RULES, REGULATIONS and RED TAPE : PARLIAMENTARY  SCRUTINY OF DELEGATED LEGISLATION



Emeritus Professor Dennis Pearce



Introduction

Let me begin with an imaginary dialogue.

“I will only keep you for a second.”

“But, hang on a second, how long is a second?”

“Well I can tell you that it is:

The duration of 9,192 million 631 thousand 770 periods of the  radiation corresponding to the transition between the 2 hyperfine levels  of the ground state of the caesium 133 atom.

because it is set out in the National Measurement Regulations 1999 and is  thereby the Law.”

“But who said it was the Law?”

“The Governor-General.”

“But how can the Governor-General make the law? He is the head of the  Executive. It is Parliament that makes laws.”

“The Parliament cannot make all the laws; there are just too many rules  that have to be laid down if our society is to be properly regulated. Many  are highly technical and do not need the attention of the Parliament once  it has determined the policy that is to underpin the law.   The definition of the second of time is a good example of this. It is based  on international agreement. The Parliament could not have any useful  input into its content. So it is better dealt with by an expert body that  understands the detail of the world of weights and measures.    In cases like this, the Parliament authorises other persons to make laws.  This is known as delegated legislation because the Parliament delegates  its power to make laws to others - often the Governor-General but also  Ministers and various government officials.”

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“And so the Parliament washes its hands of the legislation and leaves it to  others to produce what they think should be the law?”

“The answer to that is ‘not quite’. And it is what we are here to talk about  today.”

Parliamentary review of delegated legislation

100 years ago the Commonwealth Parliament considered the question:  “What oversight should be exercised by a Parliament in relation to  legislation made by its delegates?”

The response of the Parliament was to enact the Acts Interpretation Act  1904 and include in it a requirement that all regulations be laid before  each House of the Parliament. Regulations were then the principal form  of delegated legislation.  The Act thereby ensured that the Parliament was  apprised of the content of the law that its delegates were producing.

The Bill setting out the requirement for tabling regulations was  introduced into the Senate by the then Attorney-General, Senator James  Drake. However, the Senate amended the Bill by empowering any  member of either House to move for the disallowance of a regulation that  had been tabled. If such a motion were passed in either House, the  disallowance had the effect of repealing the regulation.

This amendment was opposed by the government which said that this  power should not apply generally but should be included on a case by  case basis following an examination of the regulation making power in  each Bill as it came before the Parliament. This was what had been  happening up until then. However, the Senators claimed that there should  be a uniform process rather than a debate each time a new Bill was  introduced. As has frequently happened in regard to delegated legislation,  the Senate had its way and the amendment was subsequently agreed to by  the House of Representatives.1

A significant element of this disallowance power was that the power to  initiate action was given to individual members of the Parliament. As  importantly, action to disallow a regulation could be taken by the House  in which the motion was moved. It was not necessary for the  disallowance motion to be passed by both Houses of the Parliament. The  proposal to include this power in the Act caused some consternation in



1  This power to disallow tabled regulations existed in some States at this time.

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the House of Representatives. Some members correctly foresaw that it  would enable the Senate to set aside government regulations. However,  the view of those more concerned with the need of the Parliament to be  able to control executive action prevailed.

In addition to the inclusion of the power of the Parliament to disallow  regulations, the Act provided that regulations were to commence on  notification in the Gazette or such later day as the regulations provided.  This prevented any backdating of regulations but the provision was  amended in 1937 to prevent only back dating that adversely affected a  person other than the Commonwealth. 2

The Bill passed all stages in the Parliament on 18 May 1904 and was  assented to and came into force on 14 June 19043. (It is not clear why a  separate Act was made rather than amend the existing Acts Interpretation  Act 1901. The two Acts proceeded in parallel until they were combined in  1937.)

This mechanism for parliamentary oversight of delegated legislation  established just over 100 years ago has been maintained to this day. There  have been a number of amendments to the procedures, some of which  have been adopted to overcome executive attempts to undermine the  system. However, the basic principle of tabling after making, with either  House of the Parliament having a right to set aside the legislation,  remains. It will apply also in the new regime for making and publishing  of delegated legislation under the Legislative Instruments Act 2003 that  comes into force on 1 January 2005.

