Chapter 3
Work of the committee in 2011-12
3.1
This chapter discusses the work of the committee and matters of note in
the reporting period. Some representative examples of instruments and issues considered
by the committee are also provided.
Number of instruments considered
3.2
The committee held a total of 15 private meetings in 2011-12, at which
it considered 1753 instruments.
3.3
The number of instruments examined was slightly down on 2010-11 (1809)
and significantly fewer than in 2009-10 (2468). However, the fall in the latter
year is attributable to a reduction in the number of airworthiness directives
(ADs) made under the Civil Aviation Act 1988 (708 in 2009-10 compared to
69 in 2011-12). This followed a change (from 1 October 2009) whereby the Civil Aviation
Safety Authority (CASA) is no longer required, as a matter of course, to
re-issue ADs issued in a (foreign) State of Design as Australian ADs. Instead,
operators must now comply with the AD as issued by the (foreign) State of
Design.
3.4
Appendix 1 provides a breakdown of the instruments made in 2011-12 by
Act and instrument type. For further detail on specific instruments in this
period, the monitors for the relevant years should be consulted.
Instruments of concern and notices
3.5
Of the 1753 instruments examined by the committee during 2011-12,
90 instruments were identified as raising a concern.[1]
One of these, CASA EX48/11 – Exemption – for seaplanes [F2011L00652],
was the subject of a notice of motion for disallowance given by the committee.[2]
The notice was ultimately withdrawn following receipt of a satisfactory
response from the minister.
3.6
There were no unresolved notices of motion (given by the committee) at
the end of the reporting period.
Undertakings
3.7
During the reporting period:
-
seven undertakings to amend legislation were provided to address concerns
raised by the committee (see tables 1 and 2 at appendix 2 for details);
and
- six undertakings were implemented (see table 1 at
appendix 2).
3.8
Twenty-three undertakings remained outstanding (at 30 June 2012) (see
table 2 at appendix 2). The committee continues to monitor the status
of outstanding undertakings and, where necessary, to correspond with relevant
ministers and instrument-makers regarding their implementation.
Change to naming of regulations
3.9
In February 2012, the Office of Legislative Drafting and Publishing
(OLDP) advised the committee of certain changes to the office's drafting style
for regulations.
3.10
First, the names of new instruments of this type are now rendered in the
singular rather than the plural. For example:
- a new principal regulation is referred to as the 'XYZ regulation
2012' (as opposed to the 'XYZ regulations 2012'); and
- a new amending regulation is referred to as the 'XYZ amendment
regulation' (as opposed to the 'XYZ amendment regulations 2012').
3.11
Second, the individual provisions of a regulation are now named in the
same way as provisions in Acts. For example:
- the provisions of a new principal regulation are called section,
subsection, paragraph and so on;
- the provisions in a new amending regulation are called sections
1, 2, and 3 et cetera. If one of these is divided into subprovisions,
these are called subsections;
- existing regulations, even if amended, continue for the time
being to use regulation and subregulation.
3.12
The OLDP advised that the changes are part of a process of harmonising
the drafting styles of OLDP and the Office of Parliamentary Counsel.
3.13
The committee thanks OLDP for the timely advice to the committee
regarding the change.
Guideline on consultation
3.14
In September 2011, the committee produced a guideline to assist
instrument makers and officers of agencies and departments responsible for the
development of delegated legislation and ESs, particularly in respect of the
requirements of the LIA in relation to the need to describe the nature of
consultation undertaken in relation to the making of an instrument or to
explain why consultation was considered unnecessary or inappropriate.[3]
As discussed further below, the committee was prompted to develop the guideline
due to persistent shortcomings in ESs in this area.
3.15
The guideline, entitled 'Guideline for preparation of explanatory
statements: consultation', is reproduced in appendix 3 to this report.
3.16
The committee wishes to extend its thanks to the Attorney-General for
assistance in bringing the committee guideline to the attention of ministers
and their departments.
