Future Drought Fund Bill 2018 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 13 (13 February 2019)

• Future Drought Fund Bill 2018
• Broad discretionary powers14
• Merits review17
• Significant matters in non-disallowable legislative instruments20
• Broad delegation of administrative powers22
• No requirement to table or publish review report25

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Future Drought Fund Bill 2018

Purpose	This bill seeks to establish the Future Drought Fund to fund initiatives relating to future drought resilience, preparedness and response, and provides an initial credit of $3.9 billion
Portfolio	Finance
Introduced	House of Representatives on 28 November 2018
Bill status	Before the House of Representatives

Broad discretionary powers^[14]

2.1 In Scrutiny Digest 15 of 2018 the committee requested the minister's advice as to why it is considered necessary and appropriate to confer on the Agriculture Minister a broad power to make grants of financial assistance, in the absence of any guidance on the face of the bill as to how this power is to be exercised.

2.2 The committee also requested the minister's advice as to the appropriateness of amending the bill to include (at least high-level) guidance as to the terms and conditions on which financial assistance may be granted.^[15]

Minister's response^[16]

2.3 The minister advised:

The Future Drought Fund Bill 2018 (Bill) ensures any financial assistance provided under the Future Drought Fund (FDF) will be subject to appropriately robust and transparent decision-making processes. This includes the overarching obligation in the Bill that spending from the FDF must enhance the public good by building drought resilience.
The Bill requires a Drought Resilience Funding Plan (the Plan), a legislative instrument, to be in force and for the Agriculture Minister to have regard to it in decision-making. The Plan will set out a coherent and consistent approach for making arrangements or grants in relation to drought resilience or entering agreements in relation to such grants. The Plan will be developed with a long-term focus for drought resilience funding and will be informed by the Intergovernmental Agreement on National Drought Program Reform, as agreed by all jurisdictions on 12 December 2018, and by any successive agreements, as well as by Australian Government drought policies and strategies. Extensive public consultation, including with key stakeholders, will be undertaken in accordance with the requirements of the Bill before the Plan can be finalised and tabled. Activities to be supported under the Plan will be considered through the Budget process, providing a further robust step in decision-making about spending.
In addition to the Plan, the Bill also requires the Agriculture Minister to have regard to the independent expert technical advice from the Regional Investment Corporation (RIC) Board in making decisions. The RIC Board is established and operates under the Regional Investment Corporation Act 2018 and is required when performing its functions to act in a proper, efficient and effective manner. The RIC Board must comply with the Plan when preparing its advice to the Agriculture Minister.
These governance measures are similar to the governance structure in place under the Medical Research Future Fund Act 2015 (the MRFF Act), which requires the Minister to seek advice from an independent advisory body. The MRFF Act also requires both the Minister and the Advisory body to have regard to public strategic guidance (the Medical Research and Innovation Strategy and Medical Research and Innovation Priorities). Similar arrangements also apply under the Nation-building Funds Act 2008, in respect of the Building Australia Fund (BAF) and the Education Investment Fund.
In addition, where appropriate, FDF programs identified in the Plan will have published guidelines to ensure that applicants are treated equitably, and that funding recipients are selected based on merit addressing the program's objectives. Grant programs under the FDF will be developed in accordance with the Commonwealth Grant Rules and Guidelines 2017 (CGRG) and the requirements of the Public Governance, Performance and Accountability Act 2013. Grant guidelines will be developed for all new grant opportunities and approved grants will be reported on the GrantConnect website no later than 21 days after the grant agreement takes effect. FDF grant administration will be conducted in a manner consistent with the CGRG's principles of:

• robust planning and design;

• collaboration and partnership;

• proportionality;

• an outcomes orientation;

• achieving value with relevant money;

• governance and accountability; and

• probity and transparency.

Procurements under the FDF will be undertaken in accordance with the Commonwealth Procurement Rules 2018 and the procurement policy framework. FDF procurements will be accountable and transparent, while meeting the core procurement principle of achieving value for money.
The terms and conditions of grants or arrangements would be set out in a written agreement between the Commonwealth and the relevant funding recipient. This approach is consistent with the CGRGs, which state that grant agreements should provide for:

• a clear understanding between the parties on required outcomes, prior to commencing payment of the grant;

• appropriate accountability for relevant money, which is informed by risk analysis;

• agreed terms and conditions in regards to the use of the grant, including any access requirements; and

• the performance information and other data that the grantee may be required to collect as well as the criteria that will be used to evaluate the grant, the grantee's compliance and performance.

