INQUIRY INTO THE EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT
The New South Wales Council for Civil Liberties welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight.
NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.
The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.
The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.
The NSWCCL submission makes 7 recommendations to the Standing Committee.
Recommendation 1: The Committee’s role should be expanded so that it can analyse legislative instruments which are not subject to parliamentary disallowance, disapproval or affirmative resolution of the Senate, and to scrutinise the justification for the existence of delegated legislation of that substance and form in the first place.
Recommendation 2: All delegated legislation should be subject to parliamentary disallowance in normal times, with the Legislation Act 2003 (Cth) amended to reflect this.
Recommendation 3: Delegated legislation may only be exempt from parliamentary disallowance in exceptional or emergency situations, with clear criteria established in the Legislation Act 2003 (Cth) in relation to sunset periods for such legislation and the use of Henry VIII clauses.
Recommendation 4: An investigation be initiated by either this Committee or some other authority to determine, pending an authoritative statement by the High Court of Australia, whether the practice of exempting legislative instruments from parliamentary disallowance amounts to an unconstitutional abdication of legislative power, as has been suggested by leading constitutional commentators.
Recommendation 5: Parliament should use all means possible to continue sitting, even during emergencies, in order to provide its scrutiny and supervisory functions over delegated legislation. Parliament should investigate further the possibility of meeting virtually by electronic means and have regard to the arguments of constitutional experts such as Professor Twomey in this process.13 This recommendation echoes previous public statements made by NSWCCL.
Recommendation 6: As PIAC recommends, implement recommendation 18 of the 2019 inquiry into delegated legislation, recommending that legislative instruments, subject to limited exceptions, commence 28 days after registration.
Recommendation 7: As PIAC recommends, implement recommendation 16 of the 2019 inquiry into delegated legislation, recommending that the Office of Parliamentary Counsel modify the Federal Register of Legislation to enable instruments which are exempt from disallowance to be readily identified.
 Scrutiny of COVID-19 instruments, List of COVID-19 related delegated legislation, Parliament of Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>