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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Imported Food Control Act 1992
to:
• require documentary evidence from importers to demonstrate that
they have effective internationally recognised food safety
controls in place
throughout the supply chain for certain types of food;
• amend Australia's emergency powers to allow food to be held at the
border where there is uncertainty about the safety of a
particular food and
where the scientific approach to verify its safety is not established;
• provide additional powers to monitor and manage new and emerging
risks;
• recognise an entire foreign country's food safety regulatory system
where it is equivalent to Australia's food safety system;
• align the definition of 'food' with other Commonwealth
legislation;
• establish differentiated enforcement provisions to enable a
graduated approach to non‑compliance;
• require all importers of food to be able to trace food one step
forward and one step backward; and
• make minor technical amendments
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Portfolio
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Agriculture and Water Resources
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Introduced
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House of Representatives on 1 June 2017
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Bill status
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Before House of Representatives
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Scrutiny principles
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Standing Order 24(1)(a)(ii), (iv) and (v)
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2.91 The committee dealt with this bill in Scrutiny Digest No. 6 of 2017. The Minister responded to the committee's comments in a letter dated 13 July 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.[31]
2.92
Significant matters in delegated legislation[32]
Initial scrutiny – extract
2.93 Proposed subsection 18A will enable the Secretary to determine, in writing, that for food of a specified kind, a specified certificate issued by a specified person or body is a recognised food safety management certificate. Proposed subsection 18A(2) provides that the Secretary must make guidelines that the Secretary must have regard to before making a determination under proposed subsection 18A(1). Proposed subsection 18A(4) provides that determinations made under subsection 18A(1) and guidelines made under 18A(2) are not legislative instruments for the purposes of the Legislation Act 2003. The explanatory memorandum justifies this provision on the basis that neither of these instruments would fall within the substantive definition of legislative instruments under the Legislation Act 2003, as the determination and guidelines:
merely determine the particular cases or particular circumstances in which the law, as set out by the Act and the regulations, is or is not to apply; those instruments do not determine or alter the content of the law itself.[33]
2.94 Although it may be accepted that a determination that a specified certificate is a recognised food safety management certificate is one of an administrative rather than a legislative character, it is less clear why guidelines made under subsection 18A(2) should not be considered to be decisions of a legislative character and therefore subject to parliamentary oversight and accountability.
2.95 Insofar as the guidelines operate as mandatory relevant considerations, i.e. considerations that must be taken into account when the Secretary makes determinations under subsection 18A(1), the guidelines do appear to alter the content of the law and have general application.
2.96 Given the important role that the guidelines have in the making of determinations about recognised food safety management certificates, the committee requests the Minister's advice as to why the guidelines are not to be included in a disallowable legislative instrument (and therefore subject to parliamentary scrutiny).
Minister's response
2.97 The Minister advised:
Item 4 of the Bill proposes to insert section 18A into the Imported Food Control Act 1992 (the Act). This proposed section will provide for matters in relation to food safety management certificates and includes proposed subsection 18A(2) of the Act, which provides that the Secretary of the Department must, in writing, make guidelines that the Secretary must have regard to before making a determination under proposed subsection 18A(1) of the Act. Proposed subsection 18A(4) of the Act provides that guidelines made under proposed subsection 18A(2) of the Act are not legislative instruments.
Subsection 8(4) of the Legislation Act 2003 provides for the definition of 'legislative instrument'. If a proposed instrument satisfies the definition in that subsection, it will have legislative character and will be subject to the requirements of the Legislation Act.
The guidelines proposed by subsection 18A(2) of the Act do not have legislative character because the material in the guidelines will not determine or alter the content of the law or create or affect a privilege, interest or right. This is due to the fact that the proposed guidelines will be program specific operational guidance material, which is designed to assist the Secretary, or his or her delegate, to make decisions in relation to the presentation of recognised food safety management certificates by food importers (for example, does the certificate relate to the food described in the consignment; is the certificate bona fide or a forgery).
Further, it is the intention that the guidelines will list what food safety management schemes will be recognised and provide the framework on which these decisions were made. This will enable stakeholders to understand how the Department has made decisions, and will enable other food safety management schemes to approach the Department for recognition. The rationale for providing this information in an administrative instrument is two-fold:
• the decision making parameters are based on food science and risk management approaches and are of a technical and complex nature, and
• recognised food safety management schemes will be selected on the basis of the supporting food science and risk management approach.
