Statement on work of the Committee during the Spring Sittings 1998

Overview

During the present short sittings the Committee scrutinised 707 legislative instruments. This number, although historically large, is somewhat less than usual, no doubt due to the caretaker period of government in relation to the election. These instruments were made under the authority of scores of enabling Acts administered through virtually every department of state. Almost every legislative scheme relies on legislative instruments to provide the administrative detail of programs set out in broad policy in enabling Acts which authorise those instruments.

The Committee acts on behalf of the Senate to scrutinise each of these instruments to ensure that they conform to the same high standards of parliamentary propriety and personal rights which the Senate applies to Acts. If the Committee detects any breach of these standards it writes to the Minister or other law-maker in respect of the apparent defect, asking that the instrument be amended or an explanation provided. If the breach appears serious then the Chairman of the Committee gives notice of a motion of disallowance in respect of the instrument. This allows the Senate, if it wishes, to disallow the instrument. This ultimate step is rarely necessary, however, as Ministers almost invariable take action which satisfies the Committee.

As usual, by the end of the sittings Ministers have given the Committee undertakings to amend many provisions in different instruments or enabling Acts to meet its concerns, reflecting a continuing high level of cooperation from Ministers in its non-partisan operations. The Committee is grateful for this cooperation.

Of the 707 legislative instruments scrutinised by the Committee, 163 were statutory rules, which are generally better drafted and presented than other series of legislative instruments. The other 544 instruments were the usual heterogeneous collection of different series.

The Committee scrutinised each of the 707 instruments under its four principles, or terms of reference, which are included in the Standing Orders. There were 85 apparent defects or matters worthy of comment in those 707 instruments. The defects are described below under each of the four principles.

Principle (a)

Are legislative instruments in accordance with the statute?

The Committee interprets this principle broadly. It includes not only technical validity but also every other aspect of parliamentary propriety. The Committee noted that there may have been deficiencies in the following areas.

Validity

Legislative instruments must comply with the provisions of both the enabling Act and umbrella provisions of any other relevant Acts such as the Acts Interpretation Act 1901. One instrument purported to be made by a letter from one official to another, with no making words at all. Several instruments appeared to subdelegate legislative power, which is invalid unless expressly authorised by an enabling Act. Another instrument purported to subdelegate a power of delegation in the Act, seemingly with no authority. Another subdelegated what the Explanatory Statement advised were matters related to individual businesses, which would be valid, but the actual provisions seemed to refer to classes of business, which would be void. Other instruments appeared to incorporate material as amended from time to time, which again is invalid unless expressly authorised. Legislative instruments which provide for prejudicial retrospectivity are also generally invalid; one instrument provided for apparently prejudicial commencement six weeks before it was gazetted.

Parliamentary propriety

The Committee ensures that no aspect of a legislative instrument breaches parliamentary propriety. One instrument appeared to indicate that two separate Departments had been granting exemptions to the Principal Regulations with no legislative authority to do so. Another instrument amended provisions of legislative instruments to reflect changed conditions, but there was no indication of when this would be done for the enabling Act. One instrument provided for powers to be delegated to any officer at all in an agency, although other instruments restricted delegations in two related agencies to more senior officers. Another instrument indicated that its provisions would be reviewed before 2001 but did not provide details of who was to conduct the review. The Committee has previously reported to the Senate (3 December 1998) that it had discovered that proclamations by the Governor-General commencing three Acts (two of which related to the public revenue) and consequently many provisions in numbers of sets of regulations, were void. There were various implications for parliamentary propriety flowing from this. Another instrument altogether, of 415 pages, which was made by the Governor-General, had a pink erratum slip glued to the front cover, with no assurance that the Governor-General was aware of the error and its correction.

The Committee understands that the Australian government bookshop is still selling copies of the Therapeutic Goods Regulations (Amendment), Statutory Rules 1997 No. 401, apparently as part of the Principal Regulations, although they were disallowed by the Senate on 31 March 1998. It is true that these regulations were in force from 24 December 1997 until disallowance, but are now little more than an historical curiosity. Such sales may mislead users and it would be preferable if they were sold only to people who make a specific request.

