Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 17 (13 February 2019)

• Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018
• Power for delegated legislation to amend primary legislation (Henry VIII clause)41

---

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)^[41]

2.74 In Scrutiny Digest 15 of 2018 the committee requested 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.^[42]

Minister's response^[43]

2.75 The minister advised:

The Committee has sought justification for the delegation of legislative power under proposed new subsection 11(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act). That proposed new subsection is to be inserted by item 3 of Schedule 1 of the Bill. It would allow for rules under the BCIIP Act to modify the application of the BCIIP Act in the Greater Sunrise special regime area (special regime area).
As noted in the explanatory memorandum to the Bill, the inclusion of proposed subsection 11(3) is to allow rules to be made to ensure the BCIIP Act applies in a manner consistent with Australia's obligations under the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Boundaries in the Timor Sea (Treaty) and to facilitate the cooperative exercise of jurisdiction in the special regime area.
Consultations on the cooperative exercise of jurisdiction are ongoing, and as such it is not known at this stage whether, and to what extent, the application of the BCIIP Act will need to be modified, insofar as it relates to the special regime area, to facilitate the cooperative exercise of jurisdiction in the special regime area. This may be particularly relevant in terms of ensuring there is no conflict between the local content requirements referred to in the Treaty and the provisions of the Code for the Tendering and Performance of Building Work 2016 (if applicable to particular building work carried out in the special regime area).
In light of the above, I consider it both necessary and appropriate to include the rule making power in the Bill to ensure the Australian Government can flexibly and expeditiously alter the application of the BCIIP Act in the special regime area to reflect its international obligations.
The rule making power is limited to the special regime area and does not allow for the modification of the BCIIP Act in other areas in waters above the continental shelf or in the exclusive economic zone. Further, any rules made for the purposes of proposed subsection 11(3) will be disallowable and therefore subject to parliamentary scrutiny, including by the Senate Standing Committee on Regulations and Ordinances.

Committee comment

2.76 The committee thanks the minister for this response. The committee notes the minister's advice that consultations regarding the cooperative exercise of jurisdiction are ongoing and it is not yet known to what extent the application of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) will need to be modified.

2.77 The committee also notes the minister's advice that the rule making power is limited to the special regime area and does not allow for the modification of the BCIIP Act in other areas and that rules made to modify the operation of the Act will be disallowable.

2.78 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document 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).

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

---

[41] 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).

[42] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 46-47.

[43] The minister responded to the committee's comments in a letter dated 21 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