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 Committee’s 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 Committee.

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.