Australian Education Regulations 2023 - Concluded matters [2023] AUSStaCSDLM 123 (9 November 2023)

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Chapter 2 :

Concluded matters

2.1 This Chapter details the committee's concluding comments on significant technical scrutiny issues in legislative instruments relating to the committee's principles in Senate standing order 23(3).

Australian Education Regulations 2023^[1]

FRL No.	F2023L01020
Purpose	Repeals and remakes the Australian Education Regulations 2013 before the sunset date of 1 October 2023 to ensure current arrangements for Commonwealth financial assistance to schools may continue in substantially the same form. It also makes a small number of minor updates, clarifications and technical amendments.
Authorising legislation	Australian Education Act 2013
Portfolio	Education
Disallowance	15 sitting days after tabling (tabled in the Senate on 31 July 2023). Committee gave notice of motion to disallow on 14 September 2023.

Overview

2.2 The Australian Education Regulations 2023 (the instrument) repeal and remake the Australian Education Regulations 2013, which sunset on 1 October 2023, by operation of subsection 50(1) of the Legislation Act 2003.

2.3 On 13 September 2023, the committee raised scrutiny concerns with the minister in Delegated Legislation Monitor 10 of 2023.^[2] The minister responded to the committee's request on 4 October 2023.^[3] The committee retained concerns and, accordingly, sought the minister's further advice on 18 October 2023, in Delegated Legislation Monitor 12 of 2023.^[4] The minister responded to this request on 1 November 2023.^[5]

Scrutiny concerns

Broad discretionary powers;^[6] coercive powers^[7]

Privacy^[8]

Availability of independent merits review^[9]

Broad discretionary and coercive powers

2.4 The committee initially raised concerns that the instrument contains broad discretionary powers, some of which also appear to be coercive in nature. Specifically, the instrument allows the minister to appoint an 'authorised person' if satisfied that they have suitable qualifications.^[10] Once such persons are appointed, the instrument requires them to be allowed 'full and free access' to certain records and premises,^[11] as well as to be provided with certain information or records requested by the minister or ‘authorised persons'.^[12]

2.5 On 4 October 2023, the minister provided detailed advice about the factors that may be taken into account in determining whether an 'authorised person' has suitable qualifications or experience, further detail about the nature and scope of the powers allowing them access to premises and records, and additional safeguards on these powers.^[13]

Privacy

2.6 The committee also raised privacy concerns about the instrument, as it requires 'full and free access' to any record relating to compliance with the legislative regime or financial information,^[14] as well as the provision of information or records, requested by the minister or an 'authorised person'. ^[15]

2.7 In response to the committee's request, the minister advised in his correspondence of 4 October 2023 that, while personal information would generally not be collected, used or disclosed under the instrument, where that does occur, the Privacy Act 1988 and the Australian Privacy Principles will operate as a safeguard.

Availability of independent merits review

2.8 Finally, the committee raised concerns as the instrument contains a number of discretionary powers, but it was unclear whether the majority of these decisions are subject to independent merits review.

2.9 The minister advised in his correspondence of 4 October 2023 that these decisions were excluded from review, citing justifications in the Administrative Review Council's guide, What decisions should be subject to independent merits review?^[16] in line with the committee's usual expectations on this matter.

2.10 Based on this response, the committee sought the minister's advice as to whether the instrument's explanatory statement could be amended to include this detail about the above scrutiny issues.

Minister's response^[17]

2.11 In his correspondence of 1 November 2023, the minister advised that for each of the above matters the committee had raised, he undertook to update the explanatory statement to include the information contained in his response of 4 October 2023.

Committee view

2.12 The committee thanks the minister for his advice in relation to the above scrutiny concerns and welcomes his undertaking to amend the explanatory statement.

2.13 In light of the minister's undertaking, the committee concludes its examination of the instrument in relation to each of the above issues.

2.14 In addition, the committee has resolved to withdraw the notice of motion to disallow the instrument.

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^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Delegated Legislation, Australian Education Regulations 2023, Delegated Legislation Monitor 13 of 2023; [2023] AUSStaCSDLM 123.

^[2] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 10 of 2023 (13 September 2023) pp. 3‑-7.

^[3] See correspondence to the Senate Standing Committee for the Scrutiny of Delegated Legislation on 4 October 2023.

^[4] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 12 of 2023 (18 October 2023) pp. 12-17.

^[5] This correspondence was tabled with this Monitor and will be accessible via the Delegated Legislation Monitors page on the committee's website.

^[6] Senate standing order 23(3)(c).

^[7] Senate standing order 23(3)(h).

^[8] Senate standing order 23(3)(h).

^[9] Senate standing order 23(3)(i).

^[10] See section 33.

^[11] See section 39.

^[12] See section 39A.

^[13] See Delegated Legislation Monitor 12 of 2023 (18 October 2023) p. 14 for a summary of this advice.

^[14] See section 39(1).

^[15] See section 39A.

^[16] Administrative Review Council, What decisions should be subject to independent merits review?

^[17] This correspondence was tabled with this Monitor and will be accessible via the Delegated Legislation Monitors page on the committee's website.