However, lest it be thought that the passage of the Acts Interpretation Act  in 1904 exemplified a golden age of parliamentary enlightenment, it  should be noted that the very next motion passed by the Senate was one  recording its grave objection to the introduction of Chinese labour into  the Transvaal.4

The tabling and disallowance regime

The principal features of the tabling and disallowance regime are:



2  Acts Interpretation Act 1901(AIA) s 48.    3  For detail of the background to the Act see Robert Walsh and John Uhr, “Parliamentary Disallowance  of Delegated Legislation: A History of the Basic Provisions in the Acts Interpretation Act”   10 Legislative Studies Newsletter 11.  4

CPD v 19 p 1263.

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(1) all regulations (now extended to a wider range of legislative  instruments) have to be tabled within a certain time after making.  Presently this is 15 sitting days. This can be a considerable period,  particularly if the Parliament is in recess, for example over the  summer. The time for tabling legislation made say on 15 December is  not likely to commence to run until mid-February. The Legislative  Instruments Act will shorten this tabling time to six sitting days - still  a considerable time.

Failure to table legislation initially led to its being a nullity with the  consequence that anything done in reliance on the legislation was  invalid. This necessitated the passage on occasions of an Act to  validate action taken under delegated legislation where tabling had  been overlooked. However, now the effect of failing to table by the  due date is that the legislation thereafter ceases to have effect.5

The significant feature of the 15 day tabling requirement is that most  delegated legislation comes into operation when it is made or on a date  specified in it. It is thus likely to be in force when it is tabled. This can  act as a constraint on disallowance as is discussed below.

(2) After tabling, any member may, during the next ensuing 15 sitting  day period, move a motion that the legislation be disallowed. As noted  above, this disallowance power is directed to existing legislation, not  legislation that is yet to commence operation. This is known as  negative resolution procedure. The legislation is set aside after it has  been operating and this could be for some months.

To disallow legislation after it has been operating for some time is a  bold step as people will have conditioned their activities in accordance  with the legislation. This is a constraint on the Parliament exercising  its disallowance power. However, it has not proved, in practice, to  present a total bar to the Parliament disallowing legislation.

The alternative approach would be for the legislation not to commence  until the Parliament said that it could. This is described as an  affirmative resolution procedure. It is seldom used in relation to  Commonwealth delegated legislation but has greater use in England.   The idea underlying it is to enable there to be public comment on the  legislation and the opportunity for the Parliament to determine



5  AIA s 48(3); Legislative Instruments Act 2003 (LIA) s 38(3).

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whether the legislation should be made. Whether this procedure  should be given greater credence in Australia is returned to below.

(3) If a motion for disallowance is tabled, it must be passed, rejected or  otherwise resolved within the next 15 sitting days. If it is not dealt  with, the motion is taken to have been carried.6

This is perhaps the most significant element of the regime as it obliges  the government to take action. It cannot simply allow the disallowance  notice to remain on the Notice Paper of the House in the expectation  that it will lapse on the prorogation or dissolution of the particular  Parliament.

The working of the regime

Despite what might be thought of as a relatively benign regime for the  oversight of delegated legislation, the executive has at times tried to  thwart the exercise of the disallowance power. In 1931 for a period the  Senate would disallow a set of contentious regulations and the executive  would remake them as soon as the Parliament was adjourned. The  disallowance motion would again be passed when the Parliament  resumed and again the regulations remade when it adjourned.7 To  overcome this defiance of the will of the Parliament (or at least the  Senate) the Acts Interpretation Act 1904 was amended in 1932 to prevent  the remaking of a regulation the same in substance as that disallowed  within 6 months of the disallowance unless the disallowance resolution  was rescinded.

Further amendments were made in 1988 to prevent the repeal and  remaking of legislation during the period for tabling (with a view to  avoiding the obligation to table the legislation) and during the period for  disallowance after tabling (for the purpose of negating any motion to  disallow).



Provisions have also been included in the Acts Interpretation Act to limit  the ability of the executive to legislate by incorporating other material in  regulations. Such other material may only be incorporated to the extent  that it is in force when the delegated legislation is made. It cannot be  incorporated on a from time to time basis. To act otherwise would allow



6  AIA s 48(5) (inserted in 1937); LIA s 42(2).  7  See Walsh and Uhr, above n 3, at p 16 for further background.

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another person, in effect, to make the legislation and it would not be  subject to any parliamentary oversight.8

Until 1987 the tabling and disallowance regime applied only to  regulations, so labelled, and to any other forms of legislation that made  specific provision for tabling. Territory Ordinances and Rules of Court  were so specified but very few other forms of delegated legislation. It was  well known that there were many other instruments of a legislative  nature: determinations, notices, schemes, guidelines and so on. Indeed,  there is reason to think that these other forms of legislation were on  occasions used to avoid the exposure of the instrument to the tabling and  disallowance regime.

