The Senate, The Executive and Henry VIII
The Senator expressed doubt as to whether the Parliament was aware that, at the time of passing the Biodiversity Act 2015, it had given the Minister for Health the ability to exercise extraordinary powers through the making of legislative instruments, many of which were exempted from disallowance and parliamentary scrutiny.
The nub of her speech, which heralded a battle between the Parliament and the executive, concerned innocuous sounding ‘regulations’ or ‘subsidiary laws’ sometimes referred to as delegated laws. They are called delegated laws because Parliament delegates to the executive the authority to make regulations, but reserves the right to scrutinise them. If either House is unhappy with a regulation it may disallow it within fifteen sitting days of it coming into effect.
The report of the Senate Standing Committee for Scrutiny of Delegated Legislation is titled Inquiry into the exemption of delegated legislation from parliamentary oversight, and was chaired by Senator Fierravanti-Wells. It revealed that in 2020 some 17.4 per cent of Federal regulations − that is 299 pieces of delegated legislation − had escaped scrutiny, leading to her call for the Parliament to reassert its constitutionally established role.
THE LOSS OF THE POWER OF SCRUTINY IS NOT TRIVIAL BECAUSE WHEN AN EXECUTIVE GOVERNMENT CAN MAKE LAWS WITHOUT PARLIAMENTARY OVERSIGHT, ABUSE OF POWER IS INEVITABLE
She was supported by the deputy chair of the committee, Labor Senator Kim Carr (Vic), also a former minister, and the other committee members − Senator Perin Davey (National Party NSW), Senator Paul Scarr (Lib Qld), Senator Raff Ciccone (ALP Vic) and Senator Nita Green (ALP Qld).
Examples of regulations which have escaped Senate scrutiny include increases in the Federal government debt ceiling to $1.2
