To countenance excessive delay is not only a discourtesy to the Senate but it is also a continuing affront to principles of freedom, justice, fairness and propriety if objectionable provisions are left on the delegated statute book in spite of parliamentary requests for amendments and in contravention of ministerial commitments to make amendments.
It is customary for the committee, in its delegated legislation monitors or in tabled correspondence, to record all undertakings which have been given and discharged, and those which have been given and are still to be implemented. Senators other than the chair of the committee also occasionally withdraw disallowance motions on the basis of ministerial undertakings. Ministerial undertakings given following the report of a committee on regulations were the subject of debate on 8 November The procedures for making delegated legislation are markedly different from those used in enactment of a statute.
There are no stages for legislative passage or opportunity for amendment, and there are no procedural restraints upon rushed legislation. There is a prohibition on retrospectivity of delegated legislation where the rights of a person are affected to the disadvantage of that person, or where liabilities are imposed on a person.
These limits do not, however, apply to the rights of the Commonwealth or a Commonwealth authority. Section 38 of the Legislation Act provides that copies of all legislative instruments be laid before each House of the Parliament within 6 sitting days of that House after registration. Instruments not laid before each House within the prescribed period after registration cease to have effect.
This system to enforce tabling, which was similar under the earlier legislation, may not be totally fool-proof. In it was discovered that disallowable rules under the Aboriginal and Torres Strait Islander Commission Act for election of regional councils and special rules for election and composition of the Torres Strait Islands regional council had not been tabled as required. The Act required that elections be held under rules in force at the time when elections were called.
As it happened, when the elections were called the time for tabling had not expired. Thus, as the Federal Court found, the elections themselves were valid. Normally instruments required to be tabled are forwarded by the Office of Parliamentary Counsel or the responsible department to the Clerk of the Senate, and are tabled by the Clerk at the commencement of proceedings each sitting day.
On occasions failure by departments to forward instruments for tabling has caused considerable legal difficulties. Such a situation was revealed by a statement by the Minister for Industry, Science and Technology in There have been other significant failures by government departments to forward delegated legislation for tabling within the statutory time limit, resulting in that legislation ceasing to have effect, with serious consequences.
It is not essential, however, that regulations be provided for tabling by a minister, or any other member of the government.
Once an instrument has come into effect, it is open to any senator to seek to table it. The regulations were subsequently disallowed. Private senators have tabled regulations on other occasions. On 24 June , an Opposition senator by leave tabled ministerial directions under the Building and Construction Industry Improvement Act , and then gave notice of a motion to disallow the directions, which were subsequently disallowed.
On 10 July , standing order 2 was again used to require the tabling by an Opposition senator of the Corporations Amendment Streamlining Future of Financial Advice Regulation when it appeared that the responsible minister may delay tabling. Chapter 3 of the Legislation Act provides for rule-makers to consult with interested parties before making instruments. Section 19, however, provides that failure to consult does not affect the validity of an instrument.
It likewise does not affect parliamentary control, although it may be an issue in parliamentary scrutiny. Once a legislative instrument has been made, no instrument the same in substance may be made within a defined period unless approved by both Houses by resolution.
The defined period ends seven days after the original instrument has been laid before both Houses, or the later of the two days when the instrument is tabled on different days in the Houses; or after the last day on which the instrument could have been so tabled. Similarly, where notice of a motion to disallow a legislative instrument has been given in either House within 15 sitting days of the instrument being laid before that House, another instrument the same in substance may not be made unless the notice has been withdrawn; the instrument is deemed to have been disallowed under section 42 2 ; the motion has been withdrawn or otherwise disposed of; or section 42 3 has applied in relation to the instrument see below.
Similar restrictions also apply to instruments if they are deemed to have been tabled again following a dissolution, expiration or prorogation of the House of Representatives. These provisions were inserted in the statute in after the Regulations and Ordinances Committee pointed out that the disallowance provisions could be defeated by a succession of instruments repealing and remaking their predecessors. Where a session of the Parliament ends because the House of Representatives is dissolved or expires, or the Parliament is prorogued, and a notice of motion to disallow has not been withdrawn or otherwise disposed of, the instrument in question is deemed to have been laid before the relevant House on the first sitting day of the new session.
If, at the expiration of 15 sitting days after notice of a motion to disallow any instrument, given within 15 sitting days after the instrument has been tabled, the motion has not been resolved, the instrument specified in the motion is deemed to have been disallowed.
This provision ensures that, once notice of a disallowance motion has been given, it must be dealt with in some way, and the instrument under challenge cannot be allowed to continue in force simply because a motion has not been resolved. The provision greatly strengthens the Senate in its oversight of delegated legislation. On 5 March Senator Parer gave notice of motion to disallow all regulations made under the Political Broadcasts and Political Disclosures Act The legal advice was not tabled and with the effluxion of time the regulations were deemed to be disallowed.
