policies
are given effect by legislation however, are matters with which scrutiny
committees can validly concern themselves.
4.14 Occasions arise in which the very policy of legislation is in direct
conflict with, and may unduly trespass on, personal rights and liberties.
The working party takes the view that, on such occasions, the conflict
of the proposed legislation with personal rights and liberties is a matter
that relates to scrutiny principles. In relation to a national scheme
of legislation, any scrutiny committee charged with reviewing that legislation,
which found that the very policy of the measure was in conflict with personal
rights and liberties, would report that view.
Additional terms of reference suggested
Non-reviewable decisions
4.15 The working party is of the view that the suggested expansion of
the uniform terms of reference to incorporate the consideration of non-reviewable
decisions has merit. Administrative decisions affecting the rights and
liberties of citizens have grown enormously in scope and importance since
the 1970s. The Commonwealth Parliament has relied increasingly upon administrative
tribunals as a means of review of the more important administrative decisions.
In 1979 the Senate Regulations and Ordinances Committee amended its terms
of reference to ensure that `decisions having an important effect on individual
rights were reviewable on their merits' [52]
- the only amendment to its terms of reference since its establishment
in 1932.
Identification of problems
4.16 The current terms of reference of scrutiny committees generally
do not involve them in searching out actively potential problems with
legislation. This would be an almost impossible task as many difficulties
with legislation arise when it is practically implemented or under unusual
circumstances. These are the province of standing and/or select committees.
Scrutiny committees do not have knowledge necessarily about the practical
workings of legislation; neither can they foresee the development of unusual
circumstances. These are matters for the drafters of legislation to grapple
with and need not be specifically incorporated into the terms of reference.
4.17 If, however, unusual problems are foreseen by scrutiny committees
that would, for example, unduly affect personal rights and liberties,
these would be brought to the attention of Parliament.
Cost-benefit analysis for primary legislation
4.18 The topic of impact statements for primary legislation has been
discussed by scrutiny committees at a previous conference. [53]
In that forum it was agreed that although the concept has merit it has
not yet been sufficiently discussed by Parliaments in Australia and is
unlikely to come to fruition in the near future. Consensus was therefore
that the working party's efforts were best concentrated on the project
at hand - the development of uniform scrutiny principles.
Henry VIII clauses
4.19 The Member for Monmouth, Tasmania, Mr Stephen Wilson MLC, drew attention
to the need to ensure the appropriate delegation of legislative power
giving Henry VIII clauses as an example. A Henry VIII clause is the classic
example of a clause which requires scrutiny to determine whether or not
the clause inappropriately delegates legislative power. The second of
the proposed terms of reference - whether the Bill inappropriately delegates
legislative powers - appears to cover the problems associated with Henry
VIII clauses. The working party believes that, where Henry VIII clauses
are necessary to a national scheme of legislation, scrutiny committees
may find that legislative power has not been inappropriately delegated.
Nevertheless the working party has serious reservations over the use of
Henry VIII clauses in national schemes of legislation.
CONCLUSION AND POSITION ADOPTED
4.20 In conclusion on Proposal 2, the working party adopts the following
views on the terms of reference relating to scrutiny of national scheme
primary legislation:
- that all scrutiny of bills committees adopt the following terms of
reference for the examination of national scheme primary legislation:
- whether the bill trespasses unduly on personal rights and liberties;
- whether the bill makes rights, freedoms or obligations unduly dependent
upon administrative decisions which are not subject to appropriate external
review; and
- whether the bill inappropriately delegates legislative powers.
- that the terms of reference do not give scrutiny committees examining
national schemes of legislation an additional role with respect to reviewing
policy;
- that although they are not extensive in scope or particularly complex,
the terms of reference reflect commonly supported and fundamental values
to be protected;
- that the terms of reference will provide a basic and uniform level
of scrutiny to which all national scheme primary legislation will be
subjected;
- that scrutiny committees should not have a formal role of identifying
unusual problems in legislation;
- that, although appealing, the concept of formal impact statements
for Bills has not yet been sufficiently discussed by Parliamentarians
and members of the Executive to be proposed at this stage; and
- that an additional term of reference to curtail the use of Henry VIII
clauses need not be added to the terms of reference.
5. UNIFORM TERMS OF REFERENCE FOR THE SCRUTINY OF
NATIONAL SCHEME SUBORDINATE LEGISLATION (PROPOSAL 1 OF DISCUSSION PAPER)
THE DISCUSSION PAPER - PROPOSAL 1
5.1 Chapter four of the Discussion Paper deals with four options for
achieving uniform scrutiny for national scheme subordinate legislation.
The majority of the members of the working party specified Proposal 1
as the preferred option:
PROPOSAL 1
That all Scrutiny Committees adopt the following separate Terms of
Reference for the examination of national scheme subordinate legislation.
- Whether the subordinate legislation is in accordance with the provisions
of the Act under which it is made and whether it duplicates, overlaps
or conflicts with other regulations or Acts;
- Whether the subordinate legislation trespasses unduly on personal
rights and liberties;
- Whether, having regard to the expected social and economic impact
of the subordinate legislation, it has been properly assessed.
(It is assumed that in respect of this Proposal, all the Scrutiny
Committees are to retain their own particular Terms of Reference for the
examination of subordinate legislation which relates to their particular
jurisdiction. The above Terms of Reference are only to apply to the scrutiny
of national scheme subordinate legislation.)
SUBMISSIONS
5.2 This proposal was generally supported, however, there were some suggestions
on how the uniform terms of reference should be expanded and how they
were deficient. The third element of Proposal 1 relating to regulatory
impact statements attracted considerable comment. Some of the comments
already reported on for Proposal 2 were repeated for Proposal 1 and will
only briefly be referred to here. [54]
Non-reviewable decisions
5.3 The Administrative Review Council's point on incorporating a requirement
into the terms of reference to consider the question of whether decisions
are reviewable was also applicable to this proposal.
Accommodation of separate terms of reference
5.4 Several submissions, particularly from Queensland, expressed a preference
for Option 2 (see pp. 29-30 of the Discussion Paper) which would enable
individual committees to retain their current terms of reference but would
provide for them to be grouped under three broad categories, recognised
and applied by all jurisdictions. [55]
5.5 Mr Neil Roberts MLA, who subsequently became a Member of the Queensland
Scrutiny of Legislation Committee, provided the following rationale:
I believe Option 2 provides the most workable outcome. Reasons:
it provides for the consistency desired between Committees from
other Parliaments, and
it enables consistency in a Committee's approach to the scrutiny
of both State and National Subordinate legislation.
The option could be strengthened by requiring all Committees to
categorise their Terms of Reference under the three criteria listed
in Proposal 1. [56]
5.6 The Queensland Police Service submission outlined the same concern
as follows:
It appears that in the search for common principles and agreements
on uniform legislation that there is often a shift to the lowest common
denominator, rather than maybe moving up to the best practice model.
As a result strong regional legislation can at times be sacrificed to
the need to reach national agreement. [57]
Terms of reference not to be limited to `subordinate legislation'
only
5.7 Mr Anthony Morris QC, [58] proposed that
the scrutiny carried out by Parliamentary committees should incorporate
a broader range of instruments:
It is very important, to my mind, that the form of scrutiny suggested
in Proposal 1 should not be confined to “subordinate legislation”
in the traditional sense, but should also extend to all manner of instruments
(whether described as “rules”, “regulations”, “codes”,
“by-laws”, “declarations”, or what have you) to
which legal force is given under uniform legislation. A good example
is that mentioned in my letter to the editor of the Australian Law Journal,
namely the Building Act Amendment Act 1991 (Queensland), which gives
statutory force to the “Building Code of Australia” - an expression
which is defined as meaning “the edition, current at the relevant
time, of the Building Code of Australia ... published by the body known
as the Australian Uniform Building Regulation Co-Ordinating Council
and including that edition as amended from time to time by amendments
published by that body”. If the “Building Code of Australia”
has legal force under a Queensland Act, and is capable of being amended
or repealed by an unelected body which is not responsible through the
Parliament to the people of Queensland, at the very least the Queensland
Parliament (through an appropriate Scrutiny Committee) should review
all amendments made to the Code. [59]
Regulatory impact statements
Review of policy?
