Statement on work of the Standing Committee on Regulations and Ordinances
during Autumn and Winter Sittings 1998
Overview
During the present sittings the Committee scrutinised the usual large
number of disallowable legislative instruments tabled in the Senate, made
under the authority of scores of enabling Acts administered through virtually
every Department of State. Almost every legislative scheme relies on delegated
legislation to provide the administrative details of programs set out
in broad policy in enabling Acts which authorise such delegated legislation.
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 invariably 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.
During the sittings the Committee scrutinised 1,028 instruments. Of these,
258 were statutory rules, which are generally better drafted and presented
than other series of delegated legislation. The other 770 instruments
were the usual heterogeneous collection of different series.
Each of the 1,028 instruments was scrutinised by the Committee under
its four principles, or terms of reference, which are included in the
Standing Orders. There were 144 prima facie defects or matters worthy
of comment in those 1,028 instruments. The defects are described below
under each of the four principles.
Principle (a)
Is delegated legislation in accordance with the statute?
The Committee interprets this principle broadly. Together with the Committee’s
fourth principle, it covers not only technical validity, but also every
other aspect of parliamentary propriety. The Committee noted that there
may have been problems with instruments for the following reasons.
Validity
Legislative instruments are generally void if they subdelegate legislative
power without the express authority of the enabling Act. During the sittings
there were numbers of instances of apparently invalid subdelegation. One
instrument purported to give the Minister power to extend its effect.
Others provided for agencies to issue guidelines and determinations. Another
delegated powers to other agencies. One provided for an agency to exempt
itself from its own rules.
Subsection 48(2) of the Acts Interpretation Act 1901 provides
that prejudicial retrospectivity affecting anyone apart from the Commonwealth
is of no effect. The Explanatory Statement for several instruments did
not advise that retrospectivity was beneficial, although it was by no
means clear that this was so. Another instrument provided that it commenced
from the date of making, with the result that it was invalid, because
it was not gazetted until later. The Explanatory Statement for another
instrument advised that it did not adversely affect anyone, although this
did not appear to be the case.
Legislative instruments must comply with provisions of the enabling Act
and any other relevant legislation, such as the Acts Interpretation Act.
Several instruments were made on the assumption that the Legislative Instruments
Bill 1996 had passed through the Parliament.
There appeared to be no connection between another instrument and its
putative enabling provisions. Another instrument appeared to be inconsistent
with its enabling provisions. The enabling provisions for another instrument
appeared to be unnecessarily complex.
Legislative instruments must comply with the constitutional requirements
for legislation providing for taxation. One instrument appeared to impose
a tax in breach of those requirements.
Parliamentary propriety
Numbers of instruments appeared to offend parliamentary propriety. One
instrument provided for a mandatory report to Parliament but did not specify
a time limit within which this must be done. Several instruments provided
only for documents to be gazetted although it appeared that they should
be tabled as well. Payments were received from January 1998 in respect
of one instrument which was not made until May 1998. One instrument provided
for the Minister to appoint board members for up to three years and another
to appoint board members for an unlimited duration, which may give too
much discretion to the Minister and reduce the independence of the board.
Several instruments provided for the Minister to appoint people to senior
positions without criteria for qualifications and experience, to guide
and control the Minister. One instrument included safeguards in respect
of propriety for some operations of a board, but not others. One instrument
repealed the existing provisions of a principal instrument and immediately
made them again, with no explanation. One instrument was made with a deficiency
which the Minister had previously undertaken to avoid.
Excessive delay or duplication in making legislative instruments may
breach parliamentary propriety. One agency delayed making an appropriate
instrument for a year, relying instead on administrative instructions.
Apparent delay in making another instrument resulted in a seven week gap
in important legislation. One instrument removed provisions which had
been obsolete for more than 10 years. Another instrument corrected provisions
which were in conflict for four years, during which time administrators
apparently did not enforce some of the provisions. One instrument took
what appeared to be an excessive time to correct drafting errors. There
were other instances of delay. Four sets of regulations amending the same
principal regulations were made on the same day.
Drafting
The Committee considers that the standard of drafting of legislative
instruments should not be less than that for Acts. A number of instruments
did not appear to meet this standard. One instrument provided for a benefit
from a time when it appeared that entitlement had lapsed. Another instrument
provided for remuneration without specifying whether it was an annual
allowance or a special payment. The legislative intention of another was
not effected. One instrument referred to a matter for which there was
no definition, although one appeared necessary. A number of instruments
included unclear provisions. One provided for an appeal period with an
uncertain commencement. Another included conflicting provisions. One included
gender specific expressions.