I do not consider an amendment is necessary or that it would add to the effective administration of the FDF. The detailed criteria to define the activities to be funded will be developed when preparing the Plan; it will be subject to public consultations and will be revised after each four year period. As such, it would be appropriate to detail criteria in delegated legislation or guidelines rather than placing them within the primary legislation.
I consider the Bill includes sufficient high-level guidance on the terms and conditions for financial assistance to be granted. As outlined above, financial assistance will be granted through robust, well-informed decision-making processes. The process includes: independent technical expert advice from a legislated board, consideration through the Government's Budget process and alignment with the Plan, which will be a coherent and consistent approach for making arrangements or grants in relation to drought resilience or entering agreements in relation to such grants. These processes, as outlined in sections 28 and 29 of the Bill, prevent obscure decision-making or financial assistance being granted to projects without merit. The Commonwealth Grant Guidelines and the Procurement Rules provide further assurance.
The detailed terms and conditions will be developed after the Plan is agreed (to be revised after each four year period). Where appropriate, terms and conditions would be included in guidelines and funding agreements for each activity, rather than placing it within the primary legislation.
I do not consider that an amendment is necessary or would add to the effective administration of the FDF.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the bill ensures that financial assistance provided under the Future Drought Fund (the Fund) will be subject to robust and transparent decision-making processes, including an overarching obligation to enhance the public good by building drought resilience.

2.5 In this regard, the committee notes the minister's advice that, in making funding decisions, the Agriculture Minister would be required to have regard to the Drought Resilience Funding Plan (DRF Plan), which will be a legislative instrument and subject to extensive public consultation. The committee also notes the advice that activities to be supported under the DRF Plan would be considered through the Budget process, and that in addition to the DRF Plan the Agriculture Minister would be required to have regard to the expert advice of the Regional Investment Corporation.

2.6 The committee also notes the minister's advice that programs identified in the DRF Plan will have published guidelines to ensure that grant applicants are treated equitably, and funding recipients will be selected on merit according to a program's objectives. The committee also notes the advice that guidelines will be developed in accordance with the Commonwealth's Grant Rules and Guidelines 2017 and the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and the advice that all procurements under the Fund will be undertaken in accordance with the Commonwealth Procurement Rules 2018.

2.7 Finally, the committee notes the minister's advice that the terms and conditions applicable to grants and funding arrangements would be set out in a written agreement between the Commonwealth and the relevant funding recipient.

2.8 While funding provided in accordance with the bill appears to be subject to a number of controls designed to prevent arbitrary decision-making, the committee remains concerned that the bill would permit the expenditure of a substantial amount of Commonwealth money, with no clear guidance on the face of the bill as to the terms and conditions on which funds may be granted. In relation to the grant of funding to a State or Territory, the committee also reiterates that the Constitution confers on the Parliament the power to make such grants and to determine associated terms and conditions. Where the Parliament delegates this power, the committee considers that its exercise should be subject to at least some level of parliamentary scrutiny.

2.9 The committee also acknowledges that a number of matters relating to the grant of funding (including, potentially, relevant terms and conditions) would be set out in the DRF Plan, which would be a legislative instrument and would therefore be tabled in Parliament. However, the committee remains concerned that the DRF Plan would not be a disallowable legislative instrument, and would therefore not be subject to appropriate parliamentary scrutiny.

2.10 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of that document as a point of access to understanding the law and if necessary, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.11 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of conferring on the Agriculture Minister a broad power to make grants of financial assistance, including to the States and Territories, in the absence of any specific guidance on the face of the bill as to how the power is to be exercised.

Merits review^[17]

2.12 In Scrutiny Digest 15 of 2018 the committee requested the minister's advice as to:

• the processes by which grants would be provided, and arrangements would be entered into, in accordance with clause 21 of the bill;

• whether decisions in relation to the provision of grants and entering into arrangements would be subject to independent merits review; and

• if not, the characteristics of those decisions that would justify excluding merits review.^[18]

Minister's response

2.13 The minister advised:

As outlined above, financial assistance will be granted through robust and well-informed decision-making processes. The process includes:

• the Plan (a legislated instrument developed following public consultation) which will outline a coherent and consistent approach for making arrangements or grants in relation to drought resilience or entering agreements; and

• independent technical expert advice from a legislated board.