5.8 The third term of reference in Proposal 1, which relates to regulatory
impact statements, drew a raft of varied comments. The fact that the wording
of the section could be interpreted as giving the committees a role with
respect to reviewing policy was emphasised by both the Australian Law
Reform Commission and the ACT Law Society:
... implementation of Proposal 1 would lead to a fundamental change
in the terms of reference of many Scrutiny Committees. ... Committees
will be embarking on an inquiry into the underlying policy rationale
for legislation, a matter which has not generally been part of terms
of reference to date. Such a realignment of purpose might put at risk
the proud records of bi-partisanship enjoyed by scrutiny committees
in every Australian jurisdiction. [60]
... the third term of reference, as worded may indicate a review
of the policy of the subordinate legislation. This would contradict
the ACT Standing Committee's stated role as that “does not make
any comments on the policy aspects of the legislation”.
Substituting “sufficiently” for “properly” may clarify
that the policy itself is beyond the reach of the scrutiny committee.
[61]
RISs to extend to environmental impact?
5.9 The yardstick against which the effect of national scheme subordinate
legislation is measured was also the subject of comment. The Australian
Bankers Association observed:
The Association believes that any legislation, whether it be primary
legislation or subordinate legislation, should be subjected to a number
of preliminary tests including the likely business or economic impact
of the legislation as compared with the social benefits to be gained.
[62]
5.10 The Sydney Water Corporation added:
... this objective should be altered so as to take into account
the potential negative environmental impacts of national scheme subordinate
legislation. [63]
RISs for a specified category of subordinate legislation only?
5.11 Addressing the scope of application of this term of reference, the
then Queensland Treasurer, whilst expressing strong support for the adoption
of uniform, simplified terms of reference, expressed the view that:
While Regulatory Impact Statements (RIS) provide a useful discipline
for assessing subordinate legislation, they should be required only
for significant proposals. Indiscriminate use of such a tool can be
an inefficient and time consuming exercise. [64]
5.12 The then Queensland Treasurer also made the point that:
Section 46 of the Statutory Instruments Act 1992 (Queensland) also
appears to exempt matters arising under uniform or complementary legislation.
5.13 In addition, the Discussion Paper [65]
pointed out that New South Wales, Tasmania and Victoria also have legislation
stipulating that an RIS is not required if one has already been carried
out on that national scheme legislation in another State.
Acceptance of COAG guidelines?
5.14 On the same subject, the General Manager of the WorkCover Authority
suggested that:
In relation to the third proposed Term of Reference in Proposal
One it is considered that it would be appropriate for scrutiny committees
to automatically accept national Economic Impact Assessments which are
consistent with COAG principles for national standards. [66]
5.15 Finally, and on a positive note, the third term of reference received
a resounding endorsement from the then Queensland Minister for Minerals
and Energy:
I also strongly support review of such (uniform) legislation through
a rigorous regulatory impact assessment process. [67]
ANALYSIS OF SUBMISSIONS
Non-reviewable decisions
5.16 The working party is of the view that the point made with respect
to the expansion of the uniform terms of reference to incorporate the
consideration of non-reviewable decisions has merit.
5.17 The working party believes, as with primary legislation, that the
proposed terms of reference should be amended to require consideration
of whether subordinate legislation makes rights, liberties, or obligations
unduly dependent on non-reviewable decisions.
Accommodation of separate terms of reference
5.18 Whilst members of the working party value their individual jurisdiction's
terms of reference and the fact that they reflect the needs of each jurisdiction,
there is recognition that each jurisdiction is currently unable to effectively
scrutinise national schemes of legislation in accordance with its own
terms of reference.
5.19 The working party believes that compromise is required with respect
to terms of reference in order to achieve effective scrutiny on fundamental
issues.
Terms of reference not to be limited to `subordinate legislation'
only
5.20 The working party accepts the validity of the concerns expressed
by Mr Morris QC. Scrutiny committees are aware of problems that can arise
by reason of statutory restrictions on nominal descriptions of subordinate
legislation that may be scrutinised by committees. For example, a rule
which has legislative effect may be described as an `order' which does
not fall within the terms of reference of a particular scrutiny committee.
The Western Australian Joint Standing Committee on Delegated Legislation
recently reported on this problem. [68] Each
of the Australian jurisdictions applies different restrictions on kinds
of subordinate legislation that may be scrutinised by parliamentary committees.
There is not, as yet, any agreement on extending the capacity of scrutiny
committees to scrutinise all subordinate legislation. This may be a growing
problem and it is one which scrutiny committees will continue to monitor.
5.21 Furthermore, subordinate legislation may incorporate by reference
other documents which do not themselves fall within the scrutiny committee's
terms of reference. Amendments to those other documents may be implemented,
thereby affecting the application of the relevant subordinate legislation,
without any parliamentary scrutiny. Again, this may be a growing problem
which scrutiny committees will continue to monitor.
Regulatory impact statements
Review of policy?
5.22 The working party notes the submission of the Australian Law Reform
Commission and the ACT Law Society which draws attention to the fact that
the wording of this term of reference could be interpreted as granting
the national scrutiny committee a role with respect to the policies underlying
legislation. As the ACT Law Society suggests, `sufficiently' may overcome
the perceived problem. The working party has reframed this term of reference
to refer specifically to the guidelines adopted by COAG for the assessment
of national schemes of legislation. This will enable the relevant committee
to determine whether due process for assessment of the legislation has
been followed.
RISs to extend to environmental impact?
5.23 The Sydney Water Corporation's suggestion that the RISs also have
regard to environmental impact is a reminder of the increasing emphasis
being placed on environmental considerations in legislation and government
generally in the 1990s.
5.24 The working party notes that there is an express requirement to
assess environmental impact under the regulatory impact statement procedures
adopted in Queensland and Victoria. The COAG Principles and Guidelines
also require the environmental assessment of national scheme legislative
proposals.
RISs for a specified category of subordinate legislation only?
5.25 The then Queensland Treasurer also highlighted the fact that it
would be counterproductive for the terms of reference to intimate that
the sufficiency of the RIS process would be evaluated in respect of each
subordinate instrument. The category of instruments in respect of which
an RIS process is expected to be undertaken must be limited for it to
be of value.
5.26 The working party takes cognisance of the then Treasurer's comments.
Acceptance of COAG guidelines?
5.27 The benefits of the scrutiny committees utilising the COAG guidelines
in assessing the impact of subordinate legislation are clear. It would
considerably simplify the lawmaking process for bureaucrats and interested
parties alike.
5.28 This point has been considered along with another point made by
the then Queensland Treasurer that national schemes of legislation are
exempt from RIS requirements in that jurisdiction. Similar exemptions
apply in other jurisdictions with RIS requirements. While regulatory impact
assessment statements are now required to be prepared for national schemes
of legislation in accordance with the COAG Principles and Guidelines,
these exemptions preclude scrutiny committees from determining whether
those requirements have been complied with and thus create a vacuum in
the scrutiny of such legislation. The working party considers that appropriate
enabling provisions will need to be made in scrutiny committees' terms
of reference to permit them to monitor compliance with the COAG Principles
and Guidelines.
