"The accountability of the executive and the judiciary to Parliament; the role of the Senate Standing Committee on Regulations and Ordinances"

Abstract The paper discusses the accountability of the executive and the judiciary to Parliament, with an especial emphasis on scrutiny of legislative instruments by the Senate Standing Committee on Regulations and Ordinances. The theme of the paper is that there is a high level of such accountability, with case studies illustrating the types of concerns which the Committee raises with Ministers and Judges and the outcomes of the Committee’s actions.

Introduction

The theme of this session is accountability and this paper will present a parliamentary perspective on the accountability of the executive and the judiciary to Parliament, with a particular emphasis on the role of the Senate Standing Committee on Regulations and Ordinances.

The accountability of the executive to Parliament is well known. The Commonwealth, the States and the mainland territories all have systems of responsible government, which is also called parliamentary government. This is in direct contrast to other countries which may have, for instance, a government system based on the separation of powers. Under responsible government members of the executive government must effectively be members of parliament and are responsible to Parliament. If the executive loses the confidence of Parliament then a new executive must be formed which does have that confidence or a fresh election held, to choose a Parliament out of which an executive will be appointed. This is the broad, overall aspect of accountability of the executive to Parliament. On a day to day basis, however, the Parliament scrutinises the actions of the executive by questions to Ministers, by debates on executive policies and actions and by inquiries by parliamentary committees, especially estimates committees. Of course the executive government will normally be able to count on majority support in the lower house of Parliament and therefore it falls to second chambers such as the Senate to balance ministerial control of the lower house.

Legislative scrutiny committees

The two legislative scrutiny committees of the Senate, the Standing Committees for the Scrutiny of Bills and on Regulations and Ordinances, are among the most important bodies through which the legislative branch exercises this control over the executive. This paper will deal only with the activities of the Regulations and Ordinances Committee, but it should be remembered that its sister Scrutiny of Bills Committee operates in parallel with it, but to scrutinise proposed primary legislation rather than delegated legislation which has already been made.

The Standing Committee on Regulations and Ordinances scrutinises every disallowable legislative instrument tabled in the Senate to ensure that these instruments comply with its high standards of personal rights and parliamentary propriety. This scrutiny is crucial, because the administrative details of almost every Commonwealth scheme are implemented by regulations or by a host of other subsidiary legislative instruments. Every year the Committee, assisted by its legal adviser, Professor Jim Davis of the law faculty of the Australian National University, detects hundreds of apparent defects or other matters worthy of comment in the almost 2,000 legislative instruments which the Committee scrutinises each year. This scrutiny is generally effective, with Ministers undertaking to amend many of these instruments to meet the Committee’s concerns or giving explanations which satisfy the Committee. Such executive accountability has operated since the establishment of the Committee in 1932, which predates by decades the other bodies or processes now associated with the systematic scrutiny and supervision of the executive branch such as the Administrative Appeals Tribunal, the Ombudsman, the Administrative Review Council, the Freedom of Information Act 1982 and the Administrative Decisions (Judicial Review) Act 1977.

Parliamentary scrutiny of the judiciary

The judiciary is also accountable to Parliament, which exercises a number of controls over federal courts. The Constitution itself provides for Parliament to exercise an obviously important, even decisive, role in the operations of the High Court. There are 10 sections in Chapter III of the Constitution, which deal with the judicial power of the Commonwealth, and nine out of the 10 refer to the Parliament. For instance, Parliament decides how many justices the High Court will have, subject to a minimum of three, and may fix their remuneration. Parliament may decide that High Court judges should be removed for proved misbehaviour or incapacity. Parliament decides the exceptions and rules of the appellate jurisdiction of the High Court. Parliament may make laws about the right of appeal to the Privy Council and, of course, has done so. Parliament may also confer additional original jurisdiction on the High Court and make laws conferring rights to proceed against the Commonwealth and the States in relation to all matters within the judicial power.