A major change occurred in 1987 with the inclusion of s 46A in the Acts  Interpretation Act. That section established a category of what are termed  “disallowable instruments”. These instruments are subjected to the same  oversight regime as applies to regulations. It is now common practice for  new provisions empowering the making of legislative instruments to  designate them as disallowable instruments thus bringing them within the  tabling and disallowance power of the Parliament. The Senate Scrutiny of  Bills Committee requires an explanation if a legislative instrument is not  designated as falling within s 46A.

The inclusion of this provision in the Acts Interpretation Act was a  significant recognition of the need for the Parliament to be informed of  the making of delegated legislation and provided with the opportunity to  disallow it. The number of pieces of legislation falling within the  description of disallowable instruments now exceeds the number of  traditional regulations.



From 1 January 2005, the Legislative Instruments Act will widen the net  still further by requiring all instruments of a legislative character to be  registered on a publicly available electronic register. An instrument is of a  “legislative character” if “it determines the law or alters the content of the  law, rather than applying the law in a particular case; and it has the direct  or indirect effect of affecting a privilege or interest, imposing an  obligation, creating a right, or varying or removing an obligation or  right”9



8  See AIA s49A. At present there is no obligation to make incorporated material available to the  Parliament but under the LIA, a House of the Parliament may require the incorporated material to be  made available for inspection: see s 41.  9

LIA, s 5.

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This is a major step in identifying delegated legislation and making it  available. When I was conducting a review of certain action of a  Department, I found in the middle of a general file, all duly registered,  spiked and folio numbered, the legislative instrument on which the  scheme that I was looking at was based. It is doubtful if it would ever  have seen the light of day again. Certainly no member of the public  would have been able to gain access to it and it would have presented  difficulties for the Department if it had had to produce the original. It is to  identify this sort of hidden law that the Legislative Instruments Act is  directed.

Instruments on the Federal Register of Legislative Instruments must be  tabled in the Parliament within 6 sitting days of registration and will be  subject to disallowance10.

With the commencement of this legislation, the Parliament will have  finally moved to accepting responsibility for the oversight of all  legislation whether it emanates from the Parliament itself or from a  delegate of the Parliament.

Whether this means of reviewing delegated legislation is adequate is  returned to below. First, it is necessary to consider the means by which  the Parliament informs itself about the content of delegated legislation  and whether or not it should be disallowed.

Regulations and Ordinances Committee.

It is a valuable step in the process of oversight of delegated legislation for  the Parliament to have all such legislation brought to its attention.  However, it is unrealistic to expect parliamentarians to have the time or  the expertise to examine each of the now nearly 2000 pieces of legislation  that are laid on the table of the Parliament each year.

The Senate recognised this and on 17 March 1932 appointed the Standing  Committee on Regulations and Ordinances. Senate Standing Order 23  presently provides:

(1) A Standing Committee on Regulations and Ordinances shall be  appointed at the commencement of each Parliament.

(2)  All  regulations,  ordinances  and  other  instruments  made  under   the  authority  of  Acts  of  the  Parliament,  which  are  subject  to

10  LIA, s 38.

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disallowance  or  disapproval  by  the  Senate  and  which  are  of  a   legislative  character,  shall  stand  referred  to  the  committee  for   consideration and, if necessary, report.

(3) The committee shall scrutinise each instrument to ensure:

(a) that it is in accordance with the statute;

(b)  that  it  does  not  trespass  unduly  on  personal  rights  and   liberties;

(c)  that  it  does  not  unduly  make  the  rights  and  liberties  of   citizens  dependent  upon  administrative  decisions  which   are  not  subject  to  review  of  their  merits  by  a  judicial  or   other independent tribunal; and

(d)  that  it  does  not  contain  matter  more  appropriate  for

parliamentary enactment.

The Committee has usefully expanded this bare outline of its role by  publishing  a  statement  setting  out,  under  the  heads  of  review,  the   issues with which it will be concerned. This statement is included in  the  Committee’s  annual  reports.  It,  and  the  reports,  reveal  that  the   Committee  has  concerned  itself  not  only  with  the  content  of  the   legislation reviewed but also its manner of presentation to the public  and the quality of its drafting.

