Australia in making decisions.

The minister nonetheless provided examples of factors that may be taken into account when exercising the relevant discretionary powers, as well as key definitions under those provisions. For example, the minister advised that discretionary terms such as 'hardship' and 'other compassionate grounds' would take their ordinary meaning but could include financial hardship due to loss of employment or travel overseas to be with a terminally ill patient.

The committee reiterates its expectation under scrutiny principle (c) that instruments conferring broad, discretionary powers should set out matters to be considered by the decision-maker in exercising that discretion and the source of any relevant safeguards or limitations. This ensures users of the law can gain a clear understanding of the instrument and how it may affect them.

The committee is, therefore, seeking further advice from the minister as to whether the explanatory statement can be amended to include the advice provided in her response, including the factors to be taken into account in making discretionary decisions and the definition of discretionary terms under the instrument. The committee is continuing to monitor the implementation of outstanding undertakings.

The committee is pleased to advise that 16 undertakings have been implemented and 10 new undertakings have been made in this monitor's reporting period. As of 22 October, three undertakings have remained outstanding for more than 12 months and eight have remained outstanding for more than 90 days. Of those undertakings, I note that a further two are approaching being outstanding for more than 12 months.

The committee will continue to monitor the implementation of outstanding undertaking and reminds ministers and agencies that the committee expects all undertakings to be implemented in a timely manner. I would also like to take this opportunity to continue to raise awareness of the committee's scrutiny principles and expectations, outlined in Senate standing order 23.

In previous tabling statements, I've discussed principles (a) to (g). Today, I would like to discuss principle (h). Under this principle, the committee scrutinises each legislative instrument as to whether it trespasses unduly on personal rights and liberties.

The committee is particularly concerned with instruments which enable the collection, use and disclosure of personal information that may trespass on an individual's right to privacy. The committee considers that such provisions should generally be included in primary legislation, rather than delegated legislation, as they may trespass on an individual's right to privacy.

Where an instrument, nevertheless, does contain such provisions, the committee expects the explanatory statement to explain the nature and scope of those provisions, including the extent of the personal information that may be disclosed and the persons or entities to whom disclosure is permitted. Additionally, the committee expects the explanatory statement to explain why the provisions are considered necessary and appropriate and what safeguards are in place to protect personal information.

The committee raised concerns under principle (h) with the relevant minister a total of 16 times in 2024, which was, in fact, the second-most common concern of the committee, and it made up approximately 20 per cent of scrutiny issues raised by the committee with ministers. Concerns regarding instruments which enable the collection, use and disclosure of personal information that may trespass on an individual's right to privacy are relatively frequent.

Noting the potential for provisions which enable the use, collection and disclosure of personal information to trespass unduly on personal rights and liberties, the committee will continue to monitor this issue and draw attention to its expectations under principle (h). With these comments, I commend the committee's Delegated legislation monitorNo. 7 of 2025 to the Senate.

I take time to acknowledge my colleague on that committee, who has joined us in the chamber, Senator Scarr, and the deputy chair, Senator O'Sullivan. Question agreed to.