Chapter 15 - Delegated
legislation and disallowance
Parliamentary
control: historical background
As has been noted,
a system has been built up, principally through the efforts of the Senate,
whereby delegated legislation is subject to parliamentary control, mainly
through the power of either House of the Parliament to disallow any delegated
legislation. This gives the Senate basically the same power it has in relation
to other proposed laws: the power of veto. It was through recognition by the
Senate of the need to preserve the principle of parliamentary control of
law-making that this system was established.
At an early stage in its history the Parliament recognised the need for
direct parliamentary control over subordinate legislation. In enacting customs
and excise legislation, for example, provision was made, in the face of
ministerial resistance, for tabling of regulations and their disallowance by
either House within a prescribed period. The Acts
Interpretation Act 1904 included the basic framework for handling
subordinate legislation, namely notification in the
Gazette and laying before each House within 30 sitting days (reduced to
15 in 1930 and 6 in 2003). A vital component of that framework, inserted by
amendment in the Senate but based on provisions in other legislation, was the
capacity to move, within 15
sitting days of tabling, that
regulations be disallowed. This was further amended in the House of
Representatives so that only notice of motion was required within 15 sitting
days.
At this stage, however, there was no provision in either House (or any
other parliament) for active scrutiny. It was in the 1920s and 30s that public
and parliamentary concern led to the establishment of parliamentary procedures
to ensure that exercise of regulation-making power became an active subject of
scrutiny and liable to a measure of control.
Credit for rousing public opinion is often accorded to Lord Hewart, Lord Chief
Justice of England, in his book, The New Despotism, published in 1929. The book
represents “the outstanding landmark in the development of the theory and
practice of delegated legislation” (G.S. Reid, ‘Parliament and delegated
legislation’, Parliament and Bureaucracy, 1982, p. 151).
By coincidence Hewart’s book was published at the time when the Senate
had established a select committee to consider, report and make recommendations
about establishing standing committees of the Senate on “statutory rules and
ordinances”. When the select committee reported, it proposed a committee to
review “Regulations and Ordinances”.
Simultaneously, the Senate, in which senators supporting the government
were in a minority, was challenging regulations made by the Scullin Government under
the Transport Workers Act 1928, using powers contained in the Acts
Interpretation Act. When the initial regulations were disallowed, the
regulations were promptly remade. This led the Senate unsuccessfully to
petition the Governor-General to refuse to approve further regulations which
were the same in substance as regulations already disallowed by the Senate.
There was also litigation in the High Court challenging the validity of the
regulations (Dignan v Australian Steamships Pty Ltd 1931 45 CLR 188).
With this controversy in the background, the Senate, following the
general election of 1931, resolved to incorporate in the standing orders a
requirement that a Standing Committee
on Regulations and
Ordinances be appointed at the commencement of each session of Parliament
(4/3/1932, J.27-8). Only the House of Lords, when it created a committee in
1925 to examine regulations requiring an affirmative resolution to become law,
had previously acted in this field. Eventually many houses of parliaments
followed a similar course of establishing a committee to oversee statutory
instruments, but one which has not done so is the Australian House of
Representatives. Thus responsibility in the Commonwealth for active and
systematic scrutiny of this extensive field of legislation falls upon the
Senate. Maurice Blackburn, later a Labor
member of the House of Representatives, had explicitly contended in 1930 that:
the House of Representatives is not
likely to do that work well, or, in fact, to do it at all. Upon its vote turns
the fate of the ministry. The regulation is made by the ministry, and a
proposal for its disallowance would certainly be treated as a vote of want of
confidence, and would be tested on party lines. No ministry depends on the vote
of the Senate and it is quite likely that in that chamber a regulation would be
considered on its merits.... (Evidence to the 1929 Select Committee,
PP S1/1929-30, p. 23.)
Parliamentary scrutiny of subordinate legislation was further
strengthened in 1932 by amendment of the Acts Interpretation Act designed to
address the issues which had arisen during dispute over the Transport Workers
regulations. The amendment prohibited remaking of
disallowed regulations within six months of disallowance, or the making of new
regulations “substantially similar”, unless their introduction was preceded by
a motion rescinding the earlier disallowance.
Five years later
the Act was consolidated. An important addition, included following
observations by Maurice Blackburn in the House of Representatives about the
ease with which a motion to disallow could be by-passed, was a provision
compelling action on a motion for disallowance: if a motion to disallow was not
resolved, the regulations would be deemed to have been disallowed.
In 2005 the Legislative
Instruments Act 2003 came into effect. This legislation, which had been introduced, scrutinised by
the Regulations and Ordinances Committee and amended by the Senate in various
forms on a number of occasions between 1994 and 1998, consolidated and reformed
the law relating to delegated legislation in accordance with recommendations
made by the Administrative Review Council in 1992. It retained and enhanced the
provisions for parliamentary control.
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