Chapter 15 - Delegated legislation and disallowance

Parliamentary control: historical background

As has been noted, a system has been built up, principally through the efforts of the Senate, whereby delegated legislation is subject to parliamentary control, mainly through the power of either House of the Parliament to disallow any delegated legislation. This gives the Senate basically the same power it has in relation to other proposed laws: the power of veto. It was through recognition by the Senate of the need to preserve the principle of parliamentary control of law-making that this system was established.

At an early stage in its history the Parliament recognised the need for direct parliamentary control over subordinate legislation. In enacting customs and excise legislation, for example, provision was made, in the face of ministerial resistance, for tabling of regulations and their disallowance by either House within a prescribed period. The Acts Interpretation Act 1904 included the basic framework for handling subordinate legislation, namely notification in the Gazette and laying before each House within 30 sitting days (reduced to 15 in 1930 and 6 in 2003). A vital component of that framework, inserted by amendment in the Senate but based on provisions in other legislation, was the capacity to move, within 15 sitting days of tabling, that regulations be disallowed. This was further amended in the House of Representatives so that only notice of motion was required within 15 sitting days.

At this stage, however, there was no provision in either House (or any other parliament) for active scrutiny. It was in the 1920s and 30s that public and parliamentary concern led to the establishment of parliamentary procedures to ensure that exercise of regulation-making power became an active subject of scrutiny and liable to a measure of control.

Credit for rousing public opinion is often accorded to Lord Hewart, Lord Chief Justice of England, in his book, The New Despotism, published in 1929. The book represents “the outstanding landmark in the development of the theory and practice of delegated legislation” (G.S. Reid, ‘Parliament and delegated legislation’, Parliament and Bureaucracy, 1982, p. 151).

By coincidence Hewart’s book was published at the time when the Senate had established a select committee to consider, report and make recommendations about establishing standing committees of the Senate on “statutory rules and ordinances”. When the select committee reported, it proposed a committee to review “Regulations and Ordinances”.

Simultaneously, the Senate, in which senators supporting the government were in a minority, was challenging regulations made by the Scullin Government under the Transport Workers Act 1928, using powers contained in the Acts Interpretation Act. When the initial regulations were disallowed, the regulations were promptly remade. This led the Senate unsuccessfully to petition the Governor-General to refuse to approve further regulations which were the same in substance as regulations already disallowed by the Senate. There was also litigation in the High Court challenging the validity of the regulations (Dignan v Australian Steamships Pty Ltd 1931 45 CLR 188).

With this controversy in the background, the Senate, following the general election of 1931, resolved to incorporate in the standing orders a requirement that a Standing Committee on Regulations and Ordinances be appointed at the commencement of each session of Parliament (4/3/1932, J.27-8). Only the House of Lords, when it created a committee in 1925 to examine regulations requiring an affirmative resolution to become law, had previously acted in this field. Eventually many houses of parliaments followed a similar course of establishing a committee to oversee statutory instruments, but one which has not done so is the Australian House of Representatives. Thus responsibility in the Commonwealth for active and systematic scrutiny of this extensive field of legislation falls upon the Senate. Maurice Blackburn, later a Labor member of the House of Representatives, had explicitly contended in 1930 that:

the House of Representatives is not likely to do that work well, or, in fact, to do it at all. Upon its vote turns the fate of the ministry. The regulation is made by the ministry, and a proposal for its disallowance would certainly be treated as a vote of want of confidence, and would be tested on party lines. No ministry depends on the vote of the Senate and it is quite likely that in that chamber a regulation would be considered on its merits.... (Evidence to the 1929 Select Committee, PP S1/1929-30, p. 23.)

Parliamentary scrutiny of subordinate legislation was further strengthened in 1932 by amendment of the Acts Interpretation Act designed to address the issues which had arisen during dispute over the Transport Workers regulations. The amendment prohibited remaking of disallowed regulations within six months of disallowance, or the making of new regulations “substantially similar”, unless their introduction was preceded by a motion rescinding the earlier disallowance.

Five years later the Act was consolidated. An important addition, included following observations by Maurice Blackburn in the House of Representatives about the ease with which a motion to disallow could be by-passed, was a provision compelling action on a motion for disallowance: if a motion to disallow was not resolved, the regulations would be deemed to have been disallowed.

In 2005 the Legislative Instruments Act 2003 came into effect. This legislation, which had been introduced, scrutinised by the Regulations and Ordinances Committee and amended by the Senate in various forms on a number of occasions between 1994 and 1998, consolidated and reformed the law relating to delegated legislation in accordance with recommendations made by the Administrative Review Council in 1992. It retained and enhanced the provisions for parliamentary control.

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