One instrument was not dated, while another included an uncertain commencement
date. Several instruments included reference errors. Several provided
for mandatory provisions with no sanctions. Another was unclear in relation
to material incorporated. Several instruments were reproduced so poorly
that they could not be read. Others were reproduced with parts missing.
Inadequate explanatory statements
Due to the earlier efforts of the Committee it is now accepted that every
legislative instrument should be accompanied by a proper Explanatory Statement.
One instrument did not have an Explanatory Statement while others were
deficient in quality. The advice in the Explanatory Statement for one
instrument conflicted with the provisions of the instrument itself. The
Explanatory Statement for another advised that most of its provisions
were minor, which mean that some were not minor, but did not explain which
these were.
Numbering
Due to the earlier efforts of the Committee it is now accepted that every
legislative instrument should have a unique citation or number. During
the sittings several instruments were not numbered and two were given
the same number.
Principle (b)
Does delegated legislation trespass unduly on personal rights and
liberties?
The Committee also interprets this provision broadly, to include every
aspect of personal rights. The Committee noted possible breaches of personal
rights for the following reasons.
Protection of the rights of individuals
During the present sittings a number of instruments may have breached
the rights of individuals. One instrument provided for a presumption of
receipt of documents sent by public servants to members of the public,
but there was no corresponding presumption for documents sent by members
of the public. One instrument provided that an agency could summons witnesses,
with a penalty of six months imprisonment for failure to obey without
a reasonable excuse, but the summons gave no notice of these consequences
or of what was a reasonable excuse. Another instrument provided for property
found on Commonwealth premises to be sold, with all rights in the property
extinguished and any money raised given to the owner, which protected
the owner but not a lessee or bailee of the property. One instrument provided
an unreasonably short time for people to do things. One instrument provided
that a review board may only accept the original evidence, rather than
the usual appeal process under which new evidence may be considered. Another
provided that presumably aged and frail veterans must keep travel records
for six months. Another provided that people must keep certain records
for five years, when a shorter time may have been adequate. One instrument
did not provide that migration agents must put their clients’ money
into a trust fund. Several instruments did not give a person the opportunity
to respond to adverse material. Another instrument placed unfair restrictions
on the advertising of personal services. Another provided that migration
agents must have legal qualifications, which appeared restrictive. One
instrument discriminated between male and female judges and another discriminated
against people more than 65 years of age.
Fees, charges and allowances
The Committee questions any instruments which include unfair or unusual
provisions in relation to government charges or payments. During the sittings
one instrument included a harsh fee structure under which late penalties
could be applied almost immediately. Another fee structure did not appear
to be commercially reasonable. The Explanatory Statements for a number
of instruments did not explain the basis of fees. One instrument increased
some allowances by 20% and others by 7%, with no explanation. Another
increased some allowances and decreased others, again with no explanation.
Some instruments increased allowances after an apparently unreasonable
delay, in one case five years. The Explanatory Statement for another instrument
advised that allowances had fallen behind. Another instrument provided
that an agency may summon witnesses but did not provide for expenses and
allowances, in contrast to other instruments. The rules of a court increased
solicitors’ costs by three times the CPI. The Explanatory Statement
for one instrument advised that a reduction of benefits was small, but
gave no indication of the total amount involved.
One instrument reduced fees by 30%, another reduced a fee from $2,000
to $400, another reduced the base of a levy from 19 cents to 3 cents and
another reduced total fees by $1.6m per year, for $5m over three years.
In all these cases the Committee asked whether this indicated that the
previous fees were exorbitant.
One instrument provided for a refund or remission of some levies but
not others, with only a short time to apply. One court provided for a
refund of fees for that court after other courts had the same refund for
seven years; the refund was also now harder to access. One instrument
did not provide for the payment of interest on money owing by an agency.
Safeguards on powers given to public officials
The Committee ensures that there are proper safeguards on powers given
to public officials. One instrument provided that an agency must give
a draft determination to parties prior to a formal determination, but
did not provide for a time limit between the two. Another provided that
an agency may request any person to provide information about the operation
of an Act and regulations, but did not provide safeguards against self-incrimination
in the form of request. Another instrument provided that an agency may
exercise a power, but with no requirement for a statement of reasons,
although this appeared desirable. One instrument did not provide a time
limit within which a decision must be made, although there were time limits
and deeming provisions for similar decisions. Another instrument did not
provide for notice before public officials exercise an important power.
Another instrument did not provide appropriate safeguards for mandatory
mediation procedures. One instrument provided that an official could wait
for 12 months before announcing a by-election, which appeared too long.
Safeguards for business
The Committee ensures that legislative instruments which affect business
operations are as fair as possible. One instrument reduced an application
period from six months to two working days. Another instrument provided
for an adverse decision to operate at once, with commercially harsh consequences.