CONCLUSION AND POSITION ADOPTED
5.29 In conclusion, on Proposal 1, the working party adopts the following
views on the terms of reference relating to scrutiny of national scheme
subordinate legislation:
- that all scrutiny of subordinate legislation committees adopt the
following terms of reference for the examination of national scheme
subordinate legislation:
- whether the subordinate legislation is in accordance with the provisions
of the Act under which it is made and whether it duplicates, overlaps
or conflicts with other regulations or Acts;
- whether the subordinate legislation trespasses unduly on personal
rights and liberties;
- whether, having regard to the expected social and economic impact
of the subordinate legislation, it has been assessed according to the
Principles and Guidelines for National Standards Setting and Regulatory
Action by Ministerial Councils and Standard Setting Bodies or other
equivalent guidelines; and
- whether the subordinate legislation makes rights, freedoms or obligations
unduly dependent upon administrative decisions which are not subject
to appropriate external review.
- that although they are not extensive in scope, the four terms of reference
reflect fundamental values which are commonly supported;
- that the terms of reference will provide a basic and uniform level
of scrutiny to which all uniform subordinate legislation will be subjected;
and
- that the category of instruments to which the terms of reference will
be applied should not, at this stage, be extended to all subordinate
legislation or to incorporated documents referred to in
(or associated with) subordinate legislation.
6. IMPLEMENTATION OF UNIFORM SCRUTINY PRINCIPLES
BACKGROUND
6.1 At the conference of scrutiny committees in Hobart in December 1995
which considered the submissions on the Discussion Paper, there was broad
based support for the concept of uniform scrutiny principles to be applied
to national schemes of legislation. The discussion centred around how
this objective was to be achieved.
6.2 This chapter will deal with the aims of the working party in the
application of uniform scrutiny principles, the concerns expressed in
the submissions on the initiative and how the proposed mechanisms will
overcome or avoid these concerns.
6.3 Options for implementation will be outlined which take into consideration
the constructive comments in the submissions. These provide efficient
and viable means of exposing national schemes of legislation to the scrutiny
of Parliaments at a time when it will be both effective and constructive.
6.4 Means of providing to Parliament information on national schemes
of legislation at an early stage will also be canvassed.
OBJECTIVES EMBRACED BY INITIATIVE
6.5 In addition to the support for the initiative of developing uniform
scrutiny principles from Members of Parliament involved with scrutiny
committees in all jurisdictions, there was support from other quarters.
6.6 Submissions from Ministers and departments expressed firm support
for the three proposals in the Discussion Paper. Encouragement was also
expressed by academics and industry groups.
6.7 Submissions indicated views on the qualities that any proposed initiative
would have to embody. This constructive advice has been accepted as a
challenge which this working party has sought to meet. One submission
which communicated scepticism about the initiative's likelihood of success
had the following advice to offer:
... the onus rests with the committees to convince government that
they can make a positive contribution to national scheme legislation
processes. It would appear that perhaps the most effective means for
committees to become institutionalised in the process (which it appearsthey
desire) is for their role to be recognised and accepted by the Council
of Australian Governments. [69]
6.8 Other submissions focused on features which a proposed model would
have to have to succeed:
A process must be put in place, known to all parties, that facilitates
change but does not stifle it. [70]
... the representative committee would need to devise a process
that was streamlined and cost effective. [71]
A unified approach to legislative standards, a proactive model,
and a cooperative approach towards public officers and the Executive
Government would go a long way to meeting that challenge. [72]
6.9 The working party believes that these criteria are addressed in the
options proposed.
CONCERNS EXPRESSED IN SUBMISSIONS
6.10 The concerns expressed in all submissions have also been closely
examined and the options for implementation have been specifically developed
to address these difficulties. Some of the most significant difficulties
which the working party had to confront are dealt with below.
Delays to the existing process should be minimised
6.11 Several submissions expressed the same misgivings about introducing
another step in an already time consuming process:
... if I have a concern with the Paper, it is that the proposals
may potentially slow the legislative process down even further. [73]
... I should point out, however, that there are often fairly strict
timetables applying to national scheme legislation which are imposed
by, for instance, Commonwealth or international commitments and any
system which can minimise delays in the process would be of great benefit.
I agree that opportunities for parliamentary scrutiny and input
have at times been limited when such schemes are proposed, principally
because the process of gaining government acceptance is so involved
and time-consuming that a second-tier review would introduce a whole
new area of uncertainty. You will appreciate the difficulties involved
in settling the terms of legislation with all States and the Commonwealth
and that changes made by or in individual parliaments could add years
to the process of adoption of national scheme legislation, particularly
given the delays caused by elections and the parliamentary timetables
generally. Nevertheless, it has to be accepted that parliaments have
an over-riding responsibility to review legislation and should not be
seen as, in your terms, a rubber stamp. [74]
6.12 The view expressed in the above submission that, despite the perceived
potential for delays, the role of Parliament has to be restored, was taken
a step further in the extract below which anticipated that the scrutiny
process would in fact improve legislation:
It is considered that the introduction of a structured approach
whereby the Parliamentary Scrutiny Committees are involved in the process
of making uniform legislation should in the long run speed up the process
and result in more appropriate outcomes ... [75]
6.13 One means of containing and limiting the anticipated delay in the
process was suggested by the Commonwealth Attorney-General's Department:
The Department would advocate time-limits on the period a Committee
has to make its findings, as excessive delays could defeat uniform schemes
in themselves. [76]
6.14 However, the working party feels that when considering national
schemes of legislation, the relevant committee should use its best endeavours
to meet whatever time constraints that circumstances dictate, especially
given development of national legislation may have already taken several
years.
Duplication would be wasteful and should be avoided
6.15 The opinion that scrutiny of national schemes of legislation by
uniform scrutiny principles would be likely to result in costly and wasteful
duplication was particularly expressed by the Commonwealth Attorney-General's
Department:
It is unclear how the suggestions in paragraphs 6.2 - 6.5 (Discussion
Paper) would enhance the scrutiny process if the legislation is to be
scrutinised again after it is settled by the Ministerial Council. Without
a guarantee that there will be no double-handling, this suggestion may
involve the expenditure of additional resources and further delays.
[77]
6.16 The working party believes that duplication may be unavoidable but
is prepared to try to minimise costs recognising, however, that the essential
function of scrutiny must be carried out in scrutinising national schemes
of legislation.
Should the proposed legislation or agreements by Ministerial Councils
be tabled in Parliament to expose them to general examination within that
forum, and at what stage should this take place?
6.17 There was widespread support in the submissions for the idea that
Parliaments should be informed about national schemes of legislation before
they are introduced as a fait accompli.
6.18 The Australian Law Reform Commission came to the following conclusion:
In the Commission's view the best way in which to promote greater
involvement of the legislatures in the development of uniform legislation
is initially through improved information flow between Ministerial Councils
and legislatures . [78]
6.19 The Australian Council for Civil Liberties made its suggestions
after describing the difficulties caused by the current situation:
We have had a concern for some time at the growing trend for important
policy decisions, especially in the criminal justice area, to be made
at the national level rather than, as has traditionally been the case,
at State level.
Much legislation is formulated through these two bodies (Standing
Committee of Attorney-General's (SCAG) and Australian Police Ministers'
Council (APMC)) but it is difficult if not impossible to find out what
each of these two bodies are to consider as agenda items in advance
of any particular meeting and it is equally difficult to find out what
resolutions were made by each of these particular bodies after any given
meeting.
... we consider that it is highly desirable that criminal justice
and other decisions made at a national level which can end up in mirroring
State legislation should be advised to interested parties at least at
the time that they are agenda items either at SCAG or the APMC or, desirably,
even earlier. [79]
6.20 Several Parliamentarians expressed the firm view that information
flow on national schemes of legislation to Parliaments should be improved:
It is critical that each Parliament has tabled, prior to any uniform
legislation being introduced, a detailed report including a copy of
any Heads of Government or Ministerial Council Agreement and an exposure
draft of both the bill and regulations. Forewarning by, or accompanying
the report to parliament, by a Ministerial Statement to each House of
Parliament. [80]
6.21 In his address to the conference of scrutiny committees in Hobart,
the then Tasmanian Premier, the Honourable Ray Groom, MHA also supported
the view that:
As you say, it is not simply policy-type matters, it is the detail
of the scheme and the legislation which people need time to consider.
