Scrutiny of Acts and Regulations Committee Annual ReviewRegulations 1999 and 2000 |
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| Introduction Summary This Annual Review examines the major issues arising out of the review and scrutiny by the Regulation Review Subcommittee (the Subcommittee) of regulations made in Victoria in 1999 and 2000. Regulations are often referred to as ‘subordinate legislation’ or ‘statutory rules’. Legislation made by Parliament is referred to as primary legislation or Acts of Parliament. Legislation cannot be made by bodies other than Parliament unless Parliament authorises those bodies (by means of an Act of Parliament) to make ‘subordinate legislation’ or ‘statutory rules’. The Subcommittee prefers the word ‘regulations’ to ‘subordinate legislation’ or ‘statutory rules’ as its members believe this is a more commonly understood term. In this Annual Review ‘regulations’ will be used to refer to all ‘statutory rules’ or ‘subordinate legislation’. What is the Regulation Review Subcommittee? The Scrutiny of Acts and Regulations Committee is a joint investigatory Committee of the Parliament of Victoria with members drawn from both Houses and from the Government and Opposition. The Regulation Review Subcommittee is a subcommittee of the Scrutiny of Acts and Regulations Committee and is responsible for scrutinising regulations and for conducting any inquiries concerning regulations. It should be noted that prior to 1 May 2000 the Regulation Review Subcommittee was known as the Subordinate Legislation Subcommittee. What is subordinate legislation? The term ‘regulations’ encompasses a variety of legislative instruments such as statutory rules, court rules, local laws, orders in council, proclamations, notices, guidelines, ministerial directions, codes of practice and so on. Regulations are made by non-Parliamentary bodies, that is Government Departments and Statutory Authorities and Agencies (the Executive) in accordance with Parliament’s authority as contained in Acts of Parliament. Scrutiny of Regulations by Parliament The validity of a regulation depends upon the regulation-making power conferred by the Act under which the regulation is made. Parliament authorises the Executive to make regulations because Parliaments do not have sufficient time to debate and pass all the legislation which needs to be enacted, especially where the proposed legislation is very technical or scientific. While regulations are sometimes perceived to be of lesser importance than Acts of Parliament, regulations do control and prohibit the conduct of citizens and may adversely affect the rights and liberties of citizens in much the same way as Acts of Parliament. The potential for abuse of the regulation-making power and erosion of citizens’ rights always exists. As Mr Justice Stephen commented in Watson v. Lee [1] the history of delegated legislation –
Parliamentary scrutiny committees, with power to examine the regulations made by the Executive, are one of the most important safeguards against the misuse of Executive power. Since the 1930’s most Westminster style Parliaments have kept control over regulations through the use of scrutiny committees. Scrutiny committees exist in all Australian states and territories. Some of these scrutiny committees examine bills and regulations, while others examine only regulations. [2] Victoria has had a committee to scrutinise regulations for some time, with the first committee to scrutinise regulations being created in 1956 by the Subordinate Legislation Subcommittee Act 1956. From 1982 to 1992 the Legal and Constitutional Committee was responsible for scrutinisng regulations. In 1992, the Scrutiny of Acts and Regulations Committee was created by the Parliamentary Committees (Amendment) Act 1992 and it took over the scrutiny of regulations. As mentioned above, the Regulation Review Subcommittee currently has responsibility for examining all regulations made in Victoria. Limitations on the Subcommittee’s Role The Subcommittee only has power to examine regulations which come within the definition of ‘statutory rule’ as contained in section 3 of the Subordinate Legislation Act 1994. This definition allows the Subcommittee to examine –
The Subcommittee also has responsibility for reviewing State Environment Protection Policies and Directions made under the Public Sector Management and Employment Act 1998. Regulations in the form of ‘statutory rules’ as defined in section 3 of the Subordinate Legislation Act 1994 only constitute a small portion of the continually growing number of different types of regulations made each year. This means that those types of regulations which fall outside the definition of ‘statutory rules’ also fall outside scrutiny by the Subcommittee and any form of Parliamentary examination or review. Some examples of types of regulations falling outside scrutiny by the Subcommittee and outside the requirements of the Subordinate Legislation Act 1994 include – guidelines, ministerial directions, local laws; codes of practice, notices and so on. Role of the Subcommittee The Subcommittee carefully checks regulations against the heads of review contained in section 21 of the Subordinate Legislation Act 1994[3] to ensure that they do not unduly trespass on the rights and freedoms of citizens. For example the Subcommittee ensures that a regulation –
and so on. The Subcommittee also ensures that there has been compliance with the practical and procedural requirements of the Subordinate Legislation Act 1994. For example, section 7 of the Subordinate Legislation Act 1994 requires regulation impact statements to be prepared for all regulations unless exempted or excepted from that process under sections 8 or 9. Where regulation impact statements are prepared some of the matters the Subcommittee examines include whether –
and so on. Where regulation impact statements are not prepared, regulations must be accompanied by exception or exemption certificates. In examining exception and exemption certificates some of the matters the Subcommittee has regard to include whether –
and so on. The Subcommittee also ensures that –
