COMMITTEES

Senator O'NEILL (New South Wales) (16:23): I present delegated legislation monitor no. 6 2026 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence received by the committee. I move: That the Senate take note of the report. This monitor reports on the committee's consideration of 191 legislative instruments registered between 23 March and 1 May 2026.

I want to take the opportunity to acknowledge the collaborative way in which that committee works. I know that there's a lot of contest in the public place. People should have faith in democracy delivering a good work with people on either side of the chamber and the crossbenchers working together in the national interest, and this is one of the committees that very much does that.

I particularly want to acknowledge my colleague Senator Paul Scarr for his longstanding service on this committee, and it's a pleasure to work with him with regard to these matters. In this monitor, the committee has commented on three new instruments and one ongoing instrument, and has concluded its examination of two instruments. The first new instrument is the Air Navigation Regulations 2026.

This instrument prescribes a system of international airline licences, mechanisms to approve timetables for scheduled international air services and associated administrative and compliance arrangements. The committee has identified scrutiny concerns regarding provisions in the instrument which permit automated decision-making for the approval of timetables for scheduled international air services.

The committee's longstanding view is that automated decision-making may operate as a fetter on discretionary power by inflexibly applying predetermined criteria to decisions. However, where an instrument does provide for automated decision-making, the committee expects the explanatory statement to that instrument to provide sufficient explanation and justification.

In this regard, the committee is concerned that, although the explanatory statement explains that automated decision-making will only be used for straightforward timetabling decisions based on objective criteria, the instrument appears to authorise a computer program to be used for all timetabling decisions, including those where the secretary of the department forms an opinion or has regard to public interest in making decisions.

Furthermore, while the committee noted several important safeguards—including the power for the secretary to substitute automated decisions—it's unclear how these safeguards might operate in practice. In light of these concerns, the committee has resolved to seek the minister's advice in relation to the scope of automated decision-making and the operation of safeguards under the instrument.

The other new instruments the committee has commenced on are the Regional Investment Corporation (Drought Hardship Loans) Rules 2026 and the Regional Investment Corporation (Marine Recovery Loans) Rules 2026. These instruments set up loan programs to provide finance to certain businesses affected by drought or harmful marine events. The committee has identified scrutiny concerns in relation to the drafting of key terms, including terms that confer broad discretionary powers, as well as the availability of independent review and the consultation that was undertaken in relation to the instruments.

In particular, the committee considers that several terms regarding loan eligibility, debt management, debt waiver and charges are unclear. For example, one of the conditions that must be satisfied to be eligible for a loan is that there has been a material reduction in the turnover of a business because of impacts of drought or certain harmful marine events.

The committee is unsure what constitutes material reduction and how the causal link between a reduction in turnover and the drought or marine events would be established. The committee is also concerned about whether loan decisions would be subject to independent review. While the committee notes that the instruments provide for the development of guidelines and procedures to support internal review of such decisions, it's unclear whether the instruments provide a legal right to seek independent merits review.

Finally, the committee noted that, while the explanatory statements to the instruments explain some of the consultation that occurred during the development of the instruments, they do not explain whether experts or key stakeholders were consulted, nor did they explain what the outcomes of the consultation were. Given these concerns, the committee has resolved to seek the minister's advice about these matters.

In this monitor, the committee has continued its consideration of the Electoral and Referendum Regulations 2026. This instrument prescribes authorities and permitted purposes in relation to access and use of electoral roll information and provides for matters regarding electronically assisted voting for sight impaired persons and Antarctic electors. In Delegated legislation monitor 5 of 2026, the committee sought the minister's advice regarding criminal offences in delegated legislation, privacy, the availability of review and consultation on the instrument.

In his response to the committee, the minister confirmed that all of the offences in the instrument are criminal offences and provided a justification for application of strict liability. The minister also explained the relevant privacy safeguards that apply to protected information that the Electoral Commission shares with other government agencies. On the basis of this advice, the committee has resolved to conclude its examination of these matters.

However, the committee retains scrutiny concerns in relation to other aspects of the minister's response. In particular, while the minister explained that reversal of the evidential burden of proof was justified given, for example, the vulnerability of Antarctic electors and sight impaired persons, the response did not refer to key matters outlined in Aguide to framing commonwealth offences, infringement notices and enforcement powers.

As per the guide, the committee expects that, where an instrument reverses the evidential burden of proof, the explanatory statement should outline whether the matter is peculiarly within the knowledge of the defendant and whether it would be significantly more difficult and costly for the prosecution to disprove the matter than for the defendant to establish the matter.

Furthermore, although the committee welcomes the minister's further explanation regarding the consultation undertaken for the instrument, it remains unclear whether consultation was undertaken with stakeholders likely to be affected by the instrument, including sight impaired voters and Antarctic electors or their representative groups. Given the committee's ongoing scrutiny concerns regarding the reversal of evidential burden of proof and the explanation on consultation, it has resolved again to seek the minister's advice.

The first instrument the committee has concluded its examination of is the Treasury Laws Amendment (Payday Superannuation) Regulations 2026. This instrument prescribes exclusions for certain kinds of employees and payments from the Superannuation Guarantee framework which were previously contained in the Superannuation Guarantee (Administration) Act 1992. In the previous monitor, the committee sought advice about why it was considered necessary and appropriate for the instrument to consolidate the exclusions previously contained in primary legislation into delegated legislation.

The minister advised that the changes introduced by the instrument enhance the readability and navigability of the legislative framework and reduce complexity. The minister also explained, on a provision-by-provision basis, that the exclusions operate in limited circumstances, are consistent with pre-existing exclusions in delegated legislation and were designed to promote employer awareness of all the relevant exclusions.

Furthermore, the minister undertook to amend the explanatory statement to the instrument to reflect this advice. The committee welcomes the minister's advice but notes that the exclusions affect the scope and operation of an important primary law statutory entitlement, which may have significant consequences for affected individuals, including potentially vulnerable cohorts.

Given the inclusion of such significant matters in delegated legislation, the committee resolved to draw this matter to the attention of the Senate under standing order 23(4). On the basis of the minister's undertaking, the committee has concluded its consideration of the instrument and resolved to withdraw the notice of motion to disallow this instrument. Finally, the committee has concluded its examination of the Biosecurity (Electronic Decisions—Goods) Determination 2026.

This instrument sets out relevant provisions of the Biosecurity Act 2015 under which decisions may be made by the operation of a computer program, and related matters. The committee sought advice in monitor 5 of 2026 about safeguards on automated decision-making authorised by the instrument. In particular, the committee was concerned about how safeguards noted in the explanatory statement, such as business rules and instructional material which are not contained in the legislation, would be maintained and remain effective.

The minister provided detailed advice about testing and updates of the business rules, regular scheduled reviews of the department's instructional material and the department's overarching IT processes, including role based controls and mechanisms to identify unauthorised ICT changes. While the committee considers that the mechanisms support the maintenance of relevant safeguards in relation to the use of authorised computer programs, it retains the view that, as these materials are not legislative instruments and not prescribed by the instrument, parliamentary oversight of these safeguards is limited.

However, in the light of the minister's detailed advice and undertaking to amend the explanatory statement, the committee has resolved to conclude its consideration of the instrument and withdraw the notice of motion to disallow this instrument. With these comments, I commend the committee's Delegated legislation monitor 6 of 2026 to the Senate. Question agreed to.