Chapter 15 - Delegated legislation and disallowance

Regulations and Ordinances Committee

All disallowable legislative instruments stand referred to the Standing Committee on Regulations and Ordinances for scrutiny and recommendation as to any further parliamentary action including disallowance.

The Standing Committee on Regulations and Ordinances is appointed at the commencement of each Parliament under standing order 23(1). It is composed of six senators, three from the government party; and three from other parties, including usually at least two from the Opposition parties. The committee chair is elected from the government members. The committee has a quorum of four. The chair, or the deputy chair when acting as chair, has a casting vote in the event of equality of voting.

Standing order 23(2) provides:

All regulations, ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a legislative character, shall stand referred to the Committee for consideration and, if necessary, report.

The committee scrutinises each instrument to ensure:

(a) that it is in accordance with the statute;

(b) that it does not trespass unduly on personal rights and liberties;

(c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and

(d) that it does not contain matter more appropriate for parliamentary enactment. (SO 23(3))

These terms of reference have governed the committee’s proceedings throughout its history with only minor amendment in 1979 largely occasioned by creation of the Administrative Appeals Tribunal. The four principles are interpreted broadly to include every possible deficiency in delegated legislation affecting parliamentary propriety and personal rights.

In its fourth report in 1938 the committee recorded that it had determined in 1933 that “questions involving government policy in regulations and ordinances fell outside its scope” (PP S1/1937-8, p. 4). The committee does not consider policy issues arising in delegated legislation, but does not refrain from finding provisions contrary to its principles and recommending their disallowance simply on the basis that they reflect government policy.

The committee interprets its terms of reference as requiring it to scrutinise instruments to ascertain whether they:

  • are in accordance with the spirit of the statute even though legally authorised by the statute
  • contain reversals of the onus of proof in criminal matters
  • abridge traditional civil liberties; for example by providing for searches of premises without warrant
  • allow for administrative decisions affecting rights and liberties without objective criteria to govern such decisions and without a right of appeal to a judicial or other independent body by an aggrieved person
  • allow retrospective imposts, particularly involving payment of moneys with long periods of retrospectivity.

The committee reports regularly to the Senate and makes general reports on its scrutiny of delegated legislation. In respect of many instruments these reports record that the instruments have been changed when the committee has pointed out defects in them. The chair of the committee also frequently makes statements on its behalf in the Senate recording action taken by the committee in relation to particular instruments. These statements are often accompanied by tabling of the committee’s correspondence with ministers and other rule-making authorities. As noted above, the committee frequently gives notices of motions for disallowance and withdraws the notices when satisfactory explanations or undertakings are given by ministers or other rule-making authorities.

In its 101st report, in June 1995 (PP 97/1995), the committee asserted its right, and that of the Senate, to scrutinise rules of court and other instruments made by judicial bodies. These instruments, like other forms of delegated legislation, are subject to disallowance by the Senate (see also statements by the committee, SD 23/6/1997, pp 4868-70).

Occasionally the Senate refers to the committee for special report particular matters relating to delegated legislation. Thus in 1994 and subsequently the committee considered and reported in detail on the Legislative Instruments Bill, which significantly affected the system for the making of delegated legislation (PP 176/1994; 264/2003; see also Chapter 16, Committees, under Legislative Scrutiny Committees).

In its scrutiny of delegated legislation the committee is supported not only by its staff but by advisers who have been drawn from both the practising and academic sides of the law profession. The legal adviser reports to the committee on every instrument it considers. In framing advice the legal adviser also peruses supporting documentation, including explanatory memoranda issued by the rule-making authority. The committee usually meets in private. It has the power to sit during recess, but it does not have the power to move from place to place.

The committee, supported by the statutory provisions for disallowance, has established an effective system for the parliamentary scrutiny and control of delegated legislation. This system has since been widely copied in other jurisdictions in Australia and around the world (see the 71st report of the committee, PP 47/1982; 85th report, PP 464/1989; and subsequent annual reports).

In assessing the committee’s achievements over half a century, Professor Gordon Reid observed that it had “established itself as bipartisan in all of its work” and had “maintained its working momentum, whichever political party has been in power”. Reid further observed that the committee’s record demonstrated that so far as ministerial responsibility is concerned, ministers have been “held primarily responsible to the Senate and only incidentally to the House of Representatives in their use of delegated legislation” (Reid, op. cit., pp 157, 159).

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