Powers of Subcommittee Where there is non-compliance with the practical requirements of the Subordinate Legislation Act 1994 or the principles contained in section 21, the Scrutiny of Acts and Regulations Committee may Report to Parliament making any recommendations it considers appropriate[4]. As a first step where the Subcommittee has any concerns regarding a regulation, it prefers to correspond with the responsible Minister pointing out its concerns and seeking an explanation or amendment of the regulation. If the Subcommittee does not receive a satisfactory explanation and it has ongoing concerns with a regulation it may prepare a Report to Parliament and submit this to all members of the Scrutiny of Acts and Regulations Committee for formal approval and adoption. A Report to Parliament may include a recommendation that a regulation be amended or disallowed in whole or in part or it may simply provide information to Parliament as to the Subcommittee’s concerns. Where the Scrutiny of Acts and Regulations Committee decides to Report to Parliament and where it is of the opinion that considerations of justice and fairness require it, it may also recommend that a regulation be suspended while Parliament considers the issues contained in the Report[5]. Regulation Review Subcommittee – 54th Parliament The 53rd Parliament was dissolved in August 1999 and elections followed in September 1999. The 54th Parliament did not meet until 3 November 1999 and membership of Parliamentary Committees was not finalised until 14 December 1999. The first meeting of the Scrutiny of Acts and Regulations Committee was held on 20 December 1999 and formation and membership of subcommittees was deferred until early February 2000. This meant that for a period of approximately six months, no Subcommittee existed to scrutinise regulations – presenting the current Subcommittee with a huge backlog of regulations made in 1999 to scrutinise[6]. On 21 February 2000, by resolution of the Scrutiny of Acts and Regulations Committee, the Regulation Review Subcommittee was formed and membership was determined. The members of the Regulation Review Subcommittee for the 54th Parliament include –
The Subcommittee held its first meeting on 24 February 2000. The Subcommittee held 15 meetings during 2000 at which it discussed 106 regulations made in 1999 and 100 regulations made in 2000. The remaining 41 regulations made in 2000 were discussed at 4 meetings held in early 2001. 44 of the 150 regulations made in 1999 were examined by the members of the Subcommittee for the 53rd Parliament – these regulations are not discussed in any detail in this Annual Review. Members of the Subcommittee for the 53rd Parliament included –
All regulations made in 1999 are contained in a list in Appendix 2 and all regulations made in 2000 are contained in a list in Appendix 3. The Subcommittee notes that the number of regulations within the definition of ‘statutory rules’ contained in section 3 of the Subordinate Legislation Act 1994 is continuing to decline –
The Subcommittee did not make any Reports to Parliament during 1999 or 2000. As mentioned above the Subcommittee commenced the year 2000 with an examination of a large backlog of regulations made in 1999. If the Subcommittee wants to move for disallowance or amendment of regulations it must do so within 18 sitting days of the tabling of a regulation in Parliament. To provide the Subcommittee with more time in which to review the backlog of regulations, the Parliamentary Committees (Amendment) Act 1999 was given royal assent on 14 December 1999. This extended the time for disallowance motions in the Parliament until 18 sitting days after the appointment of the Scrutiny of Acts and Regulations Committee for the 54th Parliament. This extension of time assisted the Subcommittee with the backlog but it was still unable to examine all the regulations made in 1999 within that time. There were some regulations made in 1999 which the Subcommittee decided not to approve on the basis that the Subcommittee had run out of time to formally approve them. These regulations are listed at the end of Appendix 2. While the Subcommittee did not make any Reports to Parliament during 1999 and 2000, where it did have concerns with regulations it wrote to responsible Ministers seeking clarification on each occasion. Some Ministers responded very promptly to the Subcommittee’s concerns while others required follow-up requests from the Subcommittee. Some matters raised by the Subcommittee only required acknowledgment that legislative officers would follow better regulation-making practices in the future. Subcommittee members have been somewhat disappointed with the lack acknowledgment in response to some of its letters[7]. Appendix 4 lists Correspondence concerning Regulations made in 1999 (and examined by the current Subcommittee during 2000) and Appendix 5 lists Correspondence concerning Regulations made in 2000. Significant Issues Consultation The requirement for consultation is one of the key provisions of the Subordinate Legislation Act 1994. Section 6 requires responsible Ministers to ensure that there is consultation with other Ministers whose area of responsibility may be affected and with any sector of the public on which an appreciable burden may be imposed. Part 5, Section C of the Premier’s Guidelines provides some guidance as to when consultation is required. The Premier’s Guidelines make clear that the "nature and degree of consultation that is appropriate for any particular rule will vary with the nature of that rule". This places ultimate responsibility on Ministers to ensure that consultation is appropriate and with all those groups affected by the particular regulation. While the Premier’s Guidelines provide assistance with the consultation process, the Subcommittee acknowledges some sections are unclear, making it difficult for department and agency officers to determine whether consultation should take place[8]. While the Subcommittee acknowledges that the Premier’s Guidelines need some clarification, the Subcommittee cannot emphasise strongly enough the need to consult with all the various groups affected by a particular regulation or "with any sector of the public on which an appreciable economic or social burden may be imposed". The Subcommittee has been presented with some regulations over the past 12 months where the breadth of consultation has been clearly inadequate. Example 1 – SR 94 – Subdivision (Permit and Certification Fees) Regulations 2000 SR 94 Subdivision (Permit and Certification Fees) Regulations 2000 significantly increased some fees payable to councils for services provided under the Subdivision Act 1988. In examining the RIS, the Subcommittee noted that most of the consultation appeared to have been with local government and that two key stakeholders – the Housing Industry Association and the Property Council had not been consulted. The Subcommittee was concerned that the consultation requirements of the Subordinate Legislation Act 1994 had not been met and that consultation could have included the Housing Industry Association and the Property Council. The Subcommittee wrote to the Minister seeking clarification. |
