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Thursday, 4 December 1986
Page: 3396


Senator VANSTONE(4.53) —I also wish to speak very briefly about the eighty-first report of the Senate Standing Committee on Regulations and Ordinances. As Senator Lewis has pointed out, this is the sixth report tabled by Senator Cooney in the past year. I did not know personally the former senators referred to by Senator Lewis, so my congratulations to Senator Cooney with respect to the chairing of this Committee are purely on my own behalf and from my experience. But it has been my experience that his chairmanship has been both distinctive and successful. This Committee is a very satisfying one to work on, partly because of the fact that we can see what we achieve for and on behalf of Australians who may be affected by the delegated legislation which, were it not for this Committee, would be approved of in its unimproved form. The work is done quietly, so quietly that Senator MacGibbon interjected a bit earlier: `Yes, but what does your Committee do?'. We are not a song and dance Committee. We meet every Thursday in the morning, we work quietly, we work in a completely bipartisan spirit, partly due to the chairmanship of Senator Cooney, and we work well.

Where delegated legislation unduly trespasses on personal rights and freedoms, we have over the last year found Ministers willing to give explanations and, more importantly, willing to make changes to the particular legislation at hand. This is not as difficult as it is sometimes made out to be by the Public Service or bureaucrats, because the Committee does not question the policy or merits of any delegated legislation; it simply looks to matters of bipartisan principle concerning rights. I am quite sure that the bureaucrats complain about having to take account of the Committee's existence. They may even suggest to the Minister that the Committee is impeding the work of the Government. The sooner the bureaucrats learn that the Committee will not give in and will continue with its work the sooner delegated legislation will be dealt with in a more appropriate manner.

If Ministers are true parliamentarians, in addition to being politicians, they will know that it is the Parliament and its authority that are the sources of their power over the Public Service. Something that subordinate lawmakers ought never forget is that it is the Parliament which is the sovereign lawmaker of the Commonwealth, and all law-making power comes from it and must be answerable to it. Without a parliamentary mechanism to ensure accountability-that mechanism is the Regulations and Ordinances Committee-the Parliament, which represents the people, is stripped of its power and the bureaucracy, which can be tempted to represent only its own convenience, enhances its power. Ministers of any government who fail to recognise the totally central role of Parliament or who encourage any lack of respect for it, actually undermine the source of their own authority as Ministers. They dilute the concentration there should be on the primacy of Parliament.

The Committee's eighty-first report deals quite substantially with Australian Capital Territory ordinances and it is important in that respect, but it is also important for the other delegated legislation that it refers to. Principle (d) of the Committee's terms of reference requires the Committee to make a judgment about whether or not any delegated legislation should actually be put in the form of a Bill before Parliament rather than remaining as delegated legislation. This is a difficult principle to apply, because it is a subjective judgment that needs to be made. We have been managing, we think, reasonably well, partly, again, because of the high degree of bipartisan spirit on the Committee. That spirit enables us to arrive at judgments about the significance of laws made by a Minister.

`A difficult principle' is one description of it, but it is also the most important of the Committee's principles, because it is by reference to it that the Executive is prevented from bypassing the Parliament when consideration is given to how important proposals are to become law in delegated legislation. The Committee's report outlines a new procedure which the Committee will follow. It is simply this: Where there is a substantive piece of delegated legislation about which the Committee makes a decision that it ought not necessarily be a Bill before Parliament, but that it is so substantive that it ought to be drawn to the attention of Parliament, the Committee will appropriately make a report. I simply seek to draw the Senate's attention to the fact that there is a very substantive matter being dealt with in delegated legislation. The Committee, I repeat, is not concerned with matters of policy or the merits of legislation, but this particular innovation of reporting on these substantive matters without making that judgment about the merits of the legislation will alert the Senate to the existence of matters of substance appearing in delegated legislation. I commend the report to the Senate.

Question resolved in the affirmative.