It would be idle to pretend that parliamentary control of delegated legislation is a burning issue in the community or that most voters would even know what delegated legislation is. For these reasons it is difficult to find members of any of the parliaments prepared to take much interest in the matter. Nevertheless it is of great importance, for uncontrolled delegated legislation offers a fertile field for government despotism and bossy interference by bureaucrats. Delegated laws sometimes have much more impact on the lives of ordinary citizens than do most acts of parliament.
Delegated laws are made by a person or body to whom parliament has expressly delegated part of its law-making power by an act of parliament. The laws go by many names-regulations, ordinances, statutory instruments, secondary legislation, by-laws and proclamations, to name just a few. There have been 75 different varieties counted in Australia. There has been delegated legislation in England since the fourteenth century. In modern times, in all the countries we are considering, there has been a steady increase in the use of delegated legislation. In Australia, for instance, in a typical year four times more regulations are issued than acts are passed. In Britain the proportion is higher, with 2000 delegated instruments being used compared with only 70 or so acts.
There is no doubt that delegated legislation is necessary. Passing an act through parliament, unless there are exceptional circumstances, is a lengthy and usually tedious business. Complex details, but not principles, are best left to experts to draft and amend, particularly if the legislation is in a field where there may be a need for urgent amendment at a time when parliament is not sitting. Delegated legislation can be extremely complex. It was pointed out in the House of Lords that:
the Lord’s Prayer contains 56 words ... the Ten Commandments comprise 197 words; the American Declaration of Independence has 304 words; but the European Community Directive on the import of caramel and caramel products comprises 26 911 words.[89]
Such verbosity is not confined to the northern hemisphere. In Australia a set of regulations made on the automotive industry ran to more than 3000 pages. Legislation of such length and detail simply cannot be handled by the ordinary procedures of legislatures.
An increasing problem is what is coming to be called quasi-legislation, the use of guidelines, codes and policy directives with semi-legal status, using the authority given by an act which delegates the power to direct, determine, notify, order, instruct, declare, issue or publish. Many actions taken under these powers will be purely administrative, but others will involve decisions on matters of policy, which certainly should be subject to scrutiny by the legislature. The problems are threefold: to distinguish between matters of administration and those of policy; to ensure that significant policy matters are brought to the attention of the legislature, for their acceptance or disapproval; and to ensure that any such quasi-laws which affect individuals are reasonably available to them.
There are two common ways by which parliament can control delegated legislation. It can require the delegated legislation to be laid before parliament and that it not come into effect until parliament approves it-either by an affirmative resolution, or by the lapse of a specific period without the legislation having been disallowed. Alternatively, the delegated legislation may come into immediate effect, but may be disallowed by the parliament within a specified time. (These two are the most common methods, but there are many variants.)
It is true that the courts have some control over improperly made delegated legislation, but their power is limited to matters such as whether the instrument is within the power delegated, whether there are inconsistencies with other acts, and whether prescribed procedures have been followed. The courts have no control over many of the potentially objectionable features of such legislation. In any case, legal remedies tend to be expensive and long delayed, and it would surely be better to ensure that the legislation is properly made in the first place.
How should an ideal legislature control delegated legislation? First of all, it must pass an act to ensure that all delegated legislation made under the authority of an act of parliament is laid before the legislature either before or within a brief period of being enacted, and that any delegated legislation not so handled will be of no effect. The legislature must have control of such legislation, so the act must provide that all delegated legislation must be either approved by an affirmative resolution of the legislature or otherwise be subject to disallowance within a prescribed number of sitting days (say fifteen) after being laid before the legislature. The government must not be able to prevent an adverse decision by not bringing on the debate. In bicameral parliaments each house separately must have the power of disallowance, to prevent the possible difficulty of a lower house controlled by the government being reluctant to disallow the government’s delegated legislation.
Finally, if disallowed, the delegated law must not be remade in the same form for a prescribed period (say six months) without a permissive resolution being passed by the legislature. This is to avoid the sort of absurd conflict which occurred in Australia in 1930-32. The Labor government and the Senate, which was controlled by the opposition, were in conflict over a waterfront regulation. The Senate disallowed the regulation whenever it met, and the government remade substantially the same regulation whenever the Senate rose, whether for a recess or at the end of a sitting week. The regulation was actually remade twelve times, the farce ending only with a change of government in early 1932 and an amendment to the Acts Interpretation Act to prevent a recurrence.