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SR 94 – Subdivision (Permit and Certification Fees) Regulations 2000 At its meeting on 19 February 2001 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Subdivision (Permit and Certification Fees) Regulations 2000 (the Amending Regulations), which replace the Subdivision (Permit and Certification Fees) Regulations 1989, provide for councils to charge fees for services provided under the Subdivision Act 1988. Some of the fees which councils may charge include certification of plans of subdivision, applications for consolidation; preparation of engineering plans, checking engineering plans, supervising works and so on. Under the Amending Regulations some of the fees have been significantly increased. The RIS states that the Regulations were developed "after an extensive process of consultation with stakeholders". From its reading of the RIS, the Subcommittee notes that most of that consultation appears to have been with local government. In the Subcommittee’s view two key stakeholders include the Housing Industry Association and the Property Council. It is not clear from the RIS whether consultation took place with representatives from these organisations. The Subcommittee is concerned that the breadth of consultation required by the Subordinate Legislation Act 1994 and the Premier’s Guidelines may not have been met in the present circumstances. Although you have certified that adequate consultation has occurred, the Subcommittee’s role is to ensure that the formal requirements in the Act have been complied with. The Subcommittee therefore seeks clarification as to whether consultation took place with representatives from the Housing Industry Association and the Property Council and, if not, the Subcommittee would appreciate receiving advice as to why there was no consultation with representatives from these organisations. The Subcommittee also notes that Clause 7 of the Amending Regulations gives councils the power to "waive or rebate" fees in certain circumstances. The Subcommittee is concerned that members of the public may not be aware that councils have the power to reduce fees in certain circumstances and that as it is a ‘discretion’ some councils may rarely or never exercise that ‘discretion’. It may mean that applicants in some municipalities will obtain the benefit of the exercise of that discretion, while applicants in other municipalities will miss out. It appears to the Subcommittee that Clause 7 may operate somewhat unfairly with some applicants obtaining a reduction and others missing out. The Subcommittee seeks clarification as to how Clause 7 will operate fairly and equitably in practice and as to whether there is any requirement that councils communicate their ‘discretion’ to waive fees in certain circumstances to applicants. The Subcommittee looks forward to receiving your response. |
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| Minister's Response At the time of publishing this Annual Review no response has been received from the Minister[9]. Example 2 – SR 66 – Forests (Miscellaneous) Regulations 2000 SR 66 – Forests (Miscellaneous) Regulations 2000 sets out various offences and penalties for committing offences in State forests with the aim of discouraging behaviour which may harm forests or endanger persons visiting forests and they also imposed restrictions on camping in specified areas. The Environment Defenders Office (Victoria), representing the Australian Conservation Foundation, Environment Victoria, the Wilderness Society and the Victorian National Parks Association forwarded a submission to the Subcommittee expressing a number of concerns with these regulations. The Subcommittee carefully reviewed the issues raised. Subcommittee members were particularly concerned about claims of a failure to consult with any environmental groups and remain concerned that consultation was inadequate in this case. Subcommittee members were also concerned about the level of penalties imposed for obstructing roads or tracks and for camping in restricted areas and the extent to which members of the public had been notified about these offences and penalties. The Subcommittee wrote to the Minister seeking clarification. |
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SR 66 – Forests (Miscellaneous) Regulations 2000 At its meeting on 11 September 2000 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Forests (Miscellaneous) Regulations 2000 (the 2000 Regulations) commenced operation on 4 July 2000, replacing the Forests (Miscellaneous) Regulations 1999 (the 1999 Regulations). The 2000 Regulations are fairly similar to the Regulations they replaced. The major difference is that the provisions in the 1999 Regulations which dealt with sale by auction or tender of forest produce and the provisions which dealt with fees for cattle unlawfully agisted in reserved forests have been deleted. The 2000 Regulations also set out various offences and the penalties for committing those offences which were not previously included in the 1999 Regulations. The Environment Defenders Office (Victoria) (the EDO), representing the Australian Conservation Foundation, Environment Victoria, the Wilderness Society and the Victorian National Parks Association forwarded a submission to the Subcommittee on Friday 8 September 2000, expressing a number of concerns with the 2000 Regulations. The Subcommittee has carefully reviewed the EDO’s submission and seeks clarification from you in relation to a number of issues. Consultation The Subcommittee notes that in accordance with the requirements of s. 11(1) of the Subordinate Legislation Act 1994, the draft RIS and proposed Regulations were advertised in The Age and the Victorian Government Gazette on 6 May 2000. Only one submission was received in response to this advertisement and this was from the Victorian Association of Forest Industries. The RIS notes that consultation took place with Forestry Officers from Forestry Victoria and Forest Planning Staff from the Forests Service of the Department of Natural Resources and Environment. The RIS also notes that prior to the advertisement