COMMITTEES

Senator DOLEGA (Tasmania) (19:23): At the request of the Chair of the Senate Standing Committee on Scrutiny of Delegated Legislation, I present Delegated legislation monitor: monitor 2 of 2026 together with ministerial correspondence. I seek leave to incorporate a tabling statement in Hansard. Leave granted.

The statement read as follows— I rise to speak to the tabling of the Scrutiny of Delegated Legislation Committee's Delegated Legislation Monitor 2 of 2026.This Monitor reports on the committee's consideration of 209 legislative instruments registered between 26 November and 23 December 2025. In this Monitor, the committee has commented on one new instrument and concluded its examination of one instrument.

The new instrument is the Environment Protection and Biodiversity Conservation Regulations 2025. The stated purpose of the instrument is to give effect to provisions of the Environment Protection and Biodiversity Conservation Act 1999, including in relation to environmental assessment and approvals, conservation of listed species, biodiversity, management principles, wildlife trade, regulation of activities in Commonwealth reserves, and permit processes.

The committee has raised a number of scrutiny concerns about the Regulations in relation to which it has sought a response from the Minister for the Environment and Water. Firstly, the committee has considered the consultation process for the Regulations under Senate standing order 23{3)(d). The Department of Climate Change, Energy, the Environment and Water undertook consultation with the public and with key government agencies.

In line with the committee's scrutiny guidelines, the committee has sought the minister's advice about the nature of the feedback received as part of this consultation process and any action taken as a result of that feedback. Separately, the committee has also sought advice from the minister regarding the meaning of key terms used in the Regulations that appear unclear.

For example, the committee has queried provisions that require the Director of National Parks or the Minister to 'tell' particular Commonwealth authorities of matters without specifying the manner of communication. The committee has noted that this approach provides some uncertainty and that the wording "must tell in writing", which is also used in the instrument, would be less uncertain.

The committee has also identified scrutiny concerns pursuant to Senate standing order 23{3){c) and (i), which relate to the delegation and conferral of administrative powers and functions, the availability of independent merits review, and the inclusion of a no-invalidity clause in the Regulations. The committee is particularly concerned about subregulations 19.01A(1), (3) and (5), which provide for the delegation of powers and functions contained in the Regulations.

Specifically, these provisions allow the Minister or the Secretary to delegate their powers or functions to any employee of the department, or, in the case of the Director, to any person. The committee expects that, where an instrument delegates administrative powers or functions, the explanatory statement will describe the purpose and scope of each delegation, including who will exercise the delegated powers and functions, and the limitations or safeguards that apply.

Furthermore, the committee is concerned about the significant number of broad discretionary powers contained in the Regulations, particularly where such decisions directly impact the rights, obligations or interests of individuals or are otherwise significant. The committee's expectations are that any such powers should be extensively justified in an instrument's explanatory materials.

Noting this, the committee has asked why these powers are both necessary and appropriate and has also sought advice on whether independent merits review is available in respect of some of these provisions and, if review is not available, why this is appropriate. The committee is also concerned about subregulation 14.16(3) of the Regulations, which is a no-invalidity clause.

No--invalidity clauses provide that decisions made under certain powers are valid even if they are made in breach of a statutory requirement or administrative law norm. Subregulation 14.16(3) has this effect, stipulating that a failure by the Director of National Parks to give certain persons information about their right to seek review of certain decisions made under Part 17 of the Regulations does not affect the validity of those decisions.

The committee considers that, as no-invalidity clauses restrict an applicant's capacity to seek independent review of decisions, explanatory statements for instruments containing these clauses should explain the nature and scope of the clause, and why it is necessary and appropriate, as well as outlining any relevant safeguards. In addition, the committee has raised several concerns under Senate standing order 23(3}(h), which requires the committee to consider whether an instrument impacts on personal rights and liberties.

In this case, the committee has queried several provisions that impact on the right to the presumption of innocence. The committee's expectation is that where an instrument contains provisions that impact the presumption of innocence, the explanatory statement should explain the nature and scope of the provisions, why they are considered necessary and appropriate.

The explanatory statement should also explain whether the provisions comply with the Attorney General's Department's Guide to Framing Commonwealth Offences. The committee is also concerned that a significant number of provisions that appear to reverse the evidential burden of proof are not explained or justified in the explanatory statement to the Regulations.

The explanatory statement explicitly outlines 6 provisions that reverse the evidential burden of proof, while the committee has identified at least 32 other such provisions. Furthermore, the explanatory statement does not include provision-specific justifications for each of the reversals according to the specific matters required to be adduced by the defendant.

The committee has asked for such an explanation, as well as whether it would be appropriate to amend the Regulations to explicitly identify each provision that reverses the evidential burden of proof, in line with standard Commonwealth drafting practices. Finally, the instrument contains several provisions that allow decision-makers to consider mandatory disclosures about whether a person 'is subject to proceedings for an offence' regardless of whether the person has been found guilty of the offence.

For example, disclosures must accompany certain applications in relation to the international movement of wildlife specimens under Part 9A of the Regulations. The committee is concerned that this approach may impact the right to be presumed innocent until proven guilty, noting that the fact that a person is subject to proceedings does not establish liability for the alleged offence.

As such, the committee has requested the minister's advice as to why this approach is both necessary and appropriate. In this Monitor, the committee has also concluded its examination of the Australian Naval Nuclear Power Safety Regulations 2025. This instrument specifies, among other things, the process and requirements governing applications for Australian naval nuclear power safety licences.

The committee previously sought advice from both the Department and the minister in relation to the clarity of drafting and adequacy of explanatory materials under scrutiny principles {e} and {g}. The committee was concerned that the instrument uses a range of terms that appear undefined or unclear. In response to these concerns, the minister provided advice about the intended meaning of key terms, alongside relevant examples.

The minister explained that many of the terms are intended to carry their ordinary meaning and will vary depending on context. The minister also undertook to register a replacement explanatory statement containing the information provided in his response. On behalf of the committee, I thank the minister for his engagement on this matter.

While the committee is grateful for this further explanation, and, in particular, the examples provided by the minister, the committee remains concerned about the instrument's reliance on the ordinary meaning of broad terms. On this basis, the committee reiterated its expectation that provisions in delegated legislation, including 'terms of art' specific to particular industries and broad terms that are intended to take their ordinary meaning, should be drafted clearly and intelligibly to assist all users of the law to engage with and understand their operation and effect.

Such provisions should also be accompanied by sufficient explanatory material. Nevertheless, the committee has resolved to conclude its examination of this instrument based on the advice of the minister and the undertaking provided. With these comments, I commend the committee's Delegated Legislation Monitor2 of 2026 to the Senate.