The problem that arises is partly out of the nature of the beast - everyone
sometimes wonders where this thing is coming from and suddenly you are
landed with it and ministers often have to suddenly consider detail
in which they have not been directly involved themselves. But it is
a question of Parliament having proper notice, ... actually having the
bill well in advance so that you can consider the precise mechanisms
and the detail. I think the tabling of agreements which have a degree
of information in them that is not perhaps as detailed as the bill itself
would be a valuable step forward, so that parliaments are informed of
what is developing; not just policy but also some of the mechanisms
that are actually contained in proposed agreements. [81]
6.22 Mr Groom did, however, express misgivings about the suggestion in
Proposal 3 that there be a requirement to table exposure drafts.
6.23 It is clear, therefore that there is a need for Parliaments to be
informed about intergovernmental agreements.
Recognition of different methods of achieving national schemes of
legislation
6.24 This point was particularly made by the Commonwealth Attorney-General's
Department and has been canvassed in preceding chapters. Ultimately the
Department called for a flexible approach. This point was recognised by
the working party and is reflected in the changes made to Proposal 3.
OPTIONS PROPOSED FOR THE IMPLEMENTATION OF THE UNIFORM SCRUTINY PRINCIPLES
6.25 The concept of a National Scrutiny Committee was foreshadowed in
the Discussion Paper and further suggested by Mr Anthony Morris QC who
proposed:
I would only suggest, in connection with Proposal 3, that some consideration
should be given to the establishment of inter-Parliamentary scrutiny
committees, comprising both Government and Opposition members from each
State or Territory which is likely to be affected by proposed legislation.
It seems to me that a substantial saving in time and resources could
be achieved by the establishment of an inter-Parliamentary Committee
for the scrutiny of proposed uniform legislation, which comprises (say)
one Government and one Opposition member from the Scrutiny Committee
in the Lower House of each State or Territory Parliament affected by
the proposed uniform legislation. [82]
6.26 The working party has considered the following two options (see
pp 41-44) for implementation of the effective scrutiny of national schemes
of legislation in the light of uniform scrutiny principles.
6.27 Option 1 proposes the establishment and operational process of a
National Scrutiny Committee. This National Scrutiny Committee could scrutinise
legislation at one of two points of time although the working party differs
as to which is appropriate. These two points are, first, when the draft
legislation is in its final (or near to final) form but before it is introduced
into any Parliament, secondly, when the bill is introduced into the first
Parliament.
6.28 Option 2 operates with respect to national scheme primary legislation.
It proposes that each Parliament adopt formal procedures for the purposes
of achieving effective scrutiny of national schemes of legislation.
6.29 The working party invites suggestions for alternative means of implementing
effective scrutiny of national schemes of legislation.
OPTION NO. 1
NATIONAL COMMITTEE FOR THE SCRUTINY OF NATIONAL SCHEMES OF
LEGISLATION
The model national Committee outlined below represents one way in which
it is envisaged scrutiny committees from every jurisdiction can operate
as one voice in respect of the scrutiny of National Schemes of Legislation
CHAIR
(Chair - Senate Scrutiny of Bills Committee - for three year initial period)
|
TWO DEPUTY CHAIRS
(Deputy Chairs appointed from other Committees on a rotating basis)
|
SECRETARIAT
(Senate)
|
Chair - Initially, it is anticipated that the Chair of the Senate Scrutiny
of Bills Committee will be the Chair of the National Committee for either
a two or three year period.
Two Deputy Chairs - The Deputy Chairs are to be appointed from the other
committees on a rotating basis for the same two or three year period.
There should be one Deputy Chair drawn from those committees which deal
with Subordinate Legislation. There should be another Deputy Chair drawn
from those committees which deal with Bills.
Members - It is anticipated that all committees will be members of the
National Committee. For working purposes, within that National Committee
there will be two `lists'; one for Subordinate Legislation and one for
Bills. Obviously, those committees which currently deal with Bills will
be on the `Bills List'. Those committees which deal exclusively with Subordinate
Legislation will be on the `Subordinate Legislation List'. Those committees
with dual functions will be on both Lists.
Reports - Within each List it is envisaged that there will be one rostered/nominated
committee which will have responsibility for the carriage of the Report.
Perhaps the sensible way to select the rostered committee is for it to
be the same Committee whose Chair is appointed Deputy of the National
Committee. That way, the practical work of drafting the Report remains
with the committee whose Chair (ie: Deputy Chair of the National Committee)
is responsible for presentation of the Report, along with the Chair (ie;
Chair of the National Committee). The coordinating of the Report (conducting
of teleconferences etc) should be worked out between the advisers of the
Chair and the Deputy Chair.
All the material should be sent to all committees. However, only those
committees who have appropriate jurisdiction in respect of a particular
area are obliged to respond. Practically, this means that all committees
must respond in respect of Subordinate Legislation. Only those committees,
including scrutiny of Bills (only) committees, who have existing responsibility
for Bills are obliged to respond where Bills are introduced. This does
not mean that those committees who do not currently examine Bills should
refrain from comment. They are of course most welcome to comment, if they
believe it is appropriate. The onus is on the committees to respond to
the legislation and work within the timetable. At the end of the day,
the success of the National Scrutiny Committee involves the cooperation
and commitment of individual committees to the process. Each committee
must respond when called upon to do so, ie; when legislation is circulated.
The scrutiny by this national committee can be carried out at one of
two points in time:
EITHER
at a time when the draft legislation is in its final (or nearly final)
form but before it is introduced into any Parliament;
OR
upon its introduction into the first Parliament.
Each jurisdiction would have to consider appropriate amendments to its
procedures in Parliament to enable either of these alternatives to operate.
As previously noted in paragraph 6.27 there are differing views within
the working party as to the appropriate time for this scrutiny. The working
party invites suggestions for alternative means of implementing effective
scrutiny of national schemes of legislation.
OPTION 1 TIMETABLE
The model timetable outlined below represents one way in which it is
believed it is possible for scrutiny committees to examine national schemes
of legislation without hindering the legislative process. It should be
stressed that it is a model only and of course subject to alteration should
circumstances so dictate. The model outlined allows for the time required
in a practical sense for actually examining the legislation, convening
committees, contacting Chairs, allowing feedback and drafting the final
Report.
A fourteen-day timetable (Note the days represented are working days
- 14 days for approximately three weeks).
| DAY 1 |
All material to be sent to all the committees. Note
that the rostered/nominated committee is to have the carriage of the
Report. |
| DAYS 2-3 |
Advisers to examine material |
| DAY 4 |
Advisers liaise with Chairs of individual committees |
| DAY 5 |
Teleconference - all Advisers (Subordinate Legislation
Advisers when appropriate and Bills Advisers when appropriate. However,
all Advisers should be advised of the impending teleconference.) |
| DAY 8 |
First draft Report is sent to all committees |
| DAY 11 |
Feedback from all committees |
| DAY 12 |
Final draft to all committees |
| DAY 14 |
Final Report Complete |
OPTION No. 2
CHANGE OF STANDING ORDERS
An alternative to establishing a National Scrutiny Committee to scrutinise
national schemes of legislation (as outlined in Option 1) would be for
all jurisdictions with the responsibility for scrutinising Bills to agree
to endeavour to achieve a change in their jurisdiction to allow more effective
reporting to that Parliament on national schemes of legislation.
