Chapter 1
Introduction
Work of the committee
1.1
The Senate Standing Committee on Regulations and Ordinances (the committee)
scrutinises all disallowable instruments of delegated legislation, such as
regulations and ordinances, to ensure their compliance with non-partisan
principles of personal rights and parliamentary propriety.
1.2
In most years, thousands of instruments of delegated legislation are
made, relating to many aspects of the lives of Australians. Instruments of
delegated legislation have the same force in law as primary legislation, and
may form as much as half of the law of the Commonwealth of Australia.[1]
1.3
The committee's work may be broadly described as technical legislative
scrutiny, as it does not generally extend to the examination or consideration
of the policy merits of delegated legislation. The scope of the committee's
scrutiny function is formally defined by Senate Standing Order 23, which
requires the committee to scrutinise each instrument to ensure:
- that it is in accordance with the statute;
-
that it does not trespass unduly on personal rights and
liberties;
- that it does not make the rights and liberties of citizens unduly
dependent on administrative decisions which are not subject to review of their
merits by a judicial or other independent tribunal; and
-
that it does not contain matter more appropriate for
parliamentary enactment.
1.4
The committee's work is supported by processes for the registration,
tabling and potential disallowance of legislative instruments, which are
established by the Legislative Instruments Act 2003 (LIA).[2]
1.5
This report on the work of the committee covers the 2010-11 financial
year period.
Committee membership
1.6
Senate Standing Order 23(1) provides that the committee is appointed at
the commencement of each Parliament. The committee has six members: three senators
drawn from the government party and three senators drawn from non-government
parties. The committee is chaired by a government senator.
1.7
Current members at March 2013 were as follows:
-
Senator Mark Furner (Chair);[3]
- Senator the Hon Richard Colbeck (Deputy Chair);[4]
- Senator Claire Moore;[5]
- Senator Louise Pratt;[6]
- Senator Scott Ryan;[7]
and
- Senator Arthur Sinodinos AO.[8]
1.8
The following senators were also members of the committee during the
reporting period:
- Senator Carol Brown;[9]
- Senator Michaelia Cash;[10]
- Senator Mathias Cormann;[11]
- Senator the Hon Michael Ronaldson (Deputy Chair);[12]
and
- Senator the Hon Ursula Stephens (Chair).[13]
Independent legal adviser
1.9
The committee is assisted by an independent legal adviser, who examines and
reports on each instrument that comes before the committee, and provides other
advice relevant to the committee's scrutiny work. The committee's legal adviser
during the reporting period was Professor Stephen Bottomley.
The committee's mode of operation
Delivery of instruments
1.10
Legislative instruments must be registered and, within six sitting days
of registration, tabled in both Houses of Parliament.[14]
Once registered, the instruments are delivered to the two Houses for tabling,
and to the committee secretariat.
1.11
In relation to non-legislative disallowable instruments, the individual
department administering the authorising Act under which any such instrument is
made is responsible for delivering copies to both Houses for tabling, as well
as to the committee secretariat.
Scrutiny of instruments
1.12
Instruments received by the committee secretariat are recorded and
copies sent to the committee's legal adviser, who provides a report to the
committee on the instruments' compliance with the committee's scrutiny
principles. The committee meets regularly, during sittings of Parliament, to
consider whether any instruments received may breach its scrutiny principles.
1.13
Where an instrument raises a concern referable to the committee's
scrutiny principles, the committee's usual approach is to write to the
responsible minister seeking further explanation or information, or seeking an
undertaking for specific action to address the issue of concern.
Committee's use of the disallowance
process
1.14
The committee's scrutiny of instruments is generally conducted within
the timeframes that apply to the disallowance process, as set out in chapter 2.
Working within these timeframes ensures that the committee is able, if
necessary, to seek disallowance of an instrument about which it has concerns. Such
disallowance motions based on the recommendation of the committee have, without
exception, been adopted by the Senate.[15]
1.15
In cases where the 15 sitting days available for giving a notice of
motion for disallowance is likely to expire before a matter is resolved, the
committee may give a notice of motion for disallowance in order to protect the
Senate's ability to subsequently disallow the instrument in question. Such
notices are referred to as 'protective notices'.[16]
Undertakings
1.16
In many cases, ministers and other instrument makers provide an
undertaking to address the committee's concern through the taking of steps at
some point in the future. Typically, an undertaking will relate to the making
of amendments to primary or delegated legislation. The acceptance of such
undertakings has the benefit of securing an outcome agreeable to the committee,
without interrupting the administration and implementation of policy by disallowance
of the instrument in question.
Committee publications and resources
1.17
The following committee publications and resources may be accessed at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments.
Disallowable instruments list
1.18
The 'Senate disallowable instruments list' (SDIL) is a list of all
disallowable instruments tabled in the Senate.[17]
This online resource may be used to ascertain whether or when an instrument has
been tabled in the Senate, and how many sitting days remain in which a notice
of motion for disallowance may be given.
1.19
The SDIL is updated after each sitting day.
'Disallowance alert' webpage
1.20
The 'Disallowance alert' webpage (alert) is a list of all instruments
subject to a notice of motion for disallowance (whether at the instigation of
the committee or an individual senator or member). The progress and outcome of
any such notice is also recorded[18].
Delegated Legislation Monitor
1.21
The Delegated Legislation Monitor (the monitor) is an online
publication which records all disallowable instruments tabled in the Senate for
a given period of sittings or for a consolidated year. The monitor provides a
range of information for each instrument (authorising Act, administering
department, Federal Register of Legislative Instruments (FRLI) number et
cetera) as well as some statistical information.
Ministerial correspondence
1.22
Approximately twice a year, the committee tables in the Senate volumes
of ministerial correspondence relating to its scrutiny of delegated legislation[19].
Senate Procedure Office seminar on
delegated legislation and the Senate
1.23
The Senate Procedure Office conducts half-day seminars on the Senate's
scrutiny of delegated legislation. These are tailored to parliamentary staff, government
officers and other stakeholders whose work or interests intersect with the work
of the committee.
1.24
Information on seminar dates and booking inquiries may be
accessed through the Senate website[20].
Structure of the report
1.25
Chapter 2 provides an overview of delegated legislation and the
disallowance process, including discussion of the LIA.
1.26
Chapter 3 reports on the work of the committee during 2010-11.
Acknowledgements
1.27
The committee wishes to acknowledge the work and assistance of its legal
adviser, Professor Stephen Bottomley.
1.28
The committee also wishes to acknowledge the assistance of ministers and
associated departments and agencies during the reporting period. The
responsiveness of ministers, departments and agencies to the committee's
inquiries is critical to ensuring that the committee can perform its scrutiny
function effectively.
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