The Parliament has exercised some of these powers in the High Court of Australia Act 1979 and the Judiciary Act 1903. The High Court of Australia Act controls and directs the High Court in a number of ways which illustrate the prerogatives of Parliament. That Act provides for the number of justices to be seven, although Parliament could provide any number at all greater than three. The Act also provides for the qualifications of judges and here again Parliament could apparently provide for any qualifications at all. The Act also provides that justices are not capable of accepting or holding any other office of profit within Australia. Presumably without this provision justices could hold such an office. The Act provides detailed arrangements for the administration and procedures of the High Court, including a requirement to keep proper accounts and records of the affairs of the court and for the Auditor-General to audit the accounts and to report any irregularity. The Act also obliges the High Court to prepare an annual report for presentation to Parliament. The Act exempts the High Court from taxation by the Commonwealth, a State or Territory. Again, in the absence of this provision it may be that the High Court could be subject to such taxation. The Judiciary Act provides extensively for the actual operations of the High Court, including its general jurisdiction and power and procedures.

The other federal courts are entirely creations of the Commonwealth Parliament. The Constitution actually refers to federal courts created by the Parliament. In fact, for the great majority of the time since Federation in 1901 Australia has not had a general federal court, relying instead on Parliament giving federal jurisdiction to State courts. The Federal Court is created by the Federal Court of Australia Act 1976, which is 66 pages long and provides for all aspects of its operation, including its constitution, jurisdiction and proceedings. The Family Court is created similarly by the Family Law Act 1975, which is 198 pages long and which similarly provides for all aspects of its operation. The Commonwealth Directory of December 1997 also refers to both the Australian Industrial Court and to the Industrial Relations Court of Australia, the functions of the latter being now exercised by the Federal Court. The fate of these two courts illustrates how Parliament can abolish a federal court as well as create them.

The Parliament has, therefore, provided in Acts for detailed aspects of the operation of both the High Court and of the other federal courts. However, these Acts not only provide directly for these matters but also give power to others to make legislative instruments affecting the courts. In common with almost all other Acts the Acts controlling the High Court and creating the other federal courts provide for the Governor-General to make regulations with respect to specified matters. Any such regulations are subject to disallowance by either House of Parliament. The Acts controlling federal courts also provide for the judges of the courts to make rules of court. The Parliament has given all of the courts a general "necessary or convenient" power to make rules. The High Court has also been given more specific powers, for seven matters. Parliament has been a bit more expansive for the Family Court, giving it not only the general power but also 24 specific powers, and even more expansive for the Federal Court, giving it a general power and 32 specific powers. The different Acts all provide for the rules of court of each of the three courts to be subject to certain provisions of the Acts Interpretation Act 1901, which provides generally that legislative instruments must be tabled in both Houses and are subject to other safeguards, as well as to the ultimate sanction of disallowance by either House.

Parliament has other options in its supervision and control of federal courts and their judges. For instance, two Senate select committees in 1984 and a statutory parliamentary commission of inquiry established in 1986 inquired into the conduct of Justice Murphy of the High Court. It also exercises some degree of scrutiny of the courts’ financial management through examination of their proposed appropriations, and annual reports, by the relevant Senate legislation committee. However, the most direct relationship between the Parliament and the judiciary has been developed through scrutiny by the Regulations and Ordinances Committee of all delegated legislation relating to the courts.

This paper will now describe several case studies of scrutiny by the Standing Committee on Regulations and Ordinances of legislative instruments made both by judges and by members of the executive. In deference to the presence of Chief Justice Doyle and Justice Kenny the paper will first describe some instances of scrutiny of rules of court, which are of course subject to the same accountability to Parliament as legislative instruments made by the executive.

The first public exercise of the right of the Regulations and Ordinances Committee to propose disallowance of rules of court occurred in 1982, when on Budget Day the then chair of the Committee gave notice of disallowance of rules of the High Court. The Committee had noted that there was possible prejudicial retrospectivity against individuals in respect of interest on judgement debts. On its face this was a breach of the Committee’s principles. In accordance with normal practice, the notice had been given to enable the Committee to continue negotiating with the High Court to provide a satisfactory solution. The rules of court were duly remade, and the Committee publicly acknowledged the High Court’s cooperation in the matter.

Several other such instruments have been scrutinised, and as a result of the Committee’s concern have been appropriately amended. But such scrutiny, and the attendant successful outcomes, have not been confined to the High Court. Two more recent examples involved the newly established Industrial Relations Court.

