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Chapter 16 - Committees
Legislative Scrutiny Committees
Regulations and Ordinances Committee
The oldest standing committee, apart
from the domestic or internal committees, the Regulations and Ordinances
Committee undertakes the important function on behalf of the Senate of
scrutinising delegated legislation to ensure that it complies with principles
of personal freedom and parliamentary propriety. Established under standing
order 23,
the committee is charged with considering and, if necessary, reporting on, all
regulations, ordinances and other instruments made under the authority of Acts
of the Parliament, which are subject to disallowance or disapproval by the
Senate and which are of a legislative character (SO 23(2)). For the
nature of delegated legislation and the statutory provisions for its
disallowance by the Senate, see Chapter 15, Delegated Legislation.
The committee is required to scrutinise each piece of delegated
legislation to ensure:
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that it is in accordance with the
statute;
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that it does not trespass unduly
on personal rights and liberties;
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that it does not unduly make the
rights and liberties of citizens dependent upon administrative decisions which
are not subject to review of their merits by a judicial or other independent
tribunal; and
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that it does not contain matter
more appropriate for parliamentary enactment.
The membership of the committee is set at six, with three members
nominated by the Leader of the Government in the Senate and three nominated by
the Leader of the Opposition in the Senate or by minority groups or independent
senators. The chair of the committee is elected from the members nominated by
the Leader of the Government. The chair is empowered by standing order 23(7) to appoint a
deputy chair to act as chair when there is no chair or the chair is not present
at a meeting. By convention, the deputy chair is a non-government senator,
reinforcing the high degree of non-partisanship under which the committee
operates. The chair, or deputy chair when acting as chair, has a casting vote
but this has been a matter of little significance in the history of the
committee.
The committee has power to send for persons and documents and to sit
during recess (SO 23(5)).
The committee may recommend the disallowance by the Senate of any
delegated legislation not in accordance with the committee’s principles. The
Senate has never rejected a committee recommendation that an offending
instrument should be disallowed. Because its scrutiny is confined to its
criteria, the committee avoids debates on the merits of policy. This, together
with its endurance, ensures that it maintains a high reputation in supporting
the Senate’s legislative review function.
In carrying out its role, the committee is assisted by a
legal adviser appointed, with the approval of the President, pursuant to
standing order 23(9). The legal
adviser assists the committee to identify instruments which may offend against
the committee’s principles. When such an instrument is identified, the usual
practice is for the chair to give notice of a motion to disallow the
instrument. In accordance with the Legislative
Instruments Act, notices of motion for disallowance must be given within 15
sitting days after the instrument has been tabled and the Senate has a further
15 sitting days in which to deal with the notice; if the motion is not by then
disposed of, the instrument is automatically disallowed. Many notices to
disallow instruments are protective notices in that they are given pending the
receipt of a satisfactory explanation or undertaking from the relevant
minister. Once such an explanation or undertaking is received, the chair
withdraws the notice of motion, having previously notified an intention to do
so. At this point, it is open to any senator to take over the notice, in
accordance with standing order 78, and therefore
to pursue any other issues involved in the instrument. For a more detailed
exposition of this process, see Chapter 15, Delegated Legislation.
As well as scrutinising many thousands of instruments and contributing
to the evolution and refinement of executive law-making, the committee has had
an important role in strengthening the procedures governing the making and
scrutiny of delegated legislation. In its 80th report to the Senate,
for example, it gave detailed guidelines on how the committee applies its four
principles (PP 241/1986; Chapter 3). These guidelines were further developed in
the 83rd report (PP 377/1988), which also contained a strong
recommendation that all delegated legislation subject to tabling and
disallowance in the Senate be accompanied by adequate explanatory statements
(not then statutorily required), a theme continued in the 85th report
(PP 464/1989). The 82nd report (PP 311/1987) considered
proposed amendments to the disallowance scheme contained in the legislation which
were referred to the committee. The report recommended that the legislation be
amended to eliminate the possibility that the statutory disallowance scheme
could be by-passed by a sequence of instruments, each one repealing and
remaking its predecessor. Provisions to prevent this were enacted in 1988. In
1994 and subsequently, under the Senate’s procedures for referring bills to
committees, the Legislative
Instruments Bill 1994 was referred to the committee for inquiry and report.
This bill proposed, among other things, to reform the law relating to delegated
legislative instruments and to establish an electronic register of existing and
future delegated legislation. The committee endorsed the objectives of the bill
and generally supported its main principles, but several concerns were
enumerated and the committee recommended amendments (99th report,
PP 176/1994; 111th report, PP 264/2003).
A comprehensive account of the committee’s first 56 years of operation
and the development of its approach to issues of personal rights and liberties
may be found in a statement by the then chair, Senator Collins, reproduced as
appendix 2 to the committee’s 85th report, referred to above.
Further information on the committee’s work may be found in its subsequent general
reports and in Chapter 15, Delegated Legislation under Regulations and
Ordinances Committee.
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