The next step is for the legislature to scrutinise carefully any bills which delegate power to the government to pass laws. An early example was the Statute of Proclamations passed in 1539 during the reign of Henry VIII:
The King for the time being, with the Advice of his Council, or the more part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by acts of Parliament.
Our ideal legislature would insist that any exercise of delegated power to amend acts of parliament-which for obvious reasons are generally known as Henry VIII clauses-be extremely rare, be essential, and come into effect only after an affirmative resolution has been passed by each house of parliament.
In a work called The New Despotism written in 1929, Lord Chief Justice Hewart was critical of the fact that between 1888 and 1929 there had been nine Henry VIII clauses. They are now being produced at Westminster at a rate of about fifteen a year, but in answer to a recent question in the House of Lords about the number of such clauses Baroness Jay said that
no information is held centrally on the number of “Henry VIII” clauses in legislation. Collecting the information for the past decade would require a major exercise which could only be undertaken at disproportionate cost.[90]
A typical example of a Henry VIII clause is in the Local Government and Housing Act 1989 where it is provided that the Secretary of State may make an order amending, repealing or revoking any provision of any act which was in force at the time or was enacted in the same session.
A new version of a Henry VIII clause was introduced in the UK in 1994 by the Deregulation and Contracting Out Act, by which the government is able to issue an order to amend or repeal any acts which impose a burden on business as long as their amendment or repeal does not reduce necessary protection. Our ideal legislature would ensure that these orders are subject to the same scrutiny as those made under other Henry VIII clauses.
All bills which delegate law-making power should be examined to see that the delegation is both necessary and no wider than essential, and that they contain no provisions which would exclude the delegated legislation from parliamentary control, unless they are purely administrative. It is also important that the power to be delegated is clearly defined. The [Australian] Migration Legislation Amendment Bill 1989 originally provided that ‘The regulations may provide for prescribed decisions of the Secretary to be reviewed by prescribed review officers on application, as prescribed, by prescribed persons.’ Such mumbo-jumbo must not be accepted.
The ideal legislature would also be very wary of any power of sub-delegation given in the bill, for the use of these powers is very difficult for a legislature to scrutinise. An extreme instance was given to the 1989 Commonwealth Conference on Delegated Legislation:
An Act was passed. Regulations were made under the Act. Orders were made under the regulations. These orders delegated certain powers to the Secretary of the Department. The Secretary was empowered to delegate to a senior executive service officer who could delegate the power to delegate to a delegate, and that delegate could delegate the power to make a decision.
What does our ideal legislature do about the delegated legislation once it is produced? It would examine the delegated legislation to see that it was within the power granted by the act, that it was not retrospective, that it did not unnecessarily diminish personal rights and liberties and that it did not give bureaucrats unreviewable power over the public. If the delegated legislation contained policy matters, these should be closely looked at, to see that they were not of such importance that they should be debated and decided by the legislature as an amendment to the act, rather than being slipped through by regulation. The ideal legislature would also ensure that the delegated legislation was clearly worded, a matter which should definitely not be left exclusively to the lawyers. An example of absurd drafting (whether done by lawyers is not known) read:
In the Nuts (unground)(other than Ground Nuts) Order the expression ‘nuts’ shall have reference to such nuts, other than ground nuts, as would but for this amending Order not qualify as nuts (unground)(other than ground nuts) by reason of their being nuts (unground).
Such detailed matters cannot possibly be dealt with by the legislature as a whole. The rationale for delegated legislation is that the legislature as a whole could not possibly find time (or have the inclination) to deal with the hundreds, perhaps thousands, of delegated laws produced each year. The only feasible answer is a parliamentary committee examining all the delegated laws as they are produced and reporting to the legislature on any which are defective. This committee must have the power to move disallowance motions, which would have to be dealt with by the legislature. The committee must act in a non-partisan way, which is not as difficult as it sounds, particularly if the committee has independent legal advice. The contentious issues are usually technical, and the offenders are bureaucrats.
