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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 establish a Regional Investment Corporation
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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 14 June 2017
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Scrutiny principles
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Standing Order 24(1)(a)(ii), (iv) and (v)
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2.278 The committee dealt with this bill in Scrutiny Digest No. 7 of 2017. The Minister responded to the committee's comments in a letter dated 14 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.[117]
Initial scrutiny – extract
2.279 This bill seeks to establish a Regional Investment Corporation. One of the functions of the Corporation will be to administer, on behalf of the Commonwealth, financial assistance to States and Territories in relation to water infrastructure projects.[119] As part of this role the Corporation will:
• liaise, negotiate and cooperate with States and Territories and other parties on possible water infrastructure projects;[120]
• provide advice to ministers on water infrastructure projects[121] (for example, on matters such as feasibility, alignment of the project with government objectives for water infrastructure, as well as suitable terms and conditions for any financial assistance);[122]
• on direction from the relevant ministers, enter into agreements to grant financial assistance to States and Territories in relation to water infrastructure projects;[123] and
• review these grants periodically, including the terms and conditions on which such financial assistance is granted.[124]
2.280 If the Corporation is established it will be the administrator of the National Water Infrastructure Loan Facility, although the legislative provisions do not limit the Corporation's functions to the administration of this particular Facility. As a result, the Corporation may administer other programs of financial assistance to States and Territories in relation to water infrastructure projects in the future.
2.281 As the explanatory memorandum notes, grants of financial assistance to the States are made under section 96 of the Constitution. The explanatory memorandum further suggests that the Corporation will undertake the administration of these financial assistance programs on behalf of the Commonwealth because 'the decision on whether to provide the financial assistance remains with the government, not the Corporation'.[125]
2.282 The committee takes this opportunity to highlight that the power to make grants to the States and to determine terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution.[126] Where the Parliament delegates this power to the executive, the committee considers that it is appropriate that the exercise of this power be subject to at least some level of parliamentary scrutiny, particularly noting the terms of section 96 of the Constitution and the role of Senators in representing the people of their State or Territory.
2.283 Noting this, and the fact that the terms and conditions of financial assistance may be of significance to water infrastructure policy generally, the committee suggests it may be appropriate for the bill to be amended to:
• include at least some high-level guidance as to the types of terms and conditions that States and Territories will be required to comply with in order to receive payments of financial assistance for water infrastructure projects;
• include a legislative requirement that any directions made by the responsible ministers under subclause 12(3) and any agreements with the States and Territories about these grants of financial assistance are:
- tabled in the Parliament within 15 sitting days after being made, and
- published on the internet within 30 days after being made.
2.284 The committee requests the Minister's response in relation to this matter.
Minister's response
2.285 The Minister advised:
Clause 8 of the Bill sets out the functions of the Regional Investment Corporation (the Corporation), including to administer on behalf of the Commonwealth, financial assistance to States and Territories in relation to water infrastructure projects. Subparagraph 8(1)(c)(iii) of the Bill links the function of entering into an agreement for the grant of financial assistance with a direction from responsible Ministers under subclause 12(3) of the Bill.
The Parliament will have an appropriate degree of visibility in relation to grants of financial assistance for water infrastructure projects. This visibility will be achieved via the Operating Mandate issued to the Corporation by the responsible Ministers under clause 11 of the Bill, and reporting requirements for corporate Commonwealth entities under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act).
The Operating Mandate provides the key vehicle for the government to set out its expectations for the Corporation. It is expected to include high-level programme requirements associated with financial assistance under the National Water Infrastructure Loan Facility, including eligibility criteria and key loan specifications. Parliament will have visibility of these matters as the Operating Mandate is a legislative instrument (refer to subclause 11(1) of the Bill) and will be subject to tabling requirements of the Legislation Act 2003.
Subclause 12(3) of the Bill provides for the responsible Ministers to direct the Corporation to enter into an agreement, on behalf of the Commonwealth, for the grant of financial assistance to a State or Territory for a water infrastructure project. The direction may specify terms and conditions to be included in the agreement. These directions will not be legislative instruments (refer to later discussion); however, the Corporation will be required to publish details on any directions it receives from responsible Ministers in its annual reports, including those made under subclause 12(3) of the Bill.
