New South Wales Bar Association Submission to Parliamentary Inquiry into Delegated Legislation

22/06/2020

The New South Wales Bar Association has made a submission to the Inquiry into the making of delegated legislation in NSW conducted by by the NSW Parliamentary Regulation Committee.

Recommendations made by the Association included that:

i. rules governing NSW subordinate legislation should be consolidated in a single statute;

ii. consideration should be given to creating a statutory requirement that a bill containing a Henry VIII clause, “shell legislation” or conferring regulation-making powers on matters generally considered inappropriate for delegated legislation must be accompanied by an explanatory report to the Parliament and Legislation Review Committee (LRC) outlining why such a drafting choice is necessary and appropriate;

iii. provision should be made to allow Parliament to sit remotely to ensure appropriate scrutiny of legislation can continue during crises such as the COVID-19 pandemic;

iv. a statutory Bill of Rights should be enacted for NSW to:

• require all legislation to be interpreted in accordance with Australia’s international human rights obligations;

• provide for all proposed legislation and subordinate legislation to be scrutinised by Parliament against these standards;

• strengthen the mandate of the Parliament’s LRC to carry out such scrutiny; and

• allow for a declaration that legislation is incompatible with such standards; and

v. consideration should be given to whether a Bill of Rights, if enacted, should permit striking down non-compliant subordinate legislation, unless the parent Act makes it impossible for compliance to occur.

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