of the RIS a copy of the draft regulations was specifically circulated to the Victorian Association of Forest Industries, the Mountain Cattlemen’s Association of Victoria, the Barmah Forest Cattlemen Association, The Victorian Farmers’ Federation, the Federation of Victorian Walking Clubs, the Victorian Association of Four Wheel Drive Clubs and the Outdoor Recreation Centre Inc. In examining the groups consulted, the Subcommittee notes that there was no consultation with environmental groups. In its submission to the Subcommittee, the EDO stated: A fundamental omission in that process [the consultation process] was the lack of consultation with environmental bodies, including The Wilderness Society, Friends of the Earth, Environment Victoria, Australian Conservation Foundation, Victorian National Parks Association and regional and local groups. Section 6(b) of the Subordinate Legislation Act 1994 provides as follows: 6. Consultation The responsible Minister must ensure that where the guidelines require consultation –
Paragraph 5.20 of the Premier’s Guidelines makes clear that if a proposed regulation "is likely to impose any appreciable burden, cost or disadvantage on any sector of the public, consultation should take place with that sector, eg business groups, community groups, special interest groups". The Premier’s Guidelines explain that the objective of the RIS process is to obtain input from a wide variety of groups so that any problems with the regulatory proposal can be identified and dealt with and to ensure that all competing interests are recognised and considered (para 5.40). In its submission to the Subcommittee, the EDO submits that environmental groups fall within the definition of a sector of the public that will suffer an appreciable economic and social disadvantage. The Subcommittee is concerned that the breadth of consultation required by the Subordinate Legislation Act 1994 and the Premier’s Guidelines may not have been met in the present circumstances. Although you have certified that adequate consultation has occurred, the Subcommittee’s role is to ensure that the formal requirements in the Act have been complied with.
Penalties Section 11 of the 2000 Regulations concerns offences relating to the obstruction of roads or tracks in State Forests. The penalty for breaching any of the provisions contained in regulation 11 is 20 penalty units or $2000. Regulations 12 and 13 of the 2000 Regulations concern camping in State Forests and in areas which are subject to special camping restrictions. The penalty for breaching any of the provisions contained in regulations 12 and 13 is 10 penalty units or $1,000. These offences are all strict liability offences which means that knowledge or intention of wrongdoing is immaterial to the commission of the offence. Therefore a defence of honest and reasonable mistake will not be open to anyone who breaches any of the provisions contained in regulations 11, 12 and 13. In considering the level of the penalties imposed under regulations 11, 12 and 13 of the 2000 Regulations, the Subcommittee examined the penalties imposed for offences of a similar nature under the Road Safety (Road Rules) Regulations 1999. In particular the Subcommittee examined the penalties imposed for offences committed under Division 6 of Part 12 of the Road Rules and found that they were in the range of 2 to 3 penalty units. In its submission to the Subcommittee, the EDO suggested that the penalties imposed under regulations 11, 12 and 13 are "harsh and punitive" and "out of all proportion with the stated offences" and that the imposition of lesser penalties could achieve the same objectives. The Subcommittee notes that under sub-section 99(31) of the Forests Act 1958, there is power to make regulations imposing up to 50 penalty units for breaches of any regulations. However the Subcommittee is concerned about the level of the penalties imposed particularly in view of the fact that the offences are strict liability offences, with no opportunity for a person in breach to argue honest and reasonable mistake. The Subcommittee would like to know:
Camping in areas subject to special camping restrictions Regulation 13(1) of the 2000 Regulations prohibits a person from camping or erecting a tent or using a caravan or other mobile structure in certain specified areas during certain specified periods. Regulation 13(2) provides that a person may camp in any of the prohibited areas if that person camps in an area set aside by the Secretary or committee of management of that land for camping or is issued with a permit by the Secretary or committee of management. Regulation 13(3)(b) provides that the Secretary or committee of management has power to specify any conditions in relation to any permit. In relation to the granting of a permit and the conditions which may be attached to such a permit the Subcommittee would like to know:
Sale by auction or tender of forest produce Part 2 of the 1999 Regulations dealt with the sale by auction or tender of forest produce and rights to licences and specified the procedures to be followed in relation to these processes. It was a requirement of the 1999 Regulations that any sale by auction or tender of forest produce or rights to licences be publicised in a newspaper and exhibited in a relevant regional office of the Department. The Subcommittee has been informed that Part 2 of the 1999 Regulations is to be replaced by Department Guidelines. However these Guidelines have not yet been produced. The Subcommittee has been informed that these Guidelines will be posted on the Department’s website. The Subcommittee is concerned that the 2000 Regulations have already commenced operation and that no Guidelines have yet been produced and that there are therefore no procedures in place to regulate sale by auction or tender of forest produce or rights to licences at present.
Conclusion While the Subcommittee has considered the above regulations, it has not yet approved them and will not be able to do so until it has received clarification of the matters outlined above. The Subcommittee looks forward to receiving an early response. |
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| Minister's Response[10] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Thank you for your letter of 30 October in which clarification was sought on a
number of issues relating to the Forests (Miscellaneous) Regulations 2000 arising from
comments made by the Environment Defenders Office (EDO).