This requirement arises because of section 46 of the PGPA Act, under which corporate Commonwealth entities must prepare, and present to Parliament, annual reports that comply with any requirements prescribed by the rules. Paragraph 17BE(d) of the Public Governance, Performance and Accountability Rule 2014 (the PGPA Rule) requires details on any directions received by the entity to be published in its annual reports.
Section 16F of the PGPA Rule also requires annual reports to detail the performance of the entity, which, for the Corporation, will include reporting on its administration of grants of financial assistance to States and Territories for water infrastructure projects. Other applicable reporting requirements for corporate Commonwealth entities are set out in Part 2-3 of Chapter 2 of the PGPA Act.
Committee comment
2.286 The committee thanks the Minister for this response. The committee notes the Minister's advice that the Regional Investment Corporation's Operating Mandate will be the key vehicle for the government to set out its expectations for the Corporation and that it is expected to include high-level programme requirements associated with financial assistance under the National Water Infrastructure Loan Facility, including eligibility criteria and key loan specifications. The Minister advised that Parliament will have visibility of these matters as the Operating Mandate will be tabled in the Parliament. The committee also notes the Minister's advice that any directions to enter into an agreement for the grant of financial assistance to a State or Territory made under subclause 12(3) of the bill may specify terms and conditions to be included in the agreement and the directions will be required to be published in the Corporation's annual report as a result of the provisions of paragraph 17BE(d) of the Public Governance, Performance and Accountability Rule 2014 (the PGPA Rule).
2.287 The committee reiterates that the power to make grants to the States and to determine terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution.[127] Where the Parliament delegates this power to the executive, the committee considers that it is appropriate that the exercise of this power be subject to at least some level of parliamentary scrutiny, particularly noting the terms of section 96 of the Constitution and the role of Senators in representing the people of their State or Territory.
2.288 The committee thanks the Minister for advising it of the requirements in the PGPA Rule which mean that the Corporation's annual report will include details about any ministerial directions given to the Corporation, including directions to enter into an agreement for the grant of financial assistance to a State or Territory. However, it is not clear that the annual reports will include details about all of the relevant terms and conditions imposed on States and Territories, nor is there any legislative requirement to publish on the internet or table in the Parliament the relevant agreements in their entirety. In addition, the committee notes that the response does not directly provide any detail as to why it would not be appropriate to include at least some high-level guidance as to the types of terms and conditions that States and Territories will be required to comply with on the face of the bill.
2.289 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of delegating to the executive government and the proposed Regional Investment Corporation the Parliament's power under section 96 of the Constitution to make grants to the States and to determine terms and conditions attaching to them, without any statutory guidance as to the types of terms and conditions that States and Territories will be required to comply with or a statutory requirement that the relevant agreements with the States and Territories be published on the internet or tabled in the Parliament.
2.290 Clauses 11 and 12 of the bill would allow the responsible ministers to give directions, by legislative instrument, to the Regional Investment Corporation. Clause 11 relates to directions making up the Corporation's 'Operating Mandate' and clause 12 relates to 'other directions'.
2.291 In relation to the Operating Mandate,[129] the explanatory memorandum states that:
The Operating Mandate has been specified in the Act to be a legislative instrument. This is because it will specify matters which are legislative in character. As a legislative instrument, the Operating Mandate is required to be registered on the Federal Register of Legislation and tabled in Parliament. This approach will also provide for transparency and accountability when the government issues directions via the Operating Mandate.
2.292 However, as the Operating Mandate is made up of directions given by a Minister to a corporate Commonwealth entity it will be a non-disallowable instrument, and will not be subject to sunsetting, as it falls within relevant exemptions in the Legislation (Exemptions and Other Matters) Regulation 2015. The explanatory memorandum states that this approach 'reflects that the mandate will be the mechanism in which the government sets its expectations for the Corporation' and that it 'ensures a mandate is in force at all times'.[130]
2.293 In relation to 'other directions' to the Corporation,[131] the explanatory memorandum states that these directions are not legislative instruments (and therefore will not be subject to disallowance, sunsetting or a requirement to table them in Parliament) because they are:
subject to the exclusion in item 3 of the table in subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015. This provides that a direction given by a Minister to a corporate Commonwealth entity ... is not a legislative instrument.[132]
2.294 Some of the matters to be determined in these non-disallowable directions are relatively significant. For example, the directions may include directions relating to:
• eligibility criteria for loans or financial assistance;[133]
• a class of farm business loans;[134]
• terms and conditions attaching to agreements with the States and Territories in relation to water infrastructure projects;[135] and
• where the Corporation is to be located.[136]
2.295 In relation to the 'other directions' provided for in clause 12, the responsible ministers must seek the Board's advice in relation to directions about farm business loans and water infrastructure projects, but they are not required to seek the Board's advice in relation to directions about where the Corporation is to be located.
