Wednesday, 27 November 2019
Regulations and Ordinances Committee; Report
That, in accordance with the recommendations of the Standing Committee on Regulations and Ordinances in its report, Parliamentary scrutiny of delegated legislation—
(1) The standing orders be amended, with effect from 4 December 2019, as follows:
(a) omit standing order 23, substitute:
23 Scrutiny of Delegated Legislation
(1) A Standing Committee for the Scrutiny of Delegated Legislation shall be appointed at the commencement of each Parliament.
(2) All instruments made under the authority of Acts of the Parliament, which are subject to disallowance, disapproval or affirmative resolution by the Senate and which are of a legislative character, shall stand referred to the committee for consideration and, if necessary, report.
(3) The committee shall scrutinise each instrument as to whether:
(a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;
(b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;
(c) it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;
(d) those likely to be affected by the instrument were adequately consulted in relation to it;
(e) its drafting is defective or unclear;
(f) it, and any document it incorporates, may be freely accessed and used;
(g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;
(h) it trespasses unduly on personal rights and liberties;
(i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;
(j) it contains matters more appropriate for parliamentary enactment; and
(k) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.
(4) The committee shall also scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate.
(5) The committee may, for the purpose of reporting on its terms of reference, consider any proposed or draft legislative instrument, including an exposure draft of such an instrument.
(6) (a) The committee shall consist of 6 senators, 3 being members of the government party nominated by the Leader of the Government in the Senate, and 3 being senators who are not members of the government party, nominated by the Leader of the Opposition in the Senate or by any minority groups or independent senators.
(b) The nominations of the opposition or any minority groups or independent senators shall be determined by agreement between the opposition and the minority groups or independent senators, and, in the absence of agreement duly notified to the President, the question of the representation on the committee shall be determined by the Senate.
(7) The committee may appoint sub-committees consisting of 3 or more of its members, and refer to any such sub-committee any matters which the committee is empowered to consider.
(8) The committee shall elect as chair a member appointed to the committee on the nomination of the Leader of the Government in the Senate.
(9) The committee shall elect as deputy chair a member appointed to the committee on the nomination of the Leader of the Opposition in the Senate, and the member so elected shall act as chair of the committee when there is no chair or the chair is not present at a meeting of the committee.
(10) Where votes on a question before the committee are equally divided, the chair, or the deputy chair when acting as chair, shall have a casting vote.
(11) The committee and any sub-committee shall have power to send for persons and documents, to move from place to place, and to meet and transact business in public or private session and notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.
(12) The committee may inquire into and report on any matter related to the technical scrutiny of delegated legislation.
(13) The committee may appoint with the approval of the President a legal adviser to the committee.
(14) The committee shall be empowered to print from day to day any of its documents and evidence. A daily Hansard shall be published of public proceedings of the committee.
(15) The committee may report from time to time its proceedings and evidence and any recommendations, and shall make regular reports of the progress of the proceedings of the committee.
(b) omit standing order 25(2)(a), substitute:
(a) The legislation committees shall inquire into and report upon:
(i) estimates of expenditure in accordance with standing order 26,
(ii) bills or draft bills referred to them by the Senate,
(iii) legislative instruments made in the portfolios allocated to them,
(iv) annual reports in accordance with paragraph (20), and
(v) the performance of departments and agencies allocated to them.
(2) The initial members of the Standing Committee for the Scrutiny of Delegated Legislation shall be the members of the Standing Committee on Regulations and Ordinances appointed at the commencement of this Parliament.
(3) The Standing Committee for the Scrutiny of Delegated Legislation have the power to consider and use the records of the Standing Committee on Regulations and Ordinances.
I seek leave to make a short statement.
Leave not granted.
I'd like to make clear what the Labor Party's position is on this matter. The Standing Committee on Regulations and Ordinances is one of the Senate's oldest and most respected committees. It has always operated as a technical, nonpartisan scrutiny committee, responsible for scrutinising delegated legislation made by the executive branch of the government. The committee ensures, on the Senate's behalf, that executive-made laws comply with the fundamental principles of parliamentary supremacy and the rule of law. This notice of motion proposes amendments to the standing orders in accordance with these principles and the unanimous recommendations of the committee's 2019 inquiry report. On 31 July 2019 the committee agreed to lodge this notice of motion while providing for it to be considered this month to allow the Senate time to consider the proposed changes in detail before it was considered on the floor of the chamber. It's unprecedented that the chair of this committee be denied leave by the government in the way which has occurred today, so, on behalf of Senator Fierravanti-Wells—
In response to the comments by Senator Carr: it has been agreed in this chamber that the movers of motions do not get to speak to the motions. We were simply following the procedure that has been agreed upon by this chamber.
Question agreed to.