The Industrial Relations Court Rules, Statutory Rules 1994 No 110, were made by nine judges of the Court, including the Chief Justice, on 30 March 1994 and expressed to come into effect on the same day. The Committee scrutinised the Rules in the same way as it scrutinises all other disallowable instruments and found substantial deficiencies. The Rules included numerous drafting errors and oversights, with many wrong references, including one to an office abolished some 10 years previously. More serious problems included a provision which expressly negated provisions of an Act without the judges having the power to do so and the fact that the Rules were not gazetted until 5 May 1994, more than five weeks after they came into effect. Under s.48(2) of the Acts Interpretation Act, which applied to the Rules, any instrument which adversely affects anyone except the Commonwealth is void if it takes effect before gazettal. The Committee accordingly wrote to the Chief Justice for his comments.

The Chief Justice replied, advising that the Rules had been prepared under circumstances of great urgency and that he would consider what amendments were necessary. In relation to the delay in gazettal the Chief Justice advised that the delay could not prejudice anyone because the Rules were available publicly before gazettal. The Committee considered the reply and wrote again to the Chief Justice, advising that his comments on the availability of the Rules did not appear to be relevant to the question of validity and that in the opinion of the Committee the Rules were void, with all action taken under them similarly void. The Committee also informed the Chief Justice that in order to preserve its options it would give a notice of disallowance of the Rules.

By this time the Rules had been amended, but to address matters not related to the Committee’s concerns. The amending Rules included a number of deficiencies, about which the Committee also wrote to the Chief Justice. The Committee then received a letter from the Acting Chief Justice, advising that the Court had discussed the matter with officers of the Attorney-General’s Department who had offered to assist the court with remaking the Rules so that a clearly valid set of Rules could be made available.

The Committee then wrote to the Acting Chief Justice and to the Attorney-General for advice, noting that the undertaking to remake the Rules would certainly allow them to operate in the future with unambiguous validity but that there was a period of at least four months during which the apparently void Rules were administered. The Acting Chief Justice and the Minister for Justice replied, advising in effect that the Rules were procedural and therefore did not themselves adversely affect anyone. The Committee did not accept this advice but in the interests of the orderly administration of justice agreed to remove its notice of disallowance on the basis that the Rules would be repealed and remade. This subsequently occurred on 11 October 1994.

The Committee had further correspondence with the Court when the Industrial Relations Court Rules (Amendment), Statutory Rules 1996 Nos 219 and 220, were not tabled within the required time and subsequently ceased to have effect. This was the first time for many years that statutory rules were not tabled, although other types of disallowable instrument frequently become void for this reason. In this case the Committee asked the Chief Justice for an assurance that the Rules were not administered between the dates upon which they ceased to have effect and the date upon which fresh Rules were made.

The Committee also scrutinises the rules of the other federal courts. In relation to the Federal Court Rules the Committee earlier this year advised the Chief Justice that the Rules incorporated a legislative instrument which had become void more than four years earlier because it was never tabled in Parliament. The Chief Justice then advised the Committee that the provision would be removed.

Scrutiny by the Regulations and Ordinances Committee of legislative instruments made by the executive

The Committee’s scrutiny of the rules of the federal courts, while important, is nevertheless only a small part of its operations. Most of the instruments which it scrutinises are made by the executive and it is these upon which the Committee spends most time. This paper will now describe its scrutiny of a number of such instruments which illustrate accountability of the executive for, firstly, provisions which breach personal rights and, secondly, provisions which breach parliamentary propriety.

Personal rights

The Committee’s inquiry into Public Service Determination 1992/27 began on 27 April 1992 after it received a representation from a retired officer of the Australian Public Service, which drew attention to an apparent injustice affecting what turned out to be a substantial group of retired officers, although this was not disclosed at the time. The problem related to credits received in lieu of recreation leave, dating back to the early 1970s. Without going into details, a combination of factors resulted in retiring officers receiving less money than that to which they were fairly entitled. The amounts involved were not great, in most cases less than $1,000. The matter could have been resolved by either retrospective legislation or an act of grace payment, but the Departments involved declined to do this, on the basis that it was too hard to identify potential claimants and publicise the change. Accordingly an aggrieved officer approached the Merit Protection and Review Agency (MPRA), which after investigation found that the application of the law was unfair and inequitable. Armed with this finding the officer then approached the Department of Industrial Relations (DIR), who were responsible for the matter. Three days later an officer of DIR made Public Service Determination 1992/27, which effectively extinguished the rights of the officers affected by the injustice. The Explanatory Statement which accompanied the Determination did not advise of these effects. Also, the DIR did not consult with the officer or the MPRA or inform them after the Determination was made. The officer therefore came to the Committee. Shortly after this DIR discovered that the Determination had not been drafted properly and so made a second Determination (1992/46), the sole purpose of which was to correct the errors in the previous instrument. Again the Explanatory Statement did not advise that the Determination extinguished the rights of officers and again the DIR did not consult with those affected before it made the second Determination or inform them after it was made.

