Strengthening the Parliamentary Scrutiny of Delegated Legislation: Lessons From Australia.

AuthorNeudorf, Lorne

Delegated legislation involves Parliament lending its legislative powers to the executive branch of government, such as to the cabinet or an individual minister. As the ultimate source of legislative power, Parliament has a special responsibility to keep an eye on executive lawmaking. The Australian federal scrutiny committee--formerly called the Senate Standing Committee on Regulations and Ordinances, and now rebadged as the Senate Standing Committee for the Scrutiny of Delegated Legislation--recently carried out an inquiry to consider how it could improve its scrutiny process. In 2019 it published a unanimous report that was endorsed by the Australian Senate in November when it amended its Standing Orders in line with the committee's proposed changes. This article provides an overview of the Australian scrutiny committee and its inquiry. It then considers the committee's report and recommendations, which present an opportunity to consider changes to the parliamentary scrutiny of delegated legislation in other jurisdictions such as Canada.

Introduction

There exists a tremendous volume of delegated legislation in Canada, which can be seen in the 500-plus pages of the Consolidated Index of Statutory Instruments that lists the thousands of federal orders and regulations that have been made over the years. (1) Canada is hardly alone in relying on delegated legislation as a major source of law. In the United Kingdom, delegated legislation has recently been described as the "central form of legislation in the contemporary constitution." (2) In Australia, delegated legislation makes up at least half of all federal law. (3)

Delegated legislation involves Parliament lending its legislative powers to the executive branch of government, such as to the cabinet or an individual minister. As the ultimate source of legislative power, Parliament has a special responsibility to keep an eye on executive lawmaking. (4) Legislative scrutiny helps to maintain important standards of accountability and transparency in lawmaking, essential features of a democratic society founded on the rule of law. Parliamentary oversight is especially critical in the context of delegated legislation, as it is made outside the safeguards of the ordinary parliamentary process. Moreover, broad language is often used in delegation provisions, which have become a routine part of most new bills. (5) In some cases, incomplete legislative schemes are pushed through Parliament with significant matters to be worked out later by way of delegated legislation. The parliamentary scrutiny of delegated legislation therefore provides a vital check on one of the principal sources of executive power. It can identify drafting flaws, infringements of civil and constitutional rights, and the inappropriate use of delegated powers by the executive. Parliamentary scrutiny can also provide powerful incentives for the government to remedy any problems discovered, and to take care in making delegated legislation in the first place.

The question is how Parliament can effectively scrutinise all new delegated legislation within the constraints of limited time and resources. In common law jurisdictions, this scrutiny work often takes place through one or more parliamentary committees. Over the past two years, I have carried out a comparative study on how such committees scrutinise delegated legislation, which included site visits to the national parliaments of Canada, Australia, New Zealand and the United Kingdom. The research shows that there is a variety of different scrutiny models. While each approach has its own benefits and limitations, there are valuable lessons to be learned from the experience of others that can be applied at home to reform and strengthen existing scrutiny processes.

The Australian federal scrutiny committee--formerly called the Senate Standing Committee on Regulations and Ordinances, and now rebadged as the Senate Standing Committee for the Scrutiny of Delegated Legislation (6)--recently carried out an inquiry to consider how it could improve its scrutiny process. This past June, it published a unanimous report that included 22 recommendations and 11 action items. The report was endorsed by the Australian Senate in November when it amended its Standing Orders in line with the committee's proposed changes. This article provides an overview of the Australian scrutiny committee and its inquiry. It then considers the committee's report and recommendations, which present an opportunity to consider changes to the parliamentary scrutiny of delegated legislation in other jurisdictions such as Canada.

Overview of the Australian Scrutiny Committee

Established in 1932, the Australian scrutiny committee is one of the oldest parliamentary scrutiny committees that examines delegated legislation in the common law world. It is comprised of six Senators, three from the government and three from opposition parties or independents. Its role is to scrutinise all 'legislative instruments' that are tabled in Parliament and which are subject to disallowance. (7)

Under the Australian Legislation Act 2003; (8) legislative instruments are those described or registered as such, or which have been made under primary legislation delegating power to determine or alter the content of the law (as opposed to determining cases or circumstances where the law applies). (9) In the latter case, the instrument must also affect a privilege, interest, obligation or right. (10) The idea is that a legislative instrument must be truly legislative in character, in the sense of creating or changing the general law, as opposed to the essentially administrative act of making an order or designation. Several exemptions exist. (11)

Disallowable legislative instruments are legislative instruments that are subject to the Legislation Act 2003's disallowance procedure. (12) The procedure allows either House of Parliament to disallow an instrument where a Senator or Member of the House of Representatives places a notice of motion to that effect within 15 sitting days of the instrument first being laid before that House. (13) If the motion is adopted or not taken up within an additional 15 sitting day period, the instrument is repealed and ceases to have any further legal effect. (14) In addition to disallowance, all legislative instruments are subject to sunsetting, being automatically repealed after a period of 10 years, unless exempted. (15)

The Australian scrutiny committee reviews each disallowable legislative instrument on the basis of specified criteria that includes whether it is consistent with applicable legislation, whether it...

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