Consultation Your letter advises that the EDO has observed that environmental groups were not specifically contacted during the public consultation process for the development of the new Forests (Miscellaneous) Regulations 2000. The Government is committed to consultation with community and industry stakeholders in the development of new government policy and I ensure that my Office and the Department liaise with the EDO and individual environmental groups wherever I consider this to be appropriate or necessary. However these regulations provide for the management of a diverse group of activities in State Forest in order to protect forest infrastructure and promote the safety of forest workers and forest visitors. In your letter you refer to Section 6(b) of the Subordinate Legislation Act 1994 which provides that the responsible Minister must ensure that there is consultation, in accordance with the guidelines, with any sector of the public on which an appreciable economic or social burden may be imposed, and paragraph 5.20 of the Premier’s Guidelines which indicates that if a proposed regulation is likely to impose an appreciable burden, cost or disadvantage on any sector of the public, consultation should take place with that sector eg business groups, community groups and special interest groups. Before finalising the regulations, in compliance with the above legislation and Premier’s Guidelines I ensured that the Department had:
It appears from your letter that after the regulations had been finalised the EDO contacted your Committee to advise that environmental groups are a sector of the public that would suffer an appreciable economic and social disadvantage as a result of the regulations. However your letter does not indicate the grounds on which environmental groups will suffer appreciable economical or social disadvantage as a result of the regulations which primarily relate to road usage, camping and recreation access to state forests. Penalties The penalties associated with provisions 11,12 and 13 of the 2000 Regulations fall within the scope of penalties identified in the Forests Act 1958. Section 97 of the Act provides that any person guilty of an offence against the Act for which no penalty is expressly imposed shall be liable to a penalty of not more than 50 penalty units. The penalties have been determined at the lower level to provide a sufficient deterrent against the activities identified without defaulting to the higher penalty rate of 50 penalty units. The 20 penalty units specified for offences under Provision 11 of the 2000 Regulations reflect the importance of maintaining essential road access to forests areas for fire protection, and the importance of protecting community investment in State Forest infrastructure. The equivalent penalties under the Road Rules are for more general offences, while the penalties under the forests Act reflect the implications if roads in State forests are blocked or damaged when access is required for fire fighting or essential fire prevention activities. The 10 penalty units specified for offences under Provisions 12 and 13 of the 2000 Regulations reflect the importance of maintaining essential buffer zones around water bodies to maintain water quality, and around areas of plantations and State Forest for fire prevention. These penalties have not changed since 1992 when they were included in the Forests (Miscellaneous) Regulations 1989. The penalties are consistent with other offences in the Forests Act, and are deemed to be a reasonable deterrent against the activities identified. Signage Provision 11 – there is no specific signage advising public that damage or obstructions to roading is an offence, as there would be little reason for members of the public to undertake damaging or obstructive activities in the normal course of activities in State forest. The majority of roads and tracks in State forests would not be used by members of the public, and as such erection of signage on all roads is considered to be of limited benefit. Provision 12 – The general restrictions placed on camping in State Forest are consistent with advice on responsible camping practices commonly provided by recreation groups and government authorities to ensure that camping activities have limited impact on environmental values, particularly water quality. While there is no signage in areas not designated for camping, information on these practices is provided on the NRE website, and regional offices. Provision 13 – The restrictions placed on camping in areas of State Forest which are subject to special camping restrictions have been in place for many years. The purpose of the restrictions is to limit the potential for fires to start in plantation areas within State Forest. In most areas signage is maintained by the managers of the plantations or the local council. Camping in areas subject to special camping restrictions The areas subject to special camping restrictions are areas identified as essential buffers for protecting areas of State Forest from fire, during fire season, or areas of public land, designated as State Forest, close to townships, where camping is inappropriate for a number of reasons including the protection of water quality. In all cases it is likely that the managers of the plantation, or local council will form the committee of management. While the Regulations note that a permit may be issued, the sensitive nature of the areas identified means that it is highly unlikely that a permit would ever be approved. Most areas have signage which has been erected by either the plantation owner or the local council, advising of the restrictions and that penalties apply. In most cases there are areas set aside for camping, either in the town, or in areas of National Park or State Forest near by. Sale by auction or tender of forest products Part 2 of the Forests (Miscellaneous) Regulations 1999, dealing with the sale by auction or tender of forest produce, were not included in the 2000 Regulations following the outcomes of the National Competition Policy review of the Forests Act. The review was carried out by KPMG, who recommended that the Department should adopt normal commercial practices for the conduct of management activities that are primarily commercial in nature. It was considered that the removal of Part 2 from the Regulations complied with the spirit and intention of this aspect of the KPMG report. Forestry Victoria is responsible for the development of the Departmental guidelines on the sale of forest produce. The guidelines for auction and tender of forest produce are in the early stages of development. Development of the guidelines will involve a period of consultation with key stakeholders. Once completed the guidelines will be available on the Department’s web site. It is anticipated that the guidelines will be completed within the next 3 to 4 months. While the guidelines are being developed, standard Departmental purchasing procedures, which are based on the Victorian Government Purchasing Board requirements, apply. I trust that the above information addresses the concerns of the Subcommittee and that the Subcommittee will approve the Regulations. |
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While the Subcommittee is not entirely satisfied with the Minister’s response, it has on this occasion decided to approve the Regulations but remains concerned about the apparent inadequacy of consultation. Section 21(1)(h) – Inconsistency with Principles of Justice and Fairness Late in 2000 the Subcommittee examined three regulations which increased fees applicable for the commencement of actions in Victorian courts and on the filing fee for probate applications where the value of the estate is $10,000 or more, in order to provide financial support for the Supreme Court Library. The Supreme Court Library is a major research resource for the legal profession in Victoria. While acknowledging the importance of the Supreme Court Library, the Subcommittee questioned whether the imposition of a levy on members of the litigating public was consistent with principles of equity and justice. Subcommittee members considered that it may have been fairer to provide additional funding by imposing a small levy on the users of the Supreme Court Library, that is Victorian legal practitioners, including members of the Victorian judiciary. The Subcommittee wrote to the Attorney-General indicating the imposition of the levy on members of the public was inconsistent with principles of justice and fairness, constituting a possible breach of sub-section 21(1)(h) of the Subordinate Legislation Act 1994. The Subcommittee declined to recommend disallowance on the basis of the slightness of the increase in fees but indicated to the Attorney-General that it may take a different approach if there were any further increases in fees to raise additional funding for the Supreme Court Library. The Subcommittee’s letter to the Minister and the Minister’s response were as follows – |
