Exemption of delegated legislation from parliamentary oversight
The submission to the Standing Committee for the Scrutiny of Delegated Legislation (Committee) as part of its inquiry into the exemption of delegated legislation from parliamentary oversight (Inquiry) was prepared by the Law Council.
The Law Council considers that significant matters, such as those dealing with substantive policy issues rather than matters that are purely technical or administrative in nature, should be included in primary legislation rather than delegated legislation.
The Law Council’s concerns regarding an overreliance on delegated legislation are exacerbated where an instrument is not subject to disallowance, noting that in such a case, the instrument is also beyond the scrutiny of the Committee for the Scrutiny of Delegated Legislation.1
The Law Council is of the view that more is needed to meet the high standards of essential democratic processes, and is supportive of further measures to ensure there is effective and sufficient scrutiny of Executive power, consistent with the rule of law and the role of Parliament in our constitutional system.
These issues have become particularly prominent in light of questions regarding the appropriateness of exempting legislation made in times of emergency, including during the COVID-19 pandemic. The present circumstances highlight a tension between the urgent necessity of enabling effective, swift decision making, and the importance of scrutiny and oversight, providing a context from which debate in this area can proceed.
You can read the full submission below.
1 The Senate, ‘Standing Orders and Other Orders of the Senate’, January 2020, SO 23(2).