Parliamentary Joint Committee on Human Rights
3.17
On 13 March 2012, the Parliamentary Joint Committee on Human Rights
(the PJCHR) was established under the Human Rights (Parliamentary
Scrutiny) Act 2011 (the HR Act).
3.18
Section 7 of the HR Act sets out the functions of the committee as
follows:
- to examine bills for Acts, and legislative instruments, that come
before either House of the Parliament for compatibility with human rights, and
to report to both Houses of the Parliament on that issue;
- to examine Acts for compatibility with human rights, and to
report to both Houses of the Parliament on that issue;
- to inquire into any matter relating to human rights referred to
it by the Attorney-General, and report to both Houses of the Parliament on that
matter.
3.19
Given the scrutiny function of the PJCHR, the secretariat for the PJCHR
is housed with the secretariats for the committee and the Senate Standing
Committee for the Scrutiny of Bills. While each of the committees has discrete
functions, the co- location of the three committee secretariats is intended to
facilitate efficient administration and integration of the work of the three
committees.
3.20
The committee welcomes, and has followed with interest, the progress of
the PJCHR as it undertakes the important task that it has been given, and as it
establishes and develops its processes for scrutinising and reporting on bills
and delegated legislation in accordance with its terms of reference.
Australia-New Zealand Scrutiny of Legislation Conference
3.21
The Australia-New Zealand Scrutiny of Legislation Conference (ANZSLC) is
held every two years, and provides a forum for parliamentary scrutiny
committees to discuss matters relevant to the work of legislative scrutiny.
3.22
From 26 to 28 July 2011, the Chair of the committee, accompanied by the
Clerk Assistant (Procedure) and staff of the secretariats for the committee and
the Senate Standing Committee for the Scrutiny of Bills attended the ANZSLC,
hosted by the Queensland Parliament in Brisbane.
Committee's 80th anniversary
3.23
The 80th anniversary of the appointment of the committee fell on
4 March 2012. To mark the occasion, all present and past members
still in the Parliament were invited to sit for a photograph to commemorate the
occasion. The photograph is to be hung alongside historical photos of the
committee in Committee Room 1S6.
Examples of instruments considered
Scrutiny principle (a): ensuring
that delegated legislation is in accordance with statute
3.24
Scrutiny principle (a) requires that an instrument of delegated
legislation be validly made, in accordance with both its authorising Act or
instrument and any other relevant legislation, such as the Legislative
Instruments Act 2003 (the LIA) and the Acts Interpretation Act 1901
(the AIA). The LIA, for example, imposes specific requirements relating to the
provision and content of explanatory statements (ESs),[4]
the prohibiting of prejudicial retrospectivity,[5]
and the incorporation of extrinsic material.[6]
Explanatory statements: describing
consultation
3.25
The LIA requires that instruments of delegated legislation be
accompanied by an ES, and section 26 of the LIA prescribes certain information
which an ES must contain.[7]
This includes a description of the nature of consultation undertaken or an
explanation as to why consultation was considered unnecessary or inappropriate.
3.26
Since the commencement of the LIA in 2005, a failure to address the
issue of consultation, or inadequate descriptions and explanations, have been
persistent shortcomings in ESs. This continued throughout 2011-12, with the
committee seeking further information regarding consultation in relation to a large
number of instruments.[8]
3.27
In 27 cases, ESs made no reference whatsoever to consultation.
Correspondence with relevant ministers generally indicated that this was due to
administrative oversight in the preparation of explanatory material, rather
than a lack of awareness about the requirements of the LIA. In all such cases,
the committee requested from the rule-maker the relevant information regarding
consultation, required that the ES for the instrument be updated and sought an
assurance that future explanatory material would be prepared in accordance with
the requirements of the LIA.
