Statement on Scrutiny of National Uniform Legislative Schemes

The Standing Committee on Regulations and Ordinances would like to report on developments in the past year on scrutiny of instruments made to implement national uniform legislative schemes. These schemes present particular challenges for scrutiny committees, because they usually deal with important matters and follow complex making procedures involving Commonwealth, State and Territory governments. These procedures are sometimes used as a reason to attempt to lessen or exclude parliamentary oversight. The Committee, however, does not accept this dilution of the role of Parliament and applies its usual strict standards to these instruments. The legislative scrutiny committees of the Commonwealth, States and Territories cooperate in their scrutiny of national legislative schemes, which are discussed at conferences and meetings of Chairs. During 1997 the Committee wrote twice to the Chairs of our sister Committees on this matter and then presented a paper to the conference of Australian legislative scrutiny committees. Following that conference and further correspondence most of the committees wrote advising that the Committee's suggestions could form the basis of a coordinated approach by all Commonwealth, State and Territory committees. The Chairman pursued this at a meeting of Chairs yesterday. Also, the Legislative Instruments Bill 1996 included a provision which would dilute the effect of the Bill in respect of parliamentary disallowance of instruments providing for uniform national legislative schemes. The Committee reported to the Senate on the Bill on 21 November 1996, 6 March 1997 and 23 June 1997.

In respect of the activities of the State and Territory committees, the Committee received a very encouraging letter from the Chair of the Queensland Committee on delegated legislation, Mr Tony Elliott MLA, describing its experiences in scrutinising the important Electricity-National Scheme (Queensland) Bill. Unfortunately 1997 also saw advice from the A.C.T. Attorney-General, Mr Gary Humphries MLA, a former Deputy Chairman of the A.C.T. Committee, that there seemed no prospect of advancing our views through the Standing Committee of Attorneys-General. This was disappointing but the Australian legislative scrutiny committees will continue efforts to coordinate our activities and to give our usual close attention to individual instruments implementing national scheme legislation which are tabled in our separate legislatures. By dint of circumstance, however, a particular package of regulations made under a national scheme gave the committee the opportunity to demonstrate how co-ordinated national scrutiny could be achieved.

The Road Transport Reform (Dangerous Goods) Regulations, Statutory Rules 1997 No.241, were made under express provisions of the Road Transport Reform (Dangerous Goods) Act 1995 to apply as laws of the Australian Capital Territory and the Jervis Bay Territory, with the intention that they will be incorporated into the law of the States and the Northern Territory by adopting legislation. As is often the case with regulations implementing a uniform legislative scheme, the Regulations are much longer than the enabling Act.

The Explanatory Statement for the Regulations advised that they provide for duties and obligations of participants in the transport of dangerous goods by road and for related administration and enforcement. These participants included prime contractors, consignors, drivers, loaders, packers, importers and manufacturers. The Regulations were developed by the National Road Transport Commission (NRTC) under two intergovernmental agreements, in close consultation with the Commonwealth and State and Territory authorities and major stakeholders. The Regulations were made publicly available for comment and approved unanimously by the Ministerial Council for Road Transport.

The Committee then scrutinised the Regulations in the light of its high standards of personal rights and parliamentary propriety and found a number of deficiencies which warranted an approach to the Minister. These deficiencies were as follows.

Firstly, the Committee noted that the Light Vehicles Agreement 1992 required the NRTC to develop and maintain national standards as a matter of priority. The present Regulations, however, were not made until five years later. This delay appeared to be a breach of parliamentary propriety.

Secondly, one single provision provided for 68 strict liability offences. The Explanatory Statement did not advise of the need for these offences. The Committee always questions unexplained strict liability offences, which may breach personal rights.

Thirdly, the Regulations provided for a system of administrative infringement notices for offences. The Committee has no objection to such systems provided that they include proper safeguards. In this case an official who serves an infringement notice was given the power to extend the time for payment, apparently forever, with no indication of when the discretion could be exercised, which the Committee noted could be at the time the notice was issued, within the time provided in the notice for payment, or at some later time.

