Creative Australia Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 127 (2 August 2023)

• Creative Australia Bill 20238
• Exemption from disallowance
• Significant matters in delegated legislation
• Minister for Infrastructure, Transport, Regional Developments, Communications and the Arts' response
• Committee comment

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Creative Australia Bill 2023^[8]

Purpose	This bill seeks to put in place legislation to provide for Creative Australia as a modern entity with expanded functions, responsibilities and a new governance structure.
Portfolio/Sponsor	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 25 May 2023
Bill status	Assent

Exemption from disallowance

2.13 Subclause 14(1) of the bill allows the minister to, by legislative instrument, give directions to the Australia Council Board in relation to: the performance of functions, and the exercise of powers of, Creative Australia; or requiring the provision of a report or advice on a matter that relates to any of Creative Australia's functions or powers. A note to subclause 14(1) clarifies that any direction given by the minister is not subject to the usual parliamentary disallowance procedure due to the operation of regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.^[9]

2.14 The explanatory memorandum to the bill does not provide an explanation as to why a ministerial direction is not subject to disallowance and merely restates the effect of this provision. Further, the explanatory memorandum states that the directions are subject to disallowance, creating an inconsistency with the primary legislation.

2.15 In Scrutiny Digest 6 of 2023 the committee requested the minister's advice as to this inconsistency and suggested that it may be appropriate for the bill to be amended to provide that directions made under subclause 14(1) are subject to disallowance.^[10]

Minister for Infrastructure, Transport, Regional Development, Communications and the Arts' response^[11]

2.16 The Minister for Infrastructure, Transport, Regional Development, Communications and the Arts (the minister) advised that a correction to the explanatory memorandum has been tabled, which clarifies that any directions provided by the minister under clause 14 are legislative instruments which must be tabled in the Parliament and are not subject to disallowance.

2.17 The minister also advised that these directions may be in relation to the performance of functions and powers of Creative Australia, and that ministerial directions are not usually legislative instruments and do not need to be tabled or published on the Federal Register of Legislation. The minister has advised that although ministerial directions to Creative Australia are non-disallowable, the public and the Parliament will be empowered to hold the Government accountable as the directions will be tabled and published.

Committee comment

2.18 The committee thanks the minister for this response.

2.19 The committee notes the minister's advice that ministerial directions given to Creative Australia will be by legislative instrument that is non-disallowable but is required to be published and tabled in the Parliament.

2.20 The committee welcomes the clarification made by the minister through a correction to the explanatory memorandum but remains concerned that making a legislative instrument exempt from disallowance prevents proper parliamentary scrutiny. The committee reiterates that it does not consider the fact that an instrument will fall within one of the classes of exemption in the Legislation (Exemptions and Other Matters) Regulation 2015 is, of itself, a sufficient justification for excluding parliamentary disallowance.^[12] The committee expects that the explanatory memorandum should provide a thorough justification for excluding disallowance.

2.21 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of a ministerial direction made under subclause 14(1) being exempt from disallowance.

Significant matters in delegated legislation

2.22 Subclause 80(1) provides that Creative Australia must not, without the written approval of the minister, acquire or dispose of any property, right or privilege, or enter into a contract for the construction of a building for Creative Australia, exceeding in amount or value the amount mentioned in subclause 80(2). Subclause 80(2) provides that the amount available to Creative Australia is either $5 million or any other amount prescribed by the rules.

2.23 In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow the rules to prescribe any amount for the purposes of Creative Australia's financial transactions.

2.24 In Scrutiny Digest 6 of 2023 the committee requested the minister's advice as to why it is considered necessary and appropriate to leave a financial limit on transactions entered into by Creative Australia in delegated legislation rather than including it within the primary legislation.

Minister for Infrastructure, Transport, Regional Developments, Communications and the Arts' response

2.25 The minister advised that the bill already prescribes a limit on financial transactions of up to $5 million and that flexibility to create a rule to prescribe a different amount has been included in this bill as it was in the Australia Council Act 2013. The minister advised that this enables the financial limit to be changed in the future without legislative amendment and that a rule of this nature must be tabled in Parliament and is subject to scrutiny, including disallowance by, Parliament.

Committee comment

2.26 The committee notes the minister's advice that the bill already prescribes a limit of $5 million and that flexibility is required to create a rule to prescribe a different amount, as this was available under the Australia Council Act 2013. The committee also notes that as this is by legislative instrument, it is subject to parliamentary scrutiny, including disallowance.

2.27 However, the committee remains concerned that the monetary limit imposed on transactions entered into by Creative Australia can be amended by delegated legislation, rather than in the primary legislation. The committee considers this to be a significant matter and reiterates that delegated legislation is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill.

2.28 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of including a significant matter in delegated legislation under subclause 80(1).

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[8] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Creative Australia Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 127.

[9] See table item 2, section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.

[10] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2023 (2 August 2023) pp. 16–18.

[11] The minister responded to the committee's comments in a letter dated 23 June 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[12] The committee further notes that the Senate Standing Committee for the Scrutiny of Delegated Legislation has recommended that the blanket exemption of instruments that are 'a direction by a Minister to any person or body' should be abolished. See Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (16 March 2021) p. 101.