Bypassing Democracy – A Report On The Exemption Of Delegated Legislation From Parliamentary Oversight

Questioning and challenging the policies and actions of ministers and senior bureaucrats is fundamental to parliament’s role in holding the government to account. While the Commonwealth parliament can practice oversight of the government in numerous ways, the power to veto laws made by ministers and agencies is a powerful mechanism for parliamentarians to ensure legislation is consistent with the rule of law and the rights and liberties of Australians are protected.

One of the main parliamentary oversight mechanisms is the power to disallow laws made by the executive branch of the government, including ministers and senior departmental and agency officials, known as delegated legislation or delegated legislative instruments. This power is exercised by the Senate Standing Committee for the Scrutiny of Delegated Legislation (the Senate Committee). The Senate Committee can issue a “notice of motion of disallowance” which repeals a piece of delegated legislation and also restricts the minister from introducing the same piece of delegated legislation for a period of six months without Senate approval.

The Commonwealth government’s response to the COVID-19 pandemic has revealed the extent to which the parliament has abdicated its important oversight role and has allowed the government to avoid accountability and scrutiny for the laws it makes. Between 18 March 2020 and 11 June 2020, a total of 171 pieces of delegated legislation were made in response to COVID-19. Of these, 40 pieces of delegated legislation were exempt from disallowance by the parliament.

The volume of delegated legislation exempt from parliamentary scrutiny reveals a deeper vulnerability to our liberties. A weakening of parliamentary oversight has led to a reduction in scrutiny of and transparency over law-making. This has concomitantly removed an important check and balance on the exercise of government power, intervention, and authority, leaving the Australian’s rights and liberties exposed to government overreach.

There is no positive case for providing an exemption for delegated legislation on the basis that such delegated legislation was made in response to an emergency. The argument that the absence of an exemption would undermine the government’s response to an emergency fails to understand how the disallowance process works in practice. Just because an instrument could be disallowed does not mean that disallowance is an inevitability. In the case of a genuine emergency—such as the COVID-19 pandemic—the Senate Committee has the discretion to consider relevant circumstances, such as speed of implementation, into its review of any delegated legislation and give it the appropriate weight when making a disallowance decision. The requirement to act swiftly in response to an emergency is not hampered by the requirement to answer questions about the response after the fact.

The requirement to act expediently in an emergency may make review prior to implementation impossible, but there is no reason why measures taken during an emergency should not be allowed to be examined retrospectively, particularly if they are still in force after the threat subsides.

The power to disallow delegated legislation is a powerful mechanism to impose accountability and transparency on government actions. However, the parliament has abdicated part of its role in holding ministers accountable for their actions by allowing a range of delegated legislation to be exempt from the Senate Committee’s disallowance process. Separate Acts of Parliament make provision for the delegated legislation it authorises to be exempt from disallowance, while section 44 of the Legislation Act 2003 (Cth) (Legislation Act) provides numerous grounds on which certain kinds of delegated legislation can be exempted from the parliament’s disallowance process. This has undermined parliament’s role in scrutinising executive actions and enabled the executive to circumvent the democratic process.

The parliament’s legal and constitutional authority to exempt delegated legislation from disallowance is not in question. It is however an authority that the parliament should refuse to exercise. The parliament has a responsibility to reassert itself as a check on the executive by removing all exemptions to disallowance for delegated legislation.

1. Consequently, this report recommends the removal of all provisions in Commonwealth legislation that allow for delegated legislation to be exempt from disallowance by the Commonwealth parliament.

Additionally this report recommends the following three specific changes to improve parliamentary accountability and transparency.

2. Remove section 44(1) of the Legislation Act so that the legislative instruments of intergovernmental bodies, such as the Australian Competition and Consumer Commission, are no longer exempt from disallowance by the Commonwealth parliament.

3. Remove section 44(2)(b) of the Legislation Act so that ministers can no longer make regulations which exempt other legislative instruments from disallowance by the Commonwealth parliament.

4. Reduce the volume and frequency of delegated legislation so that it can be adequately and efficiently scrutinised by the parliament.

To read the full report click here.