Accordingly, as the guidelines proposed by subsection 18A(2) of the Act will not be legislative instruments, those guidelines will not attract the application of the disallowance provisions of the Legislation Act. Further, it would be inappropriate to subject these types of instruments to disallowance, as the decisions underpinning the listed recognised food safety management schemes will be made in reliance on established international initiatives that independently assess schemes against an established criteria (for example, the Global Food Safety Initiative).
Further, as proposed subsection 18A(5) of the Act will require the Secretary to publish any guidelines made under proposed subsection 18A(2) of the Act on the Department's website, importers will be able to access these guidance documents.
Committee comment
2.98 The committee thanks the Minister for this response. The committee notes the Minister's advice that it would not be appropriate for the guidelines made by the Secretary under proposed subsection 18A(2) to be subject to disallowance because:
(a) the relevant decision making parameters are based on food science and risk management approaches and are of a technical and complex nature;
(b) recognised food safety management schemes will be selected on the basis of the supporting food science and risk management approach; and
(c) the decisions underpinning the listed recognised food safety management schemes will be made in reliance on established international initiatives that independently assess schemes against an established criteria (for example, the Global Food Safety Initiative).
2.99 The committee also notes the Minister's advice that proposed subsection 18A(5) will require the Secretary to publish any guidelines made under proposed subsection 18A(2) on the Department's website and therefore importers will be able to access these guidance documents.
2.100 Generally, the committee will be concerned where any instrument of a legislative character is not subject to the parliamentary tabling and disallowance processes. In this case, the committee notes the Minister's advice that the guidelines made under proposed subsection 18A(2) would be of an administrative character; however, it remains unclear to the committee whether the guidelines will in fact be of an administrative or a legislative character as the guidelines determine matters which must be considered in exercising a statutory power and to that extent appear to alter the content of the law.
2.101 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
1.3 In this case, in light of the detailed information provided by the Minister relating to the technical and complex nature of the guidelines and the fact that there is a legislative requirement that the guidelines be published on the Department's website, the committee makes no further comment on this matter.
Initial scrutiny – extract
2.102 Item 10 of the bill proposes making amendments to enable the Secretary to make a holding order that states certain food imported into Australia is to be held in an approved place, on the basis that the Secretary is satisfied there are reasonable grounds for believing food of that kind may pose a risk to human health. The order can last for up to 28 days and may be extended more than once. There is no provision for merits review of the decision but the explanatory memorandum provides a detailed explanation as to why access to merits review would be inappropriate in the circumstances.[35]
2.103 The explanatory memorandum states that the requirement in proposed subsection 15(4) to enable the Secretary to extend the 28 day period by a further period of up to 28 days (with no limits on the number of extensions) 'has been inserted to enable continued protection of human health until the appropriate testing regime on the food for the particular hazard and/or adequate risk management strategies can be implemented in relation to the food'. It continues:
To provide a safeguard against arbitrary discretion, it is intended that the decision maker for an order under new subsection 15(3) of the Act will not be the same decision maker for, if applicable, a decision to extend the order under new subsection 15(4) of the Act.[36]
2.104 The committee notes that this safeguard will presumably be facilitated through delegating the relevant powers reposed in the Secretary to different or multiple decision-makers. However, there appears nothing on the face of the legislation to require that a different decision-maker exercise the power to extend an order.
2.105 The committee suggests that it may be appropriate for the bill to be amended to ensure that it is a legislative requirement that the decision to extend the period of a holding order is made by a different decision-maker to that who made the original holding order, and seeks the Minister's response in relation to this.
Minister's response
2.106 The Minister advised:
Item 10 of the Bill proposes to insert subsections 15(3) to (9) into the Act. These proposed subsections will provide for matters in relation to temporary holding orders where food poses a serious risk to human health. The proposed temporary holding orders will initially be issued for a period of 28 days, but proposed subsection 15(4) of the Act will enable the Secretary of the Department to extend that period for a further 28 days. The Secretary is not prohibited from making more than one extension of that period. However, under proposed subsection 15(5) of the Act, the Secretary must review the appropriateness of the order before making any further extension.
