Guidance for Agencies and Departmental Liaison Officers
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Following its inquiry into parliamentary scrutiny of delegated legislation, the Senate Standing Committee for the Scrutiny of Delegated Legislation (the committee) resolved to implement a number of new work practices. This document provides a general overview of the committee's new work practices, to assist agencies and departmental liaison officers. Further information is available on the committee's website.
Agency correspondence
The committee secretariat, acting on the committee's behalf, will often seek additional information or clarification from agencies directly, before the committee escalates a matter to the relevant minister. The secretariat usually provides a one week timeframe in which to respond. The committee will not publish the content of any correspondence received from an agency. However, the committee will publish a concise record of the instruments in relation to which it is engaging with an agency in the Delegated Legislation Monitor (Monitor). This record includes the name of the instrument and the relevant scrutiny principles. The committee will also record any undertakings that an agency makes to address committee concerns in the Monitor.
Ministerial correspondence
The committee will typically write to the responsible minister to seek advice where it considers that the information provided by the agency is not sufficient to address its concerns; or where the instrument raises serious scrutiny concerns which require ministerial involvement. In contrast to agency correspondence, both the committee's request, and any ministerial response, will be published on the committee's website.
Timeframes for responses
The committee's timeframes for responses are designed to enable it to conclude its consideration of an instrument before the instrument's disallowance period expires. If you require an extension of time in which to respond to the committee or secretariat, please email the secretariat (sdlc.sen@aph.gov.au). Depending on the circumstances, you may be granted an extension of up to one week.
If the committee is unable to conclude its consideration of an instrument before the original disallowance period expires, it may place a 'protective' notice of motion to disallow the instrument. This extends the disallowance period by another 15 sitting days from the day after the notice is given.
Briefings
Where appropriate, the committee may invite officials to attend a private briefing with the committee to enable the committee to further explore its scrutiny concerns. The committee has found this to be a useful process to assist it in resolving its scrutiny concerns. In this respect, the minister may also wish to pre-emptively offer this option to the committee as a means of resolving outstanding matters.
Disallowance
The committee will place a 'protective' notice of motion to disallow an instrument where it is unable to conclude its consideration of the instrument before the original disallowance period expires, or where the committee requires an undertaking to be implemented before it can conclude its consideration of an instrument. The committee will not usually advise the minister or agency that it has placed a 'protective' notice of motion on an instrument; however, this information will be recorded on the Disallowance Alert, which is published on the committee's website. The committee will usually withdraw a 'protective' notice where it receives a satisfactory response, or confirmation that any outstanding undertakings have been implemented.
The committee may otherwise place a notice of motion to disallow an instrument where it considers that the instrument raises serious, unresolved scrutiny concerns, and should be drawn to the Senate's attention or disallowed. In these circumstances, the committee will advise the relevant minister in writing of its intention to disallow the instrument, and will publish a summary of its scrutiny concerns in Chapter 1 of the Monitor. The notice of motion to disallow will also be recorded on the Disallowance Alert. If this occurs, you may contact the secretariat for advice about how to proceed.
For more information on the disallowance process, see Odgers' Australian Senate Practice, 14th Edition (2016), the Brief Guide to Senate Procedure No. 19 - Disallowance and House of Representatives Guide to Procedure, Chapter 14 – Delegated legislation – Disallowance and approval.
Undertakings
The committee regularly asks the responsible minister or agency to make an undertaking to address the committee's scrutiny concerns. For example, the committee may ask the minister or agency to amend an instrument or an explanatory statement. Often agencies or ministers will make an undertaking to address the committee's scrutiny concerns in order to pre-empt a formal committee request. Where the committee considers that an undertaking must be implemented before it can conclude its examination of the instrument, it will write to the responsible minster and indicate its intention to place a 'protective' notice of motion to disallow the instrument, pending implementation.
The Monitor lists all outstanding undertakings and undertakings that have been implemented since the committee's last meeting. To ensure that the Monitor is accurate, please notify the committee secretariat when an undertaking has been implemented (for example, when an amending instrument or replacement explanatory statement has been registered). The committee generally expects undertakings to be implemented before the relevant instrument's disallowance period expires.
Contact details
If you have any questions or concerns for the committee, please contact the committee secretariat by phone on (02) 6277 3066 or by email to sdlc.sen@aph.gov.au. Further information is also available on the committee's website.
Agency responses should be sent by email to sdlc.sen@aph.gov.au. Ministerial responses should be signed by the relevant minister and emailed to the committee secretariat at the same email address. Please ensure that ministerial responses are addressed to:
Senator the Hon Concetta Fierravanti-Wells
Chair
Senate Scrutiny of Delegated Legislation Committee
Suite S1.111
Parliament House
Canberra ACT 2600
For further information, contact:
Committee Secretary
Senate Scrutiny of Delegated Legislation Committee
Department of the Senate
PO Box 6100
Parliament House
Canberra ACT 2600
Australia