However, disallowance of a proposed law some time after it has come into force is not a very satisfactory method of administration. An alternative to disallowance is to provide that the delegated law does not come into effect until the time for possible disallowance has passed. This should be used whenever practicable, but it will not always be appropriate, for in some cases the delay might be very undesirable. To avoid the confusion caused by disallowance, it is important for the committee to negotiate with the minister to see if the delegated law can be amended to remove the defects, always with the threat of disallowance in the background. Most ministers are co-operative, often seeming rather surprised at what their bureaucrats are trying to get away with. Nevertheless, bureaucrats being as they are, negotiations will not always be successful, and the legislature must be prepared to disallow if necessary. Indeed, a legislature which very rarely, or never, disallows delegated legislation is probably ineffective in its control.
Although ignorance of the law is said to be no excuse for breaking it, this presupposes that the law in question is reasonably available to those affected by it. In many jurisdictions the availability of delegated legislation, particularly quasi-laws, is grossly inadequate. The ideal legislature would ensure that all such laws were readily available to those affected by them. It would also ensure that each piece of delegated legislation was accompanied by an explanatory memorandum, setting out the purpose of the delegated law and its mode of operation. Some parliaments are beginning to insist that some delegated laws be accompanied by formal impact statements, setting out the effect of the new law on the target group-business for instance. Such impact statements may be useful in making bureaucrats think more carefully about what they are actually doing, and may help the parliamentary committee to decide whether a delegated law is of such significance that it should be referred back to the legislature for consideration as an amendment to the act. The danger is that the policy issues raised by the impact statement might cause the committee itself to start debating policy, which would destroy its non-partisan approach and end its usefulness. This danger must be watched.
Delegated laws have a habit of surviving interminably, long after their usefulness has passed. The ideal legislature must ensure that the delegated laws it has accepted are regularly reviewed, and repealed where appropriate. A convenient way of achieving this is to attach a ‘sunset clause’ to the delegated legislation, so that if it is not re-enacted after a designated period (say ten years) it is automatically repealed. Otherwise there will have to be regular checks of all delegated legislation to weed out those that are no longer needed, but this would leave the initiative with the government rather than the legislature.
Should the legislature be empowered to amend delegated legislation? In view of the complexity and specialist nature of much delegated legislation, and the time the legislature is likely to be able to spare, the answer is that probably it should not. Certainly none of the twenty legislatures we are considering has such power. It is enough for the legislature to disallow the offensive piece of delegated legislation, to encourage the government to draft an acceptable alternative.
As was the case with statute law, an ideal legislature for the control of delegated legislation has never existed. In practice, performance in this field has ranged from reasonable to deplorable.
In the UK, much delegated legislation takes the form of ‘statutory instruments’. There is a drafting manual, and annual volumes of statutory instruments are published. The parent act may give either house the power to disallow a statutory instrument, but there is a reluctance in the Lords to press matters to a division. This is probably because, when the Lords defeated the Southern Rhodesia (United Nations Sanctions) Order 1968, there was a proposal to remove the Lords’ power of veto. Their Lordships have not since then attempted to defeat a statutory instrument.
There is no formal procedure in the House of Commons for scrutiny of bills to see that any delegated power is necessary and appropriately defined and controlled, but the House of Lords set up a committee to deal with these matters in 1994. Quasi-legislation and sub-delegation are virtually uncontrolled, and control of Henry VIII clauses is patchy. There are something like fifteen acts a year which delegate power to the government to amend acts of parliament, and it is not uncommon for the government to be permittedto exercise the power without an affirmative resolution of the parliament.
A new style of a Henry VIII clause was introduced in 1994. The Deregulation and Contracting Out Act gave ministers the power to make orders to repeal or amend any act passed up to the end of the 1993-94 session. The aim is to remove a statutory burden on a trade, business, profession or individual provided that the minister was satisfied that this would not remove any necessary protection.
The arrangements for the control of these orders are much more thorough than those for statutory instruments. The minister must consult interested parties about a draft order, and then lay before Parliament a proposal for the order, accompanied by a detailed explanatory memorandum. Each house has set up a committee to consider proposed deregulation orders, and the committees have to support the draft order, propose amendments, or recommend rejection. (The House of Commons committee recommended the rejection of three proposed orders between 1994 and 1999.) The minister, if he wishes to proceed with the order, is required to take into account the reports by the deregulation committees, and the draft order is voted upon by both houses. It is a very tight procedure, with time limits for the various stages.