Drafting and presentation

The Committee considers that the standard of drafting and presentation of legislative instruments should not be less than that of Acts. Several instruments included otiose provisions already provided in an enabling Act. Others included deficient dictionary or definition provisions, one of which appeared to be circular. Another referred to an investigation without any provision for an investigation and a report with no indication of how or to whom the report is to be made. One instrument inadvertently omitted some words. Several instruments had Explanatory Statements which were deficient in quality. Several instruments were not numbered. Other instruments included cross reference errors. A number of multiple sets of amendments of the same principal instrument was made on the same day. One instrument 174 pages long did not include a table of contents, which made it difficult to follow.

Delay

The Committee questions any apparent delay in making legislative instruments. One instrument corrected errors in provisions for the collection of levies five years later, with a possible lack of a sound legislative basis for their collection during that time. Another instrument provided for exemptions from certain provisions four years after Departments were granting them. One instrument implemented uncontroversial recommendations of a report three years after it was presented. The Senate Legal and Constitutional References Committee Report Payment of a Minister’s Legal Costs: Part 2, February 1997, noted that the Department was developing a proposal to make regulations which in fact were not made until 18 months later.

Commencement of instruments

During the sittings the Committee noted a tendency to provide for the commencement of instruments not by reference to a specified date but rather by reference to commencement of a particular Act. The Committee accepts that it may be desirable for legislative instruments to be ready to come into effect at the same time as enabling provisions, but in these cases the expected date of comment should be included in provisions of the instrument, in notes in the body of the instrument or in the Explanatory Statement. Numbers of instruments did not do this, which may inconvenience users. The Explanatory Statements for these instruments did not even include reference to the six months rule, under which Acts which commence on proclamation provide that commencement is deemed if they are not proclaimed within six months of assent. If the actual expected date of commencement is not known the Explanatory Statement should explain the reasons for this. Some instruments dependent upon commencement of Acts did give this information, but enough did not for the Committee to report the tendency. In some cases there is no excuse; for instance, one instrument provided for commencement on the commencement of a specified Act with no further information, while the Explanatory Statement for another series of instruments advised that the Act would commence on a particular date. The Committee also could do nothing but ask about an instrument which provided for commencement on a specified date although the Explanatory Statement advised that it would commence on a different date.

Principle (b)

Do legislative instruments trespass unduly on personal rights and liberties?

The Committee also interprets this principle broadly, to include every aspect of personal rights. The Committee noted deficiencies in the following instruments.

Safeguards on powers of public officials

Legislative instruments which confer powers on public officials to affect individuals should be reasonable and include appropriate safeguards. One instrument provided that a form must be returned by a specified date but a warning on the form itself indicated that the form must be returned within two months of receipt. The form also warned that if the form was not returned by the (wrongly) specified date then the Minister may impose sanctions. This warning was also wrong because the enabling Act provided only for the Secretary to impose sanctions. The form also did not advise that any decision to impose sanctions was reviewable. Another instrument approved six forms in relation to the Chemical Weapons (Prohibition) Act 1994 but only two of them included a declaration that the information given was true and correct. There was also no indication in any of the forms of the consequences, if any, of providing information which was not true. One instrument provided only that an application must be made in a manner and form acceptable to an agency. The rules of a court provided for some application forms but advised that eight others had not yet been made; the Committee asked when it was likely that these would be made. One instrument provided for intrusive information in relation to past trivial offences, for details which may not have been necessary to satisfy a "fit and proper person" test and for date of birth information which may not have been justified. Another instrument provided only for subjective safeguards in a search warrant. Another instrument provided that an official must accept or reject an application as soon as practicable, although it may have been preferable to specify a certain period within which this must be done, which would then trigger review rights. Another instrument provided that an official may demand information from people within a period set by the official, with no reasonability safeguard.

