Principle (m): Other technical scrutiny grounds

Overview

Senate standing order 23(3)(m) requires the committee to scrutinise each instrument as to whether it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate. The matters raised by the committee under this principle will vary from instrument to instrument. However, they will be underpinned by the committee's concern to ensure adequate parliamentary oversight and protect and promote fundamental rule of law principles. The following sections provide additional guidance on some key issues which the committee may raise under scrutiny principle (m).

Use of notifiable instruments

The committee will scrutinise a power to create a notifiable instrument that is contained in a legislative instrument. Notifiable instruments are not subject to the same level of parliamentary oversight as legislative instruments. In particular, notifiable instruments are not required to be tabled in both Houses of Parliament. They are also not subject to disallowance or sunsetting.

Therefore, the committee will be concerned where a notifiable instrument determines a matter that is legislative in character, such as affecting a privilege, right, interest or obligation. For example, where a legislative instrument enables a notifiable instrument to specify disclosable personal information. Accordingly, the committee expects that notifiable instruments will only be used in relation to matters that are not of a legislative character.

Accordingly, where a legislative instrument provides for the inclusion of matters in a notifiable instrument, the instrument's explanatory statement should explain how such matters are not of a legislative character. It should also explain why the use of a notifiable instrument is considered necessary and appropriate.

Disclosure of funding amounts

The committee will scrutinise instruments made under the Financial Framework (Supplementary Powers) Act 1997 and the Industry Research and Development Act 1986 to support the parliamentary oversight of Commonwealth expenditure. As these instruments authorise the expenditure of public money on specified grants and programs, the committee expects their explanatory statements to describe the nature and scope of relevant programs or grants authorised by the instrument, including the amount of expenditure and the entities to which the funding will be provided.

Tabling of significant reports and other documents

Tabling significant documents in Parliament is important for effective parliamentary scrutiny because it alerts parliamentarians to the existence of these documents and provides opportunities for debate. The committee expects instruments providing for the creation of significant reports and documents to also require those documents to be published and tabled in Parliament. Where an instrument does not include this requirement, the explanatory statement should explain why excluding the publication and tabling of significant reports and other documents is necessary and appropriate.