It is anticipated that the extension power in proposed subsection 15(4) of the Act will be exercised where, within the initial 28 day period of the order:
• appropriate testing regimes are unable to be identified or established in relation to the food; or
• where adequate risk management strategies are unable to be implemented in relation to the food.
Further, proposed subsections 15(5) and (6) of the Act seek to provide safeguards against the exercise of arbitrary discretion in the making of an order under proposed subsection 15(3) of the Act or the extension of any such order under proposed subsection 15(4) of the Act. Proposed subsection 15(5) of the Act requires the decision-maker to review the appropriateness of an order before making an extension to that order under proposed subsection 15(4) of the Act. Proposed subsection 15(6) of the Act requires the Secretary to immediately revoke an order when the circumstances specified for its revocation have occurred.
Proposed subsections 15(3), (4), (5) and (6) of the Act include powers and functions that are vested in the Secretary. Under section 41 of the Act, the Secretary may delegate any or all of his or her powers under the Act to:
• a Senior Executive Service (SES) employee, or acting SES employee in the Department; or
• an Australian Public Service (APS) employee who holds or performs the duties of an Executive Level 1 or 2 position, or an equivalent position, in the Department.
The Secretary is not required to delegate his or her powers and functions, and any such delegation may be limited to particular powers and functions or particular persons. For example, the Secretary is able to delegate his or her powers and functions in:
• proposed subsection 15(3) of the Act to appropriate Executive Level 1 employees in the Department; and
• proposed subsections 15(4), (5) and (6) to appropriate Executive Level 2 employees in the Department.
The inclusion of a legislative requirement that the decision to extend the period of a holding order under proposed subsection 15(4) of the Act must be made by a different decision-maker to that who made the original holding order would necessarily require the Secretary to delegate his or her power in order for proposed subsections 15(3) and (4) to be operational.
I consider that amending the Bill in the manner suggested by the Committee would be inconsistent with the general principles of delegation. In particular, the Secretary's discretion to delegate his or her powers and functions under section 41 of the Act would be fettered. It is appropriate that the Secretary retains the ability to determine the relevant delegate or delegates (if appropriate) for the purposes of proposed subsections 15(3) to (9) of the Act.
Committee comment
2.107 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is anticipated that the extension power in proposed subsection 15(4) will be exercised where, within the initial 28 day period of the holding order, appropriate testing regimes are unable to be identified or established in relation to the food, or where adequate risk management strategies are unable to be implemented in relation to the food. The committee also notes the Minister's advice that proposed subsections 15(5) and (6) seek to provide safeguards against the exercise of arbitrary discretion in the making of a holding order or the extension of any such order.[37]
2.108 The Minister also stated that amending the bill to include a legislative requirement that the decision to extend the period of a holding order must be made by a different decision-maker to that who made the original holding order would fetter the Secretary's discretion to delegate his or her powers and functions and that therefore it is appropriate that the Secretary retains the ability to determine the relevant delegate or delegates (if appropriate) for the purposes of proposed subsections 15(3) to (9).
2.109 As the explanatory memorandum notes, an important safeguard against arbitrary discretion in relation to extending the 28 day holding period by further periods of up to 28 days would be to ensure that the decision-maker for an initial order under proposed subsection 15(3) is not the same decision-maker for a decision to extend the order under proposed subsection 15(4).
2.110 The committee remains of the view that it is appropriate for the bill to amended to ensure that it is a legislative requirement that the decision to extend the period of a holding order is made by a different decision-maker to that who made the original holding order. The committee considers that such an amendment would not unduly inhibit the Secretary's discretion to delegate his or her powers as such an amendment would only constrain the Secretary's discretion in a very narrow way.
2.111 In relation to the Secretary's power to extend a holding order, in order to provide some guidance on the face of the primary legislation, the committee considers that it may be appropriate to amend proposed subsection 15(5) to ensure that before making an extension, the Secretary is satisfied that, within the initial (or preceding) 28 day period of the order:
• appropriate testing regimes were unable to be identified or established in relation to the food; or
• adequate risk management strategies were unable to be implemented in relation to the food.
2.112 Noting the significant impact that a holding order may have on importers of food, the committee considers it would be appropriate for the bill to be amended to ensure that it is a legislative requirement that the decision to extend the period of a holding order is made by a different decision-maker to that who made the original holding order. The committee draws its scrutiny concerns in relation to this to the attention of Senators and leaves to the Senate as a whole the appropriateness of this broad discretionary power.