This matter raised a number of concerns for the Committee. Firstly the Explanatory Statements for the two Determinations appeared to be misleading, both advising that they "clarified" the position. The Explanatory Statements even seemed to imply that they were to the benefit of all those affected. In fact the position was perfectly clear to the DIR and everyone else, but the two Determinations then actively altered the position to the detriment of those affected.

Next, the Committee was concerned about the relationship between the MPRA and the DIR. The MPRA had been actively pursuing the matter with DIR, but DIR did not consult with the MPRA about its proposed course of action or inform it of developments even after they happened. This would have been a deficiency in any event. In the present case, however, there was an additional cause of concern. This was because the Committee had previously raised with DIR the question of review of discretions in Public Service Determinations. In each case the DIR replied that there was an adequate safeguard in that officers could go to the MPRA with any grievances. The Committee had always accepted those assurances and had refrained from taking further action. In the present case, however, the DIR had not only failed to implement recommendations of the MPRA but also had not even told those affected that it had done so.

Finally, and most importantly, here was an obvious injustice which was entrenched by a legislative instrument and which needed to be addressed.

The Committee first took action by asking its then Legal Adviser, Emeritus Professor Douglas Whalan AM, to prepare a special report on the Determinations and the representation. After the Committee considered this report it wrote to the Minister for Industrial Relations advising of its serious concerns and that it was disturbed by the whole matter, particularly by DIR ignoring recommendations of the MPRA in the way that it did. The Committee asked the Minister if the officer who made the Determinations, and other suitable officers, could attend upon the Committee at its next meeting. Also, in order to protect its options, the Committee advised the Minister that it would give a notice of disallowance of the Determinations.

The Committee then presented a short report to the Senate about the matter. This was done by the Chair of the Committee at the time, Senator Patricia Giles. The Committee also wrote to the MPRA about the issues raised. The Minister replied to the Committee advising that he had asked DIR to cooperate fully with our inquiries and that the appropriate officers would appear before the Committee. The Minister also advised that he had asked DIR to provide the Committee with a paper on the matter as soon as possible.

The officers of DIR duly met with the Committee and received what can be described as an unsympathetic reception. As an aside, this meeting illustrated one of the great strengths of the Committee, which is its non-political and non-partisan operation. In fact, the officials were questioned most closely by the late Senator Olive Zakharov and by Senator Kay Patterson, who are from opposite sides of the political fence but who united here in their efforts to see an injustice corrected. Under questioning by Olive Zakharov an official advised that the administrators of the Public Service Act 1922 had been aware of the problem for some 20 years and that about 30,000 people, alive and deceased, were affected. The gist of the official’s answers were that there were now considerable administrative difficulties in identifying these people and the amounts to which they were entitled and in deciding a method of payment. The substance of the comments by members of the Committee were that these administrative difficulties was not such as to preclude action. The meeting concluded with the Committee asking the DIR officials to prepare another paper setting out ways in which as many people as possible who had been unfairly treated by the Determinations could be compensated.

This paper from DIR advised that the best option would be to deal with the problem by direct appropriation through the current budget process and that this would be the basis of a submission to the Minister. The Committee then wrote to the Minister advising that it would be satisfied if the DIR option was adopted, but noted that another option was to amend the Public Service Act. The Minister then wrote to the Committee advising that he had written to the Prime Minister asking that the matter be dealt with by special budget appropriation. The Prime Minister then advised that in view of the actions of the Committee and of equity issues, the budget would include a one-line appropriation of $2.7 million with a further $1.4 million in the next year. The Committee thanked the Minister for his cooperation and presented a full report to the Senate.

