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Strengthening the Parliamentary Scrutiny of Delegated Legislation: Lessons From Australia
Lorne Neudorf

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 unduly interferes with personal rights or liberties, whether it inappropriately excludes the availability of merits review from important administrative decisions, and whether it includes subject matter that is more appropriate for primary legislation. 16 In practice, the criteria has been applied more broadly than what would be expected from a reading of the relevant Standing Orders alone, although the committee remains focused on scrutinising the technical aspects of instruments as opposed to their underlying policy to maintain the non-partisan nature of its work.

As there is only a 15 sitting day period during which a notice of motion can be placed to disallow a legislative instrument, the committee must complete its work fairly quickly so that it can report back to the Senate and provide it with a meaningful opportunity to consider disallowance. The committee also raises its concerns directly with ministers, agencies and departments, which may be resolved within the disallowance period – in which case, any notice of motion placed by the chair will normally be withdrawn. In cases where there remain significant unresolved concerns and limited time remaining for disallowance, the chair has adopted the practice of placing a ‘protective notice of motion’ for disallowance, which triggers the additional 15 sitting days for the motion to be considered. The practice can effectively double the time available for the Senate to disallow an instrument and maintains an incentive for concerns to be addressed by the minister, agency or department (as the case may be) as the possibility of disallowance is preserved for this further period. 17

While the Senate last disallowed an instrument on the recommendation of the committee in 1988, it has always backed its advice. 18 The Senate’s consistent support of the committee’s work is likely due to its well-deserved reputation as a non-partisan committee that works to maintain the integrity of the delegated lawmaking process and promote quality legislative outcomes. 19 As a parliamentary committee, it also represents the legitimate interests of parliamentarians in maintaining ultimate oversight and control of legislation. Notably, the Houses of Parliament more frequently debate (and occasionally disallow) instruments on a notice of motion for disallowance placed by other Senators or Members of the House of Representatives. 20

In terms of resourcing, the committee is supported in its work by a secretariat of four staff members in addition to a legal advisor (in recent times, a legal academic has been engaged by the committee). In terms of its productivity, the committee meets each sitting week of the Senate, usually in private. It is to be commended for the quality and frequency of its reporting. First, the committee publishes the Delegated Legislation Monitor, 21 a weekly report to the Senate. The Monitor provides detailed information on the status of legislative instruments, highlighting concerns identified by the committee and actions that may be required or that have already been taken. Issues of the Monitor now focus on instruments with significant scrutiny concerns for which the chair intends to place a notion of motion for disallowance as discussed further below. Formal correspondence between the committee and ministers and agencies is published on the committee’s website, which provides considerable transparency.

Second, the committee publishes the online Disallowance Alert, 22 which provides an updated status on all legislative instruments subject to a notice of motion for disallowance placed by any Senator or Member of the House of Representatives. The Alert facilitates the easy tracking of such instruments. It can also be used to quickly generate insightful information about the disallowance procedure more generally, such as statistical information.

Third, the committee publishes the annual Index of Instruments, 23 providing a consolidated list of all legislative instruments for which the committee identified concerns. The Index notes what action was taken by the committee and cross-references the list with past issues of the Monitor that provide more detailed information on particular instruments.

Fourth, the committee publishes several guidance documents, which provide plain language information to agencies and departments. For instance, the committee’s guideline on consultation 24 explains what the committee looks for in each instrument’s explanatory statement in relation to consultation – a requirement of the Legislation Act 2003. 25 The guidance provides that the explanatory statement should set out the method and purpose of the consultation, include a full list of the names of groups and individuals consulted, describe the issues identified through the consultation process and summarise any changes made in response thereto.

