Scrutiny of Acts and Regulations Committee

Sixth Annual Report,
May 1999

Ordered to be printed
By Authority.  Government Printer for the State of Victoria.
No. 47 Session 1999

4.1 Scrutiny of Regulations – The Second Function

The Committee continues to review regulations to ensure that the Parliament is apprised of that type of legislation called "statutory rules" which the Parliament has delegated to Governor-in-Council to make.

4.2 Subcommittee Membership

A subcommittee of five members performs the scrutiny of regulations. In the 53^rd Parliament, the members of the Subordinate Legislation Subcommittee have been:–

• Murray Thompson MLA, Chairman;
• Mary Gillett MLA;
• The Honourable Peter Katsambanis MLC;
• The Honourable Maree Luckins MLC; and
• The Honourable Don Nardella MLC.

4.3 Subordinate Legislation Act 1994

The Subcommittee reviews statutory rules under section 21 of the Subordinate Legislation Act 1994 which provides:–

21. Review of statutory rules by the Scrutiny Committee

(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament—

(a) does not appear to be within the powers conferred by the authorising Act;
(b) without clear and express authority being conferred by the authorising Act—

(i) has a retrospective effect; or
(ii) imposes any tax, fee, fine, imprisonment or other penalty; or
(iii) purports to shift the onus of proof to a person accused of an offence; or
(iv) provides for the sub-delegation of powers delegated by the authorising Act;

(c) appears to be inconsistent with the general objectives of the authorising Act;
(d) makes unusual or unexpected use of the powers conferred by the authorising Act having regard to the general objectives of that Act;
(e) contains any matter or embodies any principles which should properly be dealt with by an Act and not by subordinate legislation;
(f) unduly trespasses on rights and liberties of the person previously established by law;
(g) makes rights and liberties of the person unduly dependent upon administrative and not upon judicial decisions;
(h) is inconsistent with principles of justice and fairness;
(i) requires explanation as to its form or intention;
(j) has been prepared in contravention of any of the provisions of this Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature;
(k) is likely to result in administration and compliance costs which outweigh the likely benefits sought to be achieved by the statutory rule.

(2) A report of the Scrutiny Committee under this section may contain any recommendations that the Scrutiny Committee considers appropriate, including a recommendation that a statutory rule should be—

(a) disallowed in whole or in part; or
(b) amended as suggested in the report.

4.4 Consideration of Statutory Rules – Annual Report concerning Statutory Rules Series 1997

The Subordinate Legislation Subcommittee examined 175 regulations made in 1997. In addition, as a result of an amendment to the Parliamentary Committees Act 1968, it considered two State Environment Protection Policies (SEPPs). The Committee tabled an Annual Report concerning Statutory Rule Series 1997 in May 1998¹. An extract from it follows:–

The first approach of the Committee, where the Committee uncovers a defect or possible defect in a rule, is to write to the responsible Minister seeking an explanation. Often there is a suggestion on the part of the Committee that the error could be rectified by amendment and an undertaking to this effect is sought from the Minister. As is demonstrated in Appendix 3 to this Report, the Committee experiences a high degree of cooperation from Ministers in undertakings to amend rules.

For further information in relation to the Subcommittee's work, reference should be made to the Annual Report concerning Statutory Rules Series 1997. It outlines in considerable detail all the statutory rules scrutinised by the Committee, correspondence with the various Ministers and any undertakings given by Ministers. Reference should also be made to the Annual Report concerning Statutory Rules Series 1998, which is to be tabled late in the Autumn Session of 1999.

4.5 Regulatory Efficiency Legislation

In May 1997, the Law Reform Committee distributed a Discussion Paper on another development in subordinate legislation. This is a concept that derives from alternative approaches to government regulation, and allows a business to establish its own compliance regime to standards equivalent to those adopted by government in regulation.

The Scrutiny of Acts and Regulations Committee submitted a response to this proposal. The Committee's response has been reprinted in its entirety as Chapter 3 to the Annual Report concerning Statutory Rules Series 1997.

The Final Report of the Law Reform Committee on Regulatory Efficiency Legislation was tabled in October 1997. Amongst other matters, it recommends the introduction of certain alternative compliance mechanisms. It also recommends that the Scrutiny of Acts and Regulations Committee undertake an inquiry into the regulatory impact statement process. The Committee would be pleased to receive such a reference.

4.6 Visits to Canada and Europe

A Subcommittee of four Members of the Full Committee travelled to Canada and Europe in June 1998. Mr Murray Thompson MLA, chaired the Subcommittee. Other Members of the Subcommittee were the Honourable Maree Luckins MLC, Carlo Carli MLA and Bob Cameron MLA. One of the purposes in travelling was investigatation of the treatment of delegated legislation in other jurisdictions, including the use overseas of regulatory impact cost/benefit analysis. The trip was of great assistance to all Members. For further information, reference should be made to the Annual Report concerning Statutory Rules 1998 referred to above.

4.7 Overview

The Subcommittee is working well. All statutory rules and SEPPs are considered within the time limits specified in the legislation. The Subcommittee is pleased to make a contribution to the scrutiny of legislation in Victoria.

Last Updated 18/8/99 ©Parliament of Victoria