BY LORNE NEUDORF

Introduction

Delegated legislation has become the principal form of lawmaking in Australia’s legal system. By volume, it makes up the majority of new federal law that is made each year. It is everywhere, touching upon nearly all areas of law. Australia is not alone in relying on delegated legislation. This trend can also be seen in other common law jurisdictions like Canada, New Zealand and the United Kingdom. This post considers exemptions that allow the government to bypass parliamentary oversight in making delegated legislation. Substantial quantities of delegated legislation are exempt, raising concerns about accountability and transparency in the process of making delegated legislation.

Delegated legislation

Delegated legislation (also called regulations) refers to laws that are made directly by the executive government, outside of Parliament. While Parliament is constitutionally vested with legislative power, it often lends some of its power to ministers, the cabinet or even a government agency. The government is able to make delegated legislation only because it is authorised to do so by Parliament through enabling legislation.

Enabling legislation can be carefully crafted to confer only the powers that are needed for a particular purpose. In delegating its lawmaking power, Parliament can establish judicially-enforceable terms and conditions, and impose any other kind of limitation on the availability and use of the power. Importantly, Parliament retains ultimate control of delegated powers as it can change or repeal enabling legislation at any time. Often, however, enabling legislation confers broad discretionary lawmaking powers on the government and stays on the books for many years, even decades. For instance, the broad delegated powers under the Excise Act 1901 (Cth) have remained virtually unchanged since the establishment of the Commonwealth.

The contested role of delegated legislation

Parliament and the government tend to have different views on what is an appropriate use of delegated legislation. The resolution of this tension is made more complicated by the overlap between the legislature and the executive: while Parliament confers lawmaking power on the government through enabling legislation, the government will use its numbers to try to get through its preferred terms. For example, concerns were raised by the Senate Standing Committee for the Scrutiny of Bills about Henry VIII powers in the Coronavirus Economic Response Package Omnibus Bill 2020, which sailed through Parliament in a single day. Named for the power-hungry monarch, a Henry VIII clause delegates power to the government to change the operation of primary legislation, which I have previously argued is constitutionally problematic (in the Canadian context).

From Parliament’s point of view, the use of delegated legislation can complement its principal lawmaking role. It unburdens Parliament from having to make laws for relatively trivial matters, such as setting a fee, and in dynamic circumstances where the law needs to change quickly, like in the COVID-19 pandemic. By freeing up scarce time and resources, delegation allows Parliament to focus on substantial policy matters that warrant a full debate. Delegated legislation is also used to facilitate specialist input in highly complex or technical matters, such as under the Telecommunications Act 1997 (Cth).

The government prefers delegated legislation for a series of different reasons. It is fairly easy to make as there is no debate or vote like in Parliament. Decisions about a new law can be made behind closed doors by members of a single political party or coalition. These deliberations are protected by cabinet confidentiality. Delegated legislation can also be made quickly through an attenuated process with only minimal requirements. There is usually little media interest in regulations, which can divert contentious policy choices away from the public eye.

Accountability in lawmaking

While the parliamentary process can be slow-going and messy, it requires lawmakers to squarely confront their choices in making new law through three readings in two houses, committee study and a public vote. It is no accident that the Constitution vests Parliament with legislative power. Parliament was designed by its framers as a deliberative and representative body. Unique among government institutions, it aspires to the democratic qualities that help make good legislation by providing an accountable and transparent lawmaking process.

The Legislation Act 2003 (Cth) attempts to bring some accountability and transparency to the process for making delegated legislation at the Commonwealth level. It requires the registration and publication of new delegated legislation and provides for sunsetting. It also provides that the government ‘should’ consult with others before making new laws (s 17), although ‘[t]he fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument’ (s 19). While these provisions are important, they fall well short of the democratic qualities seen in Parliament’s lawmaking process.

The most powerful accountability measure in the Legislation Act 2003 is disallowance (s 42). Disallowance provides a simplified way for Parliament to repeal (or disallow) delegated legislation that has been made, without having to enact new legislation. The procedure requires delegated legislation to be laid before each House of Parliament after it is registered. It then allows either House to disallow the delegated legislation within a certain period of time by a simple majority vote.

