Standing order 23(4A): Instruments exempt from disallowance

Overview

Standing order 23(4A) provides that the committee may scrutinise instruments that are not subject to disallowance, including whether it is appropriate for these instruments to be exempt from disallowance.

Exemption from disallowance

The committee expects explanatory statements to instruments that are exempt from disallowance to identify the legislative source which provides for the exemption. This includes identifying the specific provision of the Act or instrument which provides for the exemption (including the relevant table item, where applicable). The committee does not consider general statements identifying that an exemption is provided under the Legislation Act 2003 ('Legislation Act') or under the Legislation (Exemptions and Other Matters) Regulation 2015 to be sufficient.

The committee is particularly concerned about the following:

instruments that are exempt under one of the broad classes of exemptions in section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015;
instruments that are exempt under the blanket exemption for instruments facilitating the establishment or operation of an intergovernmental body or scheme in section 44(1) of the Legislation Act;
an exempt instrument that overrides or modifies primary legislation;
an exempt instrument that triggers, or is a pre-condition to, the imposition of custodial penalties or significant pecuniary penalties;
an exempt instrument that restricts or limits individual rights and liberties;
an exempt instrument that facilitates the expenditure of public money, including Advance to the Finance Minister determinations; and
an exempt instrument that otherwise contains a matter requiring parliamentary oversight.

Justifying the exemption from disallowance

To support parliamentary oversight of delegated legislation made by the executive, the committee considers that delegated legislation should be subject to disallowance unless there are exceptional circumstances. Any claim that circumstances justify an exemption from disallowance will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases.

The committee expects that explanatory statements to exempt instruments should set out in detail the exceptional circumstances that are claimed to justify the exemption from disallowance.

Common justifications likely to be insufficient

The committee has not generally accepted the following rationales as adequate to justify exempting instruments from disallowance.

The instrument is made for the purpose of an intergovernmental scheme

The committee does not generally consider the fact that an instrument is made for the purpose of an intergovernmental scheme to be a sufficient justification to exempt an instrument from disallowance. While, in some instances, such an instrument may be a product of significant negotiation in the process of obtaining agreement from all government parties, this is not necessarily the case. Moreover, the committee does not consider the fact that a number of executive governments have reached an agreement in relation to a particular matter precludes the need for parliamentary oversight of the laws resulting from such an agreement.

The need to take urgent and decisive action

The committee does not generally consider the need for urgent and decisive action to be a sufficient justification to exempt an instrument from disallowance. This is because the Parliament must have effective oversight of these critical decisions and retain the ability to scrutinise the actions of the executive. Further, the disallowable status of delegated legislation does not prevent the executive from acting quickly and decisively as it does not impede the immediate commencement and enforceability of an instrument. Moreover, if an instrument is subsequently disallowed, which may only occur after it has been tabled in the Parliament, the disallowance will not invalidate actions taken under the instrument prior to disallowance.

The potential for the disallowance process to create uncertainty

The committee does not generally consider the potential for disallowance to create uncertainty for stakeholders to be a sufficient justification for the exemption. The committee considers a need for certainty is outweighed by the Parliament's fundamental constitutional role as the principal lawmaking authority. Moreover, senators and members, as elected representatives, would be well aware of any impact that disallowance would have and would consider such matters as part of their deliberations and their accountability to their electors.

The committee considers that the disallowance process is an opportunity to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed upon it by the Parliament. In relation to instruments made during times of emergency, the committee considers that the disallowance process would facilitate appropriate debate and scrutiny of the use of emergency powers and would operate to ensure that such powers are not misused.

While the committee does not consider that arguments against providing for disallowance on the basis that it may undermine certainty are persuasive, the committee considers that in many contexts any uncertainty can be overcome by having delegated legislation commence after the disallowance period has passed, or by providing that an instrument does not come into effect until it has been approved by resolution of each House of the Parliament.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument's explanatory statement under Senate standing order 23(4A).

Identification of source of exemption from disallowance: Where an instrument is exempt from disallowance, the explanatory statement should identify the specific legislative source of the exemption.
Justification for exemption from disallowance: Where an instrument is exempt from disallowance, the explanatory statement should set out in detail the exceptional circumstances that are claimed to justify the exemption from disallowance.