High Speed Rail Authority Bill 2022 [2022] AUSStaCSBSD 72 (28 September 2022)

• High Speed Rail Authority Bill 2022
• Exemption from disallowance

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High Speed Rail Authority Bill 2022

Purpose	This bill seeks to establish the High Speed Rail Authority as an independent body to advise on, plan and develop the high speed rail system.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 6 September 2022

Exemption from disallowance

Broad discretionary powers^[76]

1.102 Clause 11 of the bill provides that the minister may, by legislative instrument, give written directions to the High Speed Rail Authority (the Authority) about the performance of its functions under the bill. Although such directions must relate to the Authority's functions, paragraph 8(1)(e) of the bill allows the rules to prescribe additional functions without the need for an amending bill. While subclause 11(2) provides that directions must be 'of a general nature only', the bill provides no further limitations or guidance on the content of such directions.

1.103 A note to clause 11 clarifies that a direction is not subject to disallowance due to the operation of regulations made under the Legislation Act 2003. Item 2 of the table at regulation 9 of the Legislation (Exemptions and Other Matters) Regulation 2015 declares that an instrument that is a direction by a minister to any person or body is not subject to disallowance.

1.104 Disallowance is the primary means by which the Parliament exercises control over the legislative power that it has delegated to the executive. Exempting an instrument from disallowance therefore has significant implications for parliamentary scrutiny. In June 2021, the Senate acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless there are exceptional circumstances, and any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases. ^[77]

1.105 The Senate's resolution is consistent with concerns about the inappropriate exemption of delegated legislation from disallowance expressed by this committee in its 2021 review of the Biosecurity Act 2015,^[78] and by the Senate Standing Committee for the Scrutiny of Delegated Legislation (Delegated Legislation Committee) in its inquiry into the exemption of delegated legislation from parliamentary oversight.^[79] The Delegated Legislation Committee expressed particular concern about broad classes of exemptions from disallowance based exclusively on the form of the relevant instrument, ^[80] emphasising that 'any exclusion from parliamentary oversight...requires that the grounds for exclusion be justified in individual cases, not merely stated'.^[81]

1.106 In light of these comments and the resolution of the Senate, the committee expects the explanatory materials for a bill exempting delegated legislation from disallowance to set out the exceptional circumstances that are said to justify the exemption and how they apply to the circumstances of the provision in question.

1.107 The committee's already significant concerns in relation to exemptions from disallowance will be heightened where a provision confers a broad discretionary power on a person, as in this instance.^[82] The committee expects that, in addition to setting out the exceptional circumstances that are said to justify the exemption, the explanatory memorandum for the bill will address why it is necessary to confer a broad discretionary power, whether there are appropriate criteria or considerations that limit the exercise of the power, and whether those criteria or considerations are contained in law or policy.

1.108 Finally, where circumstances are so exceptional as to justify the exemption of delegated legislation from disallowance, the committee shares the view of the Delegated Legislation Committee that the exemption should be provided by primary legislation, rather than delegated legislation. ^[83] This is consistent with Parliament's constitutionally-conferred legislative role and the fact that delegated legislation is not subject to the same level of parliamentary scrutiny as primary legislation.

1.109 In this instance, the explanatory memorandum merely states the effect of clause 11 and the operation of section 42 of the Legislation Act 2003. It does not appear to provide any further justification for exempting instruments made under clause 11 from disallowance. Accordingly, it remains unclear to the committee what exceptional circumstances necessitate the exclusion of parliamentary oversight from written directions given to the Authority.

1.110 It is also unclear to the committee what criteria or considerations may limit or guide the minister's broad discretionary power to give directions to the Authority. To this end, the committee notes that the explanatory memorandum does not appear to address the broad discretionary nature of the power set out under clause 11, or the contemplated scope of the rule-making power at paragraph 8(1)(e). This paragraph, which permits rules to prescribe additional functions of the Authority, has the potential to further broaden this directions power. For example, the explanatory memorandum refers to the role of the Authority as encompassing the operation of a high speed rail network.^[84] However, the current functions of the Authority, as set out at clause 8, relate to planning, policy, coordination, and construction activities. It is therefore not clear from the explanatory memorandum whether it is contemplated that the rule-making power at paragraph 8(1)(e) will be used to expand the functions of the Authority to encompass operation activities. This lack of clarity limits the Parliament's ability to properly scrutinise the bill and, in particular, the directions power set out at clause 11. This is particularly concerning given the limited opportunities for scrutiny of exempt instruments.

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

• the exceptional circumstances which make it necessary to exempt the ministerial directions from the usual parliamentary disallowance process;

• what criteria or considerations may limit the minister's broad discretionary power to give directions;

• whether these criteria or considerations are contained in law or policy; and

• whether the bill could be amended to provide that these directions are subject to disallowance to ensure that they receive appropriate parliamentary oversight.

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[76] Clause 11. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[77] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.

[78] See Chapter 4 of Senate Standing Committee for the Scrutiny of Bills, Review of exemption from disallowance provisions in the Biosecurity Act 2015: Scrutiny Digest 7 of 2021, 12 May 2021, pp. 33–44; and Scrutiny Digest 1 of 2022, 4 February 2022, pp. 76-86.

[79] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, December 2020; and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, March 2021.

[80] See, for example, Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 5 of 2022, 7 September 2022, p. 103.

[81] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, pp. 75–76.

[82] See Chapter 4 of Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2022, 4 February 2022, p. 77.

[83] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, pp. 100–101.

[84] Explanatory memorandum, p. 1.