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SR 41 Supreme Court (Fees) (Further
Amendment) Regulations 2000 At its meeting on 14 November 2000 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. These regulations place a levy on the fees payable for the commencement of actions in Victorian courts and on the filing fee for probate applications where the value of the estate is $10,000 or more, in order to provide financial support for the Supreme Court Library. The Subcommittee notes that the Supreme Court Library is a major research resource for the legal profession in Victoria and that in order to continue to provide an efficient and effective service the Supreme Court Library requires additional funding. The Regulation Impact Statement (RIS) indicates that the major object of these Regulations "is to make provision for the necessary funding support to ensure that the operations of the Supreme Court Library may be continued without diminution of services to its users". The Subcommittee appreciates the time and effort which has gone into producing a RIS for these Regulations. While the Subcommittee acknowledges the need for the Supreme Court Library to have additional funds so that it can continue to operate as a major research resource, the Subcommittee has some concerns about the way in which those funds are to be raised. The RIS indicates that the Regulations "ensure that those people bringing actions before Victorian Courts will make an equitable contribution toward the sustained provision of valuable library services" and that this was considered the "most equitable method" of obtaining additional funding for the Supreme Court Library. The Subcommittee seriously questions whether the imposition of a levy on members of the litigating public is consistent with principles of equity and justice and suggests that those principles would more likely have been met by the imposition of a small levy on all Victorian lawyers. However the RIS rejected this alternative on the basis "that the ultimate beneficiary from an effective and properly resourced justice system is the litigating public". The Subcommittee questions whether this is so and considers that those who obtain most benefit from the Supreme Court Library are the lawyers who use the Library. The Subcommittee considers that the imposition of a levy on members of the litigating public constitutes a possible breach of sub-section 21(1)(h) of the Subordinate Legislation Act 1994, that is, it is inconsistent with principles of justice and fairness. The Subcommittee notes that the increase in Court fees to raise additional funding for the Supreme Court Library is quite small. It is on the basis of the slightness of the increase in fees that the Subcommittee has resolved on this occasion not to pass a resolution seeking disallowance. However the Subcommittee will take a different approach if there are further increases in the fees imposed on litigants in order to raise additional funding for the Supreme Court Library. |
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| Minister’s Response | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Thank you for your letter dated 16 November advising of outcome of the Regulation
Review Subcommittee's examination of each of the above regulations. The concerns of the
Subcommittee and its preference that the additional revenue should be sourced from the
legal profession are noted.
The Library is governed by a committee chaired by the Chief Justice and comprising the heads of the other jurisdictions, other judges of the Supreme and County Courts, as well as members of the Bar and Law Institute. It was, in fact, this committee that commissioned the consultants to undertake a review of the operations of the Library with particular focus on an analysis of the efficiency and effectiveness of its operations, the identification of future challenges and the actions required to address them and to propose a Strategic Plan for the future of the library service. Each of the options examined in the RIS was considered by the Library Committee, which concluded that a levy on initiations was the most appropriate option and it was on this basis that the regulations were framed. The Regulation Review Subcommittee will be aware that the legal profession already make a significant contribution to the operating costs of the library providing some 52% of the annual operating revenue through admission fees ($389.000) and photocopying and other user charges ($170,000). The amount of revenue anticipated to be raised under the levy on initiating fees will amount to $150,000 or 12% of operational costs. Should there be further review of the sources of funding for the Library, the advice of the Regulation Review Subcommittee will be considered. |
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| Clarity of Intention and Practical Operation It is important for the intention and practical operation of regulations to be clear so that those affected are able to comply with the provisions. The Subcommittee checks regulations very carefully to ensure that their provisions are clear, easy to understand and operate effectively in practice. Example 1 – SR 2 – Local Government (Elections) (Amendment) Regulations 1999 The Subcommittee noted that the scrutineer provisions in sub-section 35(2) of these Regulations had been under examination by the Subcommittee for the 53rd Parliament and that advice had been received that the effect of that provision is to allow one scrutineer for each polling official at each table. This matter was not resolved by the previous Subcommittee. Subcommittee members for the 54th Parliament were concerned with how these scrutineer provisions would operate in practice – the advice received by the previous Subcommittee was not consistent with the personal experience of members nor with the Scrutineers Handbook. The Subcommittee wrote to the Minister seeking an explanation. |
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SR 2 of 1999 – Local Government (Elections) (Amendment) Regulations 1999 At its meeting on 19 May 2000 the Regulation Review Subcommittee (previously referred to as the Subordinate Legislation Subcommittee) examined the above Regulations. Prior to the dissolution of the 53rd Parliament, the Subordinate Legislation Subcommittee considered the above Regulations at two of its meetings in 1999 and twice determined not to approve the Regulations. Its concern related to regulation 35(2) which was altered to read as follows:
At the time the Subcommittee was advised by Local Government Operations that the effect of regulation 35(2) is that it permits one scrutineer for each polling official at each table. This is not however consistent with either the personal experience of the subcommittee members nor with the Scrutineers Handbook. The current Subcommittee realises that the time for it to consider these Regulations has already expired and it also notes that these Regulations were made under the previous Government. However the current Subcommittee has ongoing concerns with the practical operation of Regulation 35(2) and wishes to bring this matter to your attention so that it can be resolved. |
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| Minister's Response | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Thank you for your letter of 11 September 2000 regarding the above Regulations
and specifically your query about Regulation 35(2), which describes the number of
scrutineers that may be present during a count at a central polling place.
