Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018 [2018] AUSStaCSBSD 273 (5 December 2018)

• Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018
• Power for delegated legislation to amend primary legislation (Henry VIII clause)105

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Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018

Purpose	This bill seeks to amend Commonwealth legislation to partially implement the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Boundaries in the Timor Sea (New York, 6 March 2018)[2018] ATNIF 4 (the Treaty)
Portfolio	Resources and Northern Australia
Introduced	House of Representatives on 28 November 2018

Power for delegated legislation to amend primary legislation (Henry VIII clause)^[105]

1.173 Item 3 of Schedule 1 to the bill seeks to insert new subsections 11(3) to (5) into the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act). Proposed subsection 11(3) would allow the rules under the BCIIP Act to modify the application of that Act in relation to the Greater Sunrise special regime area. The Greater Sunrise special regime area is an area of joint jurisdiction between Australia and Timor-Leste for the development, exploitation and management of petroleum in the Greater Sunrise fields.

1.174 A provision that enables delegated legislation to amend primary legislation is known as a Henry VIII clause. There are significant scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. As such, the committee expects a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum. In this regard, the explanatory memorandum states:

This will enable rules to be made to adapt the application of the BCIIP Act in the Greater Sunrise special regime area, as necessary, to ensure it applies in a manner consistent with Australia's obligations under the Treaty and to facilitate the cooperative exercise of jurisdiction in the Greater Sunrise special regime area.^[106]

1.175 While the committee notes this explanation, the committee does not consider that it adequately addresses why it is appropriate that delegated legislation be empowered to amend the primary legislation. For example, the committee notes that it is unclear why the BCIIP Act cannot now be amended by primary legislation to ensure it applies in a manner consistent with Australia's obligations under the treaty, as the treaty has now been made.

1.176 The committee requests the minister's more detailed justification as to why it is proposed to allow rules to modify the application of an Act, noting the committee's scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament.

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[105] Schedule 1, item 3, proposed subsection 11(3) of the Building and Construction Industry (Improving Productivity) Act 2016. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[106] Explanatory memorandum p 20.