The change would require each relevant jurisdiction to endeavour
to have its standing orders amended, or a resolution agreed to by the
respective House of Parliament to provide (words to the effect of) the
following:
- Upon the introduction of a Bill implementing an intergovernmental
agreement, and a comment being made by the relevant Scrutiny Committee,
no further debate or progress is to be made upon the Bill until the
Minister responsible for the Bill has reported back to the Parliament
on the issues raised.
- These procedures are only applicable to those jurisdictions with a
scrutiny of Bills function (the Senate, Victoria, the Australian Capital
Territory and Queensland). Other jurisdictions wishing to implement
scrutiny principles of this kind would need to consider alternative
procedures.
- This option would ensure that, where a scrutiny committee has concerns
with respect to a Bill which is being introduced in one or more of the
other jurisdictions, in substantially the same form, the Bill can not
be passed without the responsible Minister reporting back to Parliament
on concerns raised.
ANNEXE 1
LEGISLATIVE STRUCTURES
Some of the different structures bear similar names, which can be confusing.
For example, a reference to `Complementary' legislation may equally be
referring to:
- `Complementary Commonwealth-State' legislation (identified below as
Structure 1); or
- `Complementary' legislation (identified below as Structure 2); or
- `Adopted Complementary' legislation (identified below as Structure
3).
Further, the same structure may bear many different names, for example,
the structure identified as Structure 3 is known variously as `Template'
legislation, `Co-operative' legislation, `Applied' legislation and `Adopted
Complementary' legislation. The structure identified as Structure 1 is
known variously as `Complementary Commonwealth-State Legislation' and
`Co-operative' legislation.
Until the different structures acquire commonly accepted names legislators
should remain alert to the possibility of confusion when considering the
structure of a proposed piece of uniform legislation.
STRUCTURE 1 - `COMPLEMENTARY COMMONWEALTH-STATE' OR `CO-OPERATIVE
LEGISLATION'
This structure developed out of the confines of the Constitution and
is known as `Complementary Commonwealth-State' or `Co-operative' legislation.
Sometimes a legislative field is broader than the defined powers of the
Commonwealth. In these circumstances the Commonwealth may enact legislation
to the extent it is empowered to do so and the States and Territories
may legislate to cover the remaining matters, for example, the Commonwealth's
Trade Practices Act 1974 (consumer protection provisions), complemented
by various Fair Trading Acts in the different States and Territories.
The legislation of the State complements the legislation of the Commonwealth
in that it recognises the existence of the Commonwealth legislation and
the over-riding nature of the provisions of that legislation and does
not attempt to contradict these provisions by enacting legislation on
the same matters. Instead the legislation of the State is restricted to
matters which are not covered by the Commonwealth legislation.
The relevant relationship in this structure is between the legislation
of one State and the Commonwealth. The legislation of the various States
and Territories is not necessarily uniform in nature.
Amendments
Amendments to the Commonwealth legislation are totally under the control
of the Commonwealth Parliament and amendments to the State legislation
are totally under the control of the State Parliament.
Emphasis
This structure emphasises flexibility outside the matters covered by
the Commonwealth legislation, as each jurisdiction is able to draft its
own legislation to suit local considerations.
STRUCTURE 2 - `COMPLEMENTARY' OR `MIRROR' LEGISLATION
`Complementary' or `Mirror' legislation may be used when there is uncertainty
as to the extent of the constitutional power of the Commonwealth.
The identifying feature of this structure is the enactment of separate
identical legislation in all participating jurisdictions.
Totally consistent (but not necessarily identical) Acts are passed in
each jurisdiction to prevent any questions about the validity of the legislation.
The intergovernmental agreement may require the Minister to introduce
the Bill in identical terms. However, the Bill is considered and debated
in each Parliament. There is a tendency for each participating jurisdiction
to vary the draft agreed to by the executive branch of Government, to
accommodate local concerns and the different drafting styles of local
parliamentary draftsman. [83]
This structure may also be used where there is no uncertainty about the
extent of the constitutional powers of the Commonwealth, but jurisdictions
wish to establish a national regulatory body. [84]
Amendments
The intergovernmental agreement may state that amendments agreed at the
Ministerial Council level should be enacted promptly by all participating
jurisdictions. However in practice each Parliament may delay passage of
the agreed amendment, refuse to enact the agreed amendment, or vary the
terms of the agreed amendment.
If the scheme has been devised to cure questions of constitutional validity,
delay or variations to amendments agreed by the executive branch of Government
will endanger the cure. Further, the passage of inconsistent amendments
will inevitably contribute to the breakdown of a national scheme reliant
on consistent legislation or regulations.
Emphasis
Assuming the Bills pass through each Parliament as originally drafted,
this structure emphasises consistency.
STRUCTURE 3 - `TEMPLATE' OR `CO-OPERATIVE' OR `APPLIED' OR `ADOPTED
COMPLEMENTARY' LEGISLATION
This is an elastic structure as variations can be made to accommodate
requirements determined during the negotiation process. It is variously
known as `Template' or `Cooperative' or `Applied' or `Adopted Complementary'
legislation.
The two common versions differ in their treatment of amendments. In the
first version participating jurisdictions automatically adopt future amendments
to the legislation by the host jurisdiction. In the second version participating
jurisdictions retain the ability to consider amendments.
Amendments adopted automatically
One jurisdiction acts as host and enacts the legislation in the form
agreed by the executive branches of governments. The other participating
jurisdictions enact legislation which applies the legislation of the host
jurisdiction, and any future amendments to that legislation.
The States may choose to apply a Commonwealth Act in a Territory, or
may choose to apply a State Act. [85]
The relevant intergovernmental agreement usually provides that participating
jurisdictions must refrain from introducing separate legislation on any
matter within the scope of the agreed legislation, and must undertake
the repeal, amendment or modification of existing inconsistent legislation.
Each State or Territory is usually permitted to make minor or technical
variations to the applied legislation to ensure consistency with other
State or Territory legislation.
The Financial Institutions legislation and the Corporations
Law are examples of this structure.
Amendments
The intergovernmental agreement should provide for the method of agreeing
amendments. For example, the relevant Ministerial Council may have to:
- unanimously agree to any proposed amendment; or
- two-thirds of the Ministerial Council may have to agree; or
- a majority of the Ministerial Council may have to agree; or
- the Ministerial Council may only have to be consulted, rather than
agree.
Sometimes failure to reject regulations within a specified time period
may result in deemed approval by the Ministerial Council. [86]
Sometimes the national regulatory body will also have to be consulted,
or agree to the proposed amendments.
Unless the approval of all Ministers is required to proposed amendments,
a vote against the proposal will not of itself prevent that amendment
applying to that Minister's jurisdiction.
It is therefore possible that the Minister of the host jurisdiction will
be obliged to introduce amendments into the host Parliament, if the amendments
are approved by the Ministerial Council, even if that Minister voted against
the proposal in Ministerial Council.
The Parliaments of the participating jurisdictions are not involved in
the amending process, unless the attention of a State Parliament is drawn
to the need to pass legislation which specifically varies an amendment
made in the host Parliament.
Emphasis
This version of this structure emphasises a high degree of consistency
for the legislation as amended.
Amendments enacted separately
This version of the structure requires one jurisdiction to act as host
and enact legislation in a form agreed to by the Council of Australian
Governments or relevant Ministerial Council. The other participating jurisdictions
enact legislation which applies the legislation of the host jurisdiction,
but retain control over the amendment process.
The intergovernmental agreement may specify whether the Ministerial Council
or national regulatory body is required to agree to any departures from
the national scheme by individual States or Territories. Further, the
intergovernmental agreement may require Ministers to propose amending
legislation in their jurisdictions, despite voting against the proposed
amendments at Ministerial Council.
