Parliament has power to delegate its law making ability. In most cases power is delegated to the Governor in Council. However, there is an increasing proliferation of codes of conduct, determinations, and directives made by a host of other bodies including statutory authorities, statutory officers, public servants, Judges and tribunals. This is a matter of increasing concern for Parliaments around the world.
In 1989, in opening the second conference of Delegated Legislation Committees, the Governor General, The Honourable Bill Hayden said, 'Delegated legislation, subordinate legislation, the powers given to the Executive and the Public Service to make regulations, are an extremely important part of modern administration and lawmaking. Indeed, it has become increasingly so for at least the last century, touching upon all our lives.'
To maintain control over the delegated lawmaking process, and oversee it, scrutiny committees have been established in every Australian Parliament and Territory Assembly. In Victoria, under the Subordinate Legislation Act, the Scrutiny of Acts and Regulations Committee has the task of scrutinising statutory rules. It inherited a fine set of precedents from the now defunct Legal and Constitutional Committee.
The workload of the committee is heavy. Therefore, the committee has established a Subordinate Legislation Subcommittee to undertake the work required to examine subordinate instruments coming under its purview. Invariably, the Committee ratifies reports and recommendations of the subcommittee.
The two principal objects of the subcommittee are to:
Under the Subordinate Legislation Act, the committee's duties and scrutiny commence only after regulations are made and in operation. The subcommittee has 18 parliamentary sitting days from the date regulations are tabled in Parliament in which to review the rules. Explanatory documents, Regulatory Impact Statements (RIS), submissions and other relevant documents must be sent to the subcommittee by Departments and Agencies.
Rules that clearly satisfy all grounds for review are immediately approved by the subcommittee. If the subcommittee believes a regulation may contravene any of the scrutiny criteria, I write to the responsible Minister detailing the subcommittee's concerns. In almost every case, problems with regulations are resolved as a direct result of negotiations between Ministers and the subcommittee, alleviating the need for the committee to exercise its power to recommend disallowance. I should note that with only a handful of exceptions in the last decade, the recommendations of the committee are accepted by Parliament.
Sometimes, the subcommittee invites departmental officers to appear before it in order to provide information about complex statutory rules. On other occasions, the subcommittee has asked for an explanation as to the best way to rectify flawed regulations.
An example of this type of consultation involved representatives from the Department of Conservation and Environment and the Parks Regulations 1992.
The original provision provided for:
Conceivably, a child throwing a beachball at Wilson's Promontory could have been guilty of an offence. After discussions and approval by the Minister, the Hon Mark Birrell, a new regulation was made to:-