2.113 In addition, the committee requests the Minister's further advice as to the appropriateness of amending the bill to provide further statutory guidance on the exercise of the Secretary's power to extend a holding order (see paragraph [2.21] above).
Initial scrutiny – extract
2.114 Proposed sections 22 and 23 trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to provisions of the Imported Food Control Act 1992. Proposed subsections 22(14) and 23(11) provide that an authorised officer may be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers, other than to explain that this 'preserves the effect of current section 32 of the Act' (which is being repealed).[39]
2.115 However, current section 32 of the Imported Food Control Act 1992 provides that an authorised officer may request the occupier of any premises entered to provide reasonable assistance to the officer. As such, the current provision is limited to the occupier of the premises providing assistance to the authorised officer. Whereas the proposed new provisions apply to any 'other persons' providing assistance. The powers granted to 'other persons' could be coercive, including entering premises, inspecting documents, operating electronic equipment, etc.[40] The bill also proposes to grant such 'other persons' the power to use such force against things as is necessary and reasonable in the circumstances.[41]
2.116 There is no explanation in the explanatory memorandum of the need to confer these powers on 'other persons' and the bill does not confine who may exercise the powers by reference to any particular expertise or training.
2.117 The committee therefore requests the Minister's advice as to why it is necessary to confer monitoring and investigatory powers on any 'other person' to assist an authorised officer and whether it would be appropriate to amend the bill to require that any person assisting an authorised officer be confined to the occupier of the relevant premises (as is currently required by the Imported Food Control Act 1992) or require the person assisting have specified skills, training or experience.
Minister's response
2.118 The Minister advised:
Item 25 of the Bill proposes to amend the Act to trigger the standard provisions in Parts 2 (monitoring powers), 3 (investigation powers), 4 (civil penalty provisions), 5 (infringement notices) and 6 (enforceable undertakings) of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).
Proposed subsections 22(14) and 23(11) will be inserted into the Act by item 25 of the Bill. Those proposed subsections seek to enable an authorised officer (as defined by section 3 of the Act) to be assisted by other persons in exercising powers or performing functions or duties under Parts 2 or 3 of the Regulatory Powers Act.
Drafting Direction Series Number 3.5A (Drafting Direction 3.5A) published by the Office of Parliamentary Counsel (OPC) sets out matters to be included in an Act when it is amended to trigger the standard provisions of the Regulatory Powers Act. For example, where an authorised person exercising monitoring or investigation powers under Parts 2 or 3 of the Regulatory Powers Act is able to be assisted by another person in exercising those powers, a specific provision allowing this should be included in the amended Act. Attachment A to Drafting Direction 3.5A provides drafting examples of provisions that seek to trigger Parts 2 and 3 of the Regulatory Powers Act, including the following:
[Person assisting
(x) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to [the provisions of this Act/the provisions mentioned in subsection (1)/information mentioned in subsection (2)].]
It is necessary and appropriate that an authorised person can be assisted by other persons when exercising their powers or performing their functions or duties under Parts 2 or 3 of the Regulatory Powers Act because:
• no other authorised person may be available to assist;
• the premises to be subject to monitoring or investigation may be large;
• there may be a large number of documents or material that needs to be reviewed;
• the other person may be more familiar with the relevant premises or hold a particular set of skills that would enable the authorised person to effectively exercise their powers and perform their functions or duties;
• things may be heavy or difficult to move without assistance.
Sections 23 and 53 of the Regulatory Powers Act provide for matters in relation to other persons assisting authorised persons, and will apply to the Act by virtue of proposed sections 22 and 23 of the Act, which seek to trigger Parts 2 and 3 of the Regulatory Powers Act. In particular, sections 23 and 53 of the Regulatory Powers Act state that an authorised person may only be assisted by other persons if that assistance is necessary and reasonable, and that assistance is empowered by the particular Act seeking to trigger Parts 2 and 3 of the Regulatory Powers Act.
When determining whether it is necessary and reasonable for an authorised officer to be assisted by other persons in relation to the Act, it is intended that regard will be had to any skills, training or relevant experience of that other person, including whether other appropriate training is required.