The challenge is that parliamentarians do not have the time or resources to properly examine all newly made delegated legislation, one of the reasons for why legislative power is delegated in the first place. The Senate Standing Committee for the Scrutiny of Delegated Legislation solves this problem. It closely scrutinises new delegated legislation and reports on its findings (although it looks only at technical aspects of delegated legislation and avoids substantive policy questions). Its reports are relied upon by parliamentarians when considering delegated legislation. By informing Parliament about problems in delegated legislation, the Committee’s reports are essential to the effecting functioning of disallowance.

Disallowance is rare in practice. The Committee’s scrutiny work tends to reveal problems in delegated legislation that can be corrected. The government is incentivised to resolve these problems to avoid the legal consequences and embarrassment of formal disallowance, which operates as a background threat.

The problem of exemptions

The Legislation Act 2003 allows the government to exempt its own delegated legislation from disallowance (s 44). When an exemption is made, the Senate’s standing orders kick-in to prevent the Committee from scrutinising that delegated legislation. Exempt delegated legislation therefore avoids both scrutiny by the Committee and the potential for disallowance. The fact that the Committee cannot scrutinise exempt delegated legislation is especially troubling in light of the numerous COVID-19 regulations, about 20% of which are exempt from disallowance.

In limited circumstances, such as an internal matter where a regulation directs the Australian Public Service, disallowance might not be appropriate. Nevertheless, it is sensible that the Committee should be able to perform its technical scrutiny work for all delegated legislation, even when it is exempt from disallowance. By applying its expertise, the Committee can uncover problems that need to be corrected, thereby strengthening the quality of delegated legislation. Its reports would also establish a record of exempt delegated legislation that is otherwise not available. This information stands to have value for parliamentarians in formulating future legislation.

It appears that exemptions are on the rise. The Committee recently initiated an inquiry on the use of exemptions. In a media release, it notes that nearly 20% of all delegated legislation made last year was exempt from scrutiny and disallowance. The prevalence of exemptions raises a number of concerns. It is hard to square the lack of accountability and transparency for 20% of the most significant source of Australian law with the values of democratic society based on the rule of law. It also suggests that the government may not be using exemptions in the public interest, but rather to avoid parliamentary oversight in using its delegated powers. Committee scrutiny and disallowance are the principal mechanisms by which Parliament monitors and maintains control of its lawmaking powers that are on loan to the government. Routinely avoiding these critical checks threatens to erode the constitutional role of Parliament as lawmaker in chief.

Overcoming the accountability deficit

The Legislation Act 2003 is too generous in placing the power to exempt delegated legislation from disallowance in the hands of the government itself, especially because it does not require any justification for an exemption. It should be amended. Exemptions from disallowance should normally be granted only by Parliament, except in extraordinary cases where the government can put forward a compelling rationale that is itself subject to scrutiny and disallowance. Grounds for an exemption should be clearly set out in the Legislation Act 2003 to provide objective criteria and encourage consistency. Both new and pre-existing legislation providing exemptions should be reviewed on these grounds. In addition, the existence of an emergency like COVID-19 should not automatically justify an exemption for the reason that disallowance does not prevent delegated legislation from being made quickly in response to changing circumstances. Committee scrutiny and disallowance provide an ex post facto review that can strengthen delegated legislation, which is all the more important in the context of an emergency when laws are made hastily and on the basis of incomplete information. Finally, the Senate’s standing orders should be changed to refer all delegated legislation to the Committee for consideration and report.

While some of these changes were recommended in an earlier report, the pandemic has reinforced the need for action by illustrating how the use of exemptions can threaten accountability and transparency in the making of delegated legislation. By preserving parliamentary oversight of the government’s use of delegated lawmaking powers, the proposed changes recognise Parliament’s democratic qualities and protect its constitutional role.

Lorne Neudorf is Deputy Dean and Associate Professor at the Adelaide Law School, University of Adelaide. For the past two years, he has carried out a comparative study on parliamentary controls of delegated legislation in Australia, Canada, New Zealand and the United Kingdom. This post incorporates aspects of his submission to the inquiry of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Suggested Citation: Lorne Neudorf, ‘Delegated Legislation and Democracy: The Problem of Exemptions’ on AUSPUBLAW (22 July 2020) <https://auspublaw.org/2020/07/delegated-legislation-and-democracy/>