Principle (l): Modification of primary legislation

Overview

Senate standing order 23(3)(l) requires the committee to scrutinise each instrument as to whether it amends, modifies, or creates exemptions to, the operation of primary legislation, and whether such an instrument is in force only for as long as is strictly necessary.

Amendment, modification or exemptions from primary legislation

Provisions in delegated legislation which amend, modify or exempt persons or entities from the operation of primary legislation may limit parliamentary oversight and subvert the appropriate relationship between Parliament and the executive. These concerns are further heightened where the relevant provisions operate on an ongoing basis.

The committee has a longstanding expectation that such provisions should be contained in primary legislation. Where such provisions are nonetheless contained in delegated legislation, the committee expects that they should be time-limited and operate no longer than strictly necessary. The committee considers that in most cases, this means the instrument should cease to operate no longer than three years after it commences. This is to ensure a minimum degree of regular parliamentary oversight.

In addition, the committee expects the explanatory statements to such instruments to explain:

the specific legislative authority relied upon to create the amendment, modification, or exemption to primary legislation in delegated legislation; and
the nature and scope of the amendment, modification, or exemption, including the persons, entities or classes of persons or entities to which it applies; and
why it is considered necessary and appropriate to create the amendment, modification or exemption to primary legislation in delegated legislation (rather than directly amending the relevant primary legislation); and
the duration of the amendment, modification or exemption and, if the instrument is not time limited, the reason for why this is necessary; and
whether there is any intention to conduct a review of the relevant provisions to determine if they remain necessary and appropriate (including to determine whether it is appropriate to continue to include the provisions in delegated legislation or to include them in primary legislation such as the enabling Act).

Explanatory statement checklist

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

Amendment, modification or exemption from primary legislation

Where an instrument includes a provision which amends or modifies primary legislation, or exempts persons or entities from the operation of primary legislation, the explanatory statement should explain:

the specific legislative authority relied upon to create the amendment, modification, or exemption to primary legislation in delegated legislation;
the nature and scope of the amendment, modification, or exemption, including the persons, entities or classes of persons or entities to which it applies;
why it is considered necessary and appropriate to create the amendment, modification or exemption to primary legislation in delegated legislation (rather than directly amending the relevant primary legislation);
the duration of the amendment, modification or exemption and, if the instrument is not time limited, the reason for why this is necessary; and
whether there is any intention to conduct a review of the relevant provisions to determine if they remain necessary and appropriate (including to determine whether it is appropriate to include the provisions in delegated or primary legislation).