Odgers' Australian Senate Practice Thirteenth Edition

Chapter 16 - Committees

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Legislative Scrutiny Committees

Regulations and Ordinances Committee

The oldest standing committee, apart from the domestic or internal committees, the Regulations and Ordinances Committee undertakes the important function on behalf of the Senate of scrutinising delegated legislation to ensure that it complies with principles of personal freedom and parliamentary propriety. Established under standing order 23, the committee is charged with considering and, if necessary, reporting on, 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.[52] For the nature of delegated legislation and the statutory provisions for its disallowance by the Senate, see Chapter 15, Delegated Legislation.

The committee is required to scrutinise each piece of delegated legislation to ensure:

  1. (a) that it is in accordance with the statute;
  2. (b) that it does not trespass unduly on personal rights and liberties;
  3. (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
  4. (d) that it does not contain matter more appropriate for parliamentary enactment.

The membership of the committee is set at six, with three members nominated by the Leader of the Government in the Senate and three nominated by the Leader of the Opposition in the Senate or by minority groups or independent senators. The chair of the committee is elected from the members nominated by the Leader of the Government. The chair is empowered by standing order 23(7) to appoint a deputy chair to act as chair when there is no chair or the chair is not present at a meeting. By convention, the deputy chair is a non-government senator, reinforcing the high degree of non-partisanship under which the committee operates. The chair, or deputy chair when acting as chair, has a casting vote but this has been a matter of little significance in the history of the committee.

The committee has power to send for persons and documents and to sit during recess.[53]

The committee may recommend the disallowance by the Senate of any delegated legislation not in accordance with the committee's principles. The Senate has never rejected a committee recommendation that an offending instrument should be disallowed. Because its scrutiny is confined to its criteria, the committee avoids debates on the merits of policy. This, together with its endurance, ensures that it maintains a high reputation in supporting the Senate's legislative review function.

In carrying out its role, the committee is assisted by a legal adviser appointed, with the approval of the President, pursuant to standing order 23(9). The legal adviser assists the committee to identify instruments which may offend against the committee's principles. When such an instrument is identified, the usual practice is for the chair to give notice of a motion to disallow the instrument. In accordance with the Legislative Instruments Act, notices of motion for disallowance must be given within 15 sitting days after the instrument has been tabled and the Senate has a further 15 sitting days in which to deal with the notice; if the motion is not by then disposed of, the instrument is automatically disallowed. Many notices to disallow instruments are protective notices in that they are given pending the receipt of a satisfactory explanation or undertaking from the relevant minister. Once such an explanation or undertaking is received, the chair withdraws the notice of motion, having previously notified an intention to do so. At this point, it is open to any senator to take over the notice, in accordance with standing order 78, and therefore to pursue any other issues involved in the instrument. For a more detailed exposition of this process, see Chapter 15, Delegated Legislation.

As well as scrutinising many thousands of instruments and contributing to the evolution and refinement of executive law-making, the committee has had an important role in strengthening the procedures governing the making and scrutiny of delegated legislation. In its 80th report to the Senate, for example, it gave detailed guidelines on how the committee applies its four principles.[54] These guidelines were further developed in the 83rd report,[55] which also contained a strong recommendation that all delegated legislation subject to tabling and disallowance in the Senate be accompanied by adequate explanatory statements (not then statutorily required), a theme continued in the 85th report.[56] The 82nd report[57] considered proposed amendments to the disallowance scheme contained in the legislation which were referred to the committee. The report recommended that the legislation be amended to eliminate the possibility that the statutory disallowance scheme could be by-passed by a sequence of instruments, each one repealing and remaking its predecessor. Provisions to prevent this were enacted in 1988. In 1994 and subsequently, under the Senate's procedures for referring bills to committees, the Legislative Instruments Bill 1994 was referred to the committee for inquiry and report. This bill proposed, among other things, to reform the law relating to delegated legislative instruments and to establish an electronic register of existing and future delegated legislation. The committee endorsed the objectives of the bill and generally supported its main principles, but several concerns were enumerated and the committee recommended amendments.[58]

A comprehensive account of the committee's first 56 years of operation and the development of its approach to issues of personal rights and liberties may be found in a statement by the then chair, Senator Collins, reproduced as appendix 2 to the committee's 85th report, referred to above. Further information on the committee's work may be found in its subsequent general reports and in Chapter 15, Delegated Legislation under Regulations and Ordinances Committee.

