Expenditure and taxation in delegated legislation [2023] AUSStaCSDLM 143 (9 October 2023)

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Chapter 5 :

Expenditure and taxation in delegated legislation

5.1 This Chapter identifies the instruments which the committee has resolved to draw to the attention of the Senate under standing order 23(4) in the interest of promoting appropriate parliamentary scrutiny of Commonwealth expenditure in delegated legislation.^[1] This includes expenditure-related instruments and instruments that levy taxation.

Commonwealth expenditure

Instruments specifying expenditure under the Financial Framework (Supplementary Powers) Act 1997 and Industry Research and Development Act 1986

5.2 Instruments made under the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) and the Industry Research and Development Act 1986 (the IRD Act) authorise the Commonwealth to spend public money on grants and programs specified. The committee has resolved to draw these instruments to the Senate's attention under Senate standing order 23(4).^[2]

5.3 The table below lists the expenditure specified in legislative instruments made under the FF(SP) Act and IRD Act registered in the relevant period.

Instrument	Amount	Grant/Program
Industry Research and Development (National Student Space Challenge Program) Instrument 2023 [F2023L01144]	$3.5 million over four financial years	National Student Space Challenge Program

Levying of taxation in delegated legislation

5.4 The committee considers that one of the most fundamental functions of the Parliament is to levy taxation. The committee's longstanding view is that it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax (in accordance with Senate standing order 23(3)(j)). Where a tax is imposed in delegated legislation, the committee's concerns are heightened if it is not limited by a cap in the relevant enabling Act.

5.5 As the levying of taxation in delegated legislation is a systemic technical scrutiny matter, the committee has resolved to draw the following instruments to the attention of the Senate under standing order 23(4).

Instrument	Limit on the taxation amount in primary legislation?
Radiocommunications (Spectrum Licence Tax) Amendment Determination 2023 (No. 1) [F2023L01215]	Yes

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^[1] Details of all instruments which the committee has resolved to draw to the attention of the Senate under standing order 23(4) are published on the committee's website.

^[2] Details of all instruments which authorise Commonwealth expenditure are published on the committee's website.