Finally, the committee publishes an annual report, which provides a snapshot of its activities over the year and a statistical overview. The 2018 annual report 26 noted that the committee met 16 times and examined 1570 legislative instruments. 27 The committee raised scrutiny concerns with 262 instruments, mainly under the principle of ensuring that the instrument was consistent with applicable legislation (which is interpreted broadly as including all statutory and constitutional requirements). 28 The chair placed 37 notices of motion to disallow an instrument, all of which were withdrawn except for 2 pending at the end of the year. 29 The report also provides a discussion and thematic overview of the work carried out by the committee, which is a valuable resource to identify persistent scrutiny problems and trends in the making of delegated legislation.

The Inquiry and Subsequent Reforms

The Australian Senate referred an inquiry to the scrutiny committee on November 29, 2018. Under the inquiry terms, the committee was charged with examining its “continuing effectiveness, role and future direction,” and reviewing its powers and scrutiny criteria. 30 It was also tasked with considering the framework for the parliamentary control and scrutiny of delegated legislation more generally. 31 Notably, the reference provided that the committee should engage in comparative research by considering “the role, powers and practices of similar parliamentary committees, including those in other jurisdictions.” 32 In seeking the inquiry, the committee observed that its scrutiny criteria had not been changed in nearly 40 years, while the volume and complexity of delegated legislation had grown significantly over that time. 33 The committee also noted that other jurisdictions had adopted new practices and innovations that it could learn from. 34

During a period of consultation, the committee invited written submissions. 35 Fourteen were received, all of which are published in full on the committee’s website. 36 Submissions were made by administrative and constitutional law scholars, the Commonwealth Parliamentary Counsel, government agencies and departments, state legislative bodies and committees, a law society and the Attorney-General. The submissions highlighted the importance of the scrutiny work carried out by the committee and included various suggestions to improve or streamline it. During the inquiry period, the chair and deputy chair travelled to New Zealand and the United Kingdom to inform themselves about the scrutiny processes in those jurisdictions.

The inquiry report was published on June 3, 2019. The report begins by providing a brief overview of the scrutiny committee’s work. 37 It then considers the future of the committee. 38 Several of the committee’s recommendations seek to enlarge the scope of its scrutiny jurisdiction and powers. For instance, the committee recommended that it be permitted to scrutinise other legislative instruments tabled in the Senate, not just those subject to disallowance. 39 In addition, it recommended explicit authorisation for examining draft delegated legislation. 40 Greater inquiry and reporting powers were also recommended. 41 A major part of the report then focuses on the committee’s scrutiny criteria. 42 Over the years, the criteria gradually became out of step with the actual scrutiny work carried out by the committee. The report therefore recommends a series of new criteria to capture the committee’s actual practice and to respond to different kinds of scrutiny concerns that have since been identified. The report recommends new criteria that includes compliance with relevant legislation, constitutional validity, sufficient delineation of administrative powers, adequate consultation, quality drafting, adequate access, availability of independent review, adequate explanatory materials, and the examination of “any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.” 43 Notably, the report considers but ultimately rejects extending scrutiny to policy matters on the basis of maintaining its operation as a non-partisan committee. 44

As part of the inquiry, the committee reviewed its current work practices to try and make them simpler, quicker and more effective. 45 To resolve the challenge of delayed correspondence with ministers, the committee authorised its secretariat to communicate directly with agencies on minor issues. 46 When necessary, the committee will also call on government officials or ministers to appear before it. 47 In terms of its publications, the committee resolved to streamline its Delegated Legislation Monitor to focus on instruments with significant scrutiny concerns. 48 It will also report to the Senate regularly on undertakings given to resolve concerns. 49 Recent issues of the Monitor include a list of ministerial undertakings, providing an important record of such commitments by the government and greater accountability. 50 In tabling reports in the Senate, the chair will now make a statement to highlight important matters. 51 In addition, the chair will establish a practice of placing notices of motion to disallow all legislative instruments with significant scrutiny concerns to trigger additional time for the Senate to consider the issues raised. 52