Amendments
Each jurisdiction retains some flexibility in its consideration of proposed
amendments.
Emphasis
A high degree of consistency is emphasised in the original legislation.
STRUCTURE 4 - `REFERRAL OF POWERS'
If the Commonwealth is unsure of the extent of its Constitutional power
in an area, or completely lacks power, the States may agree to refer power
to the Commonwealth under section 51(xxxvii) of the Constitution.
Section 51(xxxvii) of the Australian Constitution enables the Commonwealth
Parliament to legislate with respect to matters referred to it by the
Parliament of any State. Such Commonwealth legislation will only operate
in the States which referred the matter, or which after referral of the
matter by another State, adopted the resultant legislation.
The section enables the States to extend the legislative power of the
Commonwealth at their instigation. The Commonwealth would then have legislative
coverage of a matter over which previously the States had comprehensive
power to legislate.
Legislation adopted pursuant to section 51(xxxvii) operates in the adopting
State as a Commonwealth law, bringing with it the operation of section
109 of the Australian Constitution.
Section 109 of the Australian Constitution prevents the operation of
inconsistent State laws. Any inconsistent State or Territory laws would
be inoperative whilst the Commonwealth had legislation operating in the
area, preventing inconsistencies occurring between jurisdictions due to
deliberate or inadvertent amendment of State legislation.
The reference of power may refer to a legislative area, or may be limited
to the passage of a Commonwealth Bill attached as a Schedule to the State
legislation referring the power. For example, the reference of power by
Queensland and New South Wales in their respective Mutual Recognition
Acts annexed the Commonwealth Bill.
Referral of powers ensures that Commonwealth legislation is valid if
there are doubts about the extent of the Commonwealth's constitutional
power to legislate in the area or if all participating jurisdictions want
to ensure a national scheme will operate without the necessity of repealing,
amending or modifying all inconsistent State or Territory legislation.
For example, the mutual recognition legislation.
Amendments
The referral may include a mechanism for amending the legislation. For
example, the agreement of the Ministerial Council or national regulatory
body. Amendments must be made by the Commonwealth, although limited referrals
of power may restrict the Commonwealth's ability to amend the original
legislation. Amendments may be difficult if all States involved have to
amend their referring legislation to confer broader power on the Commonwealth,
to enable the Commonwealth to comply with the directions of the relevant
Ministerial Council or national regulatory body.
Emphasis
Section 109 of the Constitution dictates that this structure has an emphasis
on total consistency.
STRUCTURE 5 - `ALTERNATIVE CONSISTENT' LEGISLATION
This is a relatively new structure known as `Alternative Consistent'
legislation. This was a structure used for the Uniform Consumer Credit
Laws.
The intergovernmental agreement may permit a jurisdiction to participate
in a national scheme by enacting legislation which states that `an act
or thing' will be lawful, if such an act or thing would be lawful under
legislation of the host jurisdiction. The State or Territory would undertake
not to introduce any legislation which would otherwise conflict with the
legislation, and would undertake to repeal, amend or vary existing legislation
which conflicted with the `alternative consistent' legislation.
The intergovernmental agreement may permit a jurisdiction to later repeal
its legislation and adopt the legislation of the host jurisdiction.
The host legislation may prevent States and Territories joining national
schemes in this manner, or introducing their own legislation in accordance
with Structure 2. For example, the definition of `participating jurisdiction'
in the Commonwealth Mutual Recognition Act 1992 excludes jurisdictions
from participating in the national mutual recognition scheme if they have
not referred power to the Commonwealth or adopted the Commonwealth legislation
under section 51 (xxxvii) of the Constitution.
Amendments
Each participating jurisdiction would be responsible for monitoring amendments
to the legislation in the host jurisdiction and introducing consistent
amendments, where necessary, into the Parliament. The Parliament is reliant
on the executive branch of Government to monitor amendments proposed in
relevant Ministerial Councils or the Council of Australian Governments.
Emphasis
The emphasis in this structure is on flexibility.
STRUCTURE 6 - `MUTUAL RECOGNITION' LEGISLATION
States may agree on a scheme of mutual recognition of laws. In general
terms under mutual recognition all States and Territories retain their
local laws. However, goods and services produced or imported into a State
or Territory need only comply with that State or Territory laws but may
be sold in another State or Territory without the necessity of complying
with further requirements of the latter State or Territory.
STRUCTURE 7 - `UNILATERALISM'
Each State may retain its own particular law. Unilateralism, sometimes
referred to as `diversity', reinforces State sovereignty. State legislation
can be specially tailored to local needs. The ability to enact diverse
legislation can be important in advancing social reform. Governments with
vision can legislate for change. The disadvantages of Unilateralism is
that it may be seen by some to impede national activities. For example
producers trading interstate will be confronted with laws that differ
from jurisdiction to jurisdiction. Local rules may be used to protect
regional producers from competition to the detriment of general community
and economy.
STRUCTURE 8 - `NON-BINDING NATIONAL STANDARDS MODEL' LEGISLATION
National standards are agreed to by all jurisdictions. Under this mechanism,
a State or Territory passes its own legislation. A national authority
is appointed to make decisions for the State or Territory under the State
or Territory legislation. The State or Territory Minister has the authority
to vary any decision of the appointed authority.
ANNEXE 2
THE DISCUSSION PAPER'S PROPOSALS
PROPOSAL 1
That all Scrutiny Committees adopt the following separate Terms
of Reference for the examination of national scheme subordinate legislation.
- Whether the subordinate legislation is in accordance with
the provisions of the Act under which it is made and whether it duplicates,
overlaps or conflicts with other regulations or Acts;
- Whether the subordinate legislation trespasses unduly on personal
rights and liberties;
- Whether, having regard to the expected social and economic
impact of the subordinate legislation, it has been properly assessed.
(It is assumed that in respect of this Proposal, all the Scrutiny
Committees are to retain their own particular Terms of Reference for the
examination of subordinate legislation which relates to their particular
jurisdiction. The above Terms of Reference are only to apply to the scrutiny
of national scheme subordinate legislation.)
PROPOSAL 2
That all Scrutiny of Bills Committees adopt the following separate
Terms of Reference for the examination of national scheme primary legislation.
- Whether the Bill unduly affects personal rights and liberties;
- Whether the Bill inappropriately delegates legislative powers.
(The Scrutiny of Bills Committees are to retain their own particular
Terms of Reference for the examination of Bills which relate to their
particular jurisdictions.)
PROPOSAL 3 -
Ensure that uniform legislation is tabled as an exposure draft
in each Parliament
ANNEXE 3
EXTRACTS FROM COAG GUIDELINES
Ministerial Council agreements are commonly translated into laws and
regulations. Rather than create an artificial boundary between the different
forms of regulatory control there is a need for a set of consistent principles
that can govern the approach of Ministerial Councils and intergovernmental
standard-setting bodies in developing all proposals which have a regulatory
impact.
These guidelines consider the best processes to follow in determining
whether a set of standards and their associated laws and regulations are
the appropriate course of action for a Ministerial Council or other standard-setting
body to take. They describe the features of good regulation and conclude
by recommending a set of principles for standard setting and regulatory
action.
ASSESSMENT OF NATIONAL STANDARDS PROPOSED TO BE ADOPTED BY A MINISTERIAL
COUNCIL OR OTHER INTERGOVERNMENTAL STANDARD-SETTING BODY
All national (inter-governmental) standards which require agreement by
Ministerial Councils or standard-setting bodies (including standards developed
by other bodies) should be subject to a nationally consistent assessment
process. The process is set out below.