Legislation  can  cause  as  much  difficulty  to  the  public  from  the   obscurity of its requirements and its inaccessibility as from its actual  prescriptions. Try to interpret the following:

In  the  Nuts  (Unground)(Other  Than  Ground  Nuts)  Order,  the   expression  “nuts”  shall  have  reference  to  such  nuts,  other  than   ground nuts, as would but for this amending order not qualify as  nuts (unground)(other than ground nuts) by reason of their being  nuts (unground).

The  Committee’s  acceptance  of  a  role  in  requiring  clarity  in  the   legislation  it  reviews  is  a  valuable  aid  to  the  quality  of  the  statute   book.

These  matters  have  been  recognised  in  the  Legislative  Instruments   Act.  Its  principal  purpose  is  to  make  legislation  publicly  available.   However, it also makes reference to the need for quality of drafting  and the publication of explanatory material.

The  Committee  has  also  insisted  on  the  preparation  of  explanatory   memoranda  to  assist  in  the  understanding  of  what  might  otherwise

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appear  to  be  questionable  provisions.  (It  is  hoped  that  one   accompanied the Veterans’ Entitlements (Special Assistance - Motor  Cycle Purchase) Regulations 2001 which provide for a person to be  entitled  to  assistance  towards  the  purchase  of  a  motor  cycle  if  the   person is a veteran who has lost a leg or both arms as a result of war-caused injury.)

Apart  from  it’s  concentration  on  these  more  technical  matters,  the   Committee  has  overseen  the  need  to  protect  personal  rights  and   liberties  through  examining  legislation  to  ensure  that  it  does  not   impose  retrospective  burdens  on  persons;  does  not  allow  executive   interference  with  accepted  rights  such  as  freedom  from  invasion  of   property  and  privacy;  does  not  give  a  public  official  subjective   discretions;  and  provides  for  rights  of  appeal  on  the  merits  against   executive decisions.

The  Regulations  and  Ordinances  Committee  has  been  one  of  the   great  success  stories  of  the  Senate.  It  has  been  replicated  in  many   legislatures in Australia and in other countries.

Each year now the Committee examines just under 2,000 legislative  instruments against its terms of reference. It raises issues of concern  in  relation  to  about  10%  of  the  instruments.  The  majority  of  these   concerns are dealt with by way of an explanation from the relevant  Minister or by the Minister undertaking to attend to the Committee’s  concerns when next the legislation is being amended.

Where there is a delay in dealing with the issues that the Committee  has raised or an initial response has not satisfied the Committee, the  Chair  of  the  Committee  will  move  a  disallowance  motion  in  the   Senate.  This  has,  in  recent  years,  always  produced  a  response.  The   Senate  has  not  had  to  disallow  a  regulation  on  the  initiative  of  the   Committee since 1988. This is simply because, over the many years  of  its  existence,  the  Senate  has  always  supported  a  disallowance   motion when moved by the Committee. The executive knows that it  must  reach  an  accommodation  with  the  Committee  or  lose  its   legislation.

Early in its life, the Committee determined that “questions involving  government  policy  in  regulations  and  ordinances  fell  outside  the   scope  of  the  Committee”11  Taken  at  face  value,  this  self  denying   ordinance  would  have  resulted  in  their  being  little  on  which  the   Committee could report as the whole text of a regulation represents  government  policy.  However,  what  the  Committee  means  is  that  it



11  4th Report para 5.

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will not examine the policy basis for the adoption of legislation - but  it will look at the way in which that policy has been implemented.

So  if,  for  example,  a  policy  to  require  fruit  growers  to  provide   returns of production is given effect by permitting inspectors to enter  the  premises  of  a  grower  without  a  warrant,  the  Committee  will   regard that as breach of its criteria even though it is the policy of the  government to permit such entry. However, the Committee will not  look at the policy decision to require the provision of returns.

The  effect  of  this  approach  has  been  to  shield  the  Committee  from   party  political  differences  and  has  produced  an  uncommon  level  of   bi-partisanship in its work. It is this that has made the Committee so  successful  and  which  has  persuaded  the  Senate  to  support  it  when   there has been a show down with the executive.

The existence of the Committee has also had an effect on the quality  of  legislation  that  is  produced  by  the  executive.  The  fact  that  the   Committee  will  scrutinise  legislation  against  the  stated  criteria  has   sent  the  message  to  the  executive  that  legislation  that  offends  is   likely  to  be  questioned  and  possibly  disallowed  -  to  the

embarrassment  of  the  Minister  concerned.  This  means  that  drafters   of  legislation  have  a  powerful  weapon  to  control  over-zealous   officials who wish to include powers that breach basic principles in  their legislation.