Further, proposed subsections 22(14) and 23(11) of the Act are consistent with other comparable provisions across the Commonwealth statute book, for example:
• subsections 481(4) and 484(3) of the Biosecurity Act 2015;
• subsections 39FB(2) and 39FD(2) of the Higher Education Support Act 2003;
• subsections 13K(4) and 13M(3) of the Narcotic Drugs Act 1987; and
• subsections 82(4) and 83(3) of the VET Student Loans Act 2016.
The explanatory memorandum to the Bill states that proposed subsections 22(14) and 23(11) of the Act preserve the effect of current section 32 of the Act. However, the effect of current section 32 of the Act is in fact preserved by sections 31 (in relation to monitoring powers) and 63 (in relation to investigation powers) of the Regulatory Powers Act.
Sections 31 and 63 of the Regulatory Powers Act will apply to the Act by virtue of proposed sections 22 and 23 of the Act, which seek to trigger Parts 2 and 3 of the Regulatory Powers Act. Sections 31 and 63 of the Regulatory Powers Act provide that the occupier of premises to which a monitoring or investigation warrant relates (or another person who apparently represents the occupier) must provide an authorised person executing the warrant, or any other person assisting that authorised person, with all reasonable facilities and assistance required for the effective exercise of their powers.
Paragraphs 24(4)(a) and 26(4)(a) of the Act currently provide that a monitoring or investigation warrant must authorise any authorised officer (as defined by section 3 of the Act) named in the warrant with such assistance and by such force as is necessary and reasonable to enter the premises and exercise monitoring or investigation powers. Accordingly, proposed subsections 22(14) and (15) and 23(11) and (12) of the Act preserve the effect of current paragraphs 24(4)(a) and 26(4)(a) of the Act.
Committee comment
2.119 The committee thanks the Minister for this response. The committee notes the Minister's advice in relation to circumstances where it may be considered necessary and appropriate for an authorised person to be assisted by other persons when exercising their powers or performing their functions or duties. The committee also notes the Minister's advice that sections 23 and 53 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) state that an authorised person may only be assisted by other persons if that assistance is necessary and reasonable.
2.120 The committee welcomes the Minister's indication that when determining whether it is necessary and reasonable for an authorised officer to be assisted by other persons it is intended that regard will be had to any skills, training or relevant experience of that other person, including whether other appropriate training is required. However, the committee notes that consideration as to whether an 'other person' has appropriate skills and training will not be required by the legislation.
2.121 The committee's consistent scrutiny position in relation to the exercise of coercive or investigatory powers is that persons authorised to use such powers should have received appropriate training. The committee understands the need for flexibility in determining who may be appropriate 'other persons' in the particular circumstances of an investigation, however the committee remains concerned that 'other persons' will be authorised to assist in the monitoring and investigation without any requirement for them to have received training in the use of the relevant monitoring or investigatory powers.
2.122 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.123 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing 'other persons' to assist authorised officers in exercising potentially coercive or investigatory powers[42] in circumstances where there is no legislative guidance about the appropriate skills and training required of those 'other persons'.
Initial scrutiny – extract
2.124 Proposed section 42A provides that the Secretary may disclose information, including personal information, obtained under the Imported Food Control Act 1992, to a wide range of Commonwealth, State, Territory, local and foreign government departments and agencies. Subsection 42A(5) provides that the Secretary must, in writing, make guidelines that the Secretary must have regard to before disclosing information to foreign countries. Subsection 42A(6) provides that before making such guidelines the Secretary must consult with the Information Commissioner and subsection 42A(7) provides the guidelines are not a legislative instrument. The explanatory memorandum states the guidelines will be made in consultation with the Australian Information Commissioner, will be published on the Department's website and when developing the guidelines 'consideration will be given to principles and guidelines established by Codex Alimentarius Commission' (which appears to be a Food Code).[44]
2.125 However, it is unclear to the committee why the guidelines, which become a mandatory consideration for exercising a power that affects the right to privacy, should not be a legislative instrument and, therefore, subject to parliamentary scrutiny and disallowance. It is also unclear why the development of the guidelines is limited to the exercise of the Secretary's power in disclosing information to a foreign country, and not in relation to disclosing information to other Commonwealth agencies and State, Territory or local governments.
