Scrutinising the Scrutiny Process in the Courts

Abstract

In every Australian jurisdiction, a dedicated parliamentary committee scrutinises delegated legislation. When interpreting delegated legislation, courts may make assumptions about the nature and quality of the scrutiny performed by these committees. We argue courts should be cautious about reaching these conclusions. The article uses the High Court of Australia’s decision in Disorganized Developments Pty Ltd v South Australia as a case study. We show that, while a scrutiny committee might hold the promise of providing effective parliamentary oversight of delegated lawmaking, the reality may fall short of the ideal. With limited time and resources to scrutinise a large volume of instruments as well as to perform other functions, and with no guarantee of engagement from the Parliament or executive, scrutiny committees may not be able to scrutinise delegated legislation in a thorough or timely manner. Building on these insights, we consider the circumstances, and manner, in which a court might be justified in making findings about the process of scrutiny of delegated legislation.