SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
1. PARLIAMENT – ACCOUNTABILITY
The Parliament is and must be the core accountability institution and at the heart of the integrity system.
Its members are elected by citizens and entrusted with powers to make laws and to choose those among their number who are to be entrusted with executive powers – holding the latter to account and themselves being accountable at election time. While we emphasize the key roles played by independent agencies in promoting integrity and accountability, this is not to diminish the role of Parliament, but to provide vital supports and necessary institutional additions to Parliament’s role.
2. PARLIAMENTARY CONTROL OF LEGISLATION
Legislation is the core business of Parliament and is the source of its other powers. MPs propose, oppose, amend and vote on ‘Bills’. If passed by a majority in both houses the Bill is presented to the Governor General for signature and it becomes an Act of Parliament.
However, much of the detailed consideration of legislation is by Parliamentary committees who have time and relevant expertise. They scrutinise legislation using a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the Rule of Law and on parliamentary scrutiny”[i] and compliance with international human rights norms.[ii]
In many cases the laws passed are relatively general and authorise the executive to fill out details and update laws on the basis of experience through ‘subordinate’ or ‘delegated’ legislation’ (this legislation is variously called regulations rules, orders, ordinances, declarations, certificates and, collectively, ‘legislative instruments’. This can free up Parliament to be the ‘forum of principle’. However it is essential that parliament retains control and can decide that it does not want the legislative instrument to become part of the law. Legislative instruments must be tabled before each House of the Parliament within 6 sitting days of that House after the instrument is made. Either House then has the opportunity to reject (i.e. ‘disallow’) the legislative instrument within 15 sitting days. [iii]
To properly consider the volume of subordinate legislation, it is scrutinised by a relevant committee,[iv] which can recommend that the regulations be ‘disallowed’ in whole or part. Either House of Parliament can take up the recommendation and the disallowed portions have no effect. This reflects the fact that if the content of the regulation had actually been included in the authorising Act, it would have had to have passed both houses of Parliament before becoming law.
Attempts to limit this power attack the very heart of our democracy. Unfortunately, a growing number of Acts of Parliament have exempted the regulations made under those Acts from scrutiny. Indeed, in 2020, 17.4 per cent of delegated legislation was exempted from disallowance.[v] Some of these disallowances relate to emergency regulations (for example, the 2014 Biosecurity Bill). However, other Acts have exempted regulations increasing the Federal government debt ceiling to $1.2 trillion; and changing Australian content obligations that apply to commercial television broadcasters. Neither of these are emergencies and regulations have the potential to impact our economy and polity. In the latter case, changes may materially affect the profitability of media corporations which could be exchanged for favourable coverage.
Following a Report of the Scrutiny of the delegated legislation committee, the Senate has emphasised the importance of the disallowance mechanism and required the Attorney-General to justify current exemptions from disallowance.
The Report recommended: that all future exemptions from disallowance and sun-setting be in primary legislation; that existing exceptions for disallowance be removed from legislation; that if exemptions from disallowance are proposed, they require explanatory statements to be included with the relevant legislation. That report also recommended that the Senate itself should not allow any exemptions from disallowance unless there are “exceptional circumstances”
ART agrees with all of the Senate Scrutiny of Delegated Legislation Committee’s recommendations. ART again, would go a little further: first in requiring the Attorney-General to justify all current exemptions from disallowance; secondly in requiring the chair and deputy chair of the Senate Committee be notified at the start of the drafting process for any authorised emergency regulation. If the committee agrees to the regulation, then it can take effect (though generally with a sunset clause).
[i] The Senate Committee for the Scrutiny of Bills.
[ii] Parliamentary Joint Committee on Human Rights.
[iii] This reflects the fact that, if the content of the regulation had been included in the authorising Act, it would have had to pass both Houses of Parliament before it became law.
[iv] In the Commonwealth, by the Senate Standing Committee for the Scrutiny of Delegated Legislation
[v] Senate Standing Committee for Scrutiny of Delegated Legislation. ‘Final Report: Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight’. Parliamentary Report. Canberra ACT: Australian Senate, Parliament House, 16 March 2021. Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Exemptfromoversight/Final_report
Recommendation 1
Parliamentary Oversight and Scrutiny of Delegated Legislation: All exemptions from disallowance and sun-setting of delegated legislation are to be in primary legislation; existing limitations on disallowance to be justified by Attorney-General and approved by Senate or removed from legislation. Senate itself should not allow any exemptions from disallowance except in exceptional circumstances.