This is all very well for acts passed before the end of the 1993-94 session, but it did not deal with acts passed after then. This was because the government did not consider it proper to pass an act giving the power to repeal future, as yet unmade, legislation. To cover this loophole, the government required that, after April 1993, bills introduced, and secondary legislation laid before Parliament, must be accompanied by a compliance cost assessment where there was an impact on business. The aim was to ensure that a proper balance was achieved between protecting people at work, consumers and the environment without imposing unnecessary burdens on business or stifling growth, but the procedure did not work very well. In 2001 the Blair Government passed an act extending the deregulation procedure to all acts, providing the act is at least two years old when the order is made.
The UK also occasionally uses an unusual type of affirmative resolution, under which a delegated instrument comes into immediate effect but must be approved by an affirmative resolution of each house within 40 days. It might be thought that the ordinary disallowance procedure would be sufficient in such cases, but in the UK Parliament that procedure does not guarantee the opportunity to vote, and some delegated instruments are felt to be of such significance that Parliament should vote on them.
The procedure of the House of Commons for handling such affirmative resolutions is hardly satisfactory. The debate is brief, not more than one and a half hours. It often takes place before the statutory instruments committee has made its report, and the committee chair sometimes does not even have the opportunity to speak. The system in the Lords is better, for at least they have the committee report before the debate is held.
There are two parliamentary committees dealing with statutory instruments, a joint committee of seven Lords and seven MPs, and a separate Commons select committee (made up of the seven MPs on the joint committee) to deal with instruments involving taxation or money, over which the Lords have no power. The chair of the joint committee is traditionally a member of the opposition. The legal advice to the committees is provided by parliamentary officers, who are responsible to the Speaker, not the government.
The number of statutory instruments produced each year is soaring. In 1998-99 there were 1444 statutory instruments laid before the House, and instruments of 60 or 70 pages are no longer a rarity. There are in addition about 700 delegated instruments issued by local governments each year, but they are not subject to any parliamentary scrutiny at all. The joint committee does some useful negotiating with ministers and government departments to get statutory instruments into more appropriate shape, but its power is very limited. Its terms of reference cover matters such as whether the instrument is within the power granted by the act, whether its drafting is defective or whether it imposes a charge on the public revenue. Any MP may attend and speak at a committee meeting.
There are two significant omissions in the standing committee’s power. The committee is not empowered to report instruments which trespass unduly on rights and liberties, a provision which is common in other parliaments. The second omission is that the committee is not empowered to report on the merits of the instrument or on the policy behind it, even to the extent of suggesting that the subject matter is too important to be done by delegated legislation, and should be debated by the Parliament as an amendment to the act. There is a minor escape clause, which could sometimes be useful, for the committee can draw the attention of both houses to an instrument which ‘appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made.’
The procedure for disallowance is very unsatisfactory. The committee has no right to demand a debate, even when it has pointed out grave defects in the delegated instrument. All that it can do is to table a ‘prayer’, which is a motion to disallow the instrument. If the prayer is not supported by the opposition spokesman, nothing happens. There have been only four successful prayers since 1946, and only about 15 per cent of the statutory instruments to which either the joint or the Commons committee has drawn attention are debated at all, either in the chamber or in one of the standing committees. The government can simply prevent debate by not providing any time for it.
Explanatory statements automatically accompany statutory instruments, but impact statements are almost unknown. Promulgation of statutory instruments is satisfactory, but promulgation of quasi-legislation is haphazard, and citizens may have to search through circulars, statements in the Commons, manuals, annual reports or shite papers if they want to find the rules which bind them.
Finally, there is no parliamentary system of regular review of existing delegated instruments to see if they are still required, and sunset clauses are very rare.
A report by the House of Commons Procedure Committee in early 2000 described some of the procedures used for scrutinising delegated legislation as ‘absurd, and tending to bring the House into disrepute.’[91]
In Ottawa the disallowance procedure is weak, being based on parliamentary standing orders rather than a statute, and can be used only by the House of Commons. The Senate is powerless. The use of delegated legislation is widespread. At the end of 1988 only 400 acts were in force but there were over 3000 current instruments of delegated legislation,[92] and new ones are being produced at a rate of over 1000 a year. There is no act requiring all delegated legislation to be tabled in the Parliament, but a particular act may provide that delegated laws made under that act be tabled.