Under the previous legislation, a regulation had to be disallowed in its entirety and could not be disallowed in part. While on its face more restricted than the current provisions, this gave rise to issues still relevant under the current legislation. A regulation, in a set of regulations, is one of the numbered series of provisions into which such a set is divided. The way in which the disallowance provisions applied to other kinds of delegated legislation depended on their form, but generally speaking a numbered item in a piece of legislation could be disallowed.
This feature of disallowance procedure was the source of concern as a limitation on the Senate's control over delegated legislation. On 1 May the Senate disallowed export control orders which were self-contained and separately numbered, but which were contained in a single amending order. The Attorney-General's Department and the Solicitor-General argued that the orders had not been validly disallowed and were still in force, on the basis that the Senate could disallow only the complete amending order.
When the matter was litigated, however, the Federal Court found that the regulations had been disallowed. This question has not been adjudicated. Where two sittings of the House occur on one day, it is considered that this should be regarded as one sitting day; there would be two sittings, but it is not thought that there would be two sitting days.
Where one sitting extends over two or more full days, without the intervention of an adjournment, but by the process of suspension of the sitting, the view taken is that, while it may be argued that there has been only one sitting day, it should for safety be assumed that each of those days is a sitting day. In June the Senate disallowed some regulations under the Customs Act which had already been deemed to be disallowed in the House of Representatives because of the expiration of the statutory time limit for resolving a notice of a disallowance motion given in the House.
On the same principle, the Senate disallowed the Legal Services Amendment Solicitor-General Opinions Direction , notwithstanding its repeal before the motion was called on for debate.
Section 42 2 of the Legislation Act provides that instruments are taken to be disallowed if they are not determined in the prescribed time see footnote 45, above, for precedents. Another question which has arisen is whether it is possible for the Senate to pass a motion disallowing instruments which have already been held to be invalid by a court. On 25 August the Attorney-General's Department submitted an opinion to the President that it was not possible for the Senate to do so.
The Attorney-General subsequently took a point of order to this effect in the Senate, but no ruling was made in response to the point of order, and the notice of motion to disallow the regulations in question was withdrawn. A contrary opinion presented by Senate officers was that, just as invalid instruments may be repealed, they may also be disallowed by a House of the Parliament, either of those actions, repeal or disallowance, having the effect of terminating the existence of the invalid instruments.
Changes to the statutory framework in raised the possibility of the Senate disallowing instruments that had technically been repealed. The Legislative Instruments Amendment Sunsetting Measures Act inserted a new Part 3 of Chapter 3 of the Legislation Act, Repeal of spent legislative instruments, notifiable instruments and provisions.
These provisions provide, in effect, for the automatic repeal of amending or repealing instruments once they have achieved their effect. This occurs on the day after the last of the provisions commences, or the registration of the instrument, whichever is the later. This creates the possibility that an instrument may have been repealed before it is even tabled but the tabling requirements and disallowance powers of the Houses are not affected.
There are some forms of subordinate legislation with different approval or disallowance procedures. Some instruments require affirmative resolutions of both Houses to bring them into effect, while others do not take effect until the period for disallowance has passed. Some involve a combination of both methods.
Disallowance motions in the Senate may be based on recommendations of the Regulations and Ordinances Committee, which have been, without exception, adopted by the Senate.
That committee's practice has also been followed by the Parliamentary Joint Committee on Human Rights which has used the disallowance process to highlight its concerns with particular instruments. Disallowance motions may be moved other than at the initiation of the committee, and are often motivated by opposition to the policy manifested by the delegated legislation. Disallowance may also be on the basis that the matter should be addressed by legislation.
On 3 February , pursuant to notice, a senator moved a motion to disallow an instrument of delegated legislation guidelines for eligible child care centres , identical in terms to a motion to disallow the same instrument which was negatived on 8 December Even if the terms of a motion are the same as one previously determined, the motion almost invariably has a different effect because of changed circumstances and therefore is not the same motion.
There may also be different grounds for moving the same motion again. This consideration arises particularly in relation to delegated legislation. A senator may move to disallow an instrument of delegated legislation on policy grounds, and the Regulations and Ordinances Committee may give notice of a motion to disallow the same instrument on grounds related to the committee's criteria of scrutiny; the two motions are regarded as entirely separate, and the determination of one does not affect the other.
Moreover, it could be argued that the same question rule could not prevent the operation of the relevant statutory provisions, which provide for disallowance subject only to the statutory time limit for giving notice.