Scrutiny of Bills Committee

The Senate Standing Committee for the Scrutiny of Bills is established pursuant to standing order 24, which provides (in part):

At the commencement of each Parliament, a Standing Committee for the Scrutiny of Bills shall be appointed to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

  1. (i) trespass unduly on personal rights and liberties;
  2. (ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
  3. (iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
  4. (iv) inappropriately delegate legislative powers; or
  5. (v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

The committee has six members, three nominated by the Leader of the Government in the Senate and three nominated by the Leader of the Opposition in the Senate or by any minority groups or independent senators. A senator nominated by the Leader of the Opposition in the Senate is the chair. In the event of an equality of votes the chair has a casting vote. The committee's history, however, shows that the question of which party has a majority has been of no significance to the operation of the committee.

Standing order 24 provides for the appointment of subcommittees and the committee's power to send for persons and documents. The committee also has power to move from place to place and to meet in private session and notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives. The committee is authorised to appoint a legal adviser to assist the committee. Since its inception, the committee has always taken up the opportunity to engage such assistance.

When a bill is introduced in either House of the Parliament, copies are provided to the committee and to the committee's legal adviser for examination and report. The legal adviser examines each bill and provides a written report to the committee in respect of each of the bills, advising whether or not they offend (or may offend) against the committee's principles and, if so, in what way.

On the basis of the legal adviser's report, the committee's Alert Digest is drafted. That document, which is generally tabled on Wednesday of each sitting week, deals with all bills introduced in the preceding week and sets out the committee's comments on each bill. Adverse comments are set out by reference to the relevant principle. When the Alert Digest is tabled in the Senate, any comments on a bill are also formally drawn to the attention of the minister responsible for the bill, who is invited to make a response to the committee's comments. Given the time constraints which the legislative process generates, these comments are requested by the following Tuesday, in order that the committee can consider them on the following day, at its regular weekly meeting.

If the committee receives a response from a minister, that response is reproduced in a subsequent report. In its reports, which are also tabled on a weekly basis during sitting periods, the committee re-states its concerns about a bill, refers to the relevant ministerial response and then makes any comments it considers appropriate, including any differences between the committee's view and that of the minister. In reporting to the Senate, the committee expresses no concluded view on whether any provisions offend against its principles or should be amended. These are regarded as matters for the Senate to decide. The committee may report that ministers have given undertakings to initiate amendments of legislation to conform with the committee's principles.

The committee may act on requests by senators to examine particular aspects of bills before the Senate, but does not consider amendments moved to bills unless they are made.[59] The committee also identifies bills that give effect to national schemes of legislation and bills containing standing appropriations.

Amendments are often made to bills in the Senate as a result of the committee's comments.

Particular inquiries relating to the content of legislation may be referred to the committee by the Senate.[60] For the purposes of such inquiries the Senate may authorise the committee to hold public hearings.[61] The committee may also make special reports on aspects of legislation.[62]

For further information on the early history and operation of the committee, see Ten Years of Scrutiny, the proceedings of a seminar to mark the committee's tenth anniversary.[63]

For the difficulty presented by national uniform legislation, see Chapter 15, Delegated Legislation, under that heading.

52. SO 23(2).
53. SO 23(5).
54. PP 241/1986; see Chapter 3 of the report.
55. PP 377/1988.
56. PP 464/1989.
57. PP 311/1987.
58. 99th report, PP 176/1994; 111th report, PP 264/2003.
59. Statement by the chair of the committee, SD, 19/11/2002, pp. 6744-5.
60. For examples, see 3/9/1997, J.2419; 10/12/1998, J.374; 28/6/2001, J.4439; 25/3/2004, J.3230-1; 29/11/2004, J.123.
61. 29/9/1997, J.2537; 1/9/1999, J.1626; 21/3/2002, J.269; 22/6/2004, J.3611.
62. 24/3/2004, J.3220 (quality of explanatory memoranda); 30/11/2005, J.1460 (accountability and standing appropriations, PP 461/2005); 4/12/2006, J.3226 (entry, search and seizure provisions, PP 438/2006).
63. 14/10/1992, J.2907.