There is mandatory public participation in the preparation of most regulations, though the authority is a government administrative order, not an act of Parliament. The draft regulations must be published in the Canada Gazette, and there is a set period for comment. There must also be an impact analysis statement accompanying each such regulation. Interestingly, the name attached to the impact statement is that of the bureaucrat who proposed the idea, not that of the responsible minister who, as a Canadian bureaucrat has pointed out, often has no idea what his bureaucrats are doing.
There are Cabinet directions to departments and agencies on how to prepare regulations, and Cabinet approval is required for unusual powers.[93] All of this is no doubt admirable, but it has nothing to do with legislative control. It is the government supervising itself, or negotiating with the public, by-passing the legislature.
Canada has a unique problem, in that all federal delegated legislation is constitutionally required to be enacted in both official languages, English and French. This not only nearly doubles the workload of any parliamentary committee studying the legislation, but also offers a fertile field for disputation over shades of meaning between the two versions. The courts are required to treat both versions as equally authentic.
There is a standing joint committee for the scrutiny of statutory instruments, consisting of seventeen MPs and eight senators. There are two joint chairs, one from the government party and one from the opposition. The Statutory Instruments Actempowers the committee to examine all instruments for which the government is directly responsible, though some instruments may be excepted: those dealing with international affairs and federal-provincial relations, the prevention and suppression of subversive or hostile activities, and those whose disclosure would result in an injustice or undue hardship to an individual.
If the committee objects to a statutory instrument, it reports to the House of Commons that the instrument, or a part of it, should be revoked. Six such reports were tabled in the 1990s. If the report is not brought on for debate and decision within fifteen sitting days, the recommendation of the committee is treated as an order of the House of Commons that the government revoke the instrument. The order has no legal effect, though one would expect the minister to obey if such an order were passed, for government members would have been involved in the decision.
The committee does not often make adverse reports on statutory instruments, perhaps because the government procedure for their preparation is much better than in most of the other countries, more probably because voting in the committee is liable to be on party lines. Voting is supposed to be ‘free’, but things did not go well on the only occasion, in 1987, when the committee made a report recommending revocation of a regulation. The regulation was clearly beyond the power delegated in the act, but the minister, while agreeing it was illegal, wanted to keep it in place because it would be helpful in some current trade negotiations. He threatened the committee with a party vote in the House of Commons to reject the report. The committee surrendered, and accepted their report back ‘for further consideration’.
This case illustrates the difficulty of using a house controlled by the government as a means of controlling improper actions by that government, though the value of the committee’s negotiations with departments and ministers should not be underestimated. About a quarter of the instruments seen by the joint committeeare criticised by it, often because of problems of drafting and clarity, or consistency between the French and English versions, but occasionally because of more fundamental defects.
In the great majority of cases (perhaps 80 per cent) the committee is successful in having remedial action taken. The committee also has a useful weapon if it is meeting departmental obstruction and obfuscation. Like other standing committees, it may at any time make a report to both houses on any matter within its jurisdiction. The committee may describe the problems it is having and request the government to table a comprehensive response in the House of Commons within 150 days. It has been found that the necessity to make a public report to the House of Commons concentrates the minds of bureaucrats wonderfully.
Cabinet approval is required before a Henry VIII clause can be inserted in a bill. Such clauses have not been used in recent years, but if they were there is no affirmative resolution procedure in place. There is no formal procedure for the examination and repeal of redundant regulations, and sunset clauses are never used.
The situation in the provinces is less satisfactory. Seven of the ten provinces do not even have parliamentary committees to consider delegated legislation. Most of these seven provinces do publish regulations, but they are not formally laid before the parliaments, and there are no arrangements for disallowance. Things are only slightly better in the three provinces (Manitoba, Saskatchewan and Ontario) which have set up parliamentary committees to scrutinise delegated legislation. The criteria for review are generally based on the recommendations of the 1932 Donoughmore Committee in Britain, and are adequate, but in none of the assemblies is there is a formal procedure for disallowance of a regulation criticised by the committee. Only two of the provincial committees (Ontario and Saskatchewan) have independent legal advice, and the committees meet only two or three times a year. That is however a considerable improvement on Saskatchewan’s performance in the 1970s and 1980s when it met only once in twenty years. In Manitoba there is a Standing Committee on Statutory Regulations and Orders, which is supposed to examine the regulations, but the committee has not done so since 1972.
It is a sorry picture. The control of a large area of legislation has been surrendered by the legislatures.
