The Western Australian government has recently introduced the Firearms Bill 2024, aiming to modernise the state's firearms laws and align them with the 2017 National Firearms Agreement. While the bill's primary objective is supposedly to enhance public safety, it has sparked discussions about the balance between executive power and parliamentary oversight.
Regulation-Making Powers
One of the key aspects of the proposed legislation is its extensive use of regulation-making powers. The bill contains approximately 113 specific and one general regulation-making power, a significant increase from the approximately 47 in the 1973 Act. This shift towards a more regulation-heavy approach has raised concerns about the potential erosion of parliamentary sovereignty. Delegated legislation, while efficient, often escapes the rigorous scrutiny applied to primary legislation. This can lead to significant impacts on public life without the same level of transparency and debate.
Regulations & “Henry VIII” clauses
A central issue in this debate is the presence of what are known as "Henry VIII clauses" in the bill. Named after the infamous Tudor monarch known for his absolutist tendencies, these clauses allow ministers to amend or repeal provisions of an Act using secondary legislation, without the need for full parliamentary scrutiny. In the context of the Firearms Bill 2024, clauses such as 402(3) and 419(3) have been identified as Henry VIII clauses, potentially giving the executive branch significant power to modify the law without going through the standard legislative process.
Review of the Firearms Act
The Standing Committee on Uniform Legislation and Statutes Review has highlighted several broad and open-ended regulation-making powers in the bill, including:
· Clause 5, definition of "disqualifying order"
· Clause 9(1)(b), (d), and (f)
· Clause 292
These powers have been criticised for lacking focus and leaving substantial details to be prescribed by the executive without adequate guidance or criteria. This delegation of legislative power to the executive branch could potentially undermine effective parliamentary scrutiny.
Importance of Regulatory Oversight
Regulations are a type of delegated law, meaning the power has been delegated to a minister or government department by Parliament. Delegated laws can have a significant impact on the lives of ordinary citizens and can be made or changed without the same level of debate and approval required for other forms of legislation. There are mechanisms for parliamentary control of delegated legislation, including requiring the legislation to be laid before parliament and subject to disallowance by either House.
In order to ensure Parliamentary scrutiny and limit broad discretion in the implementation of legislation the Commission is of the view that a skeletal Act, with most of the substance of the regime being in the regulations, is not appropriate. While regulations are a convenient way to provide for areas of regular change or areas of operation the Commission considers that certain key provisions ought to be included in the Act.[1]
These powers lack focus in their operation. They leave substantial details for the Executive to prescribe without any or adequate criteria or guidance about exactly what will be prescribed. This erodes parliamentary sovereignty by delegating, to the Executive, Parliament’s legislative power to deal with these matters.
Their open-ended nature can often negate any effective scrutiny and parliamentary oversight by the Joint Standing Committee on Delegated Legislation. This is because they are so widely drafted as to authorise regulations that will rarely, if ever, be capable of being characterised as ‘beyond power’.[2]
Regulations are a type of delegated law as the power has been delegated to a minister or government department by Parliament. Delegated laws sometimes have much more of an impact on the lives of ordinary citizens than do most acts of parliament. These laws can be made or changed without having to be debated and passed by Parliament in a similar fashion to other forms of legislation.
Delegated legislation, at first glance does not follow a stereotypical level of scrutiny as other forms of legislation. However, is it none the less subject to a high degree of criticism as uncontrolled delegated legislation offers a fertile field for government despotism and bossy interference by bureaucrats.
There are two common ways by which parliament can control delegated legislation. It can require the delegated legislation to be laid before parliament and that it not come into effect until parliament approves it-either by an affirmative resolution, or by the lapse of a specific period without the legislation having been disallowed. Alternatively, the delegated legislation may come into immediate effect, but may be disallowed by the parliament within a specified time.
It is true that the courts have some control over improperly made delegated legislation, but their power is limited to matters such as whether the instrument is within the power delegated, whether there are inconsistencies with other acts, and whether prescribed procedures have been followed. The courts have no control over many of the potentially objectionable features of such legislation.
Public Awareness and Scrutiny of Subsidiary Legislation
An important aspect of the legislative process is the public's ability to stay informed about and scrutinize subsidiary legislation before it comes into effect. In Western Australia, this function is primarily carried out by the Joint Standing Committee on Delegated Legislation.
Role of the Joint Standing Committee
The Joint Standing Committee on Delegated Legislation plays a crucial role in scrutinising delegated legislation on behalf of the Parliament. This eight-member committee, with equal representation from the Legislative Assembly and Legislative Council, examines proposed regulations to ensure they comply with legislative standards and do not unduly infringe on personal rights and liberties.
Committee's Scope and Powers
The Committee's terms of reference allow it to consider and report on any instrument that is 'subsidiary legislation' as defined by section 5 of the Interpretation Act 1984. This broad scope includes regulations, rules, by-laws, local laws, town planning schemes, orders, and codes. However, the Committee can only recommend disallowance to Parliament for instruments subject to disallowance under section 42 of the Interpretation Act 1984 or other prescribed disallowance processes.
Public Access to Information
The Committee's scrutiny process provides a degree of transparency and public access to information about proposed subsidiary legislation:
Committee Reports: The Committee publishes reports on its scrutiny of delegated legislation, which are available to the public. These reports offer insights into the Committee's findings and recommendations regarding proposed regulations.
Tabling in Parliament: All 'regulations' must be tabled in both Houses of Parliament, as required by Part VI of the Interpretation Act 1984. This process makes the proposed regulations publicly accessible. All subsidiary legislation made shall be published in the Gazette.
Disallowance Period: After tabling, there is a period during which either House can move to disallow the regulations. This period provides an opportunity for public awareness and potential debate.
