Senate debates

Wednesday, 17 June 2020


Scrutiny of Delegated Legislation Committee; Report

5:35 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party) Share this | | Hansard source

I present the annual report 2019 of the Senate Standing Committee for the Scrutiny of Delegated Legislation and seek leave to make some remarks.

Leave granted.

I rise to speak to the tabling of the Senate Standing Committee for the Scrutiny of Delegated Legislation's annual report 2019. For almost 90 years, the Scrutiny of Delegated Legislation Committee has operated on a genuinely non-partisan basis to scrutinise all delegated legislation subject to disallowance by the Senate against the technical scrutiny principles set out in standing order 23. In doing so, the committee plays an essential role in ensuring on behalf of the Senate that executive made laws comply with the fundamental principles of the separation of powers and the rule of law.

The 2019 annual report documents one of the most significant years in the committee's history. As part of its regular scrutiny work in 2019, the committee examined 1,434 disallowable legislative instruments in 13 private meetings. Approximately 16 per cent of the instruments considered by the committee raised technical scrutiny concerns. Consistent with previous years, the majority of the committee's scrutiny concerns related to compliance with statutory requirements. However, there was a marked increase in the proportion of instruments which, in the committee's view, contained matters more appropriate for parliamentary enactment.

In addition to its regular scrutiny work, the annual report highlights several important changes to the committee's principles and practices during 2019 which have greatly enhanced the committee's capacity to perform its scrutiny role. Perhaps most significantly, the committee reported on its 2019 inquiry into the continuing effectiveness, role and future direction of the committee and the adequacy of the existing framework of parliamentary control and scrutiny of delegated legislation. The committee made 22 unanimous recommendations which emphasised the need to strengthen the committee's powers, functions and scrutiny principles and the broader framework of parliamentary control and delegated legislation.

Since tabling its inquiry report, the committee has taken a number of steps to promote these objectives. For example, in November 2019 the Senate agreed to the committee's proposed amendments to Senate standing orders 23 and 25(2)(a). Amongst other things, the amendments to the standing orders changed the committee's name to more accurately reflect the scope of the committee's work, amended the scope of instruments that the committee could consider, provided the committee with permanent general inquiry powers, enabled the committee to self-initiate inquiries into matters exclusively related to the technical scrutiny of delegated legislation, clarified the scope of the committee's scrutiny principles, enabled the committee to identify but not assess issues in delegated legislation likely to be of interest to the Senate, and clarified the power of the legislation committees to inquire into and report on delegated legislation made in the portfolios allocated to them.

In addition to the changes to the committee's standing orders, the annual report details a number of changes that the committee made to its internal work practices in 2019. For the first time in 19 years, the committee conducted private briefings with senior departmental officers to gather further information to resolve its scrutiny concerns without recourse to disallowance. The committee is grateful to the representatives of the Department of Home Affairs and the eSafety Commissioner for their participation in such briefings in 2019.

The committee also held its first ever private briefing with a minister as part of its scrutiny of the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. The committee thanks the Minister for Aged Care and Senior Australians for his constructive engagement with the committee to satisfactorily resolve its scrutiny concerns about that instrument. These briefings embody the deliberative model of parliamentary scrutiny on which the committee's work is based and have proved to be a particularly effective means of resolving its technical scrutiny concerns.

From July 2019, the committee also changed its reporting practices to draw the Senate's attention to its most significant scrutiny concerns—to outstanding undertakings and instruments which authorise Commonwealth expenditure. For example, throughout the year, the committee reported on delegated legislation which authorised expenditure amounting to over $6 billion. I'm pleased to report that, since implementing these changes for its reporting practices, the committee has observed an increased responsiveness and timeliness by ministers and agencies in engaging with the committee to resolve technical scrutiny concerns. For example, the rate with which undertakings were implemented has increased tenfold since the committee altered its reporting practices.

While 2019 saw some significant steps towards strengthening parliamentary oversight of delegated legislation, some significant challenges remain. The annual report notes some key technical scrutiny issues which the committee will continue to monitor in the future. In particular, I would like to emphasise the committee's concerns regarding the exemption of delegated legislation from parliamentary oversight. In 2019, approximately 20 per cent of delegated legislation was exempt from disallowance and, therefore, removed from oversight by this committee and the parliament more generally. This proportion is likely to increase in 2020, due to the significant number of exempt instruments being made in response to COVID-19.

In its response to the committee's inquiry, the government committed to publishing guidance and materials on the circumstances where it is appropriate to exempt instruments from disallowance, and to amending the Federal Register of Legislation to enable exempt instruments to be easily identified. However, the committee notes that the government has yet to fulfil these commitments. These concerns have informed the committee's decision to undertake an inquiry into the exemption of delegated legislation from parliamentary oversight, using its new own-motion inquiry power. The committee looks forward to working constructively with the executive branch of government to address the issues arising from this inquiry.

On behalf of the committee, I would like to take this opportunity to acknowledge the work and assistance of the committee's legal adviser, Associate Professor Andrew Edgar. Committee members and committee staff very much value his expertise and his excellent counsel. I would like to especially acknowledge the hard work and commitment of the secretariat staff: Glenn Ryall, the committee secretary; Laura Sweeney, the principal research officer; and all the team. Without all your efforts, we would not have been able to achieve so much during one of the most significant years of the operation of the committee. I also thank ministers and departments for their willingness to constructively engage with the committee to resolve scrutiny issues.

Finally, noting the committee's longstanding practice of undertaking its scrutiny in a non-partisan and consensual way, I thank my current and former scrutiny committee colleagues for their commitment to the committee's important work. With these comments, I commend the committee's annual report 2019 to the Senate.

Question agreed to.