COMMITTEES

Senator O'NEILL (New South Wales) (16:58): I present Delegated legislation monitor: monitor 4 of 2026 together with ministerial correspondence, and I move: That the Senate take note of the report. I rise to speak to the tabling of the Scrutiny of Delegated Legislation Committee's Delegated legislation monitor: monitor4 of 2026. This monitor reports on the committee's consideration of 108 legislative instruments registered between 3 January and 10 February 2026.

In this monitor, the committee has commented on one new instrument and concluded its examination of one instrument. The new instrument is the Aged Care Legislation Amendment (2026 Measures No. 1) Rules 2026. This instrument amends the Aged Care (Consequential and Transitional Provisions) (Aged Care System Modification) Rules 2025, and in doing so it amends the Aged Care Act 2024, including by introducing new rule-making powers into the act.

The instrument also amends the Aged Care Rules 2025. These amendments establish a mechanism for the Secretary of the Department of Health, Disability and Ageing, in their capacity as system governor, to pay certain subsidies in advance to registered providers. The amendments also establish a mechanism to reinstate decisions regarding classification levels and priority categories where those decisions have previously ceased.

The instrument is authorised by item 2 of schedule 6 to the Aged Care (Consequential and Transitional Provisions) Act 2024, which is a very interesting element of governance called a broad Henry VIII provision. This is a provision that allows the minister to make rules that alter the operation of any aspect of the Commonwealth aged-care system, including by altering the Aged Care Act.

The committee has previously raised concerns with the Minister for Aged Care and Seniors in relation to the use of this particular power. The committee's longstanding view is that provisions that modify primary legislation should be contained in primary legislation. As such, the committee is concerned about instruments made pursuant to Henry VIII clauses, particularly broad Henry VIII clauses like the one relied upon to make this instrument.

The committee's scrutiny concerns are heightened further when a legislative instrument introduces a new rule-making power or powers into primary legislation, as is also the case with this instrument. The committee considers that this approach has the potential to undermine the appropriate relationship between the parliament and the executive if adopted too broadly or not extensively justified.

The explanatory statement states that the instrument, which self-repeals after 12 months, is necessary to respond to unforeseen circumstances and to ensure continuity of service delivery and viability of registered providers, as well as the effective operation of the Aged Care Act. The committee considers this information to be very helpful and considers the time limitation to be a valuable safeguard.

However, the committee remains concerned about the repeated reliance on broad Henry VIII clauses that authorise the instrument. While the committee is not seeking advice from the department or the minister in relation to the instrument, it will continue to monitor this important issue in its scrutiny of future instruments and has resolved to draw its concerns to the attention of the Senate under standing order 23(4).

The committee has also concluded its examination of the Environment Protection and Biodiversity Conservation Regulations 2025. The instrument supports the legal framework established under the Environment Protection and Biodiversity Conservation Act 1999, including in relation to environmental assessments and approvals, management principles, wildlife trade, the regulation of activities in Commonwealth reserves, and permit processes.

In monitor 2 of 2026, the committee sought advice from the Minister for the Environment and Water about a range of scrutiny concerns under Senate standing order 23(3), paragraphs (d), (e), (c), (i) and (h). These concerns relate to consultation, clarity of drafting, the conferral and delegation of administrative powers and functions, the availability of review rights, and provisions that affect personal rights and liberties.

The minister provided a response on 20 March 2026. The committee wants to thank the minister for his prompt engagement on this matter and for his detailed engagement in relation to many of the committee's concerns. In his extensive response, the minister indicated that the government intends to make a more substantial amendment or set of amendments to the EPBC regulations throughout 2026 as part of a broader overhaul of the EPBC framework.

These new measures will commence on or before 1 December 2026, and, as a result, the current form of the EPBC regulations is effectively time limited. The minister advised that, as part of this ongoing reform process, he has committed to aligning the EPBC regulations with modern regulatory practice. The minister also provided an undertaking to amend the regulation's explanatory statement to include the further details sought by the committee in relation to each of its scrutiny concerns.

The committee's comments on the EPBC regulations in monitor 4 should be understood in light of this advice. In his response, the minister provided detailed advice addressing the committee's concerns relating to consultation and the clarity of the instrument's drafting. The committee considered this advice to be helpful and of high quality.

It has concluded its examination of these issues on the basis of an undertaking by the minister to amend the explanatory statement to include this advice. The committee has also indicated that consideration should be given to amending the regulations to reflect the minister's advice in relation to the clarity of drafting issues highlighted by the committee. In relation to the committee's concerns under Senate standing order 23(3)(c) about provisions allowing the minister or the secretary to delegate their powers to any employee of the department or, in the case of the Director of National Parks, to any person, the minister advised that this approach is necessary to ensure the efficient operation of the complex EPBC framework.

The minister also outlined a number of factors that operate to limit the exercise of these broad powers in practice. For example, the minister advised that, although the Director of National Parks is legislatively empowered to delegate their powers to any person, in practice, delegations are currently only made to employees within the Parks Australia division of the department.

In relation to the committee's concerns about the inclusion of broad discretionary powers within the regulations, the minister highlighted examples of the factors, safeguards and limitations that apply to the exercise of several discretionary powers. The committee welcomes this advice, although it noted that the minister did not address the majority of the decisions within the regulations.

While the committee is grateful for the minister's advice in relation to these two matters, it remains concerned about the breadth of the delegation and discretionary powers under the instrument. The committee would appreciate the minister's consideration of these concerns in future amendments to the instrument. The committee has also resolved to draw the Senate's attention to concerns about the broad referral of discretionary powers under the instrument under standing order 23(4).

In relation to the committee's concerns under Senate standing order 23(3)(i), regarding the availability of independent merits review, the minister explained, with examples, why some decisions under this instrument are subject to independent merits review and why some are exempt. However, the minister's advice did not address the majority of the decision-making powers in the instrument, including several of the provisions raised by the committee.

The committee has therefore resolved to also draw its concern to the attention of the Senate and has noted that consideration should be given to addressing the committee's concerns as part of the ongoing changes to the EPBC framework. In relation to its concerns under Senate standing order 23(3)(h), relating to provisions that impact on personal rights and liberties, the committee sought advice about provisions that reverse the evidential burden of proof and affect the presumption of innocence.

The committee also sought further advice from the minister about provisions that appear to undermine the presumption of innocence, including provisions that allow decision-makers to consider disclosures about whether a person is subject to proceedings for an offence regardless of the outcome of those proceedings. In his response, the minister explained that the ability to consider disclosures is discretionary and that the principles of natural justice continue to apply.

The committee has thanked the minister for this advice and concluded its examination of the issue. I can add that the minister also explained that provisions that reverse the evidential burden of proof are appropriate because each provision concerns matters that are peculiarly within the knowledge of a defendant, thereby aligning the approach to the guidance set out by the Attorney-General's Department.

Finally, the committee has concluded its examination of a no-invalidity clause within the regulations. No-invalidity clauses provide that decisions made under certain powers are valid even if they're made in breach of a statutory requirement or administrative law norm. In this case, subregulation 14.16(3) provides that a failure by the Director of National Parks to give persons information about their right to seek review of certain decisions doesn't affect the validity of those decisions.

However, in response to the committee's concerns, the minister advised that information about review rights is also available in several publicly available documents. The committee has therefore concluded its examination of this issue. I commend the committee's delegated legislation monitor 4 of 2026 to the Senate.