Parliamentary Debates: Any discussions or debates in Parliament regarding proposed regulations are typically matters of public record, accessible through Hansard or other parliamentary publications.
System for the Parliamentary Control of Executive Law-Making
Registration: Each delegated law must be registered in the Federal Register of Legislation (FRL) and presented to the Parliament within 6 sitting days of being made and are then subject to disallowance by either House.
Scrutiny: After it has been published on the public register, it can be disallowed by Parliament. To do this:
Within 15 sitting days, a member of parliament must request the Senate or House of Representatives overrule the delegated law.
The Senate or House of Representatives, gifted with the power to veto, have 15 sitting days to discuss the delegated law and make a decision.
If there is no discussion or no decision is made, the delegated law is overruled.
Compliance: Similarly to a bill, delegated law is scrutinised by the Parliament. The Senate Standing Committee for the Scrutiny of Delegated Legislation ensures that delegated law complies with the following principles pursuant to standing order 23(3):
a) that it is in accordance with the statute;
b) that it does not trespass unduly on personal rights and liberties;
c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and
d) that it does not contain matter more appropriate for parliamentary enactment.
The four principles are interpreted broadly to include every possible deficiency in delegated legislation affecting parliamentary propriety and personal rights. On this broad approach the committee has interpreted.
Considering Regulations
If a motion is passed, this results in a matter being considered by the committee. The document is laid before the Senate and considered in committee of the whole on a future day.[4] Committee proceedings provide an opportunity for thorough consideration of a matter, and that consideration does not conclude until senators do not wish to speak any further or move any further amendments.[5]
Justifications for regulation-making powers on which the Committee requested the Minister’s feedback appear in Appendix 1. The Committee thanks the Minister for his response, which allayed some of its concerns. A discussion between Paul Papalia, the Minister for Police, and Donna Faragher, a member of the Liberal Party, in relation to clarification surrounding the regulations in the Firearms Act is of particular relevance. It can be found here on page 11.
Clarity and Context surrounding Regulations
Delegated regulations within the act are made in alignment with the purpose of the act.[6]
Regulations
The regulation-making powers will include provisions in relation to:
Applications for the grant, renewal, suspension and cancellation of firearm authorities;
Record keeping requirements by firearm authority holders;
Obligations of firearm authority holders to notify the Commissioner of changes in personal or other particulars;
Obligations of firearm authority holders to report to the Commissioner on any relevant matters to the firearm authority;
The manner in which information must be reported or notified to the Commissioner;
The forms to be used for the purposes of the proposed legislation, and the manner and time for their completion;
Authorising the Commissioner to require a Trade Licensee to provide information about any other person involved in the management of, or any financial interest in, any business conducted under the licence;
The categorisation or firearms and ammunition for the purposes of the proposed legislation;
Restricting the amount of ammunition that can be possessed by a person;
Regulated the sending or conveyance of firearms and related things;
The construction and conduct of licensed firearm ranges (including shooting galleries;
Any other purpose the Governor considers necessary for safeguarding the public and the public interest in relation to firearms and related things.
Firearm Authority Requirements and Restrictions
The proposed regulations will also address training requirements, with TAFE institutions developing the theoretical component and delivering it either in person or online. Practical training will be provided by authorized trainers, including TAFE institutions, dealers, firearm clubs, or WA Police in remote locations. Additionally, firearm authority health standards are being developed in conjunction with a health assessment working group composed of medical practitioners and the Department of Health.
Training Requirements
It is proposed that the regulations will provide the Commissioner with the power to authorise trainers. The current consideration is that TAFE institutions will develop the theoretical component and deliver it in person or online. Whilst the practical element will be delivered by authorised trainers which may include TAFE institutions, dealers, firearm clubs or WA Police in remote locations.[7]
Delegation
The proposed legislation retains the power of delegation from the Commissioner to a member of the Police Force in respect to the granting or approval of licenses for firearms or related things. This will primarily relate to licensing decisions and is consistent with recommendation 34 of the LRC Report.[8]
Firearm Authority Health Standards
The firearm authority health standards a person must meet to be fit and proper to hold a firearm authority remain under consideration and are being developed in conjunction with a health assessment working group composed of key representatives of medical practitioners and the Department of Health.[9]
Predicting Possible Regulations
Various consultations have helped frame the proposed legislation, particularly that of the Firearms Act 2015 (SA) (the South Australian Act) and the Firearms Regulations 2017 (the South Australian Regulations), which is the most recent rewrite of firearms legislation in Australia.[10]
Conclusion
The Firearms Bill 2024 represents a significant shift in the regulation of firearms in Western Australia. While it theoretically aims to enhance public safety, the extensive use of regulation-making powers and the presence of Henry VIII clauses raise important questions about the balance of power between the executive and the parliament. Ensuring effective parliamentary scrutiny and oversight will be crucial in maintaining this balance and safeguarding democratic principles.
Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.
The legal research in this article has been conducted by Christian James.
[1] Law Reform Commission of Western Australia, Review of the Firearms Act 1973 (WA) Project 105 Final Report, October 2016, p 14. Accessed 4 July 2024
[2] Standing Committee on Uniform Legislation and Statutes Review, report 139, Working with Children (Criminal Record Checking) Amendment Bill 2022, 15 November 2022, p 6.
[3] Parliament of Australia, Delegated legislation, scrutiny and disallowance, (Web Page) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_15>[4] Parliament of Australia, Committee of the whole proceedings, (Web Page) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_14>
[5] Ibid.
[6] Consultation Paper, Reform of Firearms Laws in Western Australia, 4 July 2024 (Web Page)
[7] Ibid.
[8] Ibid.
[9] Standing Committee in uniform Legislation and Statutes Review, report 147, Firearms Bill, 4 July 2024
[10] Ibid 9.
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