Broadcasting Services Amendment (Community Radio) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 22 (8 February 2023)

• Appropriation Bill (No. 1) 2022-2023
• Parliamentary scrutiny—appropriations determined by the Finance Minister8

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Appropriation Bill (No. 1) 2022-2023

Appropriation Bill (No. 2) 2022-2023

Purpose	Appropriation Bill (No. 1) 2022-2023 seeks to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the government. Appropriation Bill (No. 2) 2022-2023 seeks to appropriate money out of the Consolidated Revenue Fund for certain expenditure.
Portfolio	Finance
Introduced	House of Representatives on 25 October 2022
Bill status	Received the Royal Assent on 30 November 2022

Parliamentary scrutiny—appropriations determined by the Finance Minister^[8]

2.18 Clause 10 of Appropriation Bill (No. 1) enables the Finance Minister to allocate additional funds to entities when satisfied that there is an urgent need for expenditure and the existing appropriations are inadequate. The allocated amount is referred to as the Advance to the Finance Minister (AFM). The additional amounts are allocated by a determination made by the Finance Minister (an AFM determination). AFM determinations are legislative instruments, but they are not subject to disallowance.

2.19 Subclause 10(3) of Appropriation Bill No. 1 provides that $2,000 million of the amount that may be included within an AFM determination must relate to expenditure for the purposes of responding to circumstances relating to COVID-19,^[9] an event that the Finance Minister is satisfied is a natural disaster,^[10] or circumstances that the Finance Minister is satisfied constitute a national emergency.^[11] Subclause 12(4) of Appropriation Bill No. 2 provides that the total of the amounts included within an AFM determination under that bill for the purposes of responding to circumstances relating to COVID-19 cannot be more than $600 million.

2.20 In Scrutiny Digest 7 of 2022 the committee requested the minister's advice as to whether the bill can be amended so that inclusive definitions of ‘national emergency’ and ‘natural disaster’ are set out on the face of the bill, or, at minimum, whether guidance on the exercise of the power in relation to those concepts may be provided on the face of the primary legislation.^[12]

Minister's response^[13]

2.21 The minister advised that as the Appropriation Bill (No. 1) 2022-2023 received the Royal Assent on 30 November 2022, the bill can no longer be amended.

2.22 The minister also advised that the terms ‘national emergency’ and ‘natural disaster’ rely on their natural and ordinary meaning.

Committee comment

2.23 The committee thanks the minister for this response.

2.24 However, the committee does not consider that the minister has addressed the committee's concerns.

2.25 The committee notes that ‘national emergency’ and ‘natural disaster’ are imprecise terms. An extremely broad set of circumstances could conceivably be included within the spectrum encompassed by the words ‘national emergency’ and ‘natural disaster’. Relying solely on the ordinary meaning of those terms means that the scope of the power to allocate additional funds to entities under an AFM determination is not defined with sufficient precision. Insufficiently defined administrative powers may be exercised arbitrarily or inconsistently and may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles.

2.26 The committee's concerns in relation to this broad discretionary power are heightened, given that the power to make AFM determinations represents a significant delegation of legislative power to the executive and because an AFM determination is not subject to the usual parliamentary disallowance process.

2.27 The committee acknowledges that it may be appropriate to maintain a degree of flexibility in relation to terms such as 'national emergency' or 'natural disaster'. However, the committee considers that it would be possible to set out at least an inclusive definition of these terms, or, at a minimum, guidance in relation to the exercise of the Finance Minister's powers to make an AFM Determination, without compromising on the required flexibility to allocate funds during times of natural disaster or national emergency.

2.28 As previously noted, the committee welcomes the inclusion of provisions which limit the purposes for which additional funds may be allocated under an AFM determination, such as those set out at subparagraphs 10(3)(b)(i), 10(3)(b)(ii), and 10(3)(b)(iii). However, given the importance of the AFM framework, the committee considers that limiting terms such as ‘national emergency’ and ‘natural disaster’ should be appropriately defined and the exercise of the power to make an AFM determination should be subject to clear and explicit guidance.

2.29 The committee remains of the view that it would be appropriate to further define the terms ‘national emergency’ and ‘natural disaster’ as set out in clause 10 of the bill and to provide additional guidance as to when the power to make an AFM determination during times of national emergency or natural disaster could be appropriately exercised.

2.30 The committee therefore suggests that when appropriation bills are being proposed in the future, consideration should be given to providing clear and explicit guidance on the face of the bill in relation to any key terms that are intended to limit the circumstances in which allocations may be made under an AFM determination.

2.31 If equivalent provisions are included within future appropriation bills, the committee considers that, at a minimum, consideration should be given to including:

• examples of national emergencies and natural disasters on the face of the bill;

• an inclusive definition of the terms ‘national emergency’ and ‘natural disaster’; and

• a list of matters that the Finance Minister may consider in determining whether a circumstance is a ‘national emergency’ or a ‘natural disaster’.

2.32 The committee will continue to consider this important matter in its scrutiny of future appropriation bills.

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

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[8] Clause 10 of Appropriation Bill (No. 1) 2022-2023; Clause 12 of Appropriation Bill (No. 2) 2022‑2023. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(iv) and (v).

[9] Subparagraph 10(3)(b)(i) of Appropriation Bill (No. 1) 2022-2023.

[10] Subparagraph 10(3)(b)(ii) of Appropriation Bill (No. 1) 2022-2023.

[11] Subparagraph 10(3)(b)(iii) of Appropriation Bill (No. 1) 2022-2023.

[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022 (23 November 2022) pp. 13–17.

[13] The minister responded to the committee's comments in a letter dated 12 December 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.