3.28
In another 16 cases, ESs did address the question of consultation but
contained overly bare or general descriptions of the nature of consultation
undertaken, or similarly inadequate explanations as to why consultation was
considered unnecessary or inappropriate. While the committee does not usually
interpret section 26 of the LIA as requiring a highly detailed description
of consultation undertaken, it considers that a bare or very general statement
of the fact that consultation has or has not taken place, as in the case above,
is not sufficient to satisfy the requirement that an ES describe the nature of
consultation undertaken or explain why it was considered unnecessary or
inappropriate. In all such cases during the reporting period, the committee
sought from the relevant rule-maker a fuller description or explanation, and
generally required that the ES in question be amended to include such further
information as was subsequently provided. An example of this was the Intellectual
Property Legislation Amendment Regulations 2011 (No. 1) [Select Legislative
Instrument 2011 No. 62] [F2011L00773] (May 2011), which amended a number of
intellectual property related regulations with the intention of improving the
administration of certain intellectual property matters. The ES to the
instrument stated only that 'key stakeholders were consulted' in the making of
the instrument, and this and similar stock phrases continue to prompt the committee
to seek further information from relevant ministers and instrument-makers.
3.29
A third issue in relation to the requirement to address the matter of
consultation (or the lack of it) in ESs arose from a number of cases of
apparent or possible conflation of the consultation requirements of the LIA and
the Regulation Impact Statement (RIS) process.[9]
An example of this was CASA ADCX 021/11 - Revocation of Airworthiness
Directives [F2011L02040] (October 2011), which revoked a number of superseded
airworthiness directives (ADs). The ES to the instrument stated:
No consultation with the Australian public has taken place on
this AD cancellation. The Office of Best Practice Regulation has determined
that ADs do not require a Regulatory Impact Statement.[10]
3.30
The committee considered that this statement appeared to be offered as a
justification for consultation not being undertaken in relation to the
instrument. However, while consultation requirements are a key aspect of the
RIS process, these are entirely separate to the requirements of the LIA. It
follows that advice from the OBPR that a RIS (and related consultation) is not
necessary does not negate the need to consider the consultation requirements
specified in the LIA. Accordingly, even where a RIS is required, an ES should explicitly
address the requirements of the LIA regarding consultation.
Retrospectivity
3.31
The committee identified a number of instruments in the reporting period
that raised concerns in relation to the question of retrospectivity.
3.32
Subsection 12(2) of the LIA provides that an instrument which commences
retrospectively, and which would disadvantage or impose a liability on any
person other than the Commonwealth, is of no effect.[11]
A relatively common shortcoming of ESs for instruments with retrospective
operation is that, despite containing an assertion that such retrospective
operation does not disadvantage any person (other than the Commonwealth), there
is insufficient information to allow the committee to make an informed
assessment of this claim. It is therefore important in preparing explanatory
material for an instrument that will operate retrospectively to directly
address subsection 12(2) of the LIA and to provide sufficient information about
its intended effect.
3.33
An example of this was the Health Insurance (Midwife and Nurse
Practitioner) Determination 2011 [F2011L02162] (October 2011), which, inter
alia, amended the principal determination to create a number of new items for
nurse practitioner pathology services (commencing retrospectively from 1 November 2010).
The retrospective operation of the instrument was necessary to correct a flaw
in the principal determination, which meant that Medicare benefits had not been
duly authorised for the services in question, as was intended. However, the ES
to the instrument stated that those benefits would be payable only where a
claim for the relevant services was yet to be submitted. The committee
therefore wrote to the Minister for Health and Ageing (the Health Minister) to
clarify whether any person who had submitted a claim for the relevant services
between 1 November 2010 and the making of the instrument would be eligible for
the benefit. The Health Minister advised that such claims had in fact been
(incorrectly) paid under existing items, such that no person having submitted a
claim in that period had been or would be disadvantaged.
