Senate standing order 23(3)(g) requires the committee to scrutinise each instrument as to whether the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument.
The committee has long emphasised the importance of explanatory statements as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation. The checklists below identify the types of information which the committee typically considers should be included in explanatory statements. They are indicative, rather than exhaustive, and the committee's expectations may differ depending on the purpose and scope of the instrument.
- Legislative authority
-
The instrument's explanatory statement should:
- identify specific provision(s) of its enabling Act that provide the legal authority for the instrument to be made;
- note that the instrument relies on section 4 of the Interpretation Act if it is made in anticipation of the commencement of its enabling provisions; and
- note that the instrument relies on subsection 33(3) of the Interpretation Act if the instrument repeals or amends another instrument and there is no express power in its enabling legislation to do so.
- Compliance with legislative preconditions
-
If the instrument's enabling legislation establishes any preconditions for making the instrument, the explanatory statement should explain how they have been satisfied.
- Explanation of purpose
-
The explanatory statement must explain the purpose and operation of the instrument, with sufficient detail for a reader to understand how each clause will function.
- Statement of compatibility with human rights
-
The explanatory statement of a disallowable instrument must contain a 'standalone' statement of compatibility with human rights.
- Constitutional validity
-
Instruments specifying expenditure
Where an instrument specifies expenditure, the explanatory statement should identify how the constitutional head/s of legislative power relied on support the grant or program.
Separation of powers
Where an instrument confers non-judicial functions or powers on a federal court or judicial officer, the explanatory statement should include an explanation of how the instrument complies with the separation of powers doctrine embodied in the Constitution.
Implied freedom of political communication
Where an instrument raises a question as to whether it may restrict the constitutionally protected freedom of political communication, the explanatory statement should address how the instrument does not impermissibly restrict the freedom, drawing on relevant jurisprudence where appropriate.
- Delegated and discretionary powers
-
Where an instrument delegates administrative powers or functions, the explanatory statement should explain:
- the purpose, scope and necessity of including provisions which confer broad discretionary powers on a person or authorise a person to delegate administrative powers or functions to others;
- why it is appropriate for the relevant person or delegate to exercise administrative powers or functions, including whether they would possess the appropriate qualifications and necessary skills;
- the nature and source of any limitations or safeguards relevant to the exercise of the administrative powers or functions, including whether those safeguards or limitations are contained in law or policy. Where the instrument authorises the delegation of administrative powers or functions to a member of the Australian Public Service, the explanatory statement should provide a thorough justification for any delegation of powers to officers below the SES level.
- Automated decision-making
-
Where an instrument facilitates automated decision making, the explanatory statement should explain:
- the nature and extent of the automated decision-making;
- why it is considered necessary and appropriate to provide for automated assistance in the decision-making process;
- safeguards are in place to ensure the decision-maker exercises their discretionary powers personally and without fetter, as well as in relation to review rights and correction of errors.
- Consultation
-
The instrument's explanatory statement should include:
- a detailed explanation of what consultation was undertaken in relation to the specific instrument, including consultation in relation to the specific instrument and with experts and persons likely to be affected;
- if not, why no such consultation occurred;
- if the rule-maker is relying on previous broader consultation, why it was considered unnecessary to undertake additional consultation in relation to the specific instrument; and
- a description of the outcomes of the consultation (for example, any action that has been taken based on comments or submissions received).
- Clear drafting
-
Instruments and explanatory statements should be drafted in such a way that individuals' rights and obligations are clear.
- Clearly define key terms
-
Key terms should be clearly defined in the instrument and its explanatory statement. Where the definition of a key term is sourced from other legislation, the relevant source provision should be cited in the explanatory statement.
- Incorporation of documents and free access and use
-
If the instrument incorporates a document, the explanatory statement should:
- identify the document with sufficient specificity (e.g; name and edition, if applicable);
- indicate how the document may be obtained, including whether it can be freely accessed, for example, online, at specified public libraries or made available for viewing at specified offices;
- address the manner of incorporation (e.g., incorporated as of a certain date or as it exists from time-to-time); and
- indicate the legislative authority relied upon to incorporate the document from time-to-time (if applicable).
If the instrument or incorporated document/s are subject to copyright, the explanatory statement should explain:
- why it is necessary to use the copyrighted material;
- how the use of the copyrighted material may impact the ability of the public to access and understand the law; and
- how individuals can access the document in other ways.
- Collection, use and disclosure of personal information (privacy)
-
Where an instrument provides for the collection, use or disclosure of personal information, the explanatory statement should explain:
- the nature and scope of the provisions, including the extent of the personal information that may be disclosed and the persons or entities to whom disclosure is permitted;
- why the provisions are considered necessary and appropriate;
- whether a privacy impact statement was prepared; and
- what safeguards are in place to protect the personal information, and whether these are set out in law or in policy (including whether the Privacy Act 1988 applies).
- Coercive powers
-
Where an instrument includes entry, search and seizure powers, provides for the confiscation or destruction of personal property, or authorises the use of force, the explanatory statement should explain:
- the nature and scope of the provisions, including any constraints or conditions on the grant and exercise of the powers, and the circumstances in which the powers will be exercised;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- who may exercise the powers, and whether they are required to possess specific skills or qualifications;
- whether compensation is available for any property seized or destroyed in the exercise of the powers;
- whether independent review is available of decisions made, and actions taken, in connection with the exercise of the powers; and
- whether the provisions comply with Chapters 7 and 8 of the Attorney General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
- Retrospective commencement or effect
-
Where an instrument commences retrospectively, or commences prospectively but has a retrospective effect, the explanatory statement should explain:
- the nature and scope of the provisions;
- why the retrospectivity is considered necessary and appropriate; and
- whether any person has been, or may be disadvantaged by the retrospectivity and, if so, what steps have been or will be taken to avoid such disadvantage.
