NSWCCL: Missed opportunity to reform and futureproof the Legislation Act 2003.

The Commonwealth Government has completed its 2021-2022 review of the Legislation Act 2003. NSWCCL provided a submission to the review and continues to hold the view that the recommendations of the committee could have and should have gone much further.

  1. The review committee did not support proposals to mandate affirmative resolution procedures - which require that the Senate affirm delegated legislation for it to commence, rather than the default position which is that the delegated legislation commences until or if disallowed – for certain classes of instrument. Its rationale that the appropriateness of such a feature should be assessed on a case by case basis is weak as it ignores the potential for increased accountability that such a mechanism would bring in relation to problematic regulation-making practices such as skeleton legislation and Henry VIII clauses.
  2. The review committee recommended (in Recommendation 7.11) that there be no change to the current disallowance regime. This would seem to ignore some of the lessons of the reports of the Inquiry into the exemption of delegated legislation from parliamentary oversight conducted by the Senate Standing Committee for the Scrutiny of Legislation in recent years, to which NSWCCL was an active contributor. The disallowance mechanism still needs reform, particularly so that it limits the ability to bypass disallowance. While noting that non-government and parliamentary stakeholders including NSWCCL and several eminent constitutional lawyers, the Law Council and Senator Larissa Waters all considered that exemptions from disallowance should only be created by primary legislation, the review found the existing legislative settings to be adequate. That means it accepted that a system whereby the government can exempt delegated legislation from disallowance by use of delegated legislation, which it bears reminding does not incur full parliamentary scrutiny, is unproblematic. The review also accepted that the legislative regime allowing exemptions of whole classes of instrument and a providing a total lack of criteria in the Act governing when an instrument may be exempted did not require change.
  3. The recommendations that emerged from the review committee’s discussion of exemptions from disallowance and the existing ability to deem an instrument to be non-legislative (disapplying the scrutiny mechanisms in the Act) were weak. The review committee recommended (Recommendation 3.1) that instruments should not be nominated to be notifiable instruments if they are legislative in character, and this should be reflected in government policy and documentation. Policy is not binding and can change with political expediency. It also recommended (Recommendation 3.2) that agencies and rule-makers should review exemptions of particular instruments they administer  to determine whether they are appropriate, but that the existing regime should remain. When the regime is what has allowed inappropriate instruments to be exempted over the years, the regime must change. The review committee further recommended (Recommendation 3.3) that “any new substantive exemptions from legislative instrument status or disallowance should be created in primary legislation, and this should be reflected in government policy and documentation.” While NSWCCL agrees with that sentiment, and has advocated it previously, once again reflection in mere policy is not secure enough. Lastly, the review committee recommended that the Attorney-General should be required to approve any future substantive exemptions from legislative instrument status and that this be reflected in government policy and documentation. Even aside from the difficulty with identifying what a “substantive” exemption from legislative instrument status is, once again the review committee has relied on mere policy rather than recommending changes to the Act.
  4. Many of the recommendations of the review committee make sense in the context of a commitment to the key principles at stake. It clearly consulted appropriately. NSWCCL simply notes that the review could have and should have gone much further. While it may seem like an esoteric and highly legalistic discussion divorced from the real concerns of most people, reform of the processes that govern law-making in this country has never seemed more urgent. Problematic regulation-making practices have endured for many years at the Federal and State levels, as recent reports of Parliamentary Committees have identified. We have just lived through an explosion of pandemic emergency delegated legislation which entailed enormous intrusions into the minute details of our lives.  We see unmistakably the power of law-making by the Executive.  NSWCCL calls on the Commonwealth government to ensure that this important Act, which has real consequences for our parliamentary democracy and the rule of law, is appropriately reformed and future-proofed. And that would require going well beyond the recommendations of the review committee.