2.296 Other than noting that these directions fall within relevant exemptions from disallowance and sunsetting contained in the Legislation (Exemptions and Other Matters) Regulation 2015, the explanatory memorandum does not explain why it is necessary for all of these directions to be exempt from disallowance and sunsetting (and in the case of 'other directions' also why there is no requirement to table the directions in Parliament).[137] The committee's consistent position is that significant concepts relating to a legislative scheme should be defined in primary legislation (or at least in legislative instruments subject to parliamentary disallowance, sunsetting and tabling) unless a sound justification for using non-disallowable delegated legislation is provided.
2.297 The committee requests the Minister's advice as to why it is appropriate for all of the ministerial directions under clauses 11 and 12 not to be subject to disallowance and sunsetting, and why it is appropriate that there is no requirement to table 'other directions' made under clause 12 in the Parliament.
2.298 The committee also requests the Minister's advice as to why there is no requirement to seek the Board's advice prior to the making of a direction about where the Corporation is to be located under subclause 12(5).
Minister's response
2.299 The Minister advised:
The approach taken to the tabling, disallowance and sunsetting of the directions given by responsible Ministers under clauses 11 and 12 of the Bill reflects the character of the directions, the level of executive control considered appropriate, and the need for directions to remain in force until revoked.
As detailed in the explanatory memorandum to the Bill, the approach taken is also in line with the Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulation). The Regulation exempts directions from ministers to corporate Commonwealth entities from being legislative instruments. It also exempts legislative instruments that are directions from a minister to a person or body from disallowance and sunsetting.
To assist the Committee's consideration of the Bill, further detail on the specific directions is provided below.
Operating Mandate (clause 11 of the Bill)
Section 6 of the Regulation exempts classes of instruments from being legislative instruments. This exemption includes a direction given by a minister to a corporate Commonwealth entity within the meaning of the PGPA Act (refer to item 3 of the table in section 6 of the Regulation). The explanatory statement to the Regulation states that the exemption is appropriate because these types of instruments are administrative in character, as they do not determine the law or alter the content of the law; rather, they determine how the law does or does not apply in particular cases or circumstances.
Despite this express exemption, the Bill provides for the Operating Mandate to be treated as a legislative instrument. This approach has been taken because the Operating Mandate relates to matters that are considered to be legislative in character. Given this, and due to subsection 8(2) of the Legislation Act, the tabling requirements of the Legislation Act will apply.
However, the Operating Mandate will not be subject to disallowance and sunsetting. Section 9 of the Regulation exempts classes of legislative instruments from being subject to disallowance. Item 2 of the table in that section is relevant in this case. The explanatory statement to the Regulation states that this exemption appropriately recognises that executive control is intended for these types of instruments.
Section 11 of the Regulation exempts classes of legislative instruments from being subject to sunsetting. Item 3 of the table in that section applies in this case. The explanatory statement to the Regulation states that sunsetting is not appropriate for these types of instruments because they are intended to remain in place until revoked by the relevant Minister.
Other directions
The 'other directions' given to the Corporation under clause 12 of the Bill will be administrative in nature and will not determine or alter the law. For example, directions made under subclause 12(3) of the Bill will relate only to a particular State or Territory in relation to a particular water infrastructure project. As a result, the approach taken for 'other directions' in the Bill is different from the approach to the Operating Mandate.
Section 6 of the Regulation exempts classes of instruments from being legislative instruments. Item 3 of the table in that section is applicable in this case. Due to this express exemption, the provisions of the Legislation Act, including in relation to disallowance and sunsetting, will not apply to the 'other directions' in clause 12 of the Bill.