Outcome of case

This case illustrates a number of aspects of the operations of the Committee. First, it is an instance of the effectiveness of the Committee in carrying out its mandate from the Senate to ensure that legislative instruments do not infringe personal rights. Most significant of all, the matter was raised by an individual, whom the Committee was willing to protect even if he had been the only person affected. In fact it is clear that without intervention by the Committee a serious injustice would have continued and affected thousands. The next conclusion is that the Committee has an appropriate variety of techniques for ensuring a satisfactory outcome in such cases. Here the Committee wrote to the Minister, reported to the Senate, gave notices of disallowance of the offending provisions, asked for officials to attend upon it and asked for officials to prepare an options paper. The Committee’s concerns were also communicated to the Prime Minister.

This matter also illustrates the high level of cooperation which the Committee receives from Ministers, with the Prime Minister, the Minister for Industrial Relations and the Minister for Finance all responding generously to its concerns. The reasons for this cooperation are, as mentioned previously, the non-partisan nature of its operations and secondly the fact that the Committee does not question policy, restricting itself to ensuring that legislative instruments do not breach personal rights or parliamentary propriety. The case also shows the flexibility of the Committee. The difficulty here could have been addressed either by amendment of the Act, by amendment of the Determinations or, as actually happened, by parliamentary appropriation. Any of these courses of action, which would have resulted in further parliamentary scrutiny, would have been acceptable.

The case also illustrates that the concerns of the Committee are not theoretical or speculative. Here tens of thousands of employees were treated unfairly over two decades. The actions of the Committee removed a real and not a possible injustice. This matter also illustrates how the Committee complements and reinforces other agencies whose charter is to protect personal rights. For instance, the Committee ensures that discretions in legislative instruments will, where appropriate, be subject to review by the Administrative Appeals Tribunal. On other occasions the Committee has asked that certain matters should be referred to the Administrative Review Council and the Auditor-General. In the present case the Committee took account of findings by the MPRA. The Committee does not act in isolation but cooperates with other bodies whose function is to achieve the same outcomes as the Committee.

The case also illustrates the insistence of the Committee that the Explanatory Statement which, due to previous activities of the Committee, now accompanies every legislative instrument, should genuinely explain what the instrument does and why it was made. In the present case the Explanatory Statements were misleading and this was a significant deficiency. Finally the case illustrates the need for openness, consultation and transparency, all of which were grievously lacking in the process and substance of the two Determinations.

Parliamentary propriety

The previous case illustrates a breach of personal rights by the executive, which was corrected by the Committee. Breaches of parliamentary propriety, however, present different problems and the following case studies are instances of these.

The Tenth Amending Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons among other things corrected some substantive errors in earlier deeds. The Explanatory Statement, however, advised that the Deed was administered to produce the intended outcomes pending the present corrections. The Committee wrote to the Minister noting that the scheme had been administered in the form it was intended, rather than the form in which it actually existed after being legally made under the authority of an Act of Parliament. The Minister wrote back advising that this was acceptable because the intended effect had been clearly set out in the Explanatory Statements for the earlier Deeds. The Committee wrote again to the Minister, asking under which provisions of Commonwealth law this had been done. At the Committee’s suggestion the Minister then agreed to amend the enabling Act to validate the administrative actions.

There was a similar problem with some Rules under the Life Insurance Act 1995, which commenced on 18 September 1996. The Explanatory Statement, however, advised that the Rules would be administered as if they had taken effect on 1 January 1996 and that since that date the Rules had been administered according to their intent rather than their literal legal provisions. The Committee advised the Minister that this was a matter of some concern. If the Rules had no adverse effect on anybody then they could and should have been made retrospective to 1 January 1996. If, however, there were any adverse provisions then the amending Act should be amended to provide for prejudicial retrospectivity. The Committee emphasised that agencies should administer the actual provisions of legislation, not what the agency considered those provisions should be. The Minister then advised that he agreed with the Committee and that instructions had been given to apply strictly the earlier Rules and that a new Explanatory Statement would be produced which would be tabled in Parliament.

Excessive delay is making legislative instruments when it is appropriate to do so may be a breach of parliamentary propriety. The enabling legislation for the Heard Island Wilderness Reserve Management Plan provided that a Plan must be made as soon as possible after it commenced, which was 11 January 1988. The Plan was not made, however, until 11 September 1995, more than seven years later. In reply to the Committee’s query, the Minister advised that the delay was due to extensive, protracted and difficult consultation with interest groups. The Committee also raised the question of delay in relation to the Australian Pork Corporation Regulations, which provided a legal basis for that Corporation to pay pay-roll tax. In response to the Committee’s query the Minister advised that the Corporation had been paying this tax for nine years although under no legal obligation to do so. The Committee advised that it was concerned that a Commonwealth agency had for years mistakenly paid these State and Territory taxes because of a failure to make the necessary legislative instrument.

