Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 134 (3 July 2024)

• Chapter 1 : Initial scrutiny
• Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 20242
• Exemption from disallowance Exemption from sunsetting3

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Chapter 1 :
Initial scrutiny

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024^[2]

Purpose	The bill seeks to amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 to support continued access to television broadcasting services in regional Australia.
Portfolio	Infrastructure Transport, Regional Development, Communications and Arts
Introduced	House of Representatives on 26 June 2024
Bill status	Before the Senate

Exemption from disallowance
Exemption from sunsetting^[3]

1.2 Item 11 of Schedule 1 to the bill seeks to insert proposed section 102AE into the Radiocommunications Act 1992 (the Radiocommunications Act) to provide for consolidating transmitter licences for certain broadcasting services. Proposed subsection 102AE(6) provides that the minister may, by legislative instrument, give directions to the Australian Communications and Media Authority (ACMA) in relation to the exercise of the ACMA’s powers in making rules under subsection 102AE(5).^[4]

1.3 A note to proposed subsection 102AE(6) confirms that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply in relation to these directions, as per regulations made under paragraphs 44(2)(b) and 54(2)(b) of the Legislation Act 2003.^[5]

1.4 In relation to the exemptions from disallowance and sunsetting, the explanatory memorandum states:

The note to subsection 102AE(6) explains that, as is standard, the disallowance and sunsetting provisions of the Legislation Act 2003 do not apply to a ministerial direction given under the subsection.^[6]

1.5 While acknowledging the legislative basis for the exemption as outlined in the explanatory memorandum, the committee considers that 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 exceptional circumstances can be shown which would justify an exemption.^[7] In addition, the Senate resolved that 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.

1.6 The Senate’s resolution is consistent with concerns about the inappropriate exemption of delegated legislation from disallowance expressed by this committee in its recent review of the Biosecurity Act 2015^[8], and by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its inquiry into the exemption of delegated legislation from parliamentary oversight.^[9]

1.7 In light of these comments and the resolution of the Senate, the committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. This justification should include an explanation of the exceptional circumstances that are said to justify the exemption and how they apply to the circumstances of the provision in question.

1.8 In this instance, the explanatory memorandum has merely stated the source for the exemption from disallowance without providing a justification as to why it is necessary and appropriate in the context of the provision.

1.9 Further, sunsetting plays a key role in ensuring legislative instruments are regularly reviewed to determine whether they are still fit for purpose. Once they have sunset, instruments must be remade and tabled in the Parliament, which promotes parliamentary oversight and scrutiny through debate and discussion. Even where exemptions to sunsetting are created, such as through proposed amendments to the LEOM or primary legislation, the committee expects the explanatory memorandum to outline the circumstances that justify the limit on parliamentary oversight and scrutiny. Again, no such justification has been provided in this instance.

1.10 The committee requests the minister’s advice as to why it is necessary and appropriate for instruments made under proposed subsection 102AE(6) of the Radiocommunications Act 1992 to be exempt from disallowance and sunsetting.

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^[2] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024, Scrutiny Digest 8 of 2024; [2024] AUSStaCSBSD 134.

^[3] Schedule 1, item 11, proposed subsection 102AE(6). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv) and (v).

^[4] Proposed subsection 102AE(5) provides that the ACMA can make rules by legislative instrument prescribing specified matters.

^[5] The committee notes that instruments made under proposed subsection 102AE(6) would be exempted on the basis of table item 2 in section 9 of the Legislation (Exemption and Other Matters) Regulation 2015 (LEOM), which exempts directions by a minister to any person or body from disallowance. Similarly, ministerial directions would be exempt from sunsetting under table item 3 in section 11 of LEOM.

^[6] Explanatory memorandum, p. 17.

^[7] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.

^[8] See Chapter 4 of Senate Scrutiny of Bills Committee, Review of exemption from disallowance provisions in the Biosecurity Act 2015: Scrutiny Digest 7 of 2021 (12 May 2021) pp. 33–44; Scrutiny Digest 1 of 2022 (4 February 2022) pp. 76–86.

^[9] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report (2 December 2020); and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (16 March 2021).