The  Committee  has  been  ably  assisted  in  its  task  by  not  only  a   dedicated secretariat but also a coterie of external legal advisers, the  last  three  of  whom  I  have  been  fortunate  enough  to  have  as   colleagues at the ANU Law Faculty.

The Committee has had to contend with an ever increasing workload  since  the  creation  of  the  disallowable  instruments  category  of   delegated  legislation.  The  number  of  instruments  scrutinised  has   more  than  doubled  since  the  mid-1980s.  The  advent  of  the   Legislative Instruments Act is likely to see a further increase, but of  what  size  is  not  known  because  the  whole  point  of  the  Act  is  to   identify  previously  unacknowledged  delegated  legislation  and   subject it to parliamentary oversight.

The Regulations and Ordinances Committee has been a key factor in  the  control  that  the  Parliament  has  exercised  over  delegated   legislation. It has served to highlight that this control is exclusively  the  province  of  the  Senate.  The  House  of  Representatives  has  not   adopted any role in parliamentary oversight of delegated legislation.

Is the present oversight process sufficient?

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Sir Ninian Stephen said in Watson v Lee12:

[The history of delegated legislation] reflects the tension  between the needs of those who govern and the just expectations of  those who are governed. For those who govern, subordinate  legislation, free of the restraints, delays and inelasticity of the  parliamentary process, offers a speedy and flexible mode of law-making. For the governed it may threaten subjection to laws which  are enacted in secret and of whose commands they cannot learn:  their reasonable expectations that laws shall be both announced and  accessible will only be assured of realization by the imposition and  enforcement of appropriate controls upon the power of subordinate  legislators, whose power, as Fifoot observed "requires an adequate  measure of control if it is not to degenerate into arbitrary  government": English Law and its Background (1932).

It  was  not  until  the  enactment  of  the  Legislative  Instruments  Act  that  it   could be said the Commonwealth Parliament was doing all that it should  in  respect  of  the  oversight  of  delegated  legislation  simply  because  there   was  a  large  body  of  legislation  that  was  not  being  tabled.  This   shortcoming  has  now  been  remedied  and  at  least  the  full  range  of  such   legislation  will  be  publicly  available  and  subjected  to  parliamentary   scrutiny.

However,  this  is  but  a  first  step.  Gary  Banks,  chairman  of  the   Productivity  Commission  said  in  a  paper  entitled  “Challenges  in   Regulatory Reform”13:

Regulation is essential to the proper functioning of a society. Whether  through primary or delegated legislation, or more informal  arrangements, rules create order and the basis for stability and  progress. They shape incentives and influence how people behave and  interact. And they can help societies deal with otherwise intractable  economic, social and environmental problems.

But he then went on to note that this goal can only be achieved through  good regulation. Bad regulation undermines society’s capacity to deal  with those problems. Good regulation he said should meet three tests:

Ã¢ÂÂ¢ it must be the most effective way of addressing an identified  problem;

12  (1979) 155 CLR 374 at 394.  13  See Productivity Commission website: www.pc.gov.au. See also on that website: Argy, S and  Johnson, M, Mechanisms for Improving the Quality of Regulations: Australia in the International  Context, 2003, particularly the suggested checklist for assessing regulatory quality, p 6, and the OECD  checklist for regulatory decision-making, p 14.

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Ã¢ÂÂ¢ it must impose the minimum burden on those regulated; and  Ã¢ÂÂ¢ it must cause the minimum amount of collateral damage to others.

The  question  that  must  be  asked  is  whether  the  Parliament  is  playing  a   sufficient  role  in  ensuring  that  Commonwealth  delegated  legislation   meets these criteria.

(1) Tabling processes

If  the  Parliament  is  to  play  a  useful  function  in  overseeing  delegated   legislation  it  must  be  apprised  of  that  legislation  as  soon  as  possible   after it has been made. The time provided for tabling legislation started  as  30  days,  was  changed  to  15  sitting  days  and  from  1  January  2005   will be 6 sitting days. These time limits are all based on the time that it  takes to print copies of the delegated legislation and physically deliver  them to the Parliament for formal tabling.

As  noted  previously,  the  use  of  sitting  days  as  the  time  frame  for   action  to  be  taken  means  that  the  time  within  which  action  must  be   taken  can  be  lengthy.   It  also  has  the  effect  that  the  executive  can   manipulate the time taken for setting the parliamentary review process  in  motion.  Until  the  legislation  is  tabled,  no  motion  for  disallowance   may be moved. A Senator can, with the permission of the Senate, table  the legislation him or herself but first it is necessary to obtain a copy of  the  legislation.14  In  the  meantime  it  will  be  in  force.  This  may  be   sufficient  for  it  to  achieve  its  purpose;  cf  the  recent  excision  of   Melville and Bathurst Islands from the Australian Migration Zone15.

