Sydney Harbour Federation Trust Amendment Bill 2021 [2021] AUSStaCSBSD 82 (21 April 2021)

• Sydney Harbour Federation Trust Amendment Bill 2021
• Significant matters in delegated legislation 51

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Sydney Harbour Federation Trust Amendment Bill 2021

Purpose	This bill seeks to address four recommendations from the Independent Review of the Sydney Harbour Federation Trust 2020. Technical amendments will also enable both the Act and regulations to be modernised and aligned with current drafting practices
Portfolio	Environment
Introduced	House of Representatives on 18 March 2021

Significant matters in delegated legislation ^[51]

1.109 The bill seeks to insert a range of powers to prescribe matters in delegated legislation into the Sydney Harbour Federation Trust Act 2001.

1.110 Schedule 1 to the bill seeks to insert:

• proposed paragraphs 73(2)(oa)-(oc), which would provide regulation making powers relating to offences against the regulations, including imposing liability, setting evidentiary requirements and setting requirements relating to the provision of documents;

• proposed paragraph 73(2)(od), which would provide a regulation making power to recover, by way of penalty, reasonable costs incurred as a result of a contravention of an order, direction or other requirement; and

• proposed paragraphs 73(2)(ra) and (rb), which would provide regulation making powers to remove and dispose of objects and other matter, including animals and the property of other persons.

1.111 The committee's view is that significant matters, such as requirements in relation to offences and penalties and requirements relating to the removal and disposal of property and animals, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

The Regulations sunset in October 2021 and are anticipated to be remade with minor changes to their operation. The way in which they operate under the Act has been reviewed. The amendments in Part 2 will enable them to be modernised and streamlined. The amendments in Part 2 have minimal substantive effect on the operation of the Act or Regulations, but rather will clarify the way in which the Act supports the Regulations.^[52]

1.112 The committee considers that the explanatory memorandum does not sufficiently address why it is necessary or appropriate to include requirements relating to offences and penalties or requirements relating to the removal and disposal of objects and other matter within delegated legislation.

1.113 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.

1.114 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave requirements relating to offences and penalties and requirements relating to the removal and disposal of objects and other matter 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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[51] Schedule 1, item 10, proposed paragraphs 73(2)(oa)-(od); and item 11, proposed paragraphs 73(2)(ra)-(rb). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[52] Explanatory memorandum, p. 13.