Submission: 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 Recommendations

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.

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