CHAPTER 6

INSUFFICIENT PARLIAMENTARY SCRUTINY OF THE EXERCISE OF LEGISLATIVE POWER

Application of criterion set out in Standing Order 24 (1)(a)(v)

Constitutional propriety demands that Parliament carry out its legislative function fully and befittingly. It can rightly empower subordinates to make legislation but only of a lesser sort which should be kept subject to Parliamentary audit. Where this audit falls short of what is appropriate the Legislature fails in its duty to the public.

Whenever Parliament delegates power to legislate to others, it ought to address the question of how much oversight it should maintain over the exercise of that delegated power. The criterion set out in Standing Order 24 (1)(a)(v) requires the Committee to advise the Senate of those bills which seek to delegate legislative power but fail to provide for a proper auditing of its use.

The following are instances where legislation may insufficiently subject the exercise of legislative power to parliamentary scrutiny. For example:

(a) It may give a power to make subordinate legislation that is not to be tabled in Parliament or tabled but free of the risk of disallowance.

(b) It may require the subordinate legislation to be tabled and subject to disallowance but with a disallowance period so short that Parliament may not be able to scrutinise it properly.

(c) It may give a Minister or other person the ability to issue guidelines, directions or similar instruments influencing how powers granted under a law are to be exercised without any obligation for them to be tabled in Parliament or without them being subject to disallowance.

(a) Not Tabled or not Subject to Disallowance

The Legislative Instruments Bill 1994 contained proposals to repeal those parts of the Acts Interpretation Act 1901 which deal with tabling and disallowance and to institute a similar scheme under the proposed legislation.

Several provisions of the Legislative Instruments Bill 1994, however, would have enabled instruments which would otherwise be legislative in character to be categorised or treated as non-legislative instruments. The bill proposed that the definition of legislative instrument would not apply to certain instruments listed or described in a Schedule to the bill. The bill would also have allowed any other instrument to be declared not to be a legislative instrument by a future Act of Parliament or by another legislative instrument. As a result, those instruments would be valid and enforceable even though they would not have been tabled nor subject to disallowance.

The bill was not passed during the 37th Parliament but a bill of like effect has been introduced in the 38th Parliament.

Incorporating material as in force from time to time

Legislation may be enacted to provide that regulations to be made under that legislation would be able to incorporate rules or standards of other bodies as in force from time to time. Under such a scheme, Parliament is able to scrutinise and, perhaps, disallow the regulation and the incorporated rule or standard when the regulation is first made and tabled. When, however, the outside body changes its rules or standards, the obligation that is imposed by means of that rule or standard is changed without reference to Parliament. This can occur without Parliament's knowledge as there is no requirement for the change to be tabled and thus subject to disallowance.

(b) Insufficient Time

In Alert Digest No. 11 of 1995, the Committee dealt with the Primary Industries Charges Bill 1995 and the Primary Industries Levies Bill 1995 which proposed a period for considering the regulation substantially shorter than the period which the Parliament would normally have to consider it.

The Committee pointed out that the effect of section 14 in each bill was to oust inconsistent provisions in the Acts Interpretation Act 1901 and the as yet not enacted Legislative Instruments Bill 1994.

The Committee noted that the mechanism for disallowance set up by clause 13 in each bill substantially lessens the period within which the Senate would normally be able to consider the regulation.

The mechanism established by the Acts Interpretation Act 1901 allows a period of 15 sitting days from the date of tabling for a motion for disallowance to be moved and a further period of 15 sitting days for the motion to be dealt with. Whereas each bill established only one period of fifteen sitting days from the date of tabling for both the motion to be moved and dealt with.

In response, the Minister argued that a shorter period was necessary as the various primary industries would be disadvantaged by uncertainty of timing in programming their activities. [1]

In the event the bills were not passed during the 37th Parliament.

(c) Quasi-Legislation

In the past, the Committee has drawn attention to bills which give a particular person or body - usually a Minister - the ability to issue guidelines, directions or similar instruments influencing how powers granted under those bills are to be exercised. The Committee has suggested that such guidelines, directions and similar instruments should be tabled in Parliament and, where appropriate, should be subject to disallowance by either House.

In discussion on the fourth criterion of inappropriately delegating legislative power it was noted that occasionally there arises a difficulty of identifying whether a particular delegated power is a power to legislate - the so-called grey area of quasi-legislation. Under the fifth criterion, quasi-legislation gives rise to a consequential difficulty. As the fifth criterion concerns whether Parliament has sufficient opportunity to scrutinise how others exercise the legislative power which Parliament delegates to them, it is also difficult to establish an appropriate degree of scrutiny of the exercise of quasi-legislative powers.

The Committee gives its views on a case-by-case basis about the appropriate level of scrutiny Parliament ought exercise over guidelines, directions and similar instruments made by people or bodies pursuant to powers granted to them by primary legislation. What is 'appropriate' will depend upon the particular issues each bill raises.

Barney Cooney

Chairman

Footnotes

[1] Senate Standing Committee for the Scrutiny of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper No. 493/1995), pp. 340-346.