However, as noted above, under paragraph 17BE(d) of the PGPA Rule, the Corporation will be required to publish details on any directions it receives from responsible Ministers in its annual reports. This requirement ensures there will be appropriate transparency on ministerial directions to the Corporation.
Consultation on the location of Corporation
It is not appropriate for the Bill to require the Board to be consulted on the location of the Corporation prior to a direction being made under subclause 12(5). The decision to establish the Corporation in Orange, NSW, has already been made by the government. This decision, combined with subclause 12(5) of the Bill, will provide certainty to the Board about the location of the entity and allows it to focus on having the Corporation fully operational in Orange, NSW, by July 2018.
Committee comment
2.300 The committee thanks the Minister for this response. The committee notes the Minister's advice that the exemption from disallowance and sunsetting of the Operating Mandate and the other directions given by responsible ministers under clause 12 of the bill reflects the character of the directions, the level of executive control considered appropriate, and the need for directions to remain in force until revoked. The Minister also advises that the approach taken is in line with the Legislation (Exemptions and Other Matters) Regulation 2015 (the Exemption Regulation). The committee also notes the Minister's advice that the Operating Mandate relates to matters that are considered to be legislative in character and it is suggested that other directions given by responsible ministers under clause 12 of the bill will be administrative in nature and will not determine or alter the law. The committee notes the Minister's advice that it is not appropriate for the bill to require the Board to be consulted on the location of the Corporation prior to a direction being made under subclause 12(5) because the decision to establish the Corporation in Orange, NSW, has already been made by the government. The Minister also advised that this decision, combined with subclause 12(5) of the bill, will provide certainty to the Board about the location of the entity and allows it to focus on having the Corporation fully operational in Orange, NSW, by July 2018.
2.301 The committee also notes the Minister's advice above that the Operating Mandate will be the key vehicle for the government to set out its expectations for the Corporation. As the committee noted in its original comments, the committee's consistent position is that significant concepts relating to a legislative scheme should be defined in primary legislation (or at least in legislative instruments subject to parliamentary disallowance, sunsetting and tabling) unless a sound justification for using non-disallowable delegated legislation is provided. In this case, other than noting the general reasons for exempting certain classes of legislation from disallowance and sunsetting provided in the explanatory statement to the Exemption Regulation, no specific justification is provided as to why all of these ministerial directions should be exempt from disallowance and sunsetting in these particular circumstances.
2.302 Noting many of the matters to be determined in these non-disallowable ministerial directions could have a significant impact on the Corporation's operation, in the absence of a more specific justification in each instance, the committee considers that these directions should be subject to parliamentary disallowance and sunsetting.
2.303 It is also the committee's consistent scrutiny position that where the Parliament delegates its legislative power in relation to significant matters it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument. Therefore, in relation to the Operating Mandate, the committee considers that it would be appropriate for consideration to be given to including specific consultation requirements on the face of the bill.
2.304 In relation to directions relating to the location of the Corporation, the committee notes the Minister's advice that a decision has already been made by government in relation to where the Corporation is to be located. However, noting the broad discretion granted to the responsible ministers to determine the location of the Corporation, it remains unclear why there should not be a requirement for the responsible ministers to seek the Board's advice prior to making a direction about the location of the Corporation. The committee notes in particular that the ability for the responsible ministers to give a direction relating to the location of the Corporation is an ongoing one (i.e. it is not limited to specifying the initial location of the Corporation).
2.305 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of exempting ministerial directions relating to the operation of the Regional Investment Corporation from disallowance and sunsetting and the failure to include specific consultation requirements in the bill.
2.306 Clauses 49 to 51 of the bill would allow all or any of the powers or functions of the Corporation,[139] Board[140] and CEO[141] to be delegated or subdelegated to any member of the staff of the Corporation. Some of these powers and functions are significant including, for example, the power to sign an agreement, on behalf of the Commonwealth, with a State or Territory for the grant of financial assistance in relation to a water infrastructure project, and the power to sign loan agreements to be administered by the Corporation.
2.307 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee’s preference is that delegates be confined to the holders of nominated officers or to senior executive members. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.
