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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