Personal rights

The Committee questions any provisions which may operate harshly or which impinge directly upon rights. One instrument revoked the appointment of a body because the Minister was apparently satisfied that it had failed to perform its functions adequately, but there was no indication of the grounds on which the Minister relied in coming to that conclusion, or of whether the body was warned of the possibility of revocation and given an opportunity to present its case. Another instrument exempted an agency from being sued in Australian courts in relation to "personnel matters", but neither the Act nor the regulations defined that expression. In another case the Committee was concerned that people may have been adversely affected while a drafting error was being corrected. Another instrument provided that one private body must report all safety incidents to the civil aviation authorities even though there was no such requirement for a similar private body. The Explanatory Statements for other instruments gave no assurance that retrospectivity was beneficial. One instrument provided for the exchange of personal information between the Department and private financial institutions in relation to people who wished to participate in a financial supplement scheme, with no assurances about privacy.

Fees, charges and allowances

Many legislative instruments provide for fees, charges, allowances and benefits. The Committee questions any such provisions which are unusual or unexpected. The Committee was disturbed by advice in the Explanatory Statement for one instrument which generally increased charges for services by an agency, that charges for training courses were not being increased because they were already high in comparison with prevailing prices in the market. The Committee asked whether the agency had been abusing its position as monopoly supplier and whether the charges should not be reduced. One instrument increased greatly the types of investigation for which an agency could recover its expenses from the private body being investigated, without adequate safeguards. Another instrument provided for certain levels of charges although the Explanatory Statement advised that other levels were intended. Other instruments did not explain increases in costs payable to legal practitioners for work in Commonwealth courts which were many times greater than the CPI.

Principle (c)

Do legislative instruments make rights unduly dependent on administrative decisions which are not subject to independent review of their merits?

Many legislative instruments provide for public officials to exercise administrative discretions. The Committee considers that these discretions should be as narrow as possible, include objective criteria to limit and guide their exercise, and provide for independent, external review of their merits by a specialist tribunal such as the Administrative Appeals Tribunal.

One instrument provided that an agency would write to all parents of children under seven years not shown as being immunised advising them of the link between child care assistance and immunisation. The enabling Act provided, however, that the link was only established if the Secretary was satisfied as to various matters. The Committee asked about review and whether parents would be informed of any such right. The Committee was startled by advice in the Explanatory Statement for another instrument that review would not be available because decisions would be made on a case by case basis; this is usually a reason why review should be provided. Another instrument did not indicate what decision was being made, another did not indicate who was to make a decision, while another delegated a decision making power to the wrong person. As usual, several instruments provided for review of some decisions but not for related ones; the Explanatory Statement for one of these instruments purported to explain this, but not to the satisfaction of the Committee. One instrument provided that an agency may make decisions on such criteria as the agency thinks necessary. Another instrument provided only for internal review when external may have been better. Another instrument did not provide the usual review of a discretion to waive fees and compounded the deficiency because the Explanatory Statement was misleading.

Many administrative decisions affect business and the Committee scrutinises these carefully, particularly those affecting small business, to ensure proper review rights. One instrument provided for an authorised person, who apparently could be anyone, to deny sales tax and customs and excise duty exemptions. Another provided for discretions in relation to test shipments of exports, another for discretion to approve a manufacturing plant. A number of instruments provided for discretions in relation to civil aviation operations, some only of which were subject to review. Another instrument gave the Registered Health Benefits Organisation power to make decisions which could have adverse effects on the financial operations of hospitals. Another instrument provided for a discretion to approve people to give courses and set examinations in relation to matters which could affect professional qualifications.

Principle (d)

Do legislative instruments contain matters more appropriate for parliamentary enactment?

The Committee does not raise this principle as often as its other three principles, but it is an important part of parliamentary propriety and in this respect complements the first principle of the Committee. One instrument six lines long provided for the operation of Comcover, which appeared to be a substantial insurance operation. The Committee noted that Comcare, the other Commonwealth insurance operation, was set up by Act. The second reading speech for the enabling Act for Comcover discussed legislative instruments and appeared to advise of a far more limited role for them. The Committee has asked the Minister for full advice.

Other developments

During the sittings the Committee made a special statement to the Senate on 3 December 1998 on its first meeting of the present Parliament. On 3 November 1998 the legal adviser and Committee staff hosted a visit by the Standing Committee on Uniform Legislation and Intergovernmental Agreements of the Western Australian Parliament. The Committee’s home page was placed on the Internet and the Delegated Legislation Monitor was also converted to the Internet. The Committee is grateful for the support which it has received from the Senate during the present sittings.