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Thursday, 4 December 1986
Page: 3395


Senator COONEY —I present the eighty-first report of the Senate Standing Committee on Regulations and Ordinances on its scrutiny of certain Australian Capital Territory ordinances.

Ordered that the report be printed.


Senator COONEY —by leave-I move:

That the Senate take note of the report.

I seek leave to have my short statement incorporated in Hansard as other people may want to speak on this matter.

Leave granted.

The speech read as follows-

Over the past year the Committee has scrutinised a number of A.C.T. Ordinances which have made far-reaching reforms to the criminal law of the A.C.T.

The Committee has not recommended the disallowance of any of these Criminal Law Reform Ordinances. However, we did persuade the Attorney-General to restore a right to jury trial for certain property offences, and we specifically drew to the attention of the Senate extensive reforms on the law relating to sexual offences. The Committee also obtained from the Attorney-General details of consultations held before making such significant Ordinances as well as explanations for the drafting of certain proof and evidence provisions. All of these matters are discussed in the report and the Committee's correspondence is included as an appendix.

The first three of the Committee's principles are relatively easy to apply because they have a relatively settled meaning the interpretation of which gradually evolves to keep pace with developments in law and society. These principles relate to whether the delegated legislation is drafted within the letter and the spirit of the enabling Act, whether it trespasses on personal freedoms and whether it denies reasonable appeal rights. Principle (d) is harder to apply. It asks the Committee to ensure that delegated legislation does not contain matter more appropriate for parliamentary enactment. That test requires a subjective judgment which the Committee endeavours to make in a conscientious and bipartisan way. We recognise a responsibility to protect the position of the Parliament, as the exclusive source of major legislation.

Legislation for the A.C.T. is made by a Minister under delegation from Parliament through the Seat of Government Act. Under successive Governments, legislation for the A.C.T. has frequently been substantive in content, of the kind that might be expected to attract debate in a State Parliament. Thus, the Committee has a dilemma to solve. It must ensure that A.C.T. legislation containing matter appropriate for the Parliament is made by the Parliament. At the same time, the Parliament has little opportunity to note important laws that will apply only in the A.C.T. unless these are of an exceptional nature which the Committee has moved to disallow.

Principle (d) of the Committee is designed to ensure that Parliament's supremacy in law-making is respected by the executive when acting under delegated powers. The Committee does not propose to alter principle (d) as a criterion for Scrutiny. However, as in the past, the principle will be applied by the Committee with suitable caution.

Important instruments of legislation will inevitably be made for the A.C.T. and while not necessarily matters for parliamentary enactment, these may be significant or substantive pieces of legislation which could be socially innovative and as such deserving of note by the parliament as to their policy or merits. This is particularly so in the absence of a locally elected representative body. The Committee, in its bipartisan role, does not engage in any assessment of evaluation of policy matters but it does not lack the capacity to identify legislative initiatives which, while falling short of being more appropriate for parliamentary enactment, are nevertheless significant proposals.

The Committee has decided therefore, that to ensure that Parliament is informed of any important exercise of its delegated authority to make laws, by Ordinance or otherwise, we will report to the Senate on delegated legislation which is substantive, socially innovative and which the Committee, in the performance of its bipartisan role considers should be the subject of special note. The frequency of using this procedure would naturally depend on the volume and nature of legislation tabled in the Senate. This approach would, of course, be in accordance with Senate Standing Orders under which delegated legislation stands referred to the Committee `for consideration and, if necessary, report thereon'. (S.O. 36a (4))

In the report, the Committee also strongly recommends that, where possible, discussion papers, advice to Government and draft Ordinances should be widely circulated to interested people whose views might be taken into account before the Ordinance becomes law.

In conclusion, Mr President, the Committee's 81st Report is a short one but its thrust reflects the persistent thrust of the Committee's philosophy since its inception in 1932: when Parliament delegates law-making powers to the executive those powers should be exercised in a way which does not, in practical terms, remove Parliament's rights to make major legislation. However to complement that principle the Committee will from time to time report to the Senate about other important legislation which in the Committee's opinion falls short of infringing principle (d) but the content of which the Parliament should particularly note.