One instrument provided for a right to attend meetings, but did not provide
for mandatory notices of meetings.
Privacy
During the sittings some instruments may have breached the right to privacy.
One instrument provided a permissive rather than a mandatory standard
of privacy. The Explanatory Statement for another advised that a provision
for identity checks was to assist law enforcement agencies, although it
actually went further than this. Other instruments provided for the release
of information in relation to, among other things, electors and travellers,
with no indication that the Privacy Commissioner had been consulted.
Offence provisions
The Committee question offence provisions which may be unfair. One instrument
provided for strict liability offences which could operate harshly. Another
was unclear about who was affected by offence provisions. Another instrument
did not provide for notification of the advantages of paying an administrative
penalty rather than going to court. Another did not provide any criteria
to decide which offenders would be dealt with by contravention notice
and which would be summonsed to court.
Principle (c)
Does delegated legislation make rights unduly dependent upon administrative
decisions which are not subject to independent review of their merits?
Many legislative instruments provide for Ministers, statutory office
holders and other public officials to exercise discretions. The Committee
considers that such discretions should be as narrow as possible, include
objective criteria to guide and limit the exercise of the discretion,
and provide for appropriate review of the merits of a decision by an external,
independent tribunal, which would usually be the Administrative Appeals
Tribunal.
Some instruments did not provide for merits review in cases where it
appeared appropriate to do so. It was uncertain whether another instrument
provided for review. It was also uncertain whether discretions given to
State and Territory agencies were subject to Commonwealth merits review.
One instrument provided for a decision which could have been made under
each of two Acts, only one of which provided for review. Some instruments
did not provide criteria to guide and control decision makers, even in
cases where a decision would affect personal reputation. Others provided
subjective, inconsistent or subjective criteria. The Explanatory Statement
for one instrument expressly advised that it introduced a subjective element
to decision making. One instrument gave power to an agency to determine
subjectively that matters are relevant to a decision and then take them
into account. Other instruments did not provide for notice of review rights.
A number of instruments affecting business operators did not appear to
provide for merits review of decisions. One decision related to authorised
instruments, another to service providers, another to exemption from health
and safety tests and another to approved hostels.
One instrument provided for a discretion where a discretion was not necessary.
Another did not provide for a discretion where this was necessary. Another
provided a discretion to exempt although similar exemptions were given
as of right. Another provided for a conclusive certificate. Another provided
for AAT review of a decision of an agency but not of the departmental
secretary. Another did not provide for review of an important decision
even though the Minister did not have to exercise the discretion personally.
One instrument removed a right of review to the AAT and substituted the
right to apply to a court; the Explanatory Statement advised that this
was a benefit.
Principle (d)
Does delegated legislation contain matters more appropriate for parliamentary
enactment?
The Committee raises this issue less often than its other principles.
Nevertheless, it is a principle which goes to the heart of parliamentary
propriety. During the sittings one instrument provided for the censorship
of books, magazines, films and computer games. Another provided for a
code of conduct and whistleblowing in the Australian Public Service. Another
prohibited the advertising of natural remedies as drug free. In all these
cases the Committee considered that it may have been more appropriate
to include these provisions in an Act.
Other developments
In addition to its main task of scrutinising legislative instruments,
the Committee was active in other ways during the present sittings.
The Committee made the following special statements to the Senate:
- National uniform legislative schemes, 12 March 1998
- Disallowable instruments and parliamentary propriety, 7 April 1998
- The accountability of the executive and the judiciary to Parliament;
the role of the Senate Standing Committee on Regulations and Ordinances:
paper presented to the 1998 National Administrative Law Forum, 24 June 1998
- Presentation of Annual Report 1996-97, 24 June 1998
- Provisions in legislative instruments which may have been more appropriate
for inclusion in an Act, 30 June 1998
- Scrutiny of Great Barrier Reef Zoning Plans, 30 June 1998
The Chairman and research officer attended a meeting of Chairs of Australian
legislative scrutiny committees; Sydney, 10 March 1998.
The Chairman, Legal Adviser and Secretary met with the Chairman and Secretary
of the South Australian Legislative Review Committee, 11 March 1998.
On 3 April 1998 the Chairman wrote to all Chairs of Australian legislative
scrutiny committees about coordination of scrutiny of national uniform
legislative schemes.
On 19 June 1998 Senator Kay Patterson, on behalf of the Committee, presented
a paper to the 1998 National Administrative Law Forum.
The Committee is grateful for the assistance which it has received during
the sittings from its Legal Adviser, Professor Jim Davis.
The Committee is grateful for the support which it has received from
the Senate during the present sittings.