Fourthly, the Regulations did not include the essential safeguard that infringement notices must notify persons affected of their rights. In particular, an infringement notice was not required to include the vital information that if a person pays the administrative penalty then any liability of the person for the offence is discharged, the person may not be prosecuted in court for the offence and the person is not taken to have been convicted of the offence. This appeared to be a clear breach of personal rights.

Fifthly, the Regulations provided for reconsideration and review of specified decisions. This was appropriate but the Committee felt that it should receive an assurance that all legislative instruments in the Regulations are subject to disallowance and all administrative decisions are subject to reconsideration and review. The Committee also wanted to be assured that previously existing approvals, determinations and exemptions which the Regulations continued in operation remained subject to any disallowance or review.

The Committee accordingly wrote to the Minister asking for comments on the apparent deficiencies and noting the helpful cooperation which it had received in respect of related instruments. The Minister replied in considerable detail.

With respect to the possible delay in making the Regulations the Minister advised that the previous law was poorly expressed and possibly unenforceable in a number of areas. The Regulations involved therefore a significant exercise to restructure the law and the necessary extensive consultation took time.

With respect to strict liability, the Minister advised that the offences related to matters where a contravention could give rise to serious injury to people, property or the environment. As such the offences conformed to Commonwealth criminal law policy. The Minister stated that each strict liability offence was carefully considered and was of a regulatory nature which would not result in a lessening of the offender's reputation. Strict liability would allow for easier enforcement, including the use of infringement notices. It was argued that persons who consign dangerous goods or are driving a vehicle transporting dangerous goods are strictly liable on the basis that the improper transport of such substances may have far reaching and devastating effects. It was stated that if one part of a process does not comply with the Regulations that dangerous situations could occur later.

The Minister advised that the discretion to extend the time for payment of a penalty could be exercised at any time up until a summons was served on the person for the offence. He undertook that the Regulations would be amended to provide that infringement notices must include the usual safeguards.

The Minister assured the Committee that all legislative instruments made under the Regulations were disallowable and that all administrative decisions are subject to reconsideration and review, except for those decisions which are not the ultimate decision affecting a person's rights and interests. No discretions were exercisable under the instruments continued in effect.

The Committee thanked the Minister for his advice, which in general met its concerns. The Committee, however, still had reservations about nine of the 68 strict liability offences and asked the Minister for further advice. Five of the nine offences involved drivers and the Committee was particularly concerned that strict liability might operate harshly against them. The Committee suggested that it may be more appropriate to provide that these offences must be knowingly or wilfully committed, especially given that parallel strict liability offences existed in respect of prime contractors. Two of the other four strict liability offences involved transferors, one an owner and one an occupier.

The Minister replied with a very detailed explanation of the offences, which met its concerns about five of the nine offences, but which still left the Committee with concerns about the remaining four. By this stage however, the protective notice of disallowance in respect of the Regulations had almost expired and the matter had become urgent. Accordingly the Chairman had two separate meetings over two days with the Minister and his advisers, following which the Committee obtained an undertaking that three of the four strict liability offences would be amended in respect of strict liability for drivers. The Minister persuaded the Committee that the fourth offence was acceptable. The Committee therefore withdrew its notice of disallowance on what by then was the last day on which it was able to do so, giving notice pursuant to standing order 78 that it would be withdrawn at a later hour of the same day. The Committee is pleased to report to the Senate that the position with respect to these Regulations is now acceptable.

The Committee is particularly grateful for the personal attention which the Minister for Transport and Regional Development, the Hon Mark Vaile MP, gave to the Committee's concerns. The Minister's actions have ensured that the Regulations will comply with high standards of parliamentary propriety and personal rights.

As noted earlier, the Regulations form the central plank of the uniform national legislative scheme providing for the transport of dangerous goods. They are also an important part of the wider national scheme for regulation of road transport. The Committee will therefore inform the Standing Committee for the Scrutiny of Bills and the State and Territory legislative scrutiny committees of its actions, which are another instance of the capacity of legislative scrutiny committees to bring about desirable change.