Commentary on Amendments and Explanatory Materials [2024] AUSStaCSBSD 139 (3 July 2024)

• Commentary on amendments and explanatory materials29
• Australian Postal Corporation and Other Legislation Amendment Bill 2024
• Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024

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Commentary on amendments
and explanatory materials^[29]

Australian Postal Corporation and Other Legislation Amendment Bill 2024

1.42 On 24 June 2024 the Assistant Minister for Infrastructure and Transport (Senator the Hon. Carol Brown) presented an addendum to the explanatory memorandum to the bill.

1.43 The committee thanks the assistant minister for tabling an addendum to the explanatory memorandum which addresses the committee's scrutiny concerns in relation to significant matters in delegated legislation and privacy, and partially addresses the committee's concerns in relation to the reversal of evidential burdens of proof.

Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024

1.44 On 26 June 2024, the Senate agreed to 27 Government amendments to the bill. The Minister for Health and Aged Care (Senator the Hon Mark Butler) tabled a supplementary explanatory memorandum relating to the amendments.

1.45 The Government amendments address, amongst other matters, concerns raised by the committee in Scrutiny Digest 5 of 2024^[30] and clarified by the minister in responses, commented on in Scrutiny Digest 6 of 2024^[31] and Scrutiny Digest 7 of 2024.^[32]

1.46 Government amendments no. 7 and no. 9 amend subsection 41QC(11) and section 41QD to introduce exceptions to offences and contraventions relating to the possession of vaping goods. In relation to subsection 41QC(11), the supplementary explanatory memorandum provides examples of evidence that indicates a reasonable possibility of the matters contained in the exception.^[33] The committee welcomes the inclusion of examples in the supplementary explanatory memorandum which partially address the committee’s concerns in relation to the reversal of the evidential burden of proof.

1.47 Government amendment no. 10 inserts subsections 41RC(2A), 41RC(2B) and 41RC(2C), which relate to decision-making principles that may be established by legislative instrument, which the secretary must have regard to prior to issuing a consent to possess, supply or manufacture vaping goods. Subsection 41RC(2C) also provides guidance as to what the decision-making principles may set out.

1.48 Government amendment no. 17 inserts paragraph 60(1)(n) and subsection 60(2E), which clarify that the decision by the Secretary to give enforceable directions under subsection 42YT(2) is a decision that is subject to independent merits review. Subsection 60(2E) clarifies that only a person to whom directions were given is entitled to seek merits review.

1.49 The committee welcomes these amendments, which address the committee’s concerns in relation to broad discretionary powers and the availability of independent merits review, and partially address the committee’s concerns in relation to reversals of the evidential burden of proof.

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^[29] This report can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments and explanatory materials, [2024] AUSStaCSBSD 139.

^[30] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2024 (27 March 2024), pp. 12–18.

^[31] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2024 (15 May 2024), pp. 108–117.

^[32] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2024 (26 June 2024), pp. 116–122.

^[33] Supplementary explanatory memorandum, p. 6.