COMMITTEES

Senator O'NEILL (New South Wales) (19:15): I present Delegated legislation monitor 10 of 2026 of the Standing Committee for the Scrutiny of Delegated Legislation, together with ministerial correspondence received by the committee, and I move: That the Senate take note of the report. This Delegated legislation monitor 10 of 2026 reports on the committee's consideration of 194 legislative instruments registered between 2 July and 24 August 2026.

In this monitor, the committee has commented on one new instrument and concluded its examination of another instrument. The new instrument the committee has commented on is the Aboriginal Land and Waters (Jervis Bay Territory) By-Laws of 2026. This instrument sets out a range of matters in relation to Aboriginal land in the Jervis Bay Territory, including offences for certain conduct, enforcement measures and permits to undertake certain activities.

The committee has identified a number of scrutiny concerns with this instrument which were not addressed in the instrument's explanatory statement. As such, the committee has resolved to seek advice from the Minister for Indigenous Australians. The committee has first raised concerns about the conferral of discretionary powers.

It appeared to impact upon personal rights and liberties. For example, the committee is concerned about section 83, which authorises the Wreck Bay Aboriginal Community Council to suspend or cancel permits where there are reasonable grounds for believing that the holder is likely to contravene a condition of the permit. This may result in adverse consequences for permit holders based on anticipated rather than established conduct and may raise concerns regarding the presumption of innocence.

The committee is seeking the minister's advice in relation to this and other discretionary powers in the instrument, as they are not extensively justified in the instrument's explanatory statement. The committee has also raised concern about section 65, which appears to allow a broad class of persons to exercise the administrative power and functions of a warden.

As the instrument's explanatory statement does not include information relating to the appointment of wardens or the conferral of their powers, it's unclear to the committee why such conferrals are considered necessary and appropriate, what qualifications and skills appointed wardens will be required to have and whether any safeguards or limitations apply. Furthermore, the committee has sought advice about the necessity and appropriateness of coercive powers in the instrument, including powers to remove trespassers and impound and destroy animals.

The committee expects the inclusion of such provisions to be justified in the instrument's explanatory materials. Some of these powers are also accompanied by immunity from liability, which has heightened the committee's concerns in this regard. The committee has also sought advice regarding offence-specific defence provisions which reverse the evidential burden of proof.

A fundamental principle of the Australian legal system is that the prosecution must ordinarily prove all elements of an offence. In the absence of justification for these measures in the explanatory statement, it is unclear to the committee why reversing the evidential burden of proof is considered necessary and appropriate and what safeguards might exist. In addition, the instrument does not provide for independent merits review of the decisions made under the instrument and also appears to contain provisions that limit the availability of judicial review, including in relation to decisions that may affect individuals' rights and liberties.

The committee notes the unique policy and governance considerations associated with Aboriginal land and the objective of ensuring appropriate local decision-making in connection with management and protection of Aboriginal land. However, the committee ordinarily expects more detailed justifications to be set out in explanatory materials where review mechanisms are limited or excluded.

Furthermore, while the explanatory statement states that consultation was undertaken with executive members of the Wreck Bay Aboriginal Community Council's executive committee, the committee would usually expect further detail about the appropriateness of additional consultation with persons affected to also be set out in explanatory materials. The committee acknowledges that the executive members are well placed to advise on the operation and impact of the instrument.

However, it is unclear whether, and to what extent, this consultation reflects the views of the broader community who are directly affected. Finally, the committee also sought advice regarding the meaning of certain key terms and the necessity and appropriateness of prescribing certain matters by notifiable instrument. The instrument the committee has concluded on is the Woomera Prohibited Area Rules 2026.

This instrument prescribes the boundaries of the Woomera Prohibited Area, sets out arrangements for Defence use of the area and provides for approval of conditional access to the area by non-Defence users. The committee identified significant technical scrutiny concerns with the instrument and wrote to the Minister for Defence on 25 September 2026 seeking advice.

The committee received a response, dated 1 October 2026, which included an undertaking to amend the explanatory statement to the instrument by including additional information in relation to the matters raised by the committee. First, the committee sought the minister's advice in relation to the meaning and scope of the term 'security, defence or international relations of Australia', which is used in 14 provisions in the instrument.

This term is widely used in the context of discretionary decision-making powers that may significantly impact on rights and liberties, including powers to grant permits, approvals, conditions, cancellations and suspensions. However, the term is not defined in either the text of the instrument or its explanatory statement. The minister advised that this term is necessarily context specific and is intended to encompass matters affecting Australia's national security interests, including defence capability, testing activities and operations as well as cooperation with foreign governments.

The minister also noted that, in exercising some of these powers, consideration would be given to espionage, to intelligence collection and to foreign interference risks as well as to the impact on Australia's relationship with international partners. The committee also sought the minister's advice regarding subsection 20(2) and paragraph 41(3) of the instrument, which confer broad discretionary powers on Australian Defence Force and Public Service employees to direct contractors and permit holders within the Woomera Prohibited Area.

A failure to comply with such directions may have legal consequences, including contravention of an offence of strict liability. The committee was particularly concerned about the necessity and appropriateness of these powers, safeguards and limitations that apply. Furthermore, the committee raised concerns about sections 68 and 69 of the instrument, which provide for the delegation of various administrative powers.

The committee expects such delegations to be limited to members of the Senior Executive Service or equivalent and was concerned about the absence of such limitations in the instrument. The minister advised that the direction-making powers and the delegation of administrative powers facilitate safe, secure and responsive operations in a large and operationally complex environment.

The minister also advised that the exercise of the direction-making powers is subject to safeguards, including Defence accountability, supervision and governance arrangements and role-specific instruction, guidance and training. In addition, the minister noted that powers could be delegated according to significance with more significant powers, such as review powers, only delegable to senior officers.

Furthermore, the committee sought advice regarding the exclusion from both internal review and independent merits review of linked-cell determinations under sections 14 and 16 of the instrument. Refusal to grant such determinations may create disruption for permit holders due to Defence activities. The minister advised that these determinations are excluded from independent merits review due to their administrative and operational character and their limited practical effect.

The minister further stated that a refusal to grant a determination does not affect the existence, scope or continuance of any statutory right or permission held by the permit holder. Finally, the committee raised concerns about consultation undertaken in relation to the instrument, noting that the explanatory statement did not address whether consultation took place in relation to this specific instrument.

In response, the minister advised that consultation, including through briefings and town hall meetings, was undertaken with relevant stakeholders such as the South Australian government, First Nations groups, pastoralists, resource companies, railway operators and local councils. The minister further advised that feedback was sought in relation to the proposed changes but that none was received.

The committee thanks the minister for his engagement on these matters and prompt response to the committee's request for advice. In light of the minister's undertaking to amend the explanatory statement, the committee has resolved to conclude its examination of the instrument. With these comments, I commend the committee's Delegated legislation monitor: monitor10 of 2026 to the Senate.

Question agreed to.