2.308 In this case, the explanatory memorandum states that these provisions have 'been included to provide flexibility to the operation of the Corporation' and that:
Allowing the CEO to delegate or subdelegate their powers or functions to a staff member of the Corporation (who would then undertake the task concerned) facilitates the efficient and effective performance of the Corporation’s functions. It is envisaged the CEO would carefully consider the skills and experience of the relevant staff member before making the delegation or subdelegation. It is also envisaged the CEO would be held accountable by the Board for monitoring and managing the activities of staff who perform activities that have been delegated or subdelegated by the CEO.[142]
2.309 The committee notes this explanation, however, there is no guidance on the face of the bill as to the relevant skills or experience that would be required to undertake delegated functions. Nor is there any limitation on the level to which significant powers or functions could be delegated. The committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level.
2.310 The committee requests the Minister's advice as to why it is necessary to allow all of the powers and functions of the Corporation, Board and CEO to be delegated or subdelegated to any member of the staff of the Corporation and requests the Minister's advice as to the appropriateness of amending the bill to provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated.
Minister's response
2.311 The Minister advised:
Clauses 49, 50 and 51 of the Bill relate to the delegation and subdelegation of the powers and functions of the Corporation (clause 8 of the Bill), the Board of the Corporation (clause 15 of the Bill) and Chief Executive Officer (CEO) of the Corporation (clause 35 of the Bill). As noted in the explanatory memorandum to the Bill, the ability of the Corporation, the Board and the CEO to delegate, or subdelegate, any or all of their powers or functions under the Act, or prescribed in any rules made under the Act, will provide operational flexibility for the Corporation.
The general principle is that delegations of power should only be as wide as necessary. However, this does not prohibit a wide delegation of power if such a delegation is necessary and appropriate in the circumstances. The approach proposed by the Bill is appropriate for a corporate Commonwealth entity that will be overseen by an independent Board, which is ultimately responsible for the proper, efficient and effective performance of the Corporation's functions.
It is also important to note that clauses 49, 50 and 51 of the Bill are not unlimited in scope:
• clause 49 of the Bill enables the Corporation to delegate any or all of its powers and functions to a Board member or the CEO;
• clause 50 of the Bill enables the Board to delegate any or all of its powers and functions to a Board member or the CEO; and
• clause 51 of the Bill enables the CEO to delegate, or subdelegate, any or all of his or her powers and functions to a member of the staff of the Corporation (see clause 44 of the Bill).
Accordingly, any delegation, or subdelegation, of power cannot occur beyond staff of the Corporation. On establishment of the Corporation, it is anticipated that there will be around 30 persons employed as staff of the Corporation. These people will have been selected for their expertise and skills in relation to the functions of the Corporation.
There are also relevant safeguards proposed by the Bill in relation to the powers of delegation. For example, a delegate exercising the power to enter into agreements with States and Territories for grants of financial assistance for water infrastructure projects (see subclause 12(3) of the Bill) must take all reasonable steps to comply with written directions from the responsible Ministers (as defined by clause 4 of the Bill).
Finally, the Corporation, the Board and the CEO are not required to delegate their powers and functions, and any such delegation may be limited to particular powers and functions or to particular persons. It is appropriate that the Corporation, the Board and the CEO are able to exercise their discretion in this decision, having regard to the relevant power or function, and an assessment of the skills, training and expertise needed for any particular decision.
Committee comment
2.312 The committee thanks the Minister for this response. The committee notes the Minister's advice that the ability of the Corporation, the Board and the CEO to delegate, or subdelegate, any or all of their powers or functions under the Act is appropriate as it will provide operational flexibility for the Corporation. The Minister also advised that the approach to delegation and subdelegation proposed in the bill is appropriate for a corporate Commonwealth entity that will be overseen by an independent Board, which is ultimately responsible for the proper, efficient and effective performance of the Corporation's functions. The committee also notes the Minister's advice that on establishment of the Corporation, it is anticipated that there will be around 30 persons employed as staff of the Corporation and that these people will have been selected for their expertise and skills in relation to the functions of the Corporation.
2.313 As the committee noted in its original comments, the committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level. The committee therefore reiterates its preference that delegations of administrative power be confined to the holders of nominated offices or to senior officials or, alternatively, a limit is set on the scope and type of powers that might be delegated. However, the committee also notes that the independent Board is responsible for the performance of the Commission's functions and the small number of people to whom the powers may be delegated in this instance.
