Annual Review 2000, Regulations 1999 and 2000

Appendix 8 - Committee Practice Notes

The Subcommittee expects competition policy certificates and competition policy assessments to be in the form contained in the Premier’s Guidelines. The Subcommittee also requires all competition policy assessments and certificates to be forwarded to it.

Part 14 of the Premier’s Guidelines sets out the requirements for competition policy assessments and certificates. A competition policy assessment needs to be done where a regulation imposes a restriction on competition. The assessment needs to show that the benefits of the restriction to the community outweigh the costs and that the objectives of the legislation can only be achieved by restricting competition.

Sometimes the Subcommittee is presented with inadequate competition policy assessments such as those which simply repeat the contents of regulation impact statements. This is not acceptable to the Subcommittee. An assessment of competition policy principles requires a different analysis to that performed for a regulation impact statement and the form of this assessment must be as set out in Attachment B to Part 14 of the Premier’s Guidelines.

The Subcommittee has also been presented with inadequate competition policy certificates which, for example, fail to contain relevant information. The Subcommittee requires certificates to be in the form set out in Attachment C to Part 14 of the Premier’s Guidelines. In order to assist department and agency officers the Subcommittee repeats the required form for competition policy certificates –

Certificate of Compliance – Subordinate Legislation that does not restrict competition

I [Minister’s name], Minister for [portfolio], and Minister responsible for administering the [title of authorising Act for the subordinate legislation] certify that the proposed [title of regulation] –

Has been assessed in accordance with the guidelines and the results documented in the attachment to this certificate, and

The assessment shows that the proposed subordinate legislation does not restrict competition.

DATED:
[Minister]
[Title]

Certificate of Compliance – Subordinate Legislation that restricts competition

I [Minister’s Name], Minister for [portfolio], and Minister responsible for administering the [title of authorising Act for the subordinate legislation] certify that the proposed [title of regulation] –

Has been assessed in accordance with the guidelines and the results of the assessment are documented in the attachment to this certificate, and

Restricts competition; and

Each restriction on competition has been assessed in accordance with the guidelines with the result that –

The objectives of the legislation can only be achieved by restricting competition, and

The benefits of the restriction to the community as a whole outweigh the costs.

DATED:
[Minister]
[Title]

Exemption and Exception Certificates

• Dating Certificates. The Subcommittee has been presented with a number of undated exemption and exception certificates. The Premier’s Guidelines make clear that all certificates including certificates of exemption and exception must be dated by the Minister at the time of signing. See sample certificates attached to the Premier’s Guidelines. The Subcommittee notes that the Executive Council Handbook contains no requirement for the dating of certificates. This inconsistency between the Executive Council Handbook and the Premier’s Guidelines will be reviewed as part of the Inquiry into the Subordinate Legislation Act 1994. The Subcommittee continues to expect all certificates to be dated.

• Reasons for Exemption. The Subcommittee has received regulations exempted under section 9 with certificates of exemption which fail to adequately explain the reasons for granting the exemption or with reasons for granting the exemption contained in the Explanatory Memorandum. It should be noted that it is a requirement of sub-section 9(2) of the Subordinate Legislation Act 1994 that certificates of exemption ‘specify the reasons for the exemption’. The Subcommittee expects all exemption certificates to contain adequate explanations of the reasons for granting the exemptions.

• Extension of Regulations for Periods up to 12 months. Regulations expire 10 years after they have been made. The Subcommittee has been presented with a number of regulations made under sub-sections 8(1)(iii) and 5(3) extending regulations due to expire for periods up to 12 months. Before an extension of time can be granted, the Minister must certify that due to ‘special circumstances’ there is insufficient time available to comply with the formal regulation-making requirements of the Subordinate Legislation Act 1994. The Premier’s Guidelines indicate that ‘special circumstances’ include cases where a review of the whole area is underway but incomplete or where national scheme legislation is being negotiated. ‘Special circumstances’ do not include administrative oversight and the Subcommittee will not approve regulations made for these reasons. The Subcommittee expects details of the ‘special circumstances’ to be contained in the sub-section 5(3) certificate itself as required by the Subordinate Legislation Act 1994. The Subcommittee remains concerned about whether the review processes referred to are actually carried out and will be monitoring regulations made under this exception very carefully.

• Appreciable Economic and Social Burden and Consultation Certificates. Sub-section 9(1)(a) exempts regulations from the regulation impact statement process where no appreciable economic or social burden is imposed. There has been confusion as to the level of consultation required and over the need to provide certificates of consultation to the Subcommittee. Some departments and agencies do not provide certificates of consultation for regulations made under this exemption. It is the opinion of the Subcommittee that paragraphs 5.30 and 5.31 of the Premier’s Guidelines indicate that consultation should take place to determine whether or not a regulation imposes an appreciable economic or social burden and that the Subcommittee should be provided with a certificate of consultation. Legal opinion from the Department of Premier and Cabinet indicates that the Subcommittee’s interpretation of the Premier’s Guidelines is valid. As departments and agencies have indicated that this is not common practice the Subcommittee will review this issue as part of its Inquiry into the Subordinate Legislation Act 1994. The Subcommittee continues to prefer consultation to be undertaken to determine whether a regulation imposes an appreciable economic or social burden and to receive certificates of consultation evidencing that consultation.

• Using Appropriate Exemption Categories. Department and agency officers need to be careful when determining which category to use when exempting regulations. The Subcommittee has received regulations exempted under the incorrect exemption.

