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Bypassing democracy: a report on the exemption of delegated legislation from parliamentary oversight

Parliamentary scrutiny Government accountability Parliament of Australia Legislation Australia
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The power to disallow delegated legislation is a powerful mechanism to impose accountability and transparency on government actions. However, the parliament has abdicated part of its role in holding ministers accountable for their actions by allowing a range of delegated legislation to be exempt from the Senate Committee’s disallowance process. Separate Acts of Parliament make provision for the delegated legislation it authorises to be exempt from disallowance, while section 44 of the Legislation Act 2003 (Cth) (Legislation Act) provides numerous grounds on which certain kinds of delegated legislation can be exempted from the parliament’s disallowance process. This has undermined parliament’s role in scrutinising executive actions and enabled the executive to circumvent the democratic process.

The parliament’s legal and constitutional authority to exempt delegated legislation from disallowance is not in question. It is however an authority that the parliament should refuse to exercise. The parliament has a responsibility to reassert itself as a check on the executive by removing all exemptions to disallowance for delegated legislation.

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