The processes in the Bill provide transparent and merit based
decision-making for financial assistance being granted to projects that enhance the public good.
Priorities may be delivered by activities supported by, but not exclusive to, a competitive merit-based grants program, discretionary grants or a procurement process, consistent with the rules relating to the Commonwealth in the Public Governance, Performance and Accountability Act 2013.
Guidelines will be developed for FDF granting activities and will include detailed criteria and merit review processes where appropriate. Scope also exists to provide funding to state and territory governments to support drought resilience initiatives under arrangements consistent with both the Intergovernmental Agreement on Federal Financial Relations and the new Intergovernmental Agreement on National Drought Program Reform.
The details of financial assistance provided from the FDF will be announced on the Department of Agriculture and Water Resources' website and provided in the department's annual report, providing transparency of the outcomes.
The general exclusion of an independent merit review process in the legislation can be justified on the basis of decisions relating to the allocation of a finite resource where not all claims can be met. Allocating resources to a merit process would be disproportionate to the significance of the decisions under review - for example, small grants programs. However, where appropriate, merit review processes will be included in grant guidelines. If funding is provided to States and Territories to distribute, any independent merit review would be subject to the conditions and processes they impose on recipients. There is appropriate transparency for decisions on grants and other arrangements.
I do not consider that an amendment is necessary or would contribute to the effective administration of the FDF.

Committee comment

2.14 The committee thanks the minister for this response. The committee notes the minister's advice regarding the processes through which financial assistance will be granted and that guidelines will be developed for granting activities, which will include detailed criteria and merit review processes where appropriate.

2.15 The committee also notes the minister's advice that the general exclusion of independent merit review in relation to grant decisions can be justified on the basis that such decisions allocate a finite resource between competing applicants. The committee also notes the advice that allocating resources to a merit process would be disproportionate to the significance of the decisions under review. These committee notes that these matters appear to reflect established grounds for excluding merits review.^[19]

2.16 The committee requests that the information provided by the minister be included in the explanatory memorandum, noting the importance of that document as a point of access to understanding the law and, if necessary, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.17 In light of the information provided by the minister, the committee makes no further comment on this matter.

Significant matters in non-disallowable legislative instruments^[20]

2.18 In Scrutiny Digest 15 of 2018 the committee requested the minister's advice as to:

• why it is considered appropriate to leave significant elements of the drought resilience funding scheme proposed by the bill to delegated legislation; and

• why the relevant instruments (that is, the DRF Plan and directions making up the Future Drought Fund Investment Mandate would not be subject to disallowance.

2.19 In relation to directions making up the Investment Mandate, the committee also requested the minister's advice as to the appropriateness of amending the bill to provide that the directions are subject to disallowance but only come into force once the disallowance period has expired, unless the minister certifies that there is an urgent need to make changes and it is in the national interest that a specified direction not be subject to disallowance.^[21]

Minister's response

2.20 The minister advised:

As outlined above, the Bill provides a robust and transparent framework for the elements of the FDF and prevents funding activities without merit or that are inconsistent with building drought resilience.
High level detail regarding the Drought Resilience Funding Plan and the Investment Mandate is contained in the Bill in sections 31 and 41. However, it would not be possible to specify the full detail of these documents in the Bill. Both the Plan and the investment mandate documents are to be informed through public consultation and will need to be subject to change over time, in response to emergent issues, intergovernmental priorities and extrinsic factors such as financial market volatility.
Drought Resilience Funding Plan
The FDF's funding priorities will be developed in the Plan following a public consultation process. The Explanatory Memorandum states that, in developing the Plan, the Agriculture Minister will have regard to the Intergovernmental Agreement on National Drought Program Reform, as agreed by all jurisdictions on 12 December 2018 and any successive agreements, as well as any related Australian Government drought policies and strategies.
These dependencies and interconnections with other (intergovernmental) programs, as well as the variability of the effect of drought events, mean that the Drought Resilience Funding Plan is best operationalised in delegated legislation. The Drought Resilience Funding Plan is intended to endure, being in place for four years, to provide a stable and longer-term focus for drought resilience funding, while providing a review opportunity to ensure that drought resilience funding priorities remain current.
The independent expert technical advice from the RIC Board, an independent Commonwealth entity established by the Parliament under statute, and the Agriculture Minister's decision-making process must comply with the Plan.
The Plan is not subject to disallowance and I do not consider an amendment is necessary, because of governance and transparency measures already in the Bill, when these are weighed against the potential risk of certainty of operation required to inform investment and grant decisions and the need to ensure current drought resilience priorities are appropriately captured.
Future Drought Fund Investment Mandate
The Future Drought Fund investment mandate is a direction by the Treasurer and the Minister for Finance and the Public Service, as the responsible Ministers under the Bill, to a body (in this case the Future Fund Board of Guardians (FFBG)) and is, therefore, exempt from disallowance under sub-item 9(2) of the Legislation (Exemption and other Matters) Regulation 2015.
This is consistent with the long-standing and established operational arrangements for other funds currently managed by the Future Fund Board of Guardians (Future Fund Board), such as the Future Fund, the Medical Research Future Fund, the DisabilityCare Australia Fund, the Building Australia Fund and the Education Investment Fund.
The approach is also consistent with the approach, contemporaneously legislated (in 2018), for the Aboriginal and Torres Strait Islander Land and Sea Future Fund.
The investment mandate provides direction to the Future Fund Board in relation to the performance of its investment functions, and will include the setting of a benchmark rate of return and an acceptable level of risk that is aligned with the purpose of the FDF.
In setting the investment mandates for the different funds, responsible Ministers need to ensure:

• targeted returns are consistent with the policy intent (including consideration of the intended cashflows from the fund and growth of the underlying capital);

• that resultant risks are aligned with the targeted returns, are reasonable and within tolerances; and

• the mandate is informed by appropriate and expert advice and set with regard to current and expected economic and financial market conditions.

The Government is committed to maintaining the independence of the Future Fund Board's investment activities and to not interfere in investment decisions. Successive Governments have stated that they do not wish to influence the FFBG's investment decisions.
The Bill provides appropriate parliamentary and public scrutiny of the investment mandate. The Bill requires that; prior to issuing the investment mandate, the responsible Ministers must consult the Future Fund Board (section 44(1) refers).
If the Future Fund Board chooses to make a submission regarding the draft investment mandate, this submission must be tabled in both houses of Parliament (s 44(2) refers). This requirement ensures that Parliament is informed of any matters raised by the Future Fund Board.
Additionally, the Future Fund Management Agency provides annual and quarterly performance reports, including comparisons against the benchmark rates specified in the Fund investment mandates.

Committee comment

2.21 The committee thanks the minister for this response, and notes the advice that it would not be possible to include the matters covered by the DRF Plan and the Investment Mandate in the bill. In this respect, the committee notes the advice that these instruments are to be informed by public consultation, and will need to be subject to change over time in response to emergent issues, intergovernmental priorities and extrinsic factors such as financial market volatility.

2.22 The committee also notes the minister's advice that the DRF Plan is best operationalised in delegated legislation. The committee notes the advice that this is because the DRF Plan will be designed to respond to changes in drought events, and because, in developing the plan, the minister will have regard to intergovernmental agreements and related government drought policies and strategies. The committee further notes the minister's advice that it is appropriate for the DRF Plan to be non-disallowable in light of the governance and transparency measures in the bill, the need to ensure certainty in grant and investment decision-making, and the need to ensure that drought resilience priorities are appropriately captured.

2.23 The committee also notes the minister's advice that the bill provides appropriate parliamentary and public scrutiny of the Investment Mandate. In this respect, the committee notes the advice that the responsible ministers would be required to consult the FFB when making the Investment Mandate, and that any submission by the FFB on the draft mandate would be required to be tabled in Parliament. The committee also notes the advice that the Future Fund Management Agency provides annual and quarterly performance reports, which include comparisons against benchmark rates specified in the Investment Mandate and these reports will also be tabled in Parliament.

2.24 The committee notes the importance of ensuring independence, transparency and certainty in investment activities, and ensuring that drought resilience priorities are appropriately captured. The committee also acknowledges that the DRF Plan and the directions making up the Investment Mandate would be subject to some parliamentary oversight. However, in light of the significant matters to be included in those instruments, and that such instruments will not be subject to disallowance, the committee considers that the proposed level of parliamentary oversight may not be sufficient.

2.25 In this respect, the committee reiterates that there may be methods available to deliver transparency and certainty in relation to investment decisions, and maintain the independence of the FRB, while still delivering an appropriate level of parliamentary oversight. For example, the committee considers that certainty may be delivered by providing that the relevant instruments do not come into force until after the applicable disallowance period has expired. Moreover, and as outlined in the committee's initial comments, it may be possible to provide that the instruments are generally disallowable, with an exception provided for emergency circumstances.