• Other Comments. Department and agency officers need to be careful when preparing certificates to ensure that they do not contain typographical errors. The Subcommittee has received certificates containing typographical errors.

Explanatory Memoranda

The Subcommittee expects an Explanatory Memorandum to comply with the requirements contained in the Premier's Guidelines. An Explanatory Memorandum must contain –

• A brief outline of each provision.

• An explanation of the changes brought about by each provision.

• A statement of the reasons for making the regulation.

• A statement as to whether consultation has taken place and if no consultation has taken place a statement as to why a decision was made not to consult.

• A statement as to the reasons for not making a regulation impact statement where none was prepared.

It is a requirement that all Explanatory Memoranda be forwarded to the Scrutiny of Acts and Regulations Committee.

Fee Increases: 8(1)(a) and 8(2)

Regulations increasing fees made under sub-section 8(1)(a) of the Subordinate Legislation Act 1994 must not increase fees by more than the percentage set by the Treasurer. For each financial year a percentage increase is set by the Treasurer in a document entitled Guidelines for Setting Fees and Charges Imposed by Departments and Budget Sector Agencies. The rate for the budget years 2000-2001 and 2001-2002 is 2.5%.

A regulation may increase a number of fees, with some individual fee increases falling outside the rate set by the Treasurer. However when the total average of fee increases for that regulation is calculated, it falls within the rate fixed by the Treasurer. This practice is referred to as the ‘basket approach’. The Subcommittee does not support this practice.

Sub-section 8(2) of the Subordinate Legislation Act 1994 validates the rounding up of fee increases to the nearest whole dollar. Sometimes the total average increase may be greater than that set by the Treasurer but may be validated on the basis that there has been rounding up to the nearest whole dollar. The Subcommittee may only approve such increases where the extra amount can be considered trifling when compared to the whole fee. Where the amount is significant in proportion to the whole fee, the Subcommittee may request the Minister to reconsider the increase.

The Subcommittee also prefers if Explanatory Memoranda accompanying regulations increasing fees under sub-section 8(1)(a) clearly set out the existing fee, the proposed fee and the percentage increase as follows:

This assists the Subcommittee in understanding the fee increases which have taken place.

Independent Advice Certificates: 10(3)

Under sub-section 10(3) of the Subordinate Legislation Act 1994 a Minister must ensure that independent advice as to the adequacy of a regulation impact statement and of the assessment included in the regulation impact statement is obtained. While there is currently no requirement under the Subordinate Legislation Act 1994 to provide the Subcommittee with a copy of that independent advice, the Subcommittee prefers to receive a copy of that independent advice. This assists the Subcommittee in its assessment of whether there has been compliance with the requirements of the Subordinate Legislation Act 1994.

Legislative Instruments outside the Subordinate Legislation Act 1994

The Subcommittee has a vital role to play in ensuring that rights are adequately protected. It cannot do this if provisions are incorporated in legislative instruments outside its scrutiny. The Subcommittee prefers department and agency officers not to use Guidelines. Where Guidelines are used the Subcommittee would like those Guidelines to be published and available to the public at the same time as the regulation commences operation.

Provision of Documentation to Regulation Review Subcommittee

The Regulation Review Subcommittee needs to receive Explanatory Memoranda, all certificates, competition policy assessments and certificates, regulation impact statements and comments and submissions made in relation to regulation impact statements within 7 days after a regulation has been made. The Regulation Review Subcommittee has a limited time within which to review regulations. If the Subcommittee wants to move for disallowance of a regulation it must do so within 18 sitting days of that regulation being tabled in Parliament. Prior to the Subcommittee moving a motion for disallowance it enters into correspondence and negotiations with the particular Minister. The Subcommittee needs sufficient time to allow it to firstly correspond and discuss the issues with the Minister.

The Subcommittee notes that frequently it does not receive the required documentation promptly and Subcommittee staff have to follow up the missing materials – sometimes with many telephone calls to one legislative officer. The Subcommittee reminds department and agency officers of the need for all documentation to be sent to it as provided for in Part 14 of the Notes for the Guidance of Legislation Officers issued by the Office of the Chief Parliamentary Counsel Victoria, on 1 March 1999. Part 14 provides as follows–

Within 7 days after a statutory rule is made, the Department or Board, Committee or body responsible for the rule must send to the Secretary of the Scrutiny of Acts and Regulations Committee –

7 copies of the explanatory memoranda as required to be sent to the Clerk of the Executive Council; and

a copy of the section 13 certificate of the Chief Parliamentary Counsel under section 13 of the Act; and

if the guidelines require consultation, a certificate under section 6(c) of the Act certifying that there has been consultation in accordance with the guidelines; and

if a regulatory impact statement was prepared, a copy of the compliance certificate, copies of all comments and submissions received in connection with it, and the response of the Department, Board, Committee or body to those comments and submissions; and

if a regulatory impact statement was not required, a copy of the exception certificate under section 8 or the exemption certificate under section 9.

The Subcommittee notes that some regulations are made on the recommendation of a Minister or some other authorised body. If the Subcommittee is provided with a copy of the recommendation – it can certify that the regulations have been validly made in accordance with that recommendation. Where the Subcommittee is not provided with a copy of that recommendation – it cannot certify that the regulations have been validly made in accordance with the recommendation. The Subcommittee would therefore very much appreciate it if copies of all recommendations could be forwarded to the Subcommittee. This matter will be addressed as part of its Inquiry into the Subordinate Legislation Act 1994.