In the Australian Parliament, either the Senate or the House of Representatives may disallow regulations. The power was given in the early days of federation, when the concept was that the lower house represented the people and the Senate represented the states, and it was logical to give the two houses separate powers. It is inconceivable that any modern government would initiate such a restraint on its power. The House of Representatives, controlled as it is by the government, has never taken any perceptible interest in delegated legislation.
By the Acts Interpretation Act, all regulations have to be published in the Commonwealth Gazette and be laid before each house within fifteen sitting days of making the regulation, and any regulations not so handled cease to have effect. These provisions are of no effect for delegated laws or quasi-laws which are not regulations, unless the principal act specifically provides that they are to be handled in the same way as regulations.
The Senate Scrutiny of Bills Committee, set up in 1981, potentially has a crucial role here. Among the terms of reference of this committee are instructions to report whether any bills inappropriately delegate legislative power, or do not subject the use of such power to parliamentary scrutiny. The trouble is that the committee examines over 200 bills a year, and makes comments on about 40 per cent of them, with the assistance of an independent legal adviser. Not all the comments refer to delegated legislation, and criticisms may be lost in the rush. The committee chairman does not move amendments on behalf of the committee when the bills are considered in the Senate, but at least the comments of the committee are available to senators when they debate the bill. Unfortunately, in that forum amendments tend to be dealt with on party lines, and some inappropriate powers escape. The committee does do some useful work negotiating with ministers to improve the delegation arrangements in the bills. Most ministers are reasonably cooperative, but the committee does not yet have much political clout.
Affirmative resolutions are almost unheard of, but then so are Henry VIII clauses. This is almost certainly because of the effectiveness of the Scrutiny of Bills Committee and more particularly the Senate committee on delegated legislation (called the Standing Committee on Regulations and Ordinances), which would undoubtedly detect and successfully move to disallow any such actions. The Senate has had this committee since 1932, when it was established as a result of the dispute between the opposition-controlled Senate and the Scullin Labor Government. Since then its existence has never been seriously challenged, even when the government controlled the Senate.
The standing committee’s terms of reference are to scrutinise each regulation and ordinance[94] to ensure that it is in accordance with the principal act; that it does not trespass unduly on personal rights and liberties; that it does not make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review on their merits by a judicial or other independent tribunal; and it does not contain matter more appropriate for parliamentary enactment.
The committee has an independent legal adviser, who examines each of the 1200 regulations issued each year by the federal government, and draws the attention of the committee to any which seem to infringe its principles, typically about 170 a year. The Senate has no power to amend or to disallow parts of delegated instruments, though it would like the latter power. If the committee agrees with its legal adviser-and it usually does-an attempt is made to negotiate with the responsible minister on the necessary changes, and typically about three-quarters of the queries are satisfactorily dealt with, either by the minister giving an acceptable explanation or an undertaking to make the necessary amendments.
If the negotiations look like failing or becoming unduly protracted, which happens about 50 times a year, notice of a motion of disallowance is given in the Senate. Once such a notice has been given the matter must be dealt with within fifteen sitting days, otherwise the instrument is automatically disallowed, and an instrument once disallowed cannot be remade in the same form for six months, unless special permission is granted by the Senate. The prospect of having an instrument disallowed is an excellent spur for a minister. The committee’s reports are almost always unanimous-caused largely by the non-partisan legal advice it receives-and motions of disallowance are always backed by the Senate. It is a very effective committee, and one has only to look at the undesirable regulations it has successfully resisted to see what would happen in its absence. Typical examples of regulations amended as a result of objections by the committee are ones reversing the onus of proof, and ones giving bureaucrats important powers over individuals, with no arrangements for review.
Of course not all resistance to regulations emanates from the committee. Individual senators can move to disallow regulations, and very occasionally they do, usually for reasons of political publicity. The most dramatic use of this power occurred in 1987 when the Hawke Labor Government introduced a bill to create an identity card, to be called the Australia Card. The Senate was opposed to the idea, and a deadlock ensued. The government invoked the deadlock procedure, both houses were dissolved, and an election was held. It was a convenient moment for the Labor government to hold an election (the opposition was in some disarray) and the Labor Party duly won the election. The Senate still refused to pass the bill, and the government then proposed, still using the deadlock procedure, to hold a joint sitting of the two houses to pass the bill. It was then pointed out in the Senate that regulations would be required to bring the act into effect, and notice was given of an intention to disallow such regulations. The government dropped the bill, not very reluctantly, for the Australia Card was expected to be very unpopular. The fact that the Labor Party won the election, despite the unpopularity of the Australia Card, shows the absurdity of using a general election as a means of resolving a deadlock over a particular piece of legislation.
