Customs Amendment (Controlled Trials) Bill 2021 [2021] AUSStaCSBSD 254 (1 December 2021)

• Customs Amendment (Controlled Trials) Bill 2021
• Significant matters in delegated legislation37

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Customs Amendment (Controlled Trials) Bill 2021

Purpose	This bill seeks to amend the Customs Act 1901 to facilitate time-limited trials with approved entities in a controlled regulatory environment.
Portfolio	Home Affairs
Introduced	House of Representatives on 24 November 2021

Significant matters in delegated legislation^[37]

1.64 The bill seeks to amend the Customs Act 1901 to insert proposed Part XB to facilitate time-limited trials of trade and customs practices with approved entities in a controlled regulatory environment. Proposed section 179K provides that the Comptroller-General may, by legislative instrument, determine qualification criteria that entities must meet in order to participate in any controlled trial.

1.65 The committee's consistent scrutiny view is that significant matters, such as the qualification criteria for participation in controlled trials, should be included in the primary legislation unless a sound justification is provided for the use of delegated legislation. In this instance, the explanatory memorandum states:

Such qualification criteria could be requirements similar to what is used in Part 2 of the Customs (Australian Trusted Trader Programme Rule) 2015.
Examples of qualification criteria could be that an entity is able to pay all of its debts as they become liable, the entity satisfactorily complies with Customs-related laws, or that corporate entities have a registered ABN. This provision has effect of ensuring a degree of consistency and transparency in the expectations common for all trials.^[38]

1.66 Noting the information provided in the explanatory memorandum, it is unclear to the committee why these matters could not be included on the face of the primary legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.67 The committee requests the minister's more detailed advice regarding:

• why it is considered necessary and appropriate to leave the qualification criteria for participation in controlled trials to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

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[37] Schedule 1, item 4, proposed section 179K. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[38] Explanatory memorandum, p. 12.