Electoral Legislation Amendment (Contingency Measures) Bill 2021 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 11 (4 February 2022)

• Electoral Legislation Amendment (Contingency Measures) Bill 2021
• Broad discretionary power
• Significant matters in delegated legislation13

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Electoral Legislation Amendment (Contingency Measures) Bill 2021

Purpose	This bill seeks to amend the Commonwealth Electoral Act 1918 to enable the Electoral Commissioner to modify the operation of certain aspects of the conduct of elections when a Commonwealth emergency law is in force. These amendments implement recommendations from the Joint Standing Committee on Electoral Matters' Report of the inquiry on the future conduct of elections operating during times of emergency situations.
Portfolio	Special Minister of State
Introduced	House of Representatives on 28 October 2021
Bill status	Received the Royal Assent on 13 December 2021

Broad discretionary power
Significant matters in delegated legislation^[13]

2.25 In Scrutiny Digest 17 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to provide the minister with a broad discretionary power to add legislation to the definition of Commonwealth emergency law by delegated legislation; and

• whether the bill can be amended to provide at least high-level guidance on the face of the bill as to the circumstances when the power in proposed subsection 396(9) should be exercised.^[14]

Minister's response^[15]

2.26 The minister advised:

The Government introduced the Bill to allow the Electoral Commissioner to make limited modifications to the Commonwealth Electoral Act 1918 (Electoral Act) where an emergency declaration has been issued under a Commonwealth law, and the Electoral Commissioner is satisfied on reasonable grounds that the emergency would interfere with the due conduct of the election in a geographical area.
The Bill implements recommendations from the Joint Standing Committee on Electoral Matters' (JSCEM) Report of the inquiry on the future conduct of elections operating during times of emergency situations to ensure that the Australian Electoral Commission can successfully deliver a federal election in emergency situations.
The Bill enables the Minister to make a legislative instrument specifying further laws of the Commonwealth as a 'Commonwealth emergency law' for the purpose of the Bill. Importantly, notwithstanding a specification of a further law through this instrument an emergency must still be declared in accordance with that law to enliven the Electoral Commissioner's modification powers in proposed section 396(2).
The legislative instrument would be subject to disallowance in accordance with the Legislation Act 2003, and may be disallowed by either House within a certain time after the instrument is tabled in the Parliament. Additionally, any legislative instrument made by the Minister, unless exempt from Parliamentary oversight, would be subject to scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation.
I also note that such an instrument would be subject to review and consideration by JSCEM which holds an inquiry into all aspects of the conduct of the election after each federal election.
As there is often great uncertainty during times of emergency situations, and noting the expiry or dissolution of Parliament shortly before a writ is issued for an election, it is necessary and appropriate to provide the Minister with a discretionary power to add further Commonwealth legislation to the definition of Commonwealth emergency law by delegated legislation to support the successful operation of federal elections in emergency situations.
The Government's view is that further guidance is not required as to the circumstances when the power in proposed subsection 396(9) should be exercised, noting that such specification would only be effective for Commonwealth laws that enable the declaration of an emergency and that this legislative instrument will be subject to Parliamentary scrutiny.
The use of delegated legislation in this instance ensures a timely response to unforeseen emergency situations so that Australians can exercise their franchise. As such, I consider it appropriate for delegated legislation to modify the operation of this Bill.

Committee comment

2.27 The committee thanks the minister for this response. The committee notes the minister's advice that, as there is often great uncertainty during times of emergency situations, and noting the expiry or dissolution of Parliament shortly before a writ is issued for an election, it is necessary and appropriate to provide the minister with a discretionary power to add further Commonwealth legislation to the definition of Commonwealth emergency law by delegated legislation to support the successful operation of federal elections in emergency situations.

2.28 The committee also notes the minister's advice that further guidance is not required as to the circumstances when the power in proposed subsection 396(9) should be exercised, noting that such specification would only be effective for Commonwealth laws that enable the declaration of an emergency and that this legislative instrument will be subject to parliamentary scrutiny.

2.29 The committee reiterates its scrutiny view that significant matters relating to the conduct of elections should be included in primary legislation, unless a sound justification is provided for the use of delegated legislation. In this instance, while the committee acknowledges the minister's advice in relation the appropriateness of utilising delegated legislation, it remains unclear to the committee why at least high‑level guidance as to when additional legislation can be specified by legislative instrument cannot be included in the primary legislation.

2.30 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

2.31 In light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

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^[13] Schedule 1, item 1, proposed subsections 396(8) and (9). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

^[14] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021, pp. 10-11.

^[15] The minister responded to the committee's comments in a letter dated 1 December 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.