2.26 The committee requests that the information provided by the minister be included in the explanatory memorandum, noting the importance of that document as a point of access to understanding the law and, if necessary, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.27 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of exempting the Drought Resilience Funding Plan, and directions making up the Future Fund Board's investment mandate, from disallowance.

Broad delegation of administrative powers^[22]

2.28 In Scrutiny Digest 15 of 2018 the committee requested the minister's more detailed advice as to why it is considered necessary and appropriate to permit the Agriculture Minister to delegate their powers to any official of a Commonwealth entity.

2.29 The committee also requested the minister's advice as to the appropriateness of amending the bill to; at a minimum, require that persons exercising delegated powers possess the expertise appropriate to the relevant delegation.^[23]

Minister's response

2.30 The minister advised:

The Bill needs to be read in conjunction with the primary legislation governing the operation of all Commonwealth entities: the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
The PGPA Act imposes general duties on all accountable authorities of Commonwealth entities (at sections 15 to 19) including, inter alia, a duty to govern their entity in a way that promotes the proper use (efficient, effective, economical and ethical use) of public resources. Integral to that is the duty to establish and maintain systems relating to risk and control (section 16), including measures directed at ensuring that the officials of the entity comply with the finance law.
To give effect to their duties, accountable authorities would be generally expected to implement:

• delegation and decision-making processes for the proper use of public resources including, robust decision-making and control processes for the expenditure of relevant money. For example:

- decision-making processes could be supported by requirements on the type of information that officials need to consider before making a spending decision;

- delegation processes could be limited to particular persons or positions with particular skills and roles (financial transaction limits could be part of those system of delegation).

• appropriate oversight and reporting arrangements for activities and projects, and to address the inappropriate use of resources by officials, or the failure by officials to comply with applicable laws or Commonwealth policies.

These processes can be designed to provide an appropriate level of assurance in accordance with the accountable authorities duty to establish and maintain systems in relation to risk and control in section 16 of the PGPA Act.
The PGPA Act provides an express power of delegation to accountable authorities for reasons of practical necessity, administrative efficiency and operational efficacy. The PGPA Act requirement that the delegation is in writing ensures clarity and accountability for decision-making. Management of delegated power by delegators is crucial to the legitimacy and appropriateness of the exercise of delegated power. The accountable authority of an entity may also, by written instrument, give instructions to officials of other entities where these officials are approving the commitment of relevant money or dealing with public resources for which the accountable authority is responsible (section 22 of the PGPA Act).
When delegating PGPA Act powers accountable authorities must bear in mind their duties under the PGPA Act at sections 15 to 19, including their duty to govern their entity in a way that promotes the proper use of public resources. To give effect to this, an accountable authority may accompany their delegations of power with directions to delegates. Directions enable the accountable authority to instruct the delegate to exercise the delegated power within specified parameters. This not only allows the accountable authority to control how the delegated power is exercised consistent with the statutory requirement to promote the proper use of resources, but also allows the accountable authority to set limits on the power the delegate may exercise.
Delegates, who are officials under the PGPA Act, should understand the nature and scope of the power they have been delegated. This is reinforced through the application of the duties of officials at sections 25 to 29 of the PGPA Act, which, inter alia, requires them to exercise powers with care and diligence, honestly, in good faith and for a proper purpose.
The Department of Agriculture and Water Resources will utilise the Community Grants Hub, through a contract arrangement that it has in place with the Department of Social Services, to make payments to grant recipients. Grants Hub staff will also be officials under the PGPA Act and subject to the responsibilities outlined above.
The provisions of the PGPA Act endure and there is no need or intention to introduce duplicative statutory requirements. The governance outcomes sought by the Committee are already factors implemented under the PGPA Act - see response above.

Committee comment

2.31 The committee thanks the minister for this response. The committee notes the minister's advice that the Department of Agriculture and Water Resources will use the Community Grants Hub (CGH) to make payments to grant recipients. This indicates that the Agriculture Minister may delegate powers and functions to staff administering the CGH. The committee notes the minister's advice that CGH staff would be 'officials' under the PGPA Act, and subject to the duties set out therein. In this respect, the committee notes that the PGPA Act requires delegates to exercise their powers with care, diligence, honesty, in good faith and for a proper purpose.

