Principle (j): Matters more appropriate for parliamentary enactment

Overview

Senate standing order 23(3)(j) requires the committee to scrutinise each instrument as to whether it contains matters more appropriate for parliamentary enactment. This principle is underpinned by the committee's view that significant matters should be included in primary legislation, which is subject to a greater level of parliamentary oversight than delegated legislation. Under this principle, the committee will typically be most concerned with instruments that:

  • establish significant elements of a program of national significance or of a regulatory scheme;
  • impose significant penalties; and
  • impose taxes or levies.

Elements of a significant program or regulatory scheme

Significant elements of a program of national significance or a regulatory scheme should ordinarily be included in primary rather than delegated legislation, due to the higher level of parliamentary scrutiny associated with the legislative process for primary legislation.

Significant elements of such schemes include matters such as:

  • authorising significant expenditure for programs or schemes of national significance, including regulatory schemes;
  • key definitions central to the operation of a program or scheme of national significance or of a regulatory scheme;
  • significant elements of how the relevant program or scheme is to operate (for example, whether a scheme is to be 'opt in' or 'opt out').

If an instrument nevertheless contains significant elements of such a program or scheme, the explanatory statement should explain why it is considered necessary and appropriate to include significant elements of the scheme in delegated rather than primary legislation.

The committee does not generally consider operational flexibility or an urgent need to establish legislative authority, on their own, to constitute a sufficient justification for including significant elements of such a scheme in delegated legislation.

Significant penalties

The committee's view is that serious criminal offences and significant penalties should ordinarily be included in primary rather than delegated legislation. This is to ensure appropriate parliamentary oversight of the scope of such offences and penalties.

The committee's view is that delegated legislation should not contain custodial penalties, or penalties exceeding 50 penalty units for individuals and 250 penalty units for corporations. If an instrument does include such penalties, the explanatory statement should explain:

  • the source of the specific legislative authority to impose the penalties;
  • why the penalties are appropriate to the relevant offence;
  • why it is necessary and appropriate to include the penalties in delegated legislation; and
  • where an instrument includes custodial penalties, whether the Attorney-General was consulted, in accordance with Part 3.3 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Imposition of taxes or levies

The levying of taxation is one of the most fundamental functions of the Parliament. Accordingly, the committee considers that taxes should generally be imposed by primary legislation. If an instrument imposes a tax or levy, the instrument should solely deal with that matter, and the explanatory statement should explain:

  • the legislative authority relied upon for using delegated legislation to set the levy or tax (e.g., a charges Act);
  • whether the enabling Act sets any limits on the imposition of tax (e.g., a statutory cap on the amount that may be imposed); and
  • why it is considered necessary and appropriate to use delegated legislation to set the levy or tax.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (j).

Significant elements of a regulatory scheme

If an instrument contains significant elements of such a program or scheme, the explanatory statement should explain why it is considered necessary and appropriate to include significant elements of the scheme in delegated rather than primary legislation.

Significant penalties

Where an instrument imposes a penalty for individuals above 50 penalty units or 250 penalty units for corporations, or imposes a custodial penalty, the explanatory statement should explain:

  • the source of the specific legislative authority to impose the penalties;
  • why the penalties are appropriate to the relevant offence;
  • why it is considered necessary and appropriate to include such penalties in delegated legislation;
  • where an instrument includes custodial penalties, whether the Attorney-General was consulted, in accordance with Part 3.3 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Imposition of taxes and levies

Where an instrument imposes a tax or levy, the explanatory statement should explain:

  • the legislative authority relied upon for using delegated legislation to set the levy or tax (e.g., a charges Act);
  • whether the enabling Act imposes any limitations on the imposition of taxation (e.g., a statutory cap on the amount that may be imposed); and
  • why it is considered necessary and appropriate to use delegated legislation to set the levy or tax, rather than primary legislation.

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