High Speed Rail Planning Authority Bill 2017 [2017] AUSStaCSBSD 315 (13 September 2017)

• High Speed Rail Planning Authority Bill 2017
• Rule-making power 12

---

High Speed Rail Planning Authority Bill 2017

Purpose	This bill seeks to establish a High Speed Rail Planning Authority
Sponsor	Senator Don Farrell
Introduced	Senate on 4 September 2017
Scrutiny principle	Standing Order 24(1)(a)(iv)

Rule-making power ^[12]

1.14 Clause 29 provides for the making of rules (delegated legislation), which simply states that the Minister may make rules prescribing matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to carry out or give effect to the Act. It does not contain any of the standard restrictions on what the rules can do, as outlined in Office of Parliamentary Counsel's Drafting Direction No. 3.8:^[13]

If your Bill will contain a power to make instruments other than regulations, and the instructor’s policy is that [a significant provision (as described in paragraph 3 of Drafting Direction 3.8)] is not required to be included in the instrument, you should include the following provision:

(2) To avoid doubt, the [name of legislative instrument e.g. rules] may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) [for Acts, but not Ordinances] set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) amend this [Act/Ordinance].

You should include this provision in this form even if not all paragraphs are relevant to your Bill (such as because your Bill does not contain an appropriation).

Alternatively, if the instructor’s policy is that a [a significant provision (as described in paragraph 3 of Drafting Direction 3.8)] should be able to be dealt with by subordinate instrument, then you should include a regulation‑making power in addition to the instrument‑making power, and specifically allow the regulations to provide for that kind of provision.

1.15 As clause 29 proposes to provide a rule-making power (rather than a regulation-making power) the committee considers it would be appropriate for the provision to be amended to include the safeguards set out in the Office of Parliamentary Counsel's Drafting Direction No. 3.8.

---

[12] Clause 29. The committee draws Senators' attention to this provision pursuant to principle 1(a)(iv) of the committee's terms of reference.

[13] See Office of Parliamentary Counsel, Drafting Direction No. 3.8, Subordinate Legislation, July 2017, paragraphs [27] to [29], available at: http://www.opc.gov.au/about/docs/drafting_series/DD3.8.pdf.