- Abrogation of the privilege against self-incrimination
-
Where an instrument abrogates this privilege, the explanatory statement should explain:
- the nature and scope of the abrogation of the privilege against self-incrimination, including any limitations on the abrogation;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- the provision of use or derivative use immunity; and
- any restrictions on the sharing of information obtained with law enforcement agencies.
- Immunity from liability
-
Where an instrument confers immunity from liability, the explanatory statement should explain:
- the nature and scope of the immunity;
- why the breadth of the immunity is considered necessary and appropriate; and
- why the immunity is necessary for each specific class of person to whom it applies.
- Procedural fairness
-
Where an instrument excludes or limits the right to procedural fairness, for example, by infringing upon the fair hearing rule or no bias rule, the explanatory statement should comprehensively explain why it is necessary to exclude or limit procedural fairness.
- Reverse burden of proof
-
Where an instrument reverses the evidential or legal burden of proof by requiring the defendant to raise evidence about a matter (evidential burden) or to positively prove a matter (legal burden), the explanatory statement should explain:
- the nature and scope of the provisions; and
- why it is considered necessary and appropriate to reverse the burden of proof, noting that a much stronger justification is necessary to justify reversing the legal burden;
- whether the provisions satisfy the following test from the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers at [4.3]:
- whether the relevant matter is peculiarly within the knowledge of the defendant; and
- whether it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish; and
- if the provision reverses the legal burden of proof (requires the defendant to positively prove a matter), why this is considered necessary.
- Strict and absolute liability
-
Where an instrument contains offences of strict or absolute liability, the explanatory statement should explain:
- Availability of independent merits review
-
Where an instrument empowers a decision-maker to make discretionary decisions with the capacity to affect rights, liberties, obligations or interests, the explanatory statement should explain:
- whether independent merits review is available; and
- if merits review has not been made available, the characteristics of the relevant decisions which justify their exclusion from merits review, by reference to the Administrative Review Council's guide, What decisions should be subject to merit review?;
- if merits review of a decision under the instrument is expressly precluded by the enabling legislation, a description of additional safeguards in relation to the relevant decisions, such as special training for decision-makers, guidance for decision-makers in exercising their discretion, and the availability of other forms of external review such as by the Ombudsman.
- Availability of judicial review
-
Where an instrument excludes or limits the availability of judicial review for a decision, the explanatory statement should explain:
- the nature and scope of the exclusion or limitation, such as a no-invalidity clause;
- why the exclusion or limitation is necessary and appropriate, noting the serious consequences it will have for a person affected by the decision; and
- the nature and scope of any relevant safeguards in the absence of judicial review.
- Significant elements of a regulatory scheme
-
If an instrument contains significant elements of such a program or scheme, the explanatory statement should explain why it is considered necessary and appropriate to include significant elements of the scheme in delegated rather than primary legislation.
- Significant penalties
-
- Where an instrument imposes a penalty for individuals above 50 penalty units or 250 penalty units for corporations, or imposes a custodial penalty, the explanatory statement should explain:
- the source of the specific legislative authority to impose the penalties;
- why the penalties are appropriate to the relevant offence;
- why it is considered necessary and appropriate to include such penalties in delegated legislation;
- where an instrument includes custodial penalties, whether the Attorney-General was consulted, in accordance with Part 3.3 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
- Imposition of taxes and levies
-
Where an instrument imposes a charge, fee or levy, the explanatory statement should explain the purpose of the imposition (e.g., fee for services rendered). Where the amount does constitute a tax or levy, the explanatory statement should explain:
- the legislative authority relied upon for using delegated legislation to set the levy or tax (e.g., a charges Act);
- whether the enabling Act imposes any limitations on the imposition of taxation (e.g., a statutory cap on the amount that may be imposed); and
- why it is considered necessary and appropriate to use delegated legislation to set the levy or tax, rather than primary legislation.
- Exemption and deferral from sunsetting
-
Where an instrument is exempt from sunsetting, or contains measures that will remain in force within a principal instrument that is exempt from sunsetting, the explanatory statement should:
- identify the specific legislative authority for the exemption; and
- explain the exceptional circumstances that justify the exemption.
Where an instrument defers the sunsetting date of another instrument, the explanatory statement should:
- explain how the deferral of sunsetting meets the requirements of section 51 of the Legislation Act; and
- explain why the deferral is necessary and appropriate.
- Amendment, modification or exemptions from, primary legislation
-
Where an instrument includes a provision which amends or modifies primary legislation, or exempts persons or entities from the operation of primary legislation, the explanatory statement should explain:
- the specific legislative authority relied upon to create the amendment, modification, or exemption to primary legislation in delegated legislation;
- the nature and scope of the amendment, modification, or exemption, including the persons, entities or classes of persons or entities to which it applies;
- why it is considered necessary and appropriate to create the amendment, modification or exemption to primary legislation in delegated legislation (rather than directly amending the relevant primary legislation);
- the duration of the amendment, modification or exemption and, if the instrument is not time limited, the reason for why this is necessary; and
- whether there is any intention to conduct a review of the relevant provisions to determine if they remain necessary and appropriate (including to determine whether it is appropriate to include the provisions in delegated legislation).