The Senate Committee for Regulations and Ordinances — historically one of the least glamorous in Parliament — has a new name, and new powers that could prevent … or bring on … a constitutional crisis.
- Greater scrutiny will now apply to new regulations after a Government backbencher pushed through reforms opposed by her own party
- The Government’s use of regulations instead of formal laws has exploded in recent years — such regulations avoid much parliamentary scrutiny
- Constitutional issues around Government expenditure may be revealed by the reforms
Reforms were pushed through the Senate on Wednesday afternoon that give the committee wider investigative powers and an explicit responsibility to assess whether regulations are constitutional.
The reforms were successful even though they were opposed by the Government.
The chair of the committee, former Liberal frontbencher senator Concetta Fierravanti-Wells, was even blocked from speaking on the reforms by her government colleagues.
She said late on Wednesday that, having “regrettably” been denied the opportunity earlier, it was her “duty” to act on the reforms of the committee.
“As chair, I consider it my duty to act on the committee’s unanimous recommendations to ensure it can continue to not only respect the institution of the Senate and the work of its committees but also to uphold and promote the principle of parliamentary supremacy and the rule of law for many years to come.”
The reforms were proposed in a report prepared for the committee under now-retired Nationals senator John Williams to “address gaps” in scrutiny.
Labor senator Kim Carr told Parliament on Wednesday that it was “unprecedented that the chair of this committee be denied leave by the Government in the way in which it has occurred today”.
The use of regulations, formally known as delegated legislation, has exploded in recent years, from around 850 per year in the 1980s to around 1,700 now.
Regulations may be more desirable for governments than primary legislation because such changes don’t require support from the Senate, which attracts greater scrutiny.
In response to a new regulation setting out limits around the use of aged care restraints, the committee recently forced the Government to review the laws after 12 months and to repeal them after two years.
Constitutional litigation looms
The committee reviews regulations and threatens to disallow ones that may be illegal unless they are amended to make clear they comply with Australian law.
It is led by Senator Fierravanti-Wells, alongside deputy chair Senator Carr.
Both are no longer frontbenchers but remain prominent in less publicised functions of Parliament.
The changes update the name, to the Committee for the Scrutiny of Delegated Legislation, and clarify its powers and functions.
University of Sydney’s constitutional law expert Anne Twomey has praised the work of this committee.
She published a paper in September that argued much federal spending may be unconstitutional, following the 2014 High Court case which successfully challenged the Federal Government’s power to spend money on school chaplains.
One of the major reforms is that the committee will now be asked to explicitly consider constitutional validity. This change was opposed by the Government.
Home Affairs Minister Peter Dutton personally wrote to the inquiry and claimed the current framework is “adequate and does not need enhancement”.
Attorney-General Christian Porter indicated in January his department would not be making a submission, but made an about-face by the end of March.
“Since that time, a number of submissions to the inquiry have raised the question whether the committee’s scrutiny principles should be expanded to encompass considerations of the constitutional authority for delegated legislation,” he wrote, noting the department now considered it “appropriate” to make a submission.
The Attorney-General’s Department’s eventually wrote such an expansion would be inappropriate.
It warned the proposed expansion of the committee’s scrutiny powers “risks disadvantaging the Commonwealth relative to the states and others in constitutional litigation”.
Professor Twomey argues there is no Commonwealth head of power under the constitution for spending like mini-golf courses, children’s frog waterslides and reusable Santa sleighs, which were all funded under the Stronger Communities Program. Rather, she believes, this expenditure is designed under Australia’s federation to be delivered by state or local government.
“The bottom line is that the Commonwealth does not have a head of legislative power in the constitution for most of the things that fall within its pork-barrelling.
“It just relies on no-one challenging it — which so far has been pretty effective, as it is in pretty much no-one’s interests to do so.
“Certainly not the recipients.”
Last week hundreds of sports clubs whose grant applications were rejected are being advised to challenge the legality of the Community Sport Infrastructure grant program by a former senior government legal adviser.
However, expenditure by the Federal Government on things like change rooms, fields and lighting — and school chaplaincy — may also trigger concerns over constitutional validity.
Are you considering a legal challenge to a Federal Government grant program? Please email [email protected].
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