Terms of Reference
Functions and powers of the committee
The following is an extract from Schedule 1 of the Legislative Council Standing Orders:
10. Joint Standing Committee on Delegated Legislation
Disallowance Flowchart (A4).pdf
|10.1||A Joint Standing Committee on Delegated Legislation is established.|
|10.2||The Committee consists of 8 Members, 4 of whom are appointed from each House. The Chair must be a Member of the Committee who supports the Government.|
|10.3||A quorum is 4 Members of whom at least one is a Member of the Council and one a Member of the Assembly.|
|(a)||A report of the Committee is to be presented to each House by a Member of each House appointed for the purpose by the Committee.|
|(b)||Where a notice of motion to disallow an instrument has been given in either House pursuant to recommendation of the Committee, the Committee shall present a report to both Houses in relation to that instrument prior to the House's consideration of that notice of motion. If the Committee is unable to report a majority position in regards to the instrument, the Committee shall report the contrary arguments. |
|10.5||Upon its publication, whether under section 41(1)(a) of the Interpretation Act 1984 or another written law, an instrument stands referred to the Committee for consideration.|
|10.6||In its consideration of an instrument, the Committee is to inquire whether the instrument –|
|(a)||is within power;|
|(b)||has no unintended effect on any person's existing rights or interests;|
|(c)||provides an effective mechanism for the review of administrative decisions; and|
|(d)||contains only matter that is appropriate for subsidiary legislation.|
|10.7||It is also a function of the Committee to inquire into and report on-
|(a)||any proposed or existing template, pro forma or model local law; |
|(b)||any systemic issue identified in 2 or more instruments of subsidiary legislation; and|
|(c)||the statutory and administrative procedures for the making of subsidiary legislation generally, but not so as to inquire into any specific proposed instrument of subsidiary legislation that has yet to be published.|
|10.8||In this order-|
|"instrument" means -|
|(a)||subsidiary legislation in the form in which, and with the content it has, when it is published;|
|(b)||an instrument, not being subsidiary legislation, that is made subject to disallowance by either House under a written law;|
|"subsidiary legislation" has the meaning given to it by section 5 of the Interpretation Act 1984.|
History and purpose of the committee
The parliamentary function of scrutinising delegated legislation (also known as subsidiary legislation) has been delegated by Parliament to the Joint Standing Committee on Delegated Legislation. The Committee is an eight-member committee, comprising equal membership from each House of Parliament: four from the Legislative Assembly and four from the Legislative Council. The Committee’s secretariat is based in the Legislative Council Committee Office. This is appropriate as the Legislative Council is historically seen to be the House of review.
The first Committee (1987-2001) was established on 19 November 1987 following the Report of the Legislative Council Select Committee on a Committee System in the Legislative Council. The Committee operated from 1987 to 10 January 2001 on the basis of Joint Rules contained in the Standing Orders of the Legislative Assembly.
One impediment on the first Committee was that it was restricted by its Joint Rules to scrutinising ‘regulations’ within the definition of section 42(8) of the Interpretation Act 1984 meaning regulations, rules, by-laws and local laws. This precluded the Committee from scrutinising other forms of delegated legislation such as orders, declarations or codes unless a particular instrument was deemed by the parent Act to be ‘regulations’ for the purposes of section 42(8) of the Interpretation Act 1984 and, therefore, subject to Part VI (sections 40-7) of that Act. Part VI includes the requirement to table all ‘regulations’ in both Houses of Parliament and the power of either House to disallow ‘regulations’ (section 42).
The Committee’s Terms of Reference were changed on 28 June 2001, when a new, second Committee (2001-13) was established by the 36th Parliament. At that point, the Committee was made subject to the Legislative Council Standing Orders, as are other standing committees of that House. The Legislative Council has procedures in place for dealing with motions for disallowance, including those motions which are instigated by the Committee. The Committee can only recommend that the Parliament disallow a ‘regulation’; it does not have the power to disallow a ‘regulation’ in its own right.
Since the 36th Parliament, the Committee’s Terms of Reference have enabled it to consider and report to Parliament on any instrument that is ‘subsidiary legislation’, as defined by section 5 of the Interpretation Act 1984. This includes many instruments of delegated legislation that were previously unable to be scrutinised by the first Committee; for example, town planning schemes, orders and codes. However, the Committee can still only recommend to the Parliament that it disallow an instrument if that instrument is subject to disallowance under section 42 of the Interpretation Act 1984 or some other disallowance process prescribed by another Act.
During the 38th Parliament, the Legislative Council Standing Orders were reviewed. This review led to the simplification of the language used in the Committee’s Terms of Reference but there was no effective change in substance of the criteria against which the Committee scrutinises instruments of delegated legislation (see Term of Reference 10.6). The Committee’s Terms of Reference were also updated by the insertion of a power to inquire into and report on three categories of self-referred topics (see Term of Reference 10.7). These changes took effect on 6 March 2012 and, since then, the Committee’s Terms of Reference have remained the same.
As the Committee is a joint committee of both Houses, the second Committee ceased to exist upon the dissolution of the Legislative Assembly on 30 January 2013. On 23 May 2013, the 39th Parliament established the third Committee (2013-17). Prior to this, the custom and practice of the Parliament was for the Committee to survive the dissolution of the Legislative Assembly and be re-established only when its Terms of Reference were amended substantially.
The third Committee ceased to exist upon the prorogation of the Parliament and the dissolution of the Legislative Assembly on 30 January 2017. On 15 June 2017, the 40th Parliament established the fourth and current Committee (2017-current).
Purpose of undertakings
Undertakings represent commitments made by local governments, government departments or agencies to the Committee that certain actions will be completed within a certain time frame.
The requesting of undertakings relating to Instruments from local governments, departments and agencies is a serious matter. The Committee allows Instruments to pass unimpeded into law subject to the commitment that the relevant local government, department or agency will abide by the undertakings they give.
The Committee accepts undertakings provided on the following terms:
- all consequential amendments arising from the undertakings will be made;
- offending clauses will not be enforced in a manner contrary to the undertakings given;
- the undertakings will be completed within six months of the date the local government, department or agency’s letter provides the undertakings;
- where the instrument is made publicly available, whether in hard copy or electronic form, it be accompanied by a copy of the undertakings; and
- in the case of a local government, it will provide a copy of the minutes of the meeting at which the relevant council resolves to provide the undertakings.
Every six months, the Committee conducts a review of the Internet Undertakings List for viewing by Local Governments and the Internet Undertakings List for viewing by Departments and Agencies to check for compliance with provided undertakings. Reminders are sent to local governments, departments or agencies where compliance with undertakings has not occurred within the required time.
Commonly used terms
1. Delegated legislation:
Legislation made by a person or body other than the Parliament, under authority granted to that person or body by an Act of Parliament. Individually, delegated legislation has a variety of names, including `regulations', ‘local laws’, `by-laws', `rules', `ordinances', and `orders-in-council'. Collectively, they are variously termed `subordinate legislation', ‘secondary legislation’, `statutory rules', `legislative instruments', `statutory instruments', and `subsidiary legislation'.
2. To ‘disallow’ is to:
refuse to allow or accept as valid.
When the Parliament disallows delegated legislation, that legislation will no longer have any effect as of the date of the disallowance. In the WA Parliament, the Legislative Council has a dedicated process for disallowing delegated legislation (please see the disallowance flowchart below).
Disallowance Flowchart (A4).pdf