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
|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 scrutiny of delegated legislation has been delegated by Parliament to the Joint Standing Committee on Delegated Legislation. The Committee is an all-party eight-member committee, comprising equal membership from the Legislative Assembly (4) and Legislative Council (4). The Committee’s secretariat is based in the Legislative Council Committee Office. This is seen to be appropriate as the Legislative Council is historically seen to be the House of review.
The first Committee was established on November 19 1987 following the Report of the Legislative Council Select Committee on a Committee System in the Legislative Council. The Committee operated from 1987 to January 10 2001 on the basis of Joint Rules contained in the Standing Orders of the Legislative Assembly.
One impediment on the 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 to be regulations by the parent Act and therefore subject to Part VI of the Interpretation Act 1984. Part VI includes the requirement to table all regulations in both Houses of Parliament and the power of either House to disallow regulations under the procedure in section 42.
The Committee's terms of reference were changed on June 28 2001 when a new Committee was established by the Thirty-Sixth Parliament. This Committee is now subject to the same standing orders as other standing committees of the Legislative Council, where motions for disallowance by the Committee are dealt with. The Committee's new terms of reference enable 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 legislative instruments that were previously unable to be scrutinised by the Committee, for example, town planning schemes, orders and codes. However, the Committee can still only recommend to Parliament disallowance of an instrument that is made subject to disallowance by section 42 of the Interpretation Act 1984 or which is not subsidiary legislation but is made subject to disallowance by either House.
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