Therefore any disallowance motion may operate and operate automatically if not withdrawn or determined provided only that notice of it is given within the statutory time. Having given a notice for a disallowance motion, a senator cannot be compelled to move the motion before the day for which the notice is given.
While the statutory provisions refer to notice being given of a motion for disallowance, the Senate may disallow tabled regulations without notice if standing orders are suspended to do so.
The Senate may also suspend standing orders to enable a notice of motion of disallowance, having effect for that day, to be given and the motion then moved.
This occurred on 20 June when a special meeting of the Senate was held, at the request of an absolute majority of senators, in order to have the opportunity to move for disallowance of certain postal and telephone regulations.
Murphy, moved:. That so much of the Standing Orders be suspended as would prevent a Notice of Motion from being now given by Senator Murphy, and having effect for this day, for the disallowance of the Regulations contained in Statutory Rules , Nos.
The motion being agreed to, Senator Murphy then gave notice of motion for the disallowance of the regulations. Then he moved, pursuant to that notice, that the regulations be disallowed, which motion was agreed to. Given that notice is not necessary, this elaborate procedure need not be followed and a motion may be moved by leave. A legislative instrument not laid before each House within 6 sitting days after registration ceases to have effect.
In , Senator Spicer, the then Chairman of the Senate Regulations and Ordinances Committee, prepared a memorandum on the subject with the aim of determining the practice which should be followed by the Senate. His memorandum concluded:. An analysis of the judgments in this case ie. Dignan's case discloses, therefore, that only two of the five Judges committed themselves to the view that the regulations need not be laid before the House before disallowance, but a majority of the Court, including the two Judges referred to, held that the regulations had been effectively laid before the House, by reason of the motion under S.
In these circumstances the question whether disallowance will be effective in a case in which a regulation has not been laid before the House at all is still an open one as far as the High Court is concerned. Any doubt on the matter can be avoided if motions for disallowance are not moved before regulations are laid before the House either by a member of the Executive or by order of the Senate, and this would seem to be ample justification for continuing to follow that procedure.
Although Dignan's case was decided under section 10 of the Acts Interpretation Act , which has since been repealed by the Act of No. It seems to me that the views I have expressed above are as applicable to the new section as to the section which was under consideration in Dignan's case. In support of his contention that notice of disallowance should be given subsequent to the tabling of the regulations and within fifteen sitting days of such tabling, Senator Spicer instanced the speeches of ministers, the submissions of counsel for the government, and the judgment of at least one High Court Judge Dr H.
In Senator Puplick gave notice of a motion to disallow regulations before they were tabled. In a disallowance motion was moved by leave immediately after a minister, in response to a resolution of the Senate, tabled the regulations in question.
Notice of a motion to disallow the same regulations, given before the regulations were tabled, was withdrawn. A motion to disallow or disapprove any regulation or other instrument subject to disallowance or disapproval by either House is placed on the Notice Paper as Business of the Senate. As such, it takes precedence over Government and General Business for the day on which it is set down for consideration.
This procedure further strengthens the Senate in exercising the power of disallowance, and ensures that disallowance motions are given appropriate attention. The Notice Paper indicates the number of sitting days remaining within which a motion for disallowance must be disposed of before the instrument will be deemed to have been disallowed. This chapter discusses the mandate of the Standing Joint Committee for the Scrutiny of Regulations and the procedures the House follows to adopt or reject a report recommending the revocation of a statutory instrument.
Systematic parliamentary scrutiny of delegated legislation is a relatively modern phenomenon. In the early years of Confederation, parliamentary scrutiny consisted of addresses for papers whereby Parliament obtained the information it desired, and on which it could act if it chose to. Indeed, the number of regulations and orders was sufficiently large to warrant the publication in of The Consolidated Orders in Council of Canada , which ran to two volumes and 1, pages.
The postwar years saw a growth in government and a steady escalation in the use of Orders in Council to regulate public affairs. In , the Special Committee on Procedure and Organization recommended the establishment of a parliamentary committee to review regulations made as a result of delegated legislative power and to report to Parliament any regulations or instruments which the Committee believed exceeded the authority delegated by statute. In , the government announced its proposed course of action to respond to the report: the replacement of the Regulations Act by the Statutory Instruments Act , new Cabinet directives for the drafting and publication of regulations, and amendments to the Standing Orders for the establishment of a scrutiny committee.
Pursuant to the Statutory Instruments Act , the Committee can scrutinize any statutory instrument made on or after January 1, The Statute Revision Act authorizes the Committee to scrutinize any regulation found in the Consolidated Regulations of Canada or other Consolidated Regulations prepared pursuant to that Act, even if that regulation were made prior to the coming into force of the Statutory Instruments Act in Since , the House and the Senate have routinely renewed at the beginning of each session an additional order of reference authorizing the Committee to:.
