Scrutiny of National Schemes of Legislation

FOREWORD

With the twentieth century soon to make way for the new millennium, few issues in Westminster-style legislatures are as central to democracy as that of executive dominance vis-a-vis parliamentary scrutiny and assertiveness.

This Position Paper, and the 30 months work it represents by Members of Parliament and parliamentary advisers around Australia, is about repositioning our Commonwealth, State and Territory Parliaments in Australia, and introducing mechanisms by which national schemes of legislation sponsored by executive government (Cabinets) can properly be scrutinised by the Parliaments.

Effective parliamentary scrutiny has been threatened because of the rise of national schemes of legislation which emerge from such bodies as the Council of Australian Governments (COAG) and various Ministerial Councils. Expressed at its simplest level, such councils agree to uniform legislation, usually in closed session, and then proceed through the participating Ministers to sponsor Bills through individual Parliaments, often with the message that the Bills cannot be amended for fear of destroying their uniform nature.

This Position Paper which deals with mechanisms to ensure scrutiny of national schemes of legislation, will be tabled in all nine Australian Parliaments, Commonwealth, State and Territory, and is the result of the adoption of this paper by Chairs of scrutiny committees of Australian Parliaments during 1996.

This Paper followed the release by all scrutiny committees of a Discussion Paper for comment in Darwin last year. The submissions received in response to the Discussion Paper provided the Committees with great encouragement and assisted in the completion of this Paper. The Committees wish to thank all parties and organisations which provided submissions.

Against this background, this Paper deals with two important and interrelated issues concerning national schemes of legislation. Firstly, the technical scrutiny of primary and subordinate legislation and the role of Parliamentary scrutiny committees and secondly, the position of legislators in the various Parliaments throughout Australia.

This Paper looks at the role of scrutiny committees and how to deal with the problems encountered in scrutinising national schemes of legislation. It deals with the challenges posed to the institution of Parliament by national schemes of legislation. National schemes of legislation have involved a method of lawmaking which has effectively excluded Parliaments from the scrutiny process.

This Paper concludes with broad support for adopting uniform scrutiny principles. It proposes several options for the implementation of uniform scrutiny principles, including the setting up of a National Committee for the Scrutiny of National Schemes of Legislation with members from all the ten legislative scrutiny committees.

Members are of the view that scrutiny committees need to establish an effective role in scrutinising national schemes of legislation. We consider that all legislation can be greatly improved by exposing it to the scrutiny and experience of a variety of people. Such input will improve the administrative effect of the final legislation. Allowing uniform legislation to be subjected to scrutiny by Parliamentary scrutiny committees will assist its passage through legislatures.

We urge all Members of Parliament and Ministers to read this Paper because it deals with the urgent challenge in Australian political life, that is, to restore the role of Parliament as the legislature and restore public confidence in the Parliament.

Barney Cooney	Bill O'Chee
Chair	Chair
Senate Standing Committee for the Scrutiny of Bills	Senate Standing Committee on Regulations and Ordinances

Rosemary Follett MLA Chair ACT Standing Committee on Scrutiny of Bills and Subordinate Legislation	Douglas Shedden MP Chair NSW Regulation Review Committee

Rick Setter MLA Chair Northern Territory Subordinate Legislation and Tabled Papers Committee	Tony Elliott MLA Chair Queensland Scrutiny of Legislation Committee

Robert Lawson QC MLC Chair South Australian Legislative Review Committee	John Loone MLC Chair Tasmanian Parliamentary Standing Committee on Subordinate Legislation

Peter Ryan MP Chair Victorian Scrutiny of Acts and Regulations Committee	Phillip Pendal MLA Chair Western Australian Standing Committee on Uniform Legislation and Intergovernmental Agreements
Bruce Donaldson MLC Chair Western Australian Joint Committee on Delegated Legislation

GLOSSARY

In this Position Paper the following terminology has been used:

"legislation" - to include reference to both primary and subordinate legislation.

"national schemes of legislation" - to describe broadly:

any and all methods of developing legislation, which is

- uniform or substantially uniform in application
- in more than one jurisdiction, several jurisdictions, or nationally.

(The different models of national schemes of legislation are shown at Annexe 1)

"Committee of Chairs" - to refer to the chairs and deputy chairs of all committees scrutinising both primary and secondary legislation in all jurisdictions.

"subordinate legislation" - to refer to rules made by a body authorised to do so under an Act of Parliament. It is also referred to as delegated or subsidiary legislation.

"primary legislation" - to refer to statutes or Acts of Parliament.

"National Scrutiny Committee" - to refer to the body proposed as one of the means of reviewing national schemes of legislation.

"Scrutiny committees" - to refer to those parliamentary committees which scrutinise primary and/or subordinate legislation in accordance with terms of reference which involve the protection of rights and respect for the institution of Parliament.

"working party" - to refer to the Committee of Chairs.

ABBREVIATIONS

"COAG" - Council of Australian Governments
"SCAG" - Standing Committee of Attorneys-General
"RIS" - Regulatory Impact Statement