The Senate Standing Committee for the Scrutiny of Delegated Legislation assesses delegated legislation against a set of scrutiny principles that focus on compliance with statutory requirements, the protection of individual rights and liberties, and principles of parliamentary oversight.
The committee was originally established in 1932 as the Senate Standing Committee on Regulations and Ordinances. This makes the committee one of the oldest standing committees in the Australian Parliament. It has served as a model for numerous similar parliamentary scrutiny committees across Australia and internationally.
Changes to Senate standing order 23, which governs the operation of the committee, came into effect on 4 December 2019. Further information on these changes is available in this explanatory note.
Inquiry into exemption of delegated legislation from parliamentary oversight
On 2 December 2020 the Senate Standing Committee for the Scrutiny of Delegated Legislation tabled the interim report of its inquiry into the exemption of delegated legislation from parliamentary oversight. The interim report is accompanied by a tabling statement by the Chair and media release.
On 16 March 2021, the Committee tabled the final report of its inquiry into the exemption of delegated legislation from parliamentary oversight. The report makes 11 recommendations to improve parliamentary oversight of delegated legislation. The final report is accompanied by a tabling statement by the Chair and media release. Further information is available on the inquiry home page.
On 16 June 2021 the Senate adopted three recommendations of the final inquiry report that were directed to the Senate. In summary, these recommendations are:
- that the Senate adopt a resolution emphasising the importance of disallowance and sunsetting of delegated legislation to parliamentary scrutiny (recommendation 8);
- that the Senate order the Attorney-General to table a statement setting out the rationale for specifying instruments as non-legislative, and the rationale for the exemptions from disallowance or sunsetting in Parts 2, 4 and 5 of the Legislation (Exemptions and Other Matters) Regulation 2015 (recommendation 9); and
- that the Senate agree to amend standing order 23 to clarify the committee’s scrutiny principles in relation to exemptions from sunsetting and instruments that amend or modify the operation of primary legislation (Henry VIII clauses), and to allow the committee to scrutinise instruments that are exempt from disallowance (recommendation 10).
Further information is available in the briefing note, which outlines the background to and nature of each of these recommendations and cites the relevant discussion in the final inquiry report.
Scrutiny of COVID-19 related delegated legislation
Over the coming months it is likely that there will be prolonged periods without parliamentary sittings following the COVID-19 outbreak. The committee has resolved to meet regularly during this period to ensure that there is appropriate parliamentary oversight of all delegated legislation, particularly executive-made laws which implement COVID-19 response measures. In the interests of promoting public scrutiny of these instruments, the committee has published a list of all COVID-19 related delegated legislation registered on the Federal Register of Legislation.
What is delegated legislation?
Delegated legislation is law made by a person or body other than Parliament (such as the Governor-General or a minister), under authority granted to that person or body by the Parliament. Delegated legislation has the same force of law as an Act of Parliament. Individual pieces of delegated legislation are known by a variety of names, such as regulations, rules, or determinations; however, they are broadly termed ‘legislative instruments’.
Parliament's consideration of delegated legislation
Disallowance is the primary mechanism by which the Parliament exercises control over delegated legislation. The disallowance process allows either House of the Parliament to veto a legislative instrument. All legislative instruments are subject to disallowance unless exempted by law.
Once a legislative instrument has been tabled in the Senate or the House of Representatives, any member of the relevant House may give a notice of motion to disallow a legislative instrument within 15 sitting days. Disallowance has the effect of repealing the legislative instrument.
For further information regarding the disallowance process, see Odgers' Australian Senate Practice, the Guide to Senate Procedure No. 19 or the House of Representatives Guide to Procedure, Chapter 14.
Finding a legislative instrument
The Office of Parliamentary Counsel publishes the full text of all legislative instruments and accompanying explanatory materials on the Federal Register of Legislation (FRL). There are approximately 25,000 instruments currently in force on the FRL.
The Senate Disallowable Instruments List lists all legislative instruments that have been tabled in the Senate and which remain open to disallowance.
The Disallowance Alert lists all legislative instruments for which a notice of motion for disallowance has been lodged in either House, including notices lodged by the Chair on behalf of the committee.
Finding the committee's comments on a legislative instrument
The committee scrutinises around 1,500 legislative instruments each year.
The committee's Index of Instruments lists all legislative instruments about which the committee has raised a scrutiny concern and identifies the relevant Delegated Legislation Monitor in which the concern was raised and any associated correspondence.
The committee also publishes lists of all legislative instruments that it has considered which specify Commonwealth expenditure or else raise matters of interest to the Senate.
Each sitting week, the committee circulates Scrutiny News, a brief newsletter highlighting key aspects of the committee's work and the work of the Senate Standing Committee for the Scrutiny of Bills. To subscribe to the mailing list for the newsletter, please send an email to firstname.lastname@example.org with 'Subscribe Scrutiny Mailing List' as the subject line.
Working with the committee
The committee has prepared guidelines to assist stakeholders in understanding the committee's processes and expectations.