The wording of the Regulation, which limits the number of each candidate’s scrutineers to the number of authorised persons, is less than clear because the expression "authorised person" is not formally defined in the Act or the Regulations. In context, however, an authorised person is a person appointed by the Returning Officer and includes persons appointed to count votes. (See Schedule 2, Clause 1(7) of the Local Government Act 1989 and Regulations 12 and 21). Given this, the number of each candidate’s scrutineers is effectively limited to the number of electoral staff involved in counting votes. This has a similar effect to Regulation 35(2A), which limits the number of scrutineers in a computerised count. It is also consistent with Section 173 (1)(b) of The Constitution Act Amendment Act 1958 which applies to the counting of votes in State elections. I note that the regulations would be clearer if the expression "authorised person" were formally defined. I have therefore had the matter listed for attention during the forthcoming review of the Local Government Act 1989. |
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The Minister agreed that the provisions were not very clear and this was partly because there was no definition of ‘authorised person’ either in the Local Government Act 1989 or the Local Government (Elections) (Amendment) Regulations 1999. The Minister explained that in practice "the number of each candidate’s scrutineers is effectively limited to the number of electoral staff involved in counting votes". The Minister also agreed to clarify this matter in the forthcoming review of the Local Government Act 1989. This is a very satisfactory outcome. Note: These regulations were not formally approved by the Subcommittee. This is because at the time the Subcommittee for the 54th Parliament first examined these Regulations – the time for it to formally review and report had elapsed[11]. Example 2 – SR 49 – Electricity Safety (Installations) Regulations 1999 The Subcommittee also was uncertain about the practical operation of SR 49 of 1999 – Electricity Safety (Installations) Regulations 1999. These Regulations were first examined by the previous Subcommittee and by the time the current Subcommittee had the opportunity of re-examining them, the time for it to Report to Parliament had elapsed. The Subcommittee was concerned with the large number of objections and responses to the regulation impact statement. The Subcommittee wrote to all parties who forwarded submissions during the regulation impact assessment process and was surprised at the on-going objections expressed by those working in the electricity industry. There were complaints, for example, with the level of inspection, the adequacy of inspection, the advice and support provided by the Office of the Chief Electrical Inspector, the certification system and enforcement of that system, vagueness of Guidelines and so on. Given the unusual level of continued concern expressed by those working in the electricity industry the Subcommittee wrote to the Treasurer seeking a review of the practical effect and operation of the Regulations. |
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SR 49 of 1999 – Electricity Safety (Installations) Regulations 1999 At its meeting on 19 May 2000 the Regulation Review Subcommittee (previously referred to as the Subordinate Legislation Subcommittee) examined the above Regulations. Prior to the dissolution of the 53rd Parliament, the Subordinate Legislation Subcommittee considered the above Regulations at one of its meetings in 1999 and determined not to approve the Regulations. Its concern related to the large number of objections and responses to the regulatory impact statement. The current Subcommittee realises that the time for it to consider these Regulations has already expired. Given the unusually large number of responses, the current Subcommittee wrote to all parties who forwarded submissions in response to the regulatory impact statement to obtain feedback on how the regulations are working. The current Subcommittee has received a large amount of correspondence in response to its request and is surprised by the continuing high level of concern expressed by those working in the electricity industry. The major areas of concern raised in the correspondence received by the Subcommittee may be summarised as follows:
The above concerns constitute a sample of the issues raised in the correspondence received by the Subcommittee. The Subcommittee is of the view that as there is an unusually large amount of ongoing concern with these Regulations it is important to bring these matters to your attention for further review. |
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| Minister's Response On 25 October 2000 the Subcommittee received an acknowledgment from the Treasurer, noting that the matter had been referred to the Minister for Energy and Resources for comment. The Subcommittee notes that it has still not received a response from the Minister and will continue to seek a response. Use of Legislative Instruments outside scrutiny by the Subcommittee The Subcommittee is always concerned when legislative instruments outside the definition of ‘statutory rules’ contained in section 3 of the Subordinate Legislation Act 1994 are used with the consequence that the Subcommittee is unable to scrutinise these instruments and consider their impact on such matters as trespass to rights or freedoms. Example 1 – SR 28 – Fisheries (Scallop) Regulations 2000 SR 28 – Fisheries (Scallop) Regulations 2000 introduced new conditions for scallop fishermen but instead of incorporating these new conditions in regulations they were included as part of the licence conditions. The Subcommittee wrote to the Minister pointing out that by including these conditions as part of the licence rather than as part of the regulations, the provisions of the Subordinate Legislation Act 1994 and scrutiny by the Subcommittee was avoided. |