The report then turns to the framework for parliamentary scrutiny and control of delegated legislation. In relation to bills that delegate legislative power, the report discusses the appropriate scrutiny role of Parliament, the trend of broad delegations and the use of Henry VIII clauses that allow primary legislation to be amended by delegated legislation. 53 Its recommendations include calling on the government to develop an expert advisory body to assist in drafting bills that delegate legislative power 54 and ensuring that bills are not permitted to progress in the Senate before having their delegation provisions scrutinised and reported upon. 55 The report also discusses the use of exemptions to prevent delegated legislation from parliamentary scrutiny and the disallowance procedure. 56 It recommends that the government review the exemption regime to ensure adequate safeguards are in place, along with the development of guidance for when its use is appropriate. 57 In terms of commencement, the report recommends that the government enact a delayed start for legislative instruments from the day after registration to 28 days after registration with exceptions available only in limited circumstances. 58 In relation to sunsetting, the report recommends the establishment of criteria and new limits around exemptions. 59

Finally, the report discusses how to increase awareness and education of the issues around delegated legislation. It recommends training of Senators and their staff, and other governmental officials, in relation to delegated legislation and the scrutiny roles of the Senate and committee. 60 The report also recommends the creation of new systems to make it easier for parliamentarians to locate updated and consolidated information about legislative instruments, including concerns raised by the committee. 61 In concluding, the committee also resolved to continue to issue new guidelines to help others better understand its work. 62

On November 27, 2019, the Senate adopted most of the reforms recommended by the committee that required changes to the Standing Orders. The limited media attention focused on the scrutiny committee’s new express power to consider the constitutionality of delegated legislation. The sole ABC report was headlined ‘Senate committee goes rogue and gets powers to question constitutional validity of regulations’. It stated that the changes had been “pushed through the Senate” and that they “could prevent … or bring on … a constitutional crisis”. 63 The article also repeatedly noted that the expansion of the committee’s role to look at constitutional issues was “opposed by the Government”. 64 In a recently published academic article, Stephen Argument – a former legal advisor to the committee – points out that the newly expanded scrutiny criteria “would require additional resourcing”, which is not discussed in the report. 65

Lessons To Be Learned

There is much to admire in the Australian scrutiny context. It is clear that the Australian scrutiny committee takes its work seriously because it understands the importance of delegated legislation in the contemporary legal system. For decades, it has carried out high quality scrutiny of delegated legislation that is essential to the integrity of lawmaking in a democratic society founded on the rule of law. Its reports have provided regular and easily accessible information on legislative instruments, highlighting scrutiny concerns and what has been done by agencies, departments and ministers to address them. The committee is not afraid to flex its muscle. It uses its ability to place notices of motion for disallowance of legislative instruments in the Senate to apply pressure to the executive to fix problems. It has created an effective system of incentives and can justify its work by using the requirements of the disallowance procedure to its benefit. There is much that scrutiny committees elsewhere, including Canada’s Standing Joint Committee for the Scrutiny of Regulations, can learn from the Australian experience. 66

The Australian scrutiny committee’s recent inquiry is precisely the kind of reflective work that parliamentary committees should engage in from time-to-time. Its published report is the end product of a deliberate and considered process. While one can always find fault with details and identify risks and challenges when it comes to change, the report represents a genuine and bold attempt to strengthen the parliamentary scrutiny of delegated legislation in Australia. It never loses sight of the core principles of accountability and transparency in lawmaking, and the appropriate role that Parliament must play in relation to all forms of legislation. These guiding principles were a touchstone for the committee to assess different potential reforms. The report demonstrates that the committee wants to be better and has creatively searched for ways to make that happen. It should also be applauded for considering the work of committees in other jurisdictions, which allowed it to engage in a comparative benchmarking of its effectiveness and learn from both the successes and failures of others. While it remains to be seen how the committee will develop in the future with its greater prominence and expanded mandate, especially in light of pressures from the increasing volume and complexity of delegated legislation, it rests on a solid foundation.

Notes