Most delegated legislation is accompanied by explanatory statements, though these are often of poor standard. Impact statements are rarely used. There is no formal consultation with interest groups, as there is in Canada, before a final version of the delegated instrument is produced, and there is no publication of delegated legislation in draft. Perhaps the greatest weakness in the Senate’s handling of delegated legislation is the lack of any attempt to weed out obsolete or redundant delegated instruments.
The situation in the six states is generally less satisfactory than in Canberra. More than 2000 pieces of delegated legislation are passed each year under the authority of the various state parliaments. Delegated legislation which is to be laid before parliament can be disallowed within a prescribed number of sitting days, usually fourteen. In Victoria, for instance, motions for disallowance are treated as general business, which is called at the discretion of the government, and disallowance motions the government does not like may be allowed to lapse. In some states the concurrence of both houses is required for disallowance which means that a government can block a disallowance motion in the lower house, but in Victoria the upper house is ensuring that, in new acts, it has independent power to disallow regulations. In some of the parliaments not all delegated legislation is available for disallowance. Local government by-laws are not dealt with at all in Victoria, and only a small proportion of them in Queensland.
All of the six states have parliamentary committees to scrutinise delegated legislation. The committees claim that their main work is not in moving to disallow legislation, but rather in negotiations with government departments to correct defective laws. There is doubtless some truth in this, but an effective committee must have a bite as well as a bark, and the paucity of successful disallowance motions in three of the state parliaments gives little confidence that there is effective parliamentary control there.
All of the parliamentary committees, except those of Queensland and South Australia, have independent legal advice. Experience has shown that such independent advice is important, for if a committee suspects, rightly or wrongly, that it is receiving politically-biased or self-serving advice it will be almost impossible to reach unanimity, and subsequent support in the parliament will probably not be forthcoming, for governments are not usually very cooperative in disallowing their own legislation. Some of them seem to regard the disallowance of a regulation as almost a vote of no confidence. Queensland in particular has had a rather idiosyncratic view of the responsibility of the government to Parliament.
Interesting features in the handling of delegated legislation in the various states should be mentioned. In Tasmania the committee works in an extremely leisurely fashion, usually not attempting to make a report until the disallowance period has expired, relying on the goodwill of the government to make any necessary changes, though individual members of the upper house (which has power of disallowance) sometimes take pre-emptive action. On the other hand, if the committee reports adversely on a delegated instrument while Parliament is not in session, the operation of the instrument is suspended until Parliament meets.
Since 1985, Victorian government departments have been formally required to consider various matters (including possible alternative methods of achieving the objective) before introducing a regulation. There is also a requirement that the proposal for a new regulation be announced in advance, and interested parties be consulted. In South Australia the committee seeks the views of interested parties (through the local MPs) on regulations which may have a local impact.
Victoria and New South Wales have also introduced a requirement for an ‘impact statement’ to accompany any proposed delegated legislation which will impose a significant cost, disadvantage or burden on any part of the community. This has the danger that it may cause the joint committee to consider policy matters, and consequently to divide on party lines. As the government has a majority on the joint committee, and MPs are denied the right to move for the disallowance of delegated legislation unless it has been adversely reported on by the joint committee, this may make the joint committee ineffective.
In none of the states except Tasmania is there anything to stop the government immediately re-enacting a delegated instrument which has been disallowed, and in none of them except the Western Australian upper house is there any power to force a government to bring on a disallowance motion before the period for disallowance has expired.
Where the states have been effective is in eliminating outdated delegated legislation. Victoria was the first state to take action, and from 1992 all Victorian regulations have had a ‘sunset clause’ which automatically revokes them after ten years unless they have been remade. South Australia, Queensland and Tasmania have adopted a similar procedure. In New South Wales the life of a regulation is five years, though its life may be extended for a further five years if the extension is compatible with the premier’s stringent guidelines and has the approval of the regulations committee. Of the countries and provinces we are considering, only New Zealand can match them in this respect.
