Joint Standing Committee on Delegated Legislation

Joint (Legislative Council)

Title & summary	Status
No inquiries

Report No	Title	Date tabled
5	Annual Report 2023	18 Apr 2024
4	City of Gosnells Bush Fire Brigade Local Law 2023	16 Nov 2023
3	Annual Report 2022	23 Mar 2023
2	Annual Report 2021	16 Jun 2022
1	City of Kalamunda Dogs Local Law 2021	9 Sep 2021

Title & summary	Status
No past inquiries

Purpose of undertakings

When the Committee finds an issue in delegated legislation, it may request an undertaking from the relevant local government or Minister to fix the issue (for example, by amending the delegated legislation).

A person or body giving an undertaking commits to do certain actions within a certain timeframe, for example to:

amend delegated legislation within a certain timeframe (usually 6 months) and not enforce it in the meantime;
provide a copy of the undertakings wherever the delegated legislation is publicly available (such as at a local government office or on a website);
provide a copy of the minutes of the meeting at which the council of a local government resolved to provide an undertaking.

Giving an undertaking to a Parliamentary Committee is a serious matter. A failure to comply with an undertaking may be reported to the Legislative Council for further action.

Undertakings given by Local Governments and Government Departments:
Local Governments (Current)
Government Departments and Agencies (Current)
Local Governments (March 2017 - December 2020)
Government Departments and Agencies (March 2017 - December 2020)
Local Governments (April 2013 - December 2016)
Government Departments and Agencies (April 2013 - December 2016)

Title & summary	Status
No proceedings

Committee members

Chair:	Mr Geoff Baker MLA
Deputy Chair:	Hon. Lorna Harper MLC
Members:	Mr Stuart Aubrey MLA Hon. Steven Martin MLC Hon. Martin Pritchard MLC Mr Paul Lilburne MLA Mrs Magenta Marshall MLA Hon. Shelley Payne MLC
Staff:	Ms Felicity Mackie, LLB (Advisory Officer (Legal)) Mr Stephen Brockway (Advisory Officer) Ms Denise Wong, LLB, BSc (Env Sc) (Advisory Officer (Legal)) Ms Margaret Liveris (Committee Clerk)

Delegated Legislation:

is made under delegated authority from the Parliament by bodies such as local governments or Ministers
is also called ‘subsidiary legislation’
can only be made if authorised by an Act of Parliament (referred to as the primary legislation, parent Act or enabling Act).

Usually, the enabling Act contains the main framework of the law, and the delegated legislation sets out the specifics of how the law will be applied.

Example: The Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 and Real Estate and Business Agents (General) Regulations 1979 (delegated legislation) are made under the Real Estate and Business Agents Act 1978 (enabling Act).

Common examples of delegated legislation are:

regulations
court rules
local laws
fishery management plans
codes
planning schemes.

The Committee

The Joint Standing Committee on Delegated Legislation reviews delegated legislation on behalf of Parliament. The Committee has 8 members:

4 members from the Legislative Assembly
4 members from the Legislative Council.

The Committee is administered by the Legislative Council Committee Office.

Committee’s Terms of Reference

The Committee’s Terms of Reference set out its functions and the issues it considers when reviewing delegated legislation. The Terms of Reference are found in the following extract from Schedule 1 of the Legislative Council Standing Orders:

10. Joint Standing Committee on Delegated Legislation

10.1

A Joint Delegated Legislation Committee 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.

10.4

(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

The Standing Orders of the Legislative Council relating to Standing Committees will be followed as far as they can be applied.

10.9

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.

Recommendation to disallow delegated legislation

If the Committee finds an issue in delegated legislation, for example that it:

is not within power
has an unintended effect on any person’s existing rights or interests

the Committee can request changes or recommend Parliament disallow the delegated legislation. The Committee itself does not have the power to disallow delegated legislation.

This flowchart shows the process of disallowing delegated legislation in the Legislative Council.

Documents which must be provided to the Committee

Local governments and government departments must send information to the Committee within 10 days of delegated legislation being published in the Gazette:

For local governments see:
Explanatory Memorandum Checklist
Explanatory Memorandum Directions

For government departments and agencies see:
Premier's Circular 2023/01

Undertakings

Information about undertakings requested by the Committee can be found under the ‘Undertakings’ tab.

Notices of Motion to Disallow

While the Committee waits on an undertaking or more information, the Committee may give notice of motion to disallow the delegated legislation in the Legislative Council.

This does not necessarily mean that the Committee will be recommending disallowance, but it has the effect of ‘reserving its right’ to recommend disallowance, if required.

Disallowance

When required, the Committee recommends that the Parliament disallows all, or part of, the delegated legislation. The Committee tables a report in both Houses of Parliament explaining why the Committee recommends disallowance.

When the Parliament disallows delegated legislation, that delegated legislation will no longer have any effect from the date of the disallowance.

This flowchart shows the process of disallowing delegated legislation in the Legislative Council.

First Committee - 19 November 1987 to 10 January 2001

Established following a 1985 report by the Legislative Council titled ‘Report of the Legislative Council Select Committee on a Committee System in the Legislative Council.’
Operated under the Legislative Assembly Standing Orders.
Could consider and report on regulations, rules, by-laws and local laws (delegated legislation which met the definition of ‘regulations’ under section 42(8) of the Interpretation Act 1984).

Second Committee - 28 June 2001 to 30 January 2013

Operated under the Legislative Council Standing Orders.
Could consider and report on any delegated legislation that was defined as ‘subsidiary legislation’ by section 5 of the Interpretation Act 1984. This meant that the Committee could scrutinise many instruments of delegated legislation that it was previously unable to scrutinise; for example, town planning schemes, orders and codes.
On 6 March 2012, the Committee’s Terms of Reference were updated to include the current Term of Reference 10.7.

Third Committee - 23 May 2013 to 30 January 2017

Fourth Committee - 15 June 2017 to 29 January 2021

Fifth Committee - 26 May 2021 to current

Following the prorogation of the Parliament and the dissolution of the Legislative Assembly on 29 January 2021, the 41st Parliament established the fifth and current Committee. The Terms of Reference remain the same except for the insertion of a new 10.8, which applies the Standing Orders of the Legislative Council relating to Standing Committees to the Committee as far as they can be applied. This ensures members of the Legislative Assembly and Legislative Council are subject to the same Standing Orders and treated equally (see the Committee's 69th Report in the 39th Parliament).