Export Control Amendment (Miscellaneous Measures) Bill 2020 [2020] AUSStaCSBSD 210 (2 December 2020)

• Export Control Amendment (Miscellaneous Measures) Bill 2020
• Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)1
• Incorporation of external materials as in force from time to time Significant matters in non-legislative documents2

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Export Control Amendment (Miscellaneous Measures) Bill 2020

Purpose	This bill seeks to amend the Export Control Act 2020 to support the implementation of the new export control framework and Australia's agricultural export industry and stakeholders
Portfolio	Agriculture
Introduced	House of Representatives on 11 November 2020

Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)^[1]

1.34 Section 386 of the Export Control Act 2020 (the Act) provides that rules made under the Act may provide for matters in relation to the review of decisions relating to tariff rate quota entitlements. Existing subsection 386(3) of the Act provides the rules may modify the operation of subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in relation to the review of such decisions. Items 10, 12 and 13 of Schedule 1 to this bill seek to modify existing subsections 386(1), (2) and (3) of the Act.

1.35 Items 10 and 12 seek to extend the power for the rules to prescribe modifications to the internal review provision in existing subsection 383(4) of the Act to reviewable decisions made in relation to tariff rate quota certificates. Item 13 seeks to provide that the rules may modify the operation of subsection 43(1) of the AAT Act in its application to reviews of decisions relating to tariff rate quota certificates.

1.36 A provision that enables delegated legislation to amend or modify 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 the 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 instance, the explanatory memorandum provides no justification as to why it is necessary and appropriate for rules to modify the operation of the Act or the AAT Act. The committee's scrutiny concerns in this regard are heightened by the fact that the delegated legislation may make modifications in relation to review of decisions which may affect an individual’s right to a fair hearing.

1.37 The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the Act and the AAT Act, and the circumstances in which it is envisaged that these powers are likely to be used; and

• whether the modification of the operation of the Act or the AAT Act may trespass on an individual’s right to a fair hearing.

Incorporation of external materials as in force from time to time
Significant matters in non-legislative documents^[2]

1.38 Item 14 of Schedule 1 seeks to insert modified paragraph 432(3)(g) and new paragraph 432(3)(h) into existing subsection 432(3) of the Act. Subsection 432(3) provides that the rules prescribed under the Act may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, a range of specified external documents and materials as in force or existing from time to time.

1.39 Existing paragraph 432(3)(g) provides that the rules may incorporate any matter contained in an instrument or writing that sets out or provides a method for calculating the tariff rate quota for the importation of a kind of goods into a country, and is made by the responsible regulatory authority or body. The bill seeks to modify this paragraph to clarify that the paragraph applies to imports into a country from Australian territory. Proposed paragraph 432(3)(h) would allow the rules to incorporate any matter contained in an agreement between Australia and another country or a body (for example, the European Union) that sets out, or provides a method for calculating, the tariff rate quota for the importation of a kind of goods into a country covered by the agreement from Australian territory.

1.40 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

1.41 The explanatory memorandum states that the amendment in item 14 would:

...enable the rules to apply, adopt or incorporate matters contained in instruments that relate to tariff rate quotas, which may not be made by an authority or body responsible for regulating the importation of a kind of goods into that country from Australian territory. An example of an instrument may include a free trade agreement between Australia and another country.^[3]

1.42 While noting this advice, the committee's view is that as a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law. In this instance the explanatory memorandum does not identify or explain where the incorporated materials may be accessed, or whether they will be freely available to all members of the public.

1.43 In addition, the committee considers that the bill provides for significant matters to be set out in external materials to be incorporated by reference; however, the explanatory memorandum does not address why it is necessary for these matters to be left to be determined in non-legislative documents.

1.44 The committee therefore requests the minister's advice as to:

• whether documents incorporated by reference into the rules will be made freely available to all persons interested in the law; and

• why it is considered necessary and appropriate for matters relating to the calculation of tariff rate quotas to be set out in non-legislative documents which may be subject to limited (if any) parliamentary scrutiny.

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[1] Schedule 1, items 10, 12 and 13. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[2] Schedule 1, item 14, proposed paragraphs 432(3)(g) and (h). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[3] Explanatory memorandum, p. 6.