2.314 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).
2.315 In this instance, given the information provided, the committee makes no further comment on this matter.
2.316 Clause 53 requires the Agriculture Minister to arrange for a review of the operation of the Act. The review must be finalised on or before 1 July 2024 and must consider the scope of the Corporation’s activities after 30 June 2026 and the appropriate governance arrangements after that date.
2.317 In explaining the reason for this statutory review, the explanatory memorandum states that 'it is likely the role of the Corporation will change in line with the time-limited nature of the activities it currently has authority to administer' and 'this provision will enable the operation of the legislation to be reviewed, with consideration given to the scope of the Corporation’s activities and appropriate governance arrangements going forward'.[144]
2.318 While subclause 53(3) provides that a written report of the review must be given to the Agriculture Minister, there is no requirement for the report to be made public or to be tabled in the Parliament.
2.319 In order to facilitate appropriate parliamentary scrutiny of the operation of this Act (and the new Corporation), the committee suggests it may be appropriate for clause 53 of the bill to be amended to include a legislative requirement that any report of the review be:
• tabled in the Parliament within 15 sitting days after it is received by the Agriculture Minister, and
• published on the internet within 30 days after it is received by the Agriculture Minister.
2.320 The committee requests the Minister's response in relation to this matter.
Minister's response
2.321 The Minister advised:
Clause 53 of the Bill requires the Agriculture Minister (defined by clause 4 of the Bill) to arrange for a review of the operation of the Act to be undertaken and finalised before 1 July 2024. The review must consider the scope of the activities of the Corporation after 30 June 2026 and the appropriate governance arrangements for the Corporation after that date. The persons who undertake the review must give the Agriculture Minister a written report of the review.
It is intended that the review, and the corresponding written report, will inform the government in its consideration of future arrangements for the Corporation. Accordingly, it is appropriate that the government is able to decide if and when the timing and method of release for the report.
Committee comment
2.322 The committee thanks the Minister for this response. The committee notes the Minister's advice that the review, and the corresponding written report, will inform the government in its consideration of future arrangements for the Corporation and that therefore it is appropriate that the government is able to decide if the report is to be released and the timing and method of release for the report.
2.323 While the committee notes this advice, from a scrutiny perspective the committee considers that as the review relates to the operation of an Act of Parliament establishing the Corporation, there should be a statutory requirement that the report of the review be tabled in the Parliament within 15 sitting days after it is received by the Agriculture Minister so that the Parliament is appropriately informed about the operation of the Corporation that it has established.
2.324 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of not including a legislative requirement for the report of the review of the operation of the Act to be tabled in the Parliament.
[117] See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest.
[118] Paragraphs 8(1)(b) and 8(1)(c), subclause 12(3), paragraph 15(1)(c), and clause 46. The committee draws Senators' attention to these provisions pursuant to principle 1(a)(v) of the committee's terms of reference.
[119] Paragraphs 8(1)(b) and 8(1)(c).
[120] Subparagraph 8(1)(c)(i).
[121] Subparagraph 8(1)(c)(ii).
[122] Explanatory memorandum, p. 7.
[123] Subparagraph 8(1)(c)(iii).
[124] Subparagraph 8(1)(c)(iv).
[125] Explanatory memorandum, pp 6–7.
[126] Section 96 of the Constitution provides that: '...the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.
[127] Section 96 of the Constitution provides that: '...the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.
[128] Clauses 11 and 12. The committee draws Senators' attention to this provision pursuant to principles 1(a)(ii) and (iv) of the committee's terms of reference.
[129] Clause 11.
[130] Explanatory memorandum, p. 9.
[131] Clause 12.
[132] Explanatory memorandum, p. 10.
[133] Paragraph 11(2)(c).
[134] Subclause 12(1).
[135] Subclause 12(3).
[136] Subclause 12(5).
[137] Explanatory memorandum, p. 12.
[138] Clauses 8, 15, 35 and 49–51. The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.
[139] Clause 8.
[140] Clause 15.
[141] Clause 35.
[142] Explanatory memorandum, p. 20.
[143] Clause 53. The committee draws Senators' attention to this provision pursuant to principle 1(a)(v) of the committee's terms of reference.
[144] Explanatory memorandum, p. 21.
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