Wednesday, 27 November 2019
Regulations and Ordinances Committee; Delegated Legislation Monitor
I present the Delegated Legislation Monitor No. 9 of 2019 of the Standing Committee on Regulations and Ordinances, and move:
That the Senate take note of the report.
As Chair of the Standing Committee on Regulations and Ordinances I rise to speak to the tabling of the committee's Delegated Legislation Monitor 9 of 2019.
In particular, I wish to highlight the committee's comments in chapter 1 of the monitor regarding the Quality of Care (Minimising the Use of Restraints) Principles 2019.
The instrument amends the Quality of Care Principles 2014 to regulate the use of physical and chemical restraint by approved aged care providers.
Between July and September 2019, the committee engaged in written correspondence with the minister about the appropriateness of including matters with a potentially significant impact on the rights and interests of people in residential aged care in delegated legislation, rather than primary legislation.
The committee placed a 'protective' notice of motion to disallow the instrument on 16 September 2019, to provide it with sufficient time to consider the minister's advice before the disallowance period expired.
Whilst noting the minister's advice, the committee remained concerned that there was an insufficient justification for regulating the use of physical and chemical restraints in aged care via delegated legislation, rather than primary legislation.
Consequently, the committee drew the instrument to the attention of the Senate in Chapter 1 of Delegated Legislation Monitor 7 of 2019, and resolved to keep the notice of motion to disallow the instrument in place to provide the Senate with additional time to consider the matter.
Since that time, I am pleased to advise senators, the minister has met with the committee to discuss the committee's scrutiny concerns regarding the instrument. After giving further consideration to these matters, the minister undertook to amend the Quality of Care Principles 2014 to provide for a review of the operation of the provisions inserted by the instrument after 12 months, and to repeal the provisions after two years. On 25 November, an instrument to implement the minister's undertaking was registered on the Federal Register of Legislation.
In light of the implementation of the minister's undertaking, the committee has resolved to withdraw the notice of motion to disallow the instrument.
On behalf of the committee, can I thank the minister for his constructive engagement with the committee regarding its scrutiny concerns, and note that this approach sets a positive precedent for the future. Indeed, our committee has engaged more extensively in recent times on briefings with departments to ensure that our concerns are properly considered and, where appropriate, that remedial action is taken.
I would also like to take this opportunity to explain that the amendments to the standing orders agreed to earlier today implemented the unanimous recommendations of the committee's report of its 2019 inquiry into parliamentary scrutiny of delegated legislation. Having been, regrettably, denied leave to speak, I now wish to provide the context of that motion.
This committee, the Standing Committee on Regulations and Ordinances, is one of the Senate's oldest and most respected committees. It was established on 11 March 1932 and has always operated as a technical, non-partisan scrutiny committee.
The committee is responsible for ensuring, on behalf of the Senate, that executive-made law complies with the fundamental principles of parliamentary supremacy and the rule of law. These same principles underpin the changes to the committee's standing orders which the Senate approved earlier today—which I'm very grateful for—that is, to modernise the previous standing orders; to clarify the standing orders to reflect existing committee practice; and to promote consistency with the approaches of other Senate standing committees and the work of scrutiny committees in other Westminster jurisdictions.
Before today, the committee's scrutiny principles had not been substantively amended since the committee's establishment.
Can I particularly draw the Senate's attention to a couple of points that were in the report Parliamentary scrutiny of delegated legislation, and in particular I refer to paragraph 1.15. It states:
Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation (as opposed to Acts of Parliament). The volume of delegated legislation made each year has increased over time. For example, in the mid-1980s there were around 850 disallowable instruments tabled each year. By contrast, around 1,700 disallowable instruments are now made annually.
I also want to refer to paragraph 1.27:
From 2010 to 2018, the committee scrutinised a total of 14,862 legislative instruments, and commented on 1,947 of these (approximately 13 per cent).
I want to highlight the committee's scrutiny of these instruments from 2010 to 2018 against the four important principles under standing order 23(3). Seventy-six per cent of the comments made by the committee said that the delegated instrument should have been in accordance with the statute; 13 per cent said it does not trespass unduly on personal rights and liberties; five per cent said it does not contain decisions that are not subject to independent merits review, and six per cent said it does not contain matters more appropriate for parliamentary enactment.
On 31 July the committee agreed to lodge the notice of motion to amend the standing orders. It was a unanimous decision to provide 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. In relation to the recommendations of the committee's 2019 inquiry report, from which I've just read some paragraphs, I note that on 8 November the government responded to the committee's report, addressing only the recommendations it considered to be relevant to the government and not the recommendations that were reflected in the proposed amendments to the standing orders. I note that the government's response was presented out of sitting and the committee was not notified of its presentation. As chair I consider it my duty to act on the committee's unanimous recommendations to ensure that it can continue to not only respect the institution of the Senate and the work of its committees but also uphold and promote the principles of parliamentary supremacy and the rule of law for many years to come.
I conclude by thanking the members of the committee for their support but also the staff of the Regulations and Ordinances Committee for the extensive work that they do. With those comments I commend the committee's Delegated Legislation Monitor for 2019 to the Senate.