Overview

On 16 March 2021 the Senate Standing Committee for the Scrutiny of Delegated Legislation (the committee) tabled the final report of its inquiry into the exemption of delegated legislation from parliamentary oversight.

On 16 June 2021 the Senate adopted three recommendations of the final inquiry report that were directed to the Senate. In summary, these recommendations are:

• that the Senate adopt a resolution emphasising the importance of disallowance and sunsetting of delegated legislation to parliamentary scrutiny (recommendation 8);
• that the Senate order the Attorney-General to table a statement setting out the rationale for specifying instruments as non-legislative, and the rationale for the exemptions from disallowance or sunsetting in Parts 2, 4 and 5 of the Legislation (Exemptions and Other Matters) Regulation 2015 (recommendation 9); and
• that the Senate agree to amend standing order 23 to clarify the committee’s scrutiny principles in relation to exemptions from sunsetting and instruments that amend or modify the operation of primary legislation (Henry VIII clauses), and to allow the committee to scrutinise instruments that are exempt from disallowance (recommendation 10).

This briefing note outlines the background to and nature of each of these recommendations and cites the relevant discussion in the inquiry report.

A copy of the recommendations is reproduced below.

Further information is also contained in Chapter 7 of the final inquiry report.

Background to the inquiry

In early 2020, the committee unanimously resolved to initiate an own-motion inquiry into the exemption of delegated legislation from parliamentary oversight under standing order 23(12). The committee’s decision to undertake this inquiry was informed by a range of matters, including the increasing volume of delegated legislation exempt from parliamentary disallowance, the findings of the committee’s previous inquiry report, and the emergence of the COVID-19 pandemic.

The inquiry’s terms of reference were to inquire into and report on the exemption of delegated legislation from parliamentary oversight, with particular regard to:

1. the appropriateness and adequacy of the existing framework for exempting delegated legislation from parliamentary oversight, including:
1. the amount and nature of delegated legislation currently exempt from parliamentary oversight;
2. the grounds upon which delegated legislation is currently made exempt from parliamentary oversight;
3. the manner in which delegated legislation is currently made exempt from parliamentary oversight; and
4. the appropriateness of exempting delegated legislation made in times of emergency, including in response to the COVID-19 pandemic, from parliamentary oversight; and
2. whether the existing framework for exempting delegated legislation from parliamentary oversight should be amended, and, if so, how, including:
1. the grounds upon which it is appropriate to exempt delegated legislation from parliamentary oversight; and
2. the options available to ensure appropriate and adequate parliamentary oversight of delegated legislation in times of emergency.

The committee received 30 public submissions from government departments, academics, scrutiny committees in other Australian jurisdictions and other interested parties. It also took evidence at three public hearings in Canberra in August and September 2020.

On 2 December 2020 the committee tabled the interim report for this inquiry, which focused on the exemption of delegated legislation from parliamentary oversight in times of emergency. The interim report made 18 recommendations, and examined the systemic factors which contribute to such exemptions in times of emergency, including the legislative and procedural frameworks for the classification, commencement, disallowance and repeal of delegated legislation, and practical constraints on the capacity of the Parliament and its committees to adequately scrutinise delegated legislation.

Resolutions adopted by the Senate on 16 June 2021 relating to the exemption of delegated legislation from parliamentary oversight

Delegated legislation—Disallowance and sunsetting

1. That the Senate notes:
   1. the Constitution vests the legislative power of the Commonwealth in the Federal Parliament;
   2. if the Parliament is to satisfy this constitutionally mandated role, it must have the ability to scrutinise all legislation made by the executive; and
   3. exemptions from disallowance and sunsetting undermine the ability of the Parliament, and particularly the Senate, to undertake this scrutiny.
2. That the Senate resolves:
   1. delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances; and
   2. any claim that circumstances justify exemption from disallowance and sunsetting will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases. 

Legislation (Exemptions and Other Matters) Regulation 2015—Parts 2, 4 and 5—Statement—Order for production of document

That there be laid on the table, by the Attorney-General, by no later than 5 pm on Tuesday, 31 August 2021, a statement setting out:

1. the rationale for specifying that each class of instrument and each particular instrument in Part 2 of the Legislation (Exemptions and Other Matters) Regulation 2015 are not legislative instruments; and
2. the exceptional circumstances that justify each exemption from disallowance or sunsetting currently set out in Parts 4 and 5 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Standing order 23—Scrutiny of Delegated Legislation—Amendment

That standing order 23 be amended as follows, with effect from 1 July 2021:

Subparagraph (3)(j), omit ‘and’.
Omit subparagraph (3)(k), substitute:

11. in the case of an instrument exempt from sunsetting, it is appropriate for the instrument to be exempt from sunsetting;
12. in the case of an instrument that amends or modifies the operation of primary legislation, or exempts persons or entities from the operation of primary legislation, the instrument is in force only for as long as is strictly necessary; and
13. it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.

After paragraph (4), insert:

1. The committee may, for the purpose of reporting on its terms of reference, consider instruments made under the authority of Acts of the Parliament that are not subject to disallowance. For such instruments the committee may also consider whether it is appropriate for the instrument to be exempt from disallowance.