Traditionally, one Joint Chair has been from the Senate representing the government party and one Joint Chair has been from the House representing the Official Opposition. The Committee enjoys the same powers other standing committees have. It may sit while the House is sitting [24] and when the House stands adjourned; print papers and evidence; send for persons, papers and records; and delegate to a subcommittee all or any of its powers except the power to report directly to the House.
It may also table reports in the House and request government responses to them. The Committee reviews only matters of legality and the procedural aspects of regulations — their merits and the policies they reflect are disregarded.
The Committee reviews all statutory instruments referred to it on the basis of 13 criteria which it provides to both Houses at the beginning of each session in its first report.
For the first 15 years of its existence, the Committee had statutory power to scrutinize delegated legislation, but no power to revoke a subordinate law. The Special Committee on Statutory Instruments did not propose a general disallowance procedure, [43] and no such procedure was provided for in the Statutory Instruments Act. As a result, requests made by the Committee to government departments and other authorities to amend or revoke regulations which it felt were ultra vires beyond legal authority often produced little or no results.
The only recourse the Committee had to publicly discuss these regulations was to present reports in the House and move a motion of concurrence in them. In , the Committee approached the Special Committee on the Reform of the House of Commons with recommendations regarding the disallowance of statutory instruments.
How much delegated legislation is produced each year? Between and the number of SIs produced each calendar year rarely rose above 2, From onwards, however, it has rarely dipped below 3, Of these SIs on average around 1, - 1, are laid before Parliament for scrutiny during each parliamentary session.
A range of factors — the expansion of the regulatory state, the wide range of social security provision, the rapidly changing nature of technology, the growth in EU legislation — have all contributed to a significant increase in the volume, technicality and complexity of delegated legislation in recent years. What parliamentary committees scrutinise delegated legislation? Through its reports the Committee draws to the attention of the House any SI that it considers may be interesting, flawed or inadequately explained by the government.
All negative SIs have to be sifted to see whether they should be upgraded to active scrutiny via the affirmative procedure. ESIC has 10 days to recommend upgrading the scrutiny process to the affirmative procedure. Its recommendations are advisory not binding. At the end of the day sifting period, the government can lay the proposal under the negative procedure or upgrade it to the affirmative procedure if that has been recommended.
Any SIs subject to Commons scrutiny only - generally in relation to taxation matters - are considered by MPs on the Committee who sit as the Select Committee on Statutory Instruments for this purpose.
The JCSI assesses the technical qualities of each SI and draws to the special attention of each House any that give rise to legal concerns such as vires or defective drafting. What are the main scrutiny procedures for delegated legislation? Parliamentary recesses of over four days do not count towards the day scrutiny period. However, Early Day Motions are motions for which no fixed parliamentary time is allocated. There is no guarantee that even a prayer motion laid by the official Opposition will be debated.
If time is allocated, MPs have up to 90 minutes to debate the instrument. Sometimes the government does not prevent a debate but runs down the clock, scheduling the debate after the expiry of the day scrutiny period. In the House of Lords, time is usually found for debate on a prayer motion. This debate is not subject to a time-limit. Peers can either seek to reject the instrument or table a non-fatal motion, critical of the instrument without annulling it.
This form of scrutiny was designed to deal with administrative and technical matters that MPs did not wish to debate. Over recent decades, however, there has been no clear or consistent correlation between the subject matter of a delegated power and the scrutiny procedure to which the SIs arising from it are allocated. The SI is laid before Parliament as a draft, and cannot be made into law by the minister unless and until it has been approved by the House of Commons and in most cases also the House of Lords.
DLCs are not like Select Committees. They are temporary not standing committees, so they have no dedicated parliamentary staff to support and advise Members and produce briefings. DLC debates can last up to 90 minutes but in practice rarely last more than half an hour. Following debate in committee, an approval motion is put formally to the House without debate on a separate day.
A motion to approve an affirmative instrument can be taken in the House of Lords in either Grand Committee or on the Floor of the House.
Peers can express their opposition or concern by making an amendment to the approval motion or by tabling a separate motion, effectively withholding the agreement of the House as happened in October when Peers delayed approval of the Tax Credit regulations. The procedure enables ministers to act quickly in response to an emergency or a fluid public health situation, bringing a measure into force without having to wait for parliamentary scrutiny.
The SI is laid before Parliament after it has been made — signed — into law by the minister, but cannot remain law unless it is approved by the House of Commons and in most cases also the House of Lords within a statutory period — usually 28 or 40 days. However, the clock stops for parliamentary adjournments of over four days. The procedure to debate and approve the SI follows the process for draft affirmatives.
An instrument is laid in draft and cannot be made if the draft is disapproved within 40 days.
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