Until the 1980s the control of delegated legislation by the New Zealand Parliament was derisory. Until 1962 there was not even a requirement for all regulations to be laid before Parliament. There was no general provision for disallowing regulations until 1989. Such results are always a danger when there is only one house, controlled by the government, but New Zealand was an extreme case. The cause was lack of interest, it seems, rather than government heavy-handedness.
The situation is now much better. Regulations are required to be laid before Parliament, and notices of disallowance may be given by any MP at any time. If the notice of motion is given by a member of the Regulations Review Committee and is not dealt with within 21 days, the regulation is automatically disallowed. This, however, applies only to ‘regulations’. There is much other delegated legislation which is not yet caught, principally the laws made (under the authority of Parliament) by the multiplicity of local authorities.
The Regulations Review Committee is chaired by an opposition member, though as there is only one house it is inevitable that this committee often has a government majority. Most bills in the New Zealand Parliament are referred to a parliamentary select committee, which usually advertises nationwide for submissions and if necessary seeks specialist advice. The Regulations Review Committee has the duty to report to these committees if it thinks that bills they are considering inappropriately delegate legislative power. Henry VIII clauses are not uncommon, and these cause problems as there are no procedures in the House of Representatives for affirmative resolutions. The only answer is for the Regulations Review Committee to negotiate with the minister to try to eliminate such a provision, and if this fails, to draw the attention of the relevant select committee to it. The select committees sometimes, but not always, take action to eliminate these obnoxious powers.
The New Zealand House of Representatives has the unique power to disallow regulations at any time, even years after they have been enacted. The rationale for this power is that the Parliament has such power over acts, so surely it should have it over regulations. In a unicameral parliament, regulations will be repealed only if the government wants them to be repealed, and if the government wants to repeal a regulation it can simply do so without involving the parliament. Nevertheless the extended disallowance power is probably a useful safety valve, for public complaints against the working of an existing regulation are heard by the Regulations Review Committee, and it could move disallowance and bring on a debate if it found a complaint convincing.
The New Zealand House of Representatives has another power which would be envied by those in other parliaments with an interest in delegated legislation, the power to disallow a part of a regulation.
In 1987 the Regulations Review Committee surveyed the number of regulations in force and found they numbered nearly 4000. After further investigation the committee recommended that about 10 per cent should be repealed as unnecessary, but the government decided on further research, and nothing much has happened, though there is now a system by which redundant regulations can be revoked by Regulations Revocation Orders. This epitomises the New Zealand dilemma. There is now a certain movement towards proper control of delegated legislation after total neglect in the past, but with a single house and tight party discipline, effective control depends on government goodwill. Whether this will continue when the control begins to bite remains to be seen.
It can be seen that there is much to be done in all the four countries if there is to be effective control by the legislature over all forms of delegated legislation. Progress will not be easy, because the problem stems from the dual role of the lower houses as electoral colleges and legislatures. As one UK delegate to the third Commonwealth Conference on Delegated Legislation put it:
The Opposition do not want to rock the boat too much, because they are waiting to get into power. They do not want too nosy a Joint Committee on Statutory Instruments with too many powers, and therefore do nothing about it. When the parties change round, the Opposition again do nothing about it because they are waiting to get back into government.
The control of delegated legislation by the Australian Senate is probably the best in the twenty parliaments we are considering. The Scrutiny of Bills Committee keeps a watchful eye on bills as they come in to see that there are no unnecessary or improper delegations of law-making power, though the Senate does not always take action to meet the committee’s concerns. By contrast, the prestige of the Regulations and Ordinances Committee is so high that the Senate would almost certainly disallow a regulation or ordinance if the committee so recommended. Ministers know this, bureaucrats know it too, so that when the committee calls, ministers and bureaucrats jump.
The weakness in the Senate system is the absence of any procedure for the repeal of outdated delegated legislation. The Senate should seek government cooperation to adopt some of the procedures being evolved in the Australian states. The Senate should also negotiate with the government to give it power to disallow part rather than the whole of a regulation, as can be done in New Zealand.
The Senate should press the government to improve the community involvement in the drafting of its regulations-Canada provides a good model-and to prepare impact analysis statements to accompany approved regulations.
The House of Representatives has never taken any interest in the systematic control of delegated legislation. Although most of the other lower houses are involved in this area, the Australian national system works so well without the lower house that nothing would be gained, and much might be lost, if the House of Representatives became involved.
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