Page 174 - Week 01 - Wednesday, 13 February 1991
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It is a matter of pleasure for people in the ACT that we have tended to avoid that and, both in the legislation that was implemented by the Labor Party when in power and in the legislation that is being introduced by the Alliance in power, there is a tendency to put important provisions that affect the community in the Bill which gets passed through into the Act of parliament, rather than rely extensively on regulation. The volume of regulations in force in the ACT is, by comparison to other jurisdictions, comparatively light.
Delegated legislation, Mr Speaker, has, of course, a long history. British studies take it back to 1385, the most outstanding piece of delegated legislation being in 1539 in the Statute of Proclamations - a very useful piece of legislation that no doubt many governments would like to see still on the books. It said:
The King for the Time being, with the Advice of his Council, or the more Part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament.
This was a totally broad-ranging provision, which allowed regulations, which may include criminal penalties, on any subject.
Mr Speaker, we have gone a long way from that, and delegated legislation now is usually restricted to minor matters. In this parliament, as in all parliaments, there is a Scrutiny of Bills and Subordinate Legislation Committee which looks at delegated legislation. It takes the advice of highly competent outside counsel who are engaged to look at the delegated legislation, not from a policy perspective, but with a view as to whether it offends certain principles; whether it imposes penalties; whether it deals with matters which ought otherwise to be dealt with in the Act. Ms Maher is chair of that committee and is well familiar with the work that is done by the legal adviser, Professor Whalan, in this committee in this Assembly.
Mr Speaker, the whole purpose of that committee inquiry is premised on the ability of the parliament to have final control over that legislation by way of disallowance. The position that anyone who has worked in the public service or in the law in Canberra has been very familiar with is, of course, the disallowance position that applies in the Federal Parliament. That is not only that a member may move disallowance and that the Parliament may vote for disallowance, but also that, if a member moves disallowance and that resolution is not dealt with within 15 sitting days, the matter is deemed to be disallowed. The important difference between that latter provision, the deemed disallowance provision, and the more simple allowance, the affirmative vote of an assembly to disallow, is that with a
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