2.126 The committee requests the Minister's advice as to:
• why the guidelines to be made by the Secretary in guiding the exercise of the power to disclose personal information to a wide range of bodies will not be subject to parliamentary disallowance;
• why the guidelines are confined to the exercise of the power under subsection 42A(3) (foreign governments) and not in relation to subsection 42A(2) (Commonwealth, State, Territory and local governments); and
• whether it would be appropriate to amend the bill to require that the Secretary must have regard to any submissions made by the Information Commissioner arising from the consultation required by subsection 42A(6).[45]
Minister's response
2.127 The Minister advised:
Item 43 of the Bill proposes to insert section 42A into the Act, which will provide for the use and disclosure of information obtained under the Act. Proposed section 42A of the Act will ensure that Australia can meet ongoing domestic and international obligations in relation to food safety management, including in relation to the protection of human health.
The proposed guidelines are not subject to disallowance because they are not legislative instruments
Proposed subsection 42A(5) of the Act provides that the Secretary must make written guidelines that the Secretary must have regard to before disclosing information under proposed subsection 42A(3) of the Act. Proposed subsection 42A(7) of the Act provides that guidelines made under proposed subsection 42A(5) of the Act are not legislative instruments.
Subsection 8(4) of the Legislation Act provides for the definition of 'legislative instrument'. If a proposed instrument satisfies the definition in that subsection, it will have legislative character and will be subject to the requirements of the Legislation Act.
The guidelines proposed by subsection 42A(5) of the Act do not have legislative character because the material in the guidelines will not determine or alter the content of the law or create or affect a privilege, interest or right. This is due to the fact that the proposed guidelines will be program specific operational guidance material, which will be designed to assist the Secretary, or his or her delegate, to make decisions in relation to the use and disclosure of information, including for the purposes of consistency and compliance with any applicable obligations under the Privacy Act 1988.
It is intended that information will only be shared internationally where:
• there is an existing information-sharing arrangement in place with the relevant foreign government; or
• there are applicable international agreements and treaties to which Australia is a signatory; or
• there is a significant and serious risk posed to human health in that particular country.
It is intended that the guidelines will provide consistent guidance on information-sharing, particularly where there are no existing arrangements with foreign countries. It is also important to note that proposed section 42A of the Act will enable Australia to share information with source countries of food that fails at Australia's border. This will result in safer food being imported into Australia, and will also assist our trading partners to address food safety concerns in their domestic markets.
As any guidelines proposed by subsection 42A(5) of the Act will not be legislative instruments, those guidelines will not attract the application of the disallowance provisions of the Legislation Act.
Further, as proposed subsection 42A(7) of the Act will require the Secretary to publish any guidelines made under proposed subsection 42A(5) of the Act on the Department's website, importers will be able to access these guidance documents.
It is appropriate that the proposed guidelines are confined to the exercise of power under proposed subsection 42A(3) of the Act
Proposed subsection 42A(3) of the Act provides that the Secretary may disclose information (including personal information) obtained under the Act to listed international parties where that disclosure is necessary for that international party to perform or exercise any of its functions, duties or powers. Proposed subsection 42A(2) of the Act provides for a similar power in relation to Commonwealth, state and territory, and local government bodies.
The powers and functions in proposed section 42A of the Act must be exercised in compliance with the Privacy Act, which provides for protections on the collection, storage, use, disclosure or publication of personal information. The Privacy Act also establishes the Australian Privacy Principles (APP). In particular, APP 6 and 8 will be relevant to proposed subsections 42A(2) and (3) of the Act, as those proposed subsections may relate to the use or disclosure of personal information (APP 6) and cross-border disclosure of personal information (APP 8).
It is important to note that most information to which proposed subsections 42A(2) and (3) of the Act apply will in fact be commercial information.
The guidelines proposed by subsection 42A(5) of the Act are confined to the exercise of power under proposed subsection 42A(3) of the Act, and do not apply in relation to proposed subsection 42A(2) of the Act, because the Privacy Act, particularly Australian Privacy Principle 6, already provides appropriate requirements, safeguards and guidance in relation to disclosure of personal information to bodies in Australia. Further, guidance on the APPs is publicly available on the Australian Information Commissioner's website.
Proposed subsection 42A(3) of the Act will authorise the disclosure of information to overseas recipients by law, which falls within the exception to APP 8 at clause 8.2(c) of Schedule 1 to the Privacy Act. The consideration of guidelines prior to the disclosure of personal information to an overseas recipient ensures that the disclosure is appropriate in the circumstances. Proposed subsection 42A(5) of the Act is in line with guidance issued by the Australian Information Commissioner in relation to exceptions to APP 8.