3.34
A second issue regarding retrospectivity arose in relation to the
retrospective commencement of a number of instruments made to correct a
previous error, omission or ambiguity. While the effect of such an instrument
is generally intended to be beneficial—for example, where it would confirm an
entitlement from the date it was originally intended to be implemented or
available—a key concern of the committee in such cases is to ensure that steps
have been taken to ensure that the full beneficial effect of the instrument is realised
by potentially affected parties. ESs should therefore detail what steps have
been or will be taken to ensure the full beneficial effect of a retrospectively
commencing instrument is realised.
3.35
An example of this was the Health Insurance (Patient Episode
Initiation) Determination 2011 (No. 1) [F2011L02560] (December 2011), which
allowed for the payment of benefits for specified services. The instrument was
to be taken as having commenced retrospectively, from 1 November 2007, to fix
an oversight whereby the services in question had been omitted from the table
which enabled the payment of the relevant benefits. As it was not clear from
the information contained in the ES, the committee sought and received an
assurance from the Health Minister that all patients who had received one of
the affected services would be eligible for the benefit; the Health Minister
noted also that all such patients had been sent an amended account to enable
them to claim the benefit.
Scrutiny principle (b): ensuring
that delegated legislation does not trespass unduly on personal rights and
liberties
3.36
Scrutiny principle (b) requires that instruments of delegated legislation
must not trespass unduly on personal rights and liberties. The committee
interprets this principle broadly such that it may encompass a range of
matters. Accordingly, it is important to ensure that, where an instrument may
affect personal rights and liberties, the ES sufficiently describes all
considerations and limitations which are relevant to its operation.
Offences of strict and vicarious
liability
3.37
Given the limiting nature and potential consequences for individuals of
strict and vicarious liability offence provisions,[12]
the committee generally requires a detailed justification for the inclusion of
any such offences in delegated legislation. As a range of jurisdictional,
technical and other factors may be relevant to the framing of offences, ESs
should be drafted as stand-alone documents with sufficient context and detail
as to allow the committee to properly assess any offence provisions
(particularly strict and vicarious liability offences). In particular, an ES
should clearly state the justification for the framing of an offence, and its
intended scope and operation.
3.38
An example of the committee's consideration of strict liability offences
in the reporting period was the Superannuation Industry (Supervision)
Amendment Regulations 2011 (No. 2) [F2011L01360] (June 2011), which amended
the principal regulations to specify rules with which self-managed
superannuation fund (SMSF) trustees must comply when investing in collectables
and personal use assets. While the ES for the instrument stated that the
offences were intended to ensure that investments in collectables and personal-use
assets by SMSF trustees were made for genuine retirement income purposes (as
opposed to providing a benefit for trustees), there was no information as to
the justification for the offences being ones of strict liability. In response
to the committee's inquiry about the matter, the Minister for Financial Services
and Superannuation (the Financial Services Minister) explained that the
offences were consistent with the regulatory framework more broadly, in which
less serious offences subject to lower penalties attracted strict liability.
This approach generally provided a more effective and administratively
convenient deterrent, and was appropriate given that trustees were legally
obliged to be aware of any legislative constraints on their investment
decisions.
Imposition of an obligation
3.39
Also under scrutiny principle (b), the committee wrote to a number of
ministers in the reporting period seeking clarification about the scope and
content of obligations imposed by delegated legislation.
3.40
An example of this was the Work Health and Safety Regulations 2011 [Select
Legislative Instrument 2011 No. 262] [F2011L02664] (December 2011), which
provided for the application of national occupational health and safety laws in
the Commonwealth jurisdiction. The committee noted that regulation 326 required
a worker carrying out construction work to 'keep available' for inspection his
or her general construction induction training card (with a failure to do so
carrying a penalty of $1250). The committee considered that the requirement to
keep the card 'available for inspection' imposed a potentially unclear
obligation. In answer to the committee's inquiry, the Minister for Employment
and Workplace Relations (the Workplace Relations Minister) advised that the
wording of the requirement was intended to allow for some flexibility in
application, on the basis that a more stringent obligation to keep a card
available for immediate inspection at all times would not be a fair or
reasonable requirement in all circumstances. However, in acknowledgment of the
committee's strong preference for obligations to be unambiguous in the scope of
their application, the Workplace Relations Minister proposed that the
committee's concerns be assessed by a forthcoming Council of Australian
Governments (COAG) review of work, health and safety laws. On the basis of this
proposal, the committee concluded its interest in the matter.