The  present  physical  tabling  process  represents  another  era.  We  are   about  to  enter  a  time  when  the  authoritative  version  of  delegated   legislation  will  be  that  which  is  on  the  electronic  Federal  Register  of   Legislative Instruments. Yet the Parliament will still be functioning on  hard  copies  that  are  brought  to  it  from  a  printery  (that  is  no  longer   government owned).

It  seems  to  me  that,  after  1  January  2005,  upon  registration  of  an   instrument  on  the  Register,  it  should  be  immediately  transmitted   electronically  to  the  Clerks  of  each  House  of  the  Parliament.  The   receipt of that version of the instrument should be deemed to constitute  its tabling. It should then be sent on to each member of the Parliament  in the same way as the printed copy is now. The instrument would then  be available for parliamentary scrutiny and if needs be for rapid action  to disallow it.

14  Evans, H (ed), Odgers’ Australian Senate Practice (10th ed, Department of the Senate, 2001) p 348.  15  Cf Ernst Willheim, “Government by Regulation: Deficiencies in Parliamentary Scrutiny?” (2004) 15  Public Law Rev 5.

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The Parliament is enabling the executive to call the tune on this issue  of bringing legislation to its attention.

(2) Commencement

The Parliament acted very sensibly in preventing the backdating of the  commencement  of  regulations  that  would  adversely  affect  a  person   other  than  the  Commonwealth.  This  approach  was  carried  through  to   disallowable instruments and will be applicable also to the new regime  of  legislative  instruments.16  The  Regulations  and  Ordinances   Committee  has  also  looked  very  closely  at  legislation  to  ensure  that   persons are not adversely affected by any retrospectivity.

However,  the  process  whereby  legislation  comes  into  force  prior  to   parliamentary  review  limits  the  effectiveness  of  the  disallowance   power.  People  will  be  affected  even  though  the  legislation  may   subsequently  be  disallowed  or  amended  following  Regulations  and   Ordinances  Committee  intervention.  This  limitation  flows  from  the   negative resolution procedure that is used in Australia. This could be  overcome  by  a  greater  willingness  on  the  part  of  the  Parliament  to   insist  on  the  inclusion  of  the  affirmative  procedure  process  in   legislation.  Under  this,  delegated  legislation  does  not  commence   unless a formal resolution approving it is passed.

However, it is recognised that this approach makes an extra demand on  already limited parliamentary time. For this reason alone it is resisted  in all but exceptional cases.

An  approach  that  is  to  be  found  in  the  A  New  Tax  System  Family   Assistance  Administration  Act  1999  is  worthy  of  much  wider  use.   Section 162 of that Act provides that instruments made under the Act  do  not  take  effect  until  the  end  of  the  period  in  which  they  can  be   disallowed by the Parliament. This gives full recognition to the review  role of the Parliament without making any demands on parliamentary  time. General use of such a provision should be encouraged.

If  this  is  thought  to  be  too  radical,  commencement  could  at  least  be   postponed until the legislation in question is tabled. If the suggestion  of  electronic  communication  for  tabling  set  out  above  were  to  be   adopted, this would not be necessary. However, if the present practice  is  to  continue,  there  seems  no  great  reason  why,  in  the  majority  of   cases, the commencement could not await tabling. Urgent cases could  be  dealt  with  as  an  exception  to  the  general  rule  but  with  an   explanation  being  required  in  the  explanatory  statement  which  could   then  be  checked  by  the  Senate  Committee.  This  approach  would

16  AIA s 48; LIA s 12.

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provide an inducement to the executive to expedite the tabling process.  It  would  also  ensure  that  the  Parliament  was  more  immediately   involved in the legislation-making process.

(3) Pre-making consultation

The  Rules  Publication  Act  1903,  when  first  enacted,  provided  for   advance notice of 60 days to be given of the intention to make a rule.  This  was  intended  to  warn  the  public  of  the  proposed  law  and  to   provide  an  opportunity  to  make  representations  as  to  its  content.  The   requirement was repealed in 1916.