Personal rights and parliamentary propriety

The next case raises issues of personal rights as well as parliamentary propriety. In the last 10 years regulations made under a variety of Acts have implemented United Nations total or partial sanctions against a number of countries, initially Iraq and Kuwait and then Yugoslavia and Libya. These presented especial difficulties for the Committee. The sanctions on their face affected personal rights to travel, while restrictions on imports, exports and foreign exchange transactions would affect adversely the right to earn a living. Also, the scheme of the sanctions was similar in each case, being a general prohibition subject to exemption by the Minister. In such cases this may be a breach of personal rights if there is no independent, external review of these decisions. Also, importantly, the regulations could have breached parliamentary propriety, in that they may have been more suitable for inclusion in a Bill which would be subject to all of the safeguards of parliamentary passage. In addition, the regulations were unusual in that their provisions were not directly authorised by the enabling Act or any other Act. Rather, the sanctions were the consequences of United Nations resolutions with which international law obliges Australia to comply.

The Committee scrutinised these regulations in the usual way and at first glance they appeared to be a case where the matters dealt with should be included in an Act rather than be prescribed by regulations. However, the Committee took advice that Australia had a legal obligation to comply with sanctions imposed by the United Nations. As such the regulations did not impose any new duties but instead merely spelt out the details of duties which already existed. They therefore came within the classic function of legislative instruments and were acceptable as regulations rather than an Act. In relation to merits review of the discretions in the regulations, the Committee ascertained that these generally had to be exercised personally by the Minister; delegation was not possible. In such cases the Committee usually does not press for merits review. Also, in the circumstances, the regulations did not appear to operate harshly on individuals.

In fact, the regulations illustrated the speed and flexibility which are among the main advantages of legislative instruments, implementing the United Nations sanctions faster than would normally be the case if done by Act. For instance, the initial three sets of regulations imposing sanctions on Iraq and Kuwait were made on 8 April 1990, only two days after the relevant United Nations resolutions. The initial regulations in relation to Yugoslavia were made on 2 June 1992, three days after the resolution.

The report of the Committee in these regulations was the inspiration for the Charter of the United Nations Amendment Act 1993, which provides almost entirely for the power to make regulations. The Minister’s second reading speech and the Explanatory Memorandum both referred positively to the Committee’s findings. The Minister explained that under the existing legislation it was not possible to apply strict new sanctions against Yugoslavia. For instance, it was not possible to freeze funds held in Australia by companies based in Yugoslavia. The new Act would give power to do this. In the five years that the amendments have been in force regulations have imposed sanctions upon Yugoslavia, Angola, Haiti, Libya, Bosnia and Herzegovina, Rwanda and Sierra Leone.

Conclusion

As noted earlier, the theme of this session of the Forum is accountability and this paper has examined the broader aspects of the general accountability of the executive and the judiciary to Parliament, noting that in the case of the executive such accountability is total in the context of responsible government. In relation to the judiciary the paper noted that the Parliament controlled important aspects of the operation of the High Court and that the other federal courts were mere creations of Parliament. The accountability of the executive and the judiciary for legislative instruments made under the authority of Acts of Parliament is even greater, with the Standing Committee on Regulations and Ordinances exercising a mandate from the Senate to ensure that such instruments meet the highest standards of personal rights and parliamentary propriety. It should be noted that the Senate has never failed to accept a recommendation from the Committee in relation to disallowance of a legislative instrument, although this step is rarely necessary. In fact, it has been more than three years since the Committee resolved formally to recommend disallowance of a regulation unless the Minister on that same day undertook to amend it. In that case the Minister did so.

It is appropriate to close with a quotation from the late Senator Ian Wood, who was a member of the Committee for 28 years and Chairman for 22 years. In successfully moving for the disallowance of a legislative instrument Senator Wood referred (Hansard, Vol S49, 17 August 1971, p.195) to a reported quotation from Sir Robert Garran, a counsel who helped draft the Constitution and the first Commonwealth Solicitor-General, that the Regulations and Ordinance Committee was the most important in Parliament, because "Its duty was to see that Parliament ran the country with legislation, not the Executive with regulations and ordinances."