2.32 The committee also notes the minister's advice that accountable authorities under the PGPA Act are expected to implement appropriate decision-making, delegation and oversight processes, including ensuring that delegates possess expertise appropriate to the delegated functions and powers.

2.33 While the committee acknowledges that delegates, as 'officials' under the PGPA Act, would be subject to a number of relevant duties, it remains concerned that the bill does not appear to limit the delegation of the Agriculture Minister's powers to staff at a particular level, or require the minister to be satisfied that delegates possesses expertise appropriate to the relevant delegation.

2.34 It is also unclear to the committee that such requirements would be duplicative of the PGPA Act, or inconsistent with the other powers of delegation set out in the bill. In this respect, the committee notes that the Agriculture Minister does not appear to be captured by the definition of 'accountable authority' in the PGPA Act^[24] (and may not be subject to the corresponding duties). In contrast, the bill would restrict any delegations made by the Treasurer and the Finance Minister to heads of departments and members of the Senior Executive Service.

2.35 The committee considers that it may be appropriate for the bill to be amended to, at a minimum, require that persons exercising delegated powers possess the expertise appropriate to the relevant delegation.

2.36 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing the Agriculture Minister to delegate functions and powers to any official of a Commonwealth entity.

No requirement to table or publish review report^[25]

2.37 In Scrutiny Digest 15 of 2018, noting that there may be impacts on parliamentary scrutiny where documents associated with a significant review are not available to the Parliament, the committee requested the minister's advice as to why it is not proposed to require documents associated with the operational review of the Act to be tabled in Parliament and made available online. ^[26]

Minister's response

2.38 The minister advised:

The review is envisaged to be operational in nature and, as outlined in the explanatory memorandum, is intended to provide the opportunity to consider whether the Bill is providing the outcomes envisaged. In view of the expectation that the balance of the Fund could grow to $5 billion over 10 years, the review would consider whether higher annual disbursements could be sustained. Legislative amendment would be necessary in these circumstances and the resultant proposals would be subject to parliamentary oversight, inquiry and appropriate processes.
The Bill structurally follows the drafting adopted in the Disability Care Australia Fund Act 2013 and the Medical Research Future Fund Act 2015. Both contain a requirement for a review of the operation of the Acts to be undertaken, but do not require the results of the review to be tabled in the Parliament.
The Future Drought Fund Bill 2018 also contains a requirement for a review of the operation of the Act but does not require the results of the review to be tabled in the Parliament. However, should the legislation be enacted, I note that there is nothing preventing the Treasurer and I, as the responsible Ministers, from tabling the report of the review in the Parliament.

Committee comment

2.39 The committee thanks the minister for this response. The committee notes the minister's advice that any legislative proposals arising out of a review conducted in accordance with clause 65 would be subject to parliamentary oversight. In this regard, the committee notes the advice that although the bill does not require the results of the review to be tabled in Parliament, there is nothing preventing the responsible ministers from doing so.

2.40 However, the committee considers that where a bill requires or permits an operational review to be conducted, the bill should require (rather than simply permit) documents associated with the review to be tabled in Parliament and published online. The committee reiterates that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians of the existence of the documents and provides opportunities for debate that are not available where documents are not made public. Publishing review documents online also promotes transparency and accountability.

2.41 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of not requiring documents associated with an operational review conducted in accordance with clause 65 (including, for example, the review report) to be tabled in Parliament or published online.

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[14] Clause 21 and clause 22. The committee draws senators’ attention to these provisions pursuant to Senate Standing Orders 24(1)(a)(iv) and (v).

[15] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 12-13.

[16] The minister responded to the committee's comments in a letter dated 16 January 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[17] Clause 21. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[18] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 13-14.

[19] See Attorney-General's Department, Administrative Review Council, What decisions should be subject to merit review? (1999), [4.11]-[4.19], [4.56]-[4.57].

[20] Clause 31 and clause 41. The committee draws senators' attention to these provisions pursuant to Senate Standing Orders 24(1)(a)(iv) and (v).

[21] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 14-16.

[22] Proposed paragraph 63(1)(c). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[23] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 17-18.

[24] Section 12 of the PGPA Act provides that 'accountable authority' refers to the secretary of a government department, a person prescribed as an accountable authority by Commonwealth legislation, or the governing body of a Commonwealth corporate entity.

[25] Clause 65. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[26] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 18-19.