The  Administrative  Review  Council’s  Report  “Rule  Making  by   Commonwealth  Agencies”17  which  provided  the  stimulus  for  the   Legislative Instruments Act proposed a formal requirement for notice  and consultation prior to making an instrument. This recommendation  was  influenced  by  the  experience  in  Victoria  where  mandatory   consultation  must  be  undertaken  before  a  number  of  instruments  are   made.18  In the United States, consultation, including public hearings,  prior to making of rules is obligatory.

Earlier  versions  of  the  Legislative  Instruments  Bill  contained   mandatory  requirements  in  relation  to  consultation  but  these  were   omitted  from  the  final  version.  Section  17  of  the  Act  contains   requirements to consult, particularly where business or competition is  affected.  However,  the  requirements  are  effectively  only  exhortatory   as  the  only  obligation  is  to  describe  the  consultation  processes  in  the   explanatory statement for an instrument.

If  delegated  legislation  is  likely  to  affect  business  or  restrict   competition,  an  executive  scheme  requires  a  Regulatory  Impact   Statement (RIS) relating to the proposed legislation to be submitted to  the  Office  of  Regulation  Review  (ORR)  for  consideration.  This   process  is  a  valuable  step  in  securing  consultation  with  interested   parties.

The ORR says that:

RISs tabled in the Parliament with Memoranda  and  Explanatory  Statements   have  provided  greater  transparency  regarding  the  rationale  behind  the   Government’s  regulatory  decisions,  resulting  in  the  Parliament  being  better   informed.  In  addition,  Parliamentarians  have  drawn  on  published  RISs  in   debate.  For  example,  in  2002-03,  there  were  37  separate  discussions  in   Parliament about particular RISs and regulatory policy issues (14 times in the  Senate,  eight  in  the  House  of  Representatives  and  15  times  in  the  work  of   parliamentary committees). A wide range of issues were discussed, including

17  Report No 35, 1992.  18  Subordinate Legislation Act  1994 (Vic), s 6.

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vehicle  and  aircraft  safety  standards,  urban  speed  limits,  electromagnetic   radiation  protection,  fisheries  management,  educational  standards  and   international trade agreements. For the most part, discussions focussed on the  analysis contained in the ‘impact’ and ‘consultation’ sections of RISs, as well  as  the  likely  small  business  impacts  and  the  role  of  RISs  in  policy   development.19

However, a RIS is required for only about 5% of the instruments that  are tabled. Whether there should be consultation prior to making is left  to  the  legislation-maker  to  decide  in  most  cases.  There  is  no   mechanism in place that requires the impact of proposed legislation to  be ascertained from those that will be affected.

It is the lack of consultation prior to making delegated legislation that  leads  to  allegations  of  “red  tape”.  The  delegated  legislation-makers  will  not  necessarily  have  any  clear  understanding  of  how  the   legislation will impinge on its subjects.

Acts  are  made  after  publication  of  the  intended  text  in  the  form  of  a   Bill.  This  provides  the  opportunity  for  those  likely  to  be  affected  by   the legislation to make representations as to its content. This is not the  case with delegated legislation.

The  Parliament  does  not  have  in  place  any  mechanisms  that  will   remedy  this  position.  This  is  understandable  to  a  point  as  one  of  the   main  reasons  for  delegating  legislative  making  power  is  to  save   parliamentary  time.  However,  the  absence  of  requirements  for  pre-making  consultation  when  coupled  with  the  commencement  of   legislation  on  making  gives  the  executive  wide  power  to  make   delegated  legislation  that  imposes  unrealistic  demands  on  the  private   sector.

This  reinforces  the  case  for  postponing  the  commencement  of   legislation  until  after  the  time  for  disallowance  to  enable  persons   affected  at  least  to  bring  their  concerns  to  the  attention  of  the   Regulations and Ordinances Committee.

(4) Parliament and policy

The  major  weakness  in  the  oversight  by  the  Parliament  of  delegated   legislation is that the Parliament seldom reviews the policy embodied  in the legislation. As noted above, the application of its criteria by the  Senate Regulations and Ordinances Committee results in some policy  issues being considered. However, these are limited to what might be  termed  interference  with  general  human  rights.  The  policy  decisions   that  might  be  termed  red  tape  -  requirements  for  information,

19  See www.pc.gov.au.

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requirements  for  business  licences,  requirements  for  approvals  to   conduct an activity - are not questioned.

