Bankruptcy Amendment (Service of Documents) Regulations 2022-New matters [2022] AUSStaCSDLM 60 (7 September 2022)

• Bankruptcy Amendment (Service of Documents) Regulations 2022
• Overview
• Scrutiny concerns
• Modification of the operation of primary legislation;2 parliamentary oversight3

Bankruptcy Amendment (Service of Documents) Regulations 2022

FRL No.	F2022L00528[1]
Purpose	Amends section 102 of the Bankruptcy Regulations 2021 to disapply paragraphs 9(1)(d) and 9(2)(d) of the Electronic Transactions Act 1999 to ensure that the valid electronic service of documents required or permitted by the Bankruptcy Act 1966 can occur without the need to seek consent from the recipient.
Authorising legislation	Bankruptcy Act 1966
Portfolio	Attorney-General's
Disallowance	15 sitting days after tabling (tabled in the Senate on 26 July 2022)

Overview

1.1 The Bankruptcy Amendment (Service of Documents) Regulations 2022 (the instrument) amends the Bankruptcy Regulations 2021 (the principal regulations) to disapply paragraphs 9(1)(d) and 9(2)(d) of the Electronic Transactions Act 1999 to ensure that the valid electronic service of documents required or permitted by the Bankruptcy Act 1966 can occur without the need to seek consent from the recipient.

Scrutiny concerns

Modification of the operation of primary legislation;^[2] parliamentary oversight^[3]

1.2 Paragraphs 9(1)(d) and 9(2)(d) of the Electronic Transactions Act 1999 provide that information required or permitted to be given to another person under a Commonwealth law can be provided electronically with the recipient's consent. Item 3 of Schedule 1 to the instrument amends section 102 of the principal regulations so that the consent requirements do not apply to the electronic service of documents required or permitted by the Act or the principal regulations. It appears this exemption from the requirements of primary legislation is intended to remain in force for the ordinary 10-year sunsetting period.

1.3 Senate standing order 23(3)(l) requires the committee to consider whether an instrument contains continuing exemptions to the operation of primary legislation. In addition, Senate standing order 23(3)(m) requires the committee to scrutinise each legislative instrument as to whether it complies with any ground relating to the technical scrutiny of delegated legislation. This includes whether an instrument limits parliamentary oversight.

1.4 The committee's longstanding view is that provisions which exempt persons or entities from the operation of primary legislation should be included in primary rather than delegated legislation.^[4] If the provisions are in delegated legislation, the instrument should operate no longer than strictly necessary. The committee considers that, in most cases, this means the instrument should cease to operate no more than three years after it commences to ensure a minimum degree of regular parliamentary oversight. This approach facilitates appropriate regular consideration of the ongoing necessity of the relevant provisions and their inclusion in delegated legislation.

1.5 In addition, the committee considers that the explanatory statement to instruments which modify the operation of primary legislation should indicate whether there is any intention to conduct a review of the relevant provisions to determine if they remain necessary and appropriate for inclusion in delegated legislation.^[5]

1.6 In this instance, the explanatory statement to the instrument does not appear to address why it is necessary and appropriate to implement the exemption in delegated legislation rather than primary legislation, whether a shorter duration for these measures was considered, and whether this approach will be subject to future review.

1.7 The committee therefore requests the minister's advice as to:

• why it is necessary and appropriate to use delegated legislation, rather than primary legislation, to introduce this exemption from requirements under the Electronic Transactions Act 1999;

• whether the instrument can be amended to provide that the measures cease within three years after commencement; and

• whether there is any intention to conduct a review of the relevant provisions to determine whether they remain necessary and appropriate, including whether it is necessary to include the provisions in delegated legislation.

---

^[1] Accessible on the Federal Register of Legislation.

^[2] Senate standing order 23(4)(l).

^[3] Senate standing order 23(4)(m).

^[4] Senate Standing Committee for the Scrutiny of Delegated Legislation, Guidelines, 2^nd edition (February 2022) p. 36.

^[5] Senate Standing Committee for the Scrutiny of Delegated Legislation, Guidelines, 2^nd edition (February 2022) p. 36.