Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018 [2018] AUSStaCSBSD 100 (9 May 2018)

• Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018
• Exemption from disallowance and sunsetting1
• Parliamentary scrutiny—no requirement to table report6

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Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018

Purpose	This bill seeks to establish the Aboriginal and Torres Strait Islander Land and Sea Future Fund
Portfolio	Indigenous Affairs
Introduced	House of Representatives on 28 March 2018

Exemption from disallowance and sunsetting^[1]

1.2 The bill seeks to establish the Aboriginal and Torres Strait Islander Land and Sea Future Fund (ATSILSFF). Under clause 30, the Future Fund Board would be responsible for making decisions with respect to ATSILSFF investments. Subclause 32(1) seeks to allow the responsible ministers to give the Future Fund Board written directions about the performance of its ATSILSFF investment functions. Such directions are to be known collectively as the ATSILSFF Investment Mandate.^[2]

1.3 Subclause 32(8) states that the directions making up the ATSILSFF Investment Mandate would be legislative instruments. However, two notes following this subclause state that these directions would not be subject to the disallowance or sunsetting provisions set out in the Legislation Act 2003, as the Legislation (Exemptions and Other Matters) Regulation 2015 prescribes that directions by a minister are not subject to disallowance or sunsetting.^[3]

1.4 The explanatory memorandum states that this approach 'enables the public and the Parliament to hold the Government accountable for the directions it issues to the Future Fund Board without impeding the Government's ability to manage its finances',^[4] and is consistent with arrangements for other funds invested by the Future Fund Board.^[5] However, the explanatory memorandum does not otherwise explain why it is appropriate for the directions making up the investment mandate to be exempt from disallowance and sunsetting requirements.

1.5 The committee notes that the explanatory memorandum states that the ATSILSFF Investment Mandate will enable the government to give 'strategic guidance' to the Future Fund Board and that it will reflect the government's 'policy intent' with regard to the investments of the ATSILSFF. The committee's consistent position is that significant concepts relating to a legislative scheme, including the provision of strategic guidance and the setting out of policy intent, should be included 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.

1.6 The committee requests the minister's advice as to why it is considered appropriate that ministerial directions making up the ATSILSFF Investment Mandate are not to be subject to the usual disallowance and sunsetting provisions under the Legislation Act 2003.

Parliamentary scrutiny—no requirement to table report^[6]

1.7 Clause 55 would require the responsible ministers to cause a review of the operation of the Act to be undertaken before the tenth anniversary of the commencement of the section.

1.8 The explanatory memorandum states that this review is 'intended to provide the opportunity to consider whether the Act is providing the outcomes envisaged.'^[7] However, the bill contains no requirement for the results of this review to be made public or tabled in Parliament, and this is not addressed in the explanatory memorandum.

1.9 In order to facilitate appropriate parliamentary scrutiny of the operation of this Act (and the ATSILSFF), the committee considers it may be appropriate for clause 55 of the bill to be amended to include a legislative requirement that the review be:

• tabled in the Parliament within 15 sitting days after it is received by the responsible ministers; and

• published on the internet within 30 days after it is received by the responsible ministers.

1.10 The committee requests the minister's response in relation to this matter.

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[1] Subclause 32(8). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[2] Subclause 32(3).

[3] See paragraphs 44(2)(b) and 54(2)(b) of the Legislation Act 2003 and sections 9 and 11 of the Legislation (Exemptions and Other Matters) Regulation 2015.

[4] Explanatory memorandum, p. 18.

[5] Explanatory memorandum, p. 17.

[6] Clause 55. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[7] Explanatory memorandum, p. 27.