Multiple instruments that appear to rely on section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003)-Advice only [2017] AUSStaCSDLM 222 (21 June 2017)

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Instrument	Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 1) Regulations 2017 [F2017L00548] Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 2) Regulations 2017 [F2017L00560] Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2017 [F2017L00544] Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 1) Regulations 2017 [F2017L00558]
Purpose	The regulations amend the Financial Framework (Supplementary Powers) Regulations 1997 to establish legislative authority for spending activities administered by the Attorney-General’s Department; Department of the Environment and Energy; Department of Health and Department of the Prime Minister and Cabinet
Authorising legislation	Financial Framework (Supplementary Powers) Act 1997
Department	Finance
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) Notice of motion to disallow currently must be given by 5 September 2017
Scrutiny principle	Standing Order 23(3)(d)

Parliamentary scrutiny – ordinary annual services

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation).

Under the provisions of the Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act), executive spending may be authorised by specifying schemes in regulations made under that Act. The money which funds these schemes is specified in an appropriation bill, but the details of the scheme may depend on the content of the relevant regulations. Once the details of the scheme are outlined in the regulations, questions may arise as to whether the funds allocated in the appropriation bill were inappropriately classified as ordinary annual services of

the government.

Ordinary annual services should not include spending on new proposals because the Senate's constitutional right to amend proposed laws appropriating revenue or moneys for expenditure extends to all matters not involving the ordinary annual services of the government.^[1] In accordance with the committee's scrutiny principle 23(3)(d), the committee's scrutiny of regulations made under the FF(SP) Act therefore includes an assessment of whether measures may have been included in the appropriation bills as an 'ordinary annual service of the government', despite being spending on new policies.^[2]

The above regulations seek to establish legislative authority for the Commonwealth government to fund:

• the Protecting the Rights of Older Australians initiative (for $15 million over three years from 2016-17);^[3]

• the Surf Life Saving Cleaner Outboard Engines Scheme (for $1 million over four years from 2016-17);^[4]

• a grant to Surf Life Saving Australia (for $10 million over four years from 2016-17);^[5] and

• the Smart Cities and Suburbs Program (for $50 million over two years from 2017-18).^[6]

It appears to the committee that the above programs are new policies not previously authorised by special legislation; and that the initial appropriation in relation to these new policies may have been inappropriately classified as 'ordinary annual services' and therefore improperly included in Appropriation Bill (No. 3) 2016-2017, or Appropriation Bill (No. 1) 2017-18 (which are not subject to amendment by the Senate).

The committee draws the above to the attention of the minister, the Senate and the relevant Senate committees.

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[1] In order to comply with the terms of a 2010 Senate resolution relating to the classification of appropriations for expenditure, new policies for which no money has been appropriated in previous years should be included in an appropriation bill that is not for the ordinary annual services of the government (and which is therefore subject to amendment by the Senate).

The complete resolution is contained in Journals of the Senate, No. 127—22 June 2010, pp 3642-3643. See also Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2 of 2017, pp 1-5.

[2] See Delegated legislation monitor 5 of 2014, pp 16–18 for a more detailed account of the committee's approach to regulations made under the FF(SP) Act.

[3] Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 1) Regulations 2017 [F2017L00548] adds new table item 213 to Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 (FF(SP) regulations).

[4] Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 2) Regulations 2017 [F2017L00560] adds new table item 214 to Part 4 of Schedule 1AB to the FF(SP) regulations.

[5] Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2017 [F2017L00544] adds new table item 18 to Part 3 of Schedule 1AB to the FF(SP) regulations.

[6] Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 1) Regulations 2017 [F2017L00558] adds new table item 224 to Part 4 of Schedule 1AB to the FF(SP) regulations.