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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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National uniform legislation and state referrals of power

National schemes of legislation, also known as uniform legislation, have always presented difficulties for Senate scrutiny of legislation because they are framed by agreement between the Commonwealth and state and territory executive governments and then presented to the respective parliaments as unchangeable because the parliaments cannot change the intergovernmental agreements. The two legislative scrutiny committees, the Regulations and Ordinances Committee and the Scrutiny of Bills Committee, combined to present on 16 October 1996 a position paper on this subject. The position paper suggested two possible solutions: a national committee for the scrutiny of such legislation and the adoption of parliamentary procedures so that legislation commented on by a scrutiny committee would not proceed until the government reported on the matters raised. No action has yet been taken on these suggestions.

Effective parliamentary scrutiny is also potentially undermined by state referrals of power under section 51(xxxvii) of the Constitution, particularly text-based referrals, or by other legislation arising from inter-governmental agreements. As these agreements have increased in frequency under the emergence of so-called cooperative federalism, so has the potential gap in scrutiny been highlighted. Bills reflecting an agreement to establish a national regulator for the vocational education and training sector in 2011 were heavily criticised by both the Scrutiny of Bills Committee and the Education, Employment and Workplace Relations Legislation Committee. The bills reflected a text-based referral of powers from NSW and any alteration of the text would have resulted in the failure of the agreement which was widely supported. The legislation committee recommended that the bills be amended following enactment but that, in future, exposure drafts of such bills be prepared to enable their examination by parliamentary committees before the terms of intergovernmental agreements were finalised. In a welcome development, draft bills relating to the registration of business names, in the form settled by state and territory officials, were referred to the Economics Legislation Committee in July 2011. The referral of draft bills before their final consideration by the relevant intergovernmental forum is one way of incorporating parliamentary scrutiny and represents a better process than the presentation of such bills to the parliament, following agreements at extra-parliamentary forums, as a fait accompli.