Scrutiny principle (c) ensuring
that delegated legislation does not make rights unduly dependent on
administrative decisions that are not subject to independent review of their
merits
3.41
Scrutiny principle (c) relates broadly to the natural justice
considerations which underpin the field of administrative law. Where delegated
legislation authorises the making of administrative decisions, the committee
will usually seek to ensure that the framing of powers and discretions is in
accordance with the tenets of natural justice, such as clearly defined criteria
in relation to decision making, the availability of independent review of
decisions and appropriate notification of decisions.
Discretions appropriately defined
and merits review
3.42
An example of the concerns which may arise under this scrutiny principle
was the Aviation Transport Security Amendment Regulations 2011 (No. 1) [Select
Legislative Instrument 2011 No. 61] [F2011L00777] (May 2011), which amended
the principal regulations to provide the Secretary of the Department of Infrastructure
and Transport (the Secretary) with a discretion to revoke, on his or her own
initiative, the authorisation of a body to issue aviation security
identification cards (ASICs). The committee noted that the discretion was
intended to operate alongside an existing regulation that allowed the Secretary
to revoke a body's authorisation to issue ASICs under certain circumstances. It
appeared uncertain, however, how the distinct powers might be exercised in
cases where the discretion could be exercised under either regulation. Further,
in relation to the availability of merits review, the ES stated that any
decision under the new regulation would not be subject to such review, despite
a decision under the existing regulation being reviewable. In reply to the
committee's inquiries, the Minister for Infrastructure and Transport (the Transport
Minister) clarified that the distinct powers would be applied to revoke the
authorisation of an issuing body under different factual situations. Whereas
the existing power was intended to be used punitively in cases where a body had
contravened a certain part of the regulations, the new power was to be used
administratively to revoke an authorisation to reduce the total number of
issuing bodies, taking into account a number of factors. In relation to merits
review, the Transport Minister advised that the ES accompanying the instrument
was incorrect in stating that a decision under the new regulation would not be
reviewable, as any such decision would be subject to review by the Administrative
Appeals Tribunal.
Notification of decisions
3.43
A second example was the Export Control (Plants and Plant Products)
Order 2011 [F2011L02005] (September 2011), which provided for the
regulation of the export of prescribed plants and plant products for which phytosanitary
or other certificates were required. The committee noted that section 29 of the
order provided that an authorised officer could cancel a (shipping) container
approval if there was reasonable cause to believe that the conditions of the
container had changed. However, there was no attendant requirement that a
person to whom a container approval had been issued be notified in the event
that their approval would be or had been cancelled. In response to the
committee's inquiry, the Minister for Agriculture, Fisheries and Forestry (the Agriculture
Minister) advised that, while notification requirements for cancellation
decisions were contained in the department's internal work instructions, the
orders would be amended within 12 months to include as a legislative
requirement that container approval holders be notified that cancellation of an
approval had or would be made under section 29.
Scrutiny principle (d): ensuring
that delegated legislation does not contain matters more appropriate for parliamentary
enactment
3.44
Scrutiny principle (d) reflects the view that delegated legislation
should not deal with matters which should, by their nature, be subject to the
full legislative processes of the Parliament. Concerns related to this
principle are less commonly raised by the committee (or, at least, less
commonly characterised in such terms), and no significant matters were
identified under this scrutiny principle in the reporting period.
Senator Mark Furner
Chair
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