Minimum Assessment Requirements
Where a Ministerial Council or standard-setting body proposes to agree
to regulatory action or adopt a standard, it must first certify that the
regulatory impact assessment process has been adequately completed. The
assessment process does not necessarily have to be carried out by the
Ministerial Council but the Council or body should provide a statement
certifying that the assessment process has been adequately undertaken
and that the results justify the adoption of the regulatory measure. Most
governments have regulatory impact assessment processes in place. The
completion of regulatory impact assessments by Ministerial Councils and
standard-setting bodies should remove the need to duplicate this analysis.
Adequate completion means that:
1. an impact statement for the proposed regulatory measures has been
prepared which:
- demonstrates the need for regulation,
- details the objectives of measures proposed,
- outlines the alternative approaches considered (including non-regulatory
options) and explains why an alternative approach was not adopted,
- documents which groups benefit from regulation and which groups pay
the direct and indirect costs of implementation,
- demonstrates that the benefits of introducing regulation outweigh
the costs (including administrative costs),
- demonstrates that proposed regulation is consistent with relevant
international standards (or justifies the extent of inconsistency),
and
- sets a date for review and/or sunsetting of regulatory instruments;
2. advertisements have been placed in all jurisdictions to give notice
of the intention to adopt regulatory measures, to advise that the impact
statement is available on request and to invite submissions;
3. a list of persons/groups who made submissions or were consulted and
a summary of their views has been prepared; and
4. the Council or other intergovernmental standard-setting body has considered
the views expressed during the consultation process.
A copy of the completed impact statement should be forwarded to the Commonwealth
Office of Regulation Review for information. The Office may be called
upon to advise Ministerial Councils on technical issues so that a consistent
approach is adopted.
ANNEXE 4
LIST OF SUBMISSIONS RECEIVED IN RELATION TO NATIONAL SCHEMES
OF LEGISLATION
RECEIVED BY SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS AND
SENATE STANDING COMMITTEE ON REGULATIONS AND ORDINANCES, CANBERRA
President, Australian Law Reform Commission, 133 Castlereagh Street,
Sydney, NSW.
President, Australian Council for Civil Liberties, C/- GPO Box 2281, Brisbane,
QLD.
Deputy Secretary, Attorney-General's Department, National Circuit, Barton,
ACT.
President, Administrative Review Council, 40 Marcus Clarke Street, Canberra,
ACT.
Anthony J Morris, QC, 239 George Street, Brisbane, QLD.
Trevor Nyman, Trevor Nyman and Company, 170 Riley Street, East Sydney,
NSW.
RECEIVED BY STANDING COMMITTEE ON SCRUTINY OF BILLS AND SUBORDINATE
LEGISLATION, ACT
Mr Gary Humphries MLA, Attorney General, ACT Legislative Assembly, London
Circuit, Canberra, ACT.
Executive Director, The Law Society of the Australian Capital Territory,
1 Farrell Place, Canberra, ACT.
RECEIVED BY REGULATION REVIEW COMMITTEE, NEW SOUTH WALES
Commissioner, New South Wales Fire Brigades, 227 Elizabeth Street, Sydney.
Director General, State Emergency Service, 6-8 Regent Street, Wollongong.
Acting Director-General, Department of Public Works and Services, 2-24
Rawson Place, Sydney.
Managing Director, Sydney Water, 115-123 Bathurst Street, Sydney.
Director-General, NSW Agriculture, 161 Kite Street, Orange.
Attorney General, Goodsell Building, Chifley Square, Sydney.
Joint Acting Executive Director and Director Legal, Australian Bankers'
Association, 55 Collins Street, Melbourne.
General Manager, WorkCover Authority, 400 Kent Street, Sydney.
Executive Director, Australian Finance Conference, 68 Pitt Street, Sydney.
RECEIVED BY SCRUTINY OF LEGISLATION COMMITTEE, QUEENSLAND
Government and Executive Services Branch, Department of the Premier,
Economic and Trade Development, 100 George Street, Brisbane, QLD.
Director-General, Department of Tourism, Sport and Youth, 85 George Street,
Brisbane, QLD.
Treasurer of Queensland, 100 George Street, Brisbane, QLD.
Acting Executive Director (Business Services), Queensland Transport, 85
George Street, Brisbane, QLD.
Ministerial Policy Advisor, Department of Justice and Attorney General
and the Arts, 50 Ann Street, Brisbane, QLD.
Director, Executive Support Unit, Administrative Services Department,
80 George Street, Brisbane, QLD.
Minister for Minerals and Energy, 61 Mary Street, Brisbane, QLD.
Acting Director-General, Department of Minerals and Energy, 61 Mary Street,
Brisbane, QLD.
Mr Neil Roberts MLA, Member for Nudgee, 5 Royal Parade, Banyo, QLD.
Dr Noel Preston, Queensland University of Technology, Brisbane, QLD.
Mr Tom Round, Griffith University, Messines Ridge Road, Mt Gravatt, Brisbane,
QLD.
Chairman, Litigation Reform Commission, Supreme Court, George Street,
Brisbane, QLD.
Anthony J Morris, QC, 239 George Street, Brisbane, QLD.
General Manager, Queensland Chamber of Commerce and Industry, 375 Wickham
Terrace, Brisbane, QLD.
The Honourable the Chief Justice of the Supreme Court, Brisbane, QLD.
Acting Assistant Commissioner, Operations Support Command, Queensland
Police Service, Police Headquarters, Brisbane, QLD.
Acting Director-General, Department of Primary Industries, 80 Ann Street,
Brisbane, QLD.
RECEIVED BY PARLIAMENTARY STANDING COMMITTEE ON SUBORDINATE LEGISLATION,
TASMANIA
Mr Stephen Wilson, M.L.C., Member for Monmouth, Parliament House, Hobart,
TAS.
RECEIVED BY STANDING COMMITTEE ON UNIFORM LEGISLATION AND INTERGOVERNMENTAL
AGREEMENTS, WESTERN AUSTRALIA
Executive Officer, Association of Mining and Exploration Companies (Inc),
33 Ord Street, West Perth, WA.
Parliamentary Counsel, 141 St George's Terrace, Perth, WA.
ANNEXE 5
SCRUTINY COMMITTEES IN AUSTRALIA
| AUSTRALIAN CAPITAL TERRITORY |
|
| Standing Committee on the Scrutiny of Bills and Subordinate
Legislation |
(06) 205 0171
|
|
|
| NEW SOUTH WALES |
|
| Regulation Review Committee |
(02) 9230 3060 |
|
|
| NORTHERN TERRITORY |
|
| Subordinate Legislation and Tabled Papers Committee |
(08) 8946 1423 |
|
|
| COMMONWEALTH |
|
| Senate Standing Committee on Regulations and Ordinances
|
(06) 277 3066 |
| Senate Standing Committee for the Scrutiny of Bills
|
(06) 277 3055 |
|
|
| SOUTH AUSTRALIA |
|
| Legislative Review Committee |
(08) 8237 9415 |
|
|
| TASMANIA |
|
| Parliamentary Standing Committee on Subordinate Legislation
|
(03) 6233 2311 |
|
|
| VICTORIA |
|
| Scrutiny of Acts and Regulations Committee |
(03) 9651 3500 |
|
|
| WESTERN AUSTRALIA |
|
| Joint Standing Committee on Delegated Legislation |
(09) 222 7300 |
| Standing Committee on Uniform Legislation and Intergovernmental
Agreements |
(09) 222 7483 |
|
|
| QUEENSLAND |
|
| Scrutiny of Legislation Committee |
(07) 3406 7445 |
Footnotes
[1] Pearce, D. C., (1977) Delegated Legislation
in Australia and New Zealand, Butterworths, p.30.
[2] South Australian Joint Committee on Subordinate
Legislation.
[3] The Chair of the Senate Standing Committee
for the Scrutiny of Bills, Senate Hansard, 4 June 1987, p.3528.
