Annual Report 1997-1998
It is with a sense of achievement that the Standing Committee on Regulations
and Ordinances tables its Annual Report 1997-98. By way of background,
the Committee is established under the Standing Orders to scrutinise all
disallowable legislative instruments to ensure that they comply with non-partisan
principles of personal rights and parliamentary propriety. Apart from
certain committees dealing with internal parliamentary matters it is the
oldest Senate committee, having been established in 1932.
The Committee does not concern itself with the policy merits of legislative
instruments, which complements and strengthens its non-partisan operation.
Instead, it applies parliamentary standards to ensure that legislative
instruments are of the highest quality. It does this by writing hundreds
of letters to Ministers each year, drawing attention to apparent defects
in tabled instruments. The Committee has the power to recommend to the
Senate that an instrument or a discrete provision of an instrument, be
disallowed, but in practice Ministers almost invariably agree to amend
the problem provisions or explain the difficulty to the satisfaction of
the Committee. The Committee does, however, give numbers of protective
notices of disallowance of instruments in suitable cases, to preserve
its options and to make sure that it receives early replies from Ministers.
The Committee also makes special statements to the Senate on matters
of particular interest and the Report includes these. Also included are
papers presented to three conferences describing aspects of the operation
of the Committee.
In relation to its core scrutiny function the Committee looked at 1888
instruments during the year, with 313 of these apparently defective or
in some way worthy of comment. The Report sets out in detail the types
of matters which the Committee raises under each of its four principles,
which are set out in the Standing Orders. The following is a brief survey
of these matters.
Principle (a): Is delegated legislation in accordance with the statute?
The Committee interprets this principle broadly. It includes technical
validity, with the Report noting instruments which appeared to be invalid
for subdelegation, prejudicial retrospectivity, unauthorised incorporation
and failure to comply with requirements of the enabling Act. There is
also a substantial segment on possible breaches of parliamentary propriety,
illustrating the vigilance of the Committee in raising anything which
may impinge on the rights of Parliament. The Report also details numbers
of drafting and procedural defects which breached the Committees
position that the drafting and presentation of legislative instruments
should be of a standard not less than that for Acts.
Principle(b): Does delegated legislation trespasses unduly on personal
rights and liberties?
The Report includes many instances of the Committee questioning instruments
which appeared to be unfair, with particular emphasis on protection of
the rights of individuals and lessening burdens on business, particularly
small business. This principle also includes action by the Committee in
relation to the right to privacy and to harsh or unusual aspects of government
fees and charges. This segment hopefully illustrates that there is little
in the way of breaches of personal rights which escapes the net of the
Principle (c): Does delegated legislation make rights unduly
dependent upon administrative decisions which are not subject to independent
review of their merits?
This segment of the Report includes scores of instruments, all questioned
by the Committee, which provided for officials to make decisions which
may adversely affect individuals or businesses, but which did not appear
to provide for merits review. These were so numerous that it was most
convenient to set them out by portfolio.
Principle (d): Do legislative instruments contain matters more appropriate
for parliamentary enactment?
This is a principle not raised by the Committee as often as the other
three principles, but it is nevertheless an important aspect of parliamentary
propriety, complementing the first principle. For instance, the Report
relates how, following extended correspondence in relation to one instrument
which appeared defective on this ground, the Committee advised the Parliamentary
Secretary that it did not accept her advice that it was acceptable to
deal with the matter by regulation rather than by Act. In this case, however,
the Senate then disallowed the regulations on policy grounds, which precluded
any further formal action by the Committee.
In summary, the Report is a comprehensive description of the activities
of the Committee, which it hopes will satisfy the Senate that it has carried
out its scrutiny and reporting mandate in a satisfactory manner. The Committee
would like to thank its Legal Adviser, Professor Jim Davis, and the Committee
staff for their assistance. The Committee is also grateful for the support
which it has received from the Senate.
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