As  far  as  parliamentarians  generally  are  concerned,  it  is  only  overtly   political  delegated  legislation  such  as,  in  recent  times,  control  over   immigration, that attracts attention.20

The  absence  of  formal  machinery  for  consultation  before  making   means  that,  if  the  Parliament  is  really  going  to  exercise  an  oversight   role in relation to the use by the executive of delegated power to make  legislation, it needs to take steps to apprise itself of that legislation and  have means available to those affected to raise their concerns.

This will require confrontation with the significant issue of principle -  are Members of Parliament politicians or parliamentarians?21 It is this  question that the Regulations and Ordinances Committee has conjured  with successfully throughout its existence. It has managed to keep the  politics at bay by limiting its role to issues where its members feel that  they are not driven to support their party. However, by so doing it has  left  a  large  hole  in  the  oversight  of  delegated  legislation.  More   significantly, it has created a culture which denies that the Parliament  should be involved in the oversight of the policy underlying delegated  legislation.

This means that the executive is able to include in delegated legislation  provisions that it would, at the very least, have to justify if they were  included  in  an  Act  and,  in  the  face  of  a  hostile  Senate,  might  not  be   able  to  enact.  It  is  thus  much  easier  for  the  executive  to  establish   regimes  of  control  through  delegated  legislation  than  it  is  through   primary legislation.

What can be done about this?

It  is  of  value  that  the  Scrutiny  of  Bills  Committee  sees  as  one  of  its   tasks  the  need  to  bring  to  the  attention  of  the  Senate  the  breadth  of   delegated  legislation  making  powers  that  are  included  in  Acts.  For   example, it protested about a provision that stated:



20  Perhaps the most striking use of the disallowance power was in 1967 when the Senate was recalled  from the Winter recess and disallowed regulations to increase postal and telephone charges. A Bill to  increase such charges had been defeated in the Senate and the regulations were seen as an attempt to  get around this outcome: see CPD (Senate) vol 34.   21

Cf Malcolm Aldons reviewing “The Challenge for Parliament: Making Government Accountable”  (2003) 18 Australasian Parliamentary Review 152

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The  regulations  may  provide  for  prescribed  decisions  of  the   Secretary  to  be  reviewed  by  prescribed  review  officers  on   applications, as prescribed, by prescribed persons.22

However,  it  is  doubtful  whether  the  interest  of  this  Committee  alone   will be sufficient to contain excessive regulation.

I  suggest  that  there  is  some  guidance  to  be  found  from  the  existing   structure  of  the  Senate  Standing  Committees.  When  first  established,   they were simply allotted a subject area and they dealt with any issues  that  were  referred  to  them  pertaining  to  that  subject.  They  are  now   divided  into  legislation  and  references  committees.  The  legislation   committees  look  at  Bills  and  the  references  committees  consider   broader policy issues.

Could  the  Regulations  and  Ordinances  Committee  be  similarly   divided?

One  division  would  continue  to  perform  the  valuable  role  that  it   presently  carries  out.  The  other  would  be  a  references  committee  to   which could be referred delegated legislation that involves government  policy  issues  of  a  significant  kind  that  warrant  investigation.  This   committee  would  be  able  to  take  evidence.  It  could  make

recommendations.  It  might  well  divide  on  party  lines  as  do  the   Standing  Committees  now.  However,  the  additional  information  that   would emerge should it conduct an inquiry would provide a basis for  informing  the  Senate  whether  it  seemed  appropriate  for  a  Senator  to   move a disallowance motion.

The abandonment by the Parliament of a role in relation to the policy  of delegated legislation has empowered the executive in a manner that  the  great  settlements  between  the  Crown  and  the  Parliament  that   occurred  in  England  in  the  seventeenth  century  were  intended  to   prevent.  It  seems  incongruous  that  political  argument  and  possible   division along party lines is accepted as appropriate for legislation in  the form of Bills but not for legislation made by the executive. This is  particularly the case in relation to legislation that imposes obligations  on persons and businesses to which the term red tape can be applied.  The  Parliament  has  opted  out  of  any  responsibility  for  these  sorts  of    provisions.

I  should  like  to  suggest  that  the  Parliament  (and  realistically  that   means the Senate) should examine afresh its obligations in relation to  the  oversight  of  delegated  legislation.  Without  some  greater  interest   being  taken  in  the  substantive  content  of  the  ever  increasing  body  of

22  Migration Legislation Amendment Bill 1989 clause 61(1).

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this form of legislation, the parliamentarians of today must be taken to  have ceded a significant part of their legislating role to the executive.  If  they  do  this  they  will  have  failed  to  meet  the  expectations  of  their   predecessors 100 years ago.