The consultation requirements in proposed section 42A of the Act are appropriate in their current form
Finally, proposed subsection 42A(6) of the Act requires the Secretary to consult the Australian Information Commissioner before making guidelines under proposed subsection 42A(5) of the Act.
It is appropriate that the Secretary is required to consult the Australian Information Commissioner before making guidelines under proposed subsection 46A(5) of the Act to ensure that the guidelines remain contemporary and accurate. The proposed guidelines will also contemplate any guidance material in relation to APP 8 that is publicly issued by the Australian Information Commissioner on the Commissioner's website.
The Committee provided subsection 28(1A) of the National Cancer Screening Register Act 2016 as an example of a provision that requires that the relevant person must have regard to submissions made by the Australian Information Commissioner.
Subsection 28(1A) of the National Cancer Screening Register Act can be differentiated from proposed subsection 42A(6) of the Act because:
• subsection 28(1A) of the National Cancer Screening Register Act relates to the power of the relevant Minister to make, by legislative instrument, rules relating to that Act; and
• the key information referred to in the National Cancer Screening Register Act is personal and sensitive information.
The guidelines under proposed subsection 42A(5) of the Act are not legislative instruments, and a disclosure under proposed subsection 42A(3) of the Act will not relate to sensitive information and will predominantly relate to commercial information.
Committee comment
2.128 The committee thanks the Minister for this response.
2.129 In relation to the committee's question regarding why the guidelines to be made by the Secretary under proposed subsection 42A(5) guiding the exercise of the power to disclose personal information to foreign governments and agencies will not be subject to parliamentary disallowance, the committee notes the Minister's advice that the guidelines would be of an administrative character. However, it remains unclear to the committee whether the guidelines will in fact be of an administrative or a legislative character as the guidelines determine matters which must be considered in exercising a statutory power and to that extent appear to alter the content of the law. Generally, the committee will be concerned where any instrument of a legislative character is not subject to the parliamentary tabling and disallowance processes.
2.130 In relation to the committee's question regarding why the guidelines are confined to the exercise of the power under subsection 42A(3) (relating to disclosure to foreign governments) and not in relation to subsection 42A(2) (relating to disclosure to Commonwealth, State, Territory and local governments), the committee notes the Minister's advice that the Privacy Act 1988 already provides appropriate requirements, safeguards and guidance in relation to disclosure of personal information to bodies in Australia.
2.131 In relation to the committee's question regarding the appropriateness of amending the bill to require that the Secretary must have regard to any submissions made by the Information Commissioner arising from the consultation required by subsection 42A(6), the committee notes the Minister's advice that disclosure under proposed subsection 42A(3) of the Act will not relate to sensitive information and will predominantly relate to commercial information.
2.132 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
1.3 In this case, in light of the detailed information provided by the Minister and the fact that information which may be disclosed under these provisions will not relate to sensitive information, the committee makes no further comment on this matter.
[31] See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest.
[32] Item 4, proposed subsection 18A. The committee draws Senators' attention to this provision pursuant to principle 1(a)(iv) of the committee's terms of reference.
[33] Explanatory memorandum, pp 39–40.
[34] Schedule 1, item 10. The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.
[35] Explanatory memorandum, p. 42.
[36] Explanatory memorandum, p. 10.
[37] Proposed subsection 15(5) requires the decision-maker to review the appropriateness of an order before making an extension to that order and proposed subsection 15(6) requires the Secretary to immediately revoke an order when the circumstances specified for its revocation have occurred.
[38] Schedule 1, item 25, proposed subsections 22(14) and 23(11). The committee draws Senators' attention to these provisions pursuant to principle 1(a)(ii) of the committee's terms of reference.
[39] Explanatory memorandum, pp 57 and 59.
[40] See Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.
[41] See Schedule 1, item 25, proposed new subsections 22(15) and 23(12).
[42] See Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014.
[43] Schedule 1, item 43. The committee draws Senators' attention to this provision pursuant to principle 1(a)(v) of the committee's terms of reference.
[44] Explanatory memorandum, p. 71.
[45] For an example of such a provision, see subsection 28(1A) of the National Cancer Screening Register Act 2016.
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