[4] Pearce, D. C., (1991) Ten Years of Scrutiny
- A Seminar to Mark the Tenth Anniversary of the Senate Standing Committee
for the Scrutiny of Bills, Canberra, p.6.
[5] A copy of the Discussion Paper may be obtained
by contacting the scrutiny committee in their jurisdiction (a list of
Committees with contact numbers is included at Annexe 5).
[6] Constitution Act 1889, Western Australia.
Similar intent is found in all other Australian Constitutional Acts.
[7] Conference of Scrutiny Committees, Hobart,
8 December 1995.
[8] Submission re the Scrutiny of National Scheme
Legislation by Dr Noel Preston, Senior Lecturer, School of Humanities,
Queensland University of Technology, p.1.
[9] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 15.
[10] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 16.
[11] Submission dated 5 December 1995, p.1.
[12] The references in this section are predominantly
to Members of the Executive in Queensland, many of whom provided submissions
to the Discussion Paper. The working party is indebted to them for their
co-operation in this project.
[13] Submission from the Honourable Keith De
Lacy MLA, then Treasurer of Queensland dated 21 September 1995, p.1.
[14] Submission from the Honourable Tony McGrady
MLA, then Minister for Minerals and Energy, Queensland dated 6 September
1995, p.1.
[15] Note: the comments in the submission were
stipulated not to reflect the views of the Premier or the Government but
to represent a summary of views provided by Departmental officers.
[16] Submission from the Queensland Premier's
Department, dated 27 September 1995, p.2.
[17] ibid.
[18] Submission from Anthony J. H. Morris QC,
dated 2 August 1995, pp.6-7.
[19] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.1.
[20] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.39.
[21] Submission from Queensland Chamber of
Commerce and Industry, 28 September 1996, p.1.
[22] Submission from Ministerial Policy Adviser,
Office of the Minister for Justice and Attorney-General and Minister for
the Arts, Queensland, received 8 November 1995, p.2.
[23] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 1.
[24] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 2.
[25] Submission from the Commonwealth Attorney-General's
Department, dated 5 October 1995, p.2. These criticisms will be addressed
in Chapter 6 of this report on the implementation of an option to ensure
scrutiny of national schemes of legislation.
[26] ibid, p.4.
[27] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 2.
[28] Honourable Phillip Pendal, MLA, at the
Conference of Scrutiny Committees, Hobart, 8 December 1995, transcript
p.7.
[29] Submission from Stephen Wilson MLA, member
for Monmouth, Hobart, dated 5 December 1995, p.1.
[30] Submission from the Law Society, ACT,
dated 4 December 1995, p.2.
[31] Submission from Peter Clarke, then Ministerial
Policy Adviser, Office of the Minister of Justice and Attorney-General
and Minister for the Arts, Queensland, received 8 November 1995, p.2.
[32] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.31.
[33] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, p.3.
[34] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, p.9.
[35] Proposal by ACT Attorney-General, Mr Gary
Humphries MLA, concerning Discussion Paper No. 1, p.1.
[36] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, pp.9-10.
[37] Proposal by ACT Attorney-General, Mr Gary
Humphries MLA, concerning Discussion Paper No. 1, p.1.
[38] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, at para 57.
[39] ibid at para 49.
[40] ibid at para 50.
[41] Submission from Ian Ramsay, General Manager,
WorkCover Authority, Sydney, dated 20 December 1995.
[42] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.33.
[43] Submission from the Australian Finance
Conference, Sydney, dated 20 December 1995.
[44] Submission from the Administrative Review
Council, Canberra, dated 29 September 1995, p.2.
[45] Submission from Trevor Nyman and Company,
Sydney, dated 25 July 1995.
[46] Submission from the Australian Bankers
Association, Melbourne, dated 12 December 1995.
[47] Pearce, D. C., (1977), Delegated Legislation
in Australia and New Zealand, Butterworths, p.7
[48] Submission from Stephen Wilson MLA, Member
for Monmouth, Tasmania, dated 5 December 1995, p.1.
[49] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.23, per Mr Jon Sullivan MLA (Chairman) Scrutiny
of Bills Committee, Queensland.
[50] Jon Sullivan MLA, (Chairman) Scrutiny
of Legislation Committee, Queensland, ibid p.5.
[51] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p.36, per the Honourable John Ryan.
[52] Senate Standing Committee on Regulations
and Ordinances, Sixty-fourth Report, Principles of the Committee,
Canberra, March 1979.
[53] Conference of Scrutiny Committees, Hobart,
8 December 1995.
[54] For full details on those points please
refer to the previous chapter and to the relevant submissions.
[55] Option 2 also supported by Queensland
Department of Minerals and Energy.
[56] Submission from the Member for Nudgee,
Queensland, dated 15 August 1995, p.1.
[57] Submission from the Queensland Police
Service, dated 22 September 1995, p.1.
[58] Barrister, Queensland.
[59] Submission from Anthony J. H. Morris QC,
Brisbane, dated 2 August 1995, pp.8-9.
[60] Submission from the Australian Law Reform
Commission, Sydney, dated 4 December 1995, p.2.
[61] Submission from The Law Society, Canberra,
dated 4 December 1995, p.2
[62] Submission from the Australian Bankers'
Association, Melbourne, dated 12 December 1995.
[63] Submission from the Sydney Water Corporation,
Sydney, dated 28 November 1995.
[64] Submission from the Honourable Keith De
Lacy MLA, then Queensland Treasurer, dated 21 September 1995, p.2.
[65] Para 3.5, p.28.
[66] Submission from the WorkCover Authority,
Sydney, dated 20 December 1995.
[67] Submission from the Honourable Tony McGrady
MLA, then Minister for Minerals and Energy, dated 6 September 1995,
p.1.
[68] Western Australia, Joint Standing Committee
on Delegated Legislation, The Subordinate Legislation Framework in
Western Australia, 16th Report, November 1995, para 5.4.
[69] Submission from the Queensland Department
of the Premier, dated 27 September 1995, p.2.
[70] Submission from Clive Bubb, General Manager,
Queensland Chamber of Commerce and Industry, Brisbane, dated 28 September
1995, p.1.
[71] Proposal by ACT Attorney-General Mr Gary
Humphries MLA concerning Discussion Paper No. 1, p.1.
[72] Submission from Queensland Department
of Primary Industries, dated 8 December 1995, p.2.
[73] Submission from the Honourable Keith De
Lacy MLA, thenQueensland Treasurer, dated 21 September 1995, p.2.
[74] Submission from K P Sheridan, Director-General,
NSW Agriculture, dated 4 December 1995.
[75] Submission from Clive Bubb, General Manager,
Queensland Chamber of Commerce and Industry, dated 28 September 1995,
p.2.
[76] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, at para 51.
[77] Submission from Colin Neave, Commonwealth
Attorney-General's Department, dated 5 October 1995, at para 51.
[78] Submission from Mr Alan Rose, President
of the Australian Law Reform Commission, dated 4 December 1995, p.4.
[79] Submission from T P O'Gorman, President,
Australian Council for Civil Liberties, dated 11 October 1995.
[80] Submission from Stephen Wilson MLA, Member
for Monmouth, Tasmania, dated 5 December 1995, p.2.
[81] Transcript of Conference of Scrutiny Committees,
Hobart, 8 December 1995, p. 6.
[82] Submission from Anthony J. H. Morris,
QC, Brisbane, dated 2 August 1995.
[83] There is no convention of drafting styles
and terminology in Australia equating with the position in Canada see
`Canadian Legislative Drafting conventions' in Proceedings of the 58th
Meeting of the Canadian Uniform Law Conference (1976)
[84] See below for comments on National Regulatory
Bodies
[85] For example, the Commonwealth Places,
(Application of Laws) Act 1970
[86] For example, the intergovernmental agreement
relating to National Road Transport legislation