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SR 28 – Fisheries (Scallop) Regulations 2000 At its meeting on 4 September 2000 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Fisheries (Scallop) Regulations 2000 allows the scallop quota to be measured by shell weight per kilogram instead of by sealed tags and crates. These Regulations do this by removing all the redundant provisions which relate to sealed tags and crates. The Subcommittee notes that some new conditions for scallop fishermen have been introduced and that these new conditions are not contained in the Regulations but have instead been included as part of the licence conditions. The Subcommittee is concerned that by including these conditions as part of the licence rather than by incorporating the conditions into the Regulations, scrutiny by the Subcommittee is thereby avoided. The Subcommittee plays an important role in examining regulations to ensure that they do not breach the principles contained in section 21 of the Subordinate Legislation Act 1994. In particular the Subcommittee ensures that regulations do not unduly trespass on rights and freedoms and they are not unjust or unfair. In addition the Subcommittee ensures that there is compliance with the practical requirements of the Subordinate Legislation Act 1994. The Subcommittee plays a vital role in protecting the rights and freedoms of all Victorian citizens and notes with concern that its ability to scrutinise some aspects of the scallop fishing industry have been removed. |
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| Minister’s Response | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Thank you for your letter dated 30 October 2000 concerning the Fisheries
(Scallop) Regulations 2000 which remove redundant conditions for the scallop fishery. As
noted, new conditions in the scallop fishery have been introduced as licence conditions
rather than as regulations.
The Fisheries Act 1995 provides a range of tools that can be used to manage fisheries, including the power to make regulations, to place conditions on licences, to make quota orders, Fisheries Notices and Ministerial Directions. The Fisheries Act provides for the placing of conditions on licences and specifies the process which must take place before a condition is imposed. Where a new condition is added to a licence, the Fisheries Act provides that the licence holder may take the matter to the Licensing Appeals Tribunal if there is some dissatisfaction with what has happened. As noted in your letter, licence conditions are not scrutinised by the Scrutiny of Acts and Regulations Committee. However, this is also the case with other tools used under the Act such as quota orders, Fisheries Notices and Ministerial Directions. The most appropriate management tool to use in a particular circumstance will vary from fishery to fishery and can change over time. Normally the conditions that apply to fishing operations undertaken by Fishery Access Licence holders are prescribed in Statutory Rules and, where changes are required, then the Regulatory Impact Statement process is followed. For the scallop fishery this year it was decided to rely on Section 54 of the Fisheries Act to add new conditions because of the greater flexibility this would provide. There was also a concern that it would be necessary to vary the content of the new conditions during the fishing season, a task that is simpler when the relevant conditions are expressed on a licence and not in regulations. These conditions enabled the Department to introduce a requirement that all licence-holders have fitted and use a Vessel Monitoring System (VMS). This ensured that Victorian licensed fishers did not operate unknowingly or illegally in adjacent Commonwealth waters that were closed to all fishers for the 2000 season. Victorian licensed scallop boats already have a VMS fitted as standard equipment because they also hold Commonwealth scallop licences where a VMS is a mandatory requirement. Victorian licence holders supported the new licence conditions. They appreciate that the VMS facility will largely eliminate illegal fishing in closed areas (in this instance adjacent Commonwealth controlled waters) which has been a significant problem in the past. Licence holders were consulted fully about the content of the new conditions and supported the approach that was taken to manage the commercial scallop fishery this year. I trust that the information contained in this letter addresses your concerns. Any additional information that you may require can be provided. |
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Example 2 – SR 81 – Zoological Parks and Gardens (Administration) (Charges) Regulations 1999 The Subcommittee had some similar concerns with SR 81 – Zoological Parks and Gardens (Administration) (Charges) Regulations 1999. The Subcommittee noted that fee increases for entry into zoological parks and gardens had been controversial during 1997 and 1998 and was concerned that the Chairman of the Zoological Parks and Gardens had been given a discretion to set fees in a legislative instrument outside the Subcommittee’s jurisdiction and consequently preventing the Subcommittee from scrutinising fee increases for entry into zoological parks. The Subcommittee wrote to the Minister seeking clarification and noting the importance of scrutiny in ensuring that regulations are properly and fairly made. The Subcommittee was pleased to receive advice from the Minister which indicated that a proposal to give the Chief Executive Officer of the Zoological Parks and Gardens Board a discretion to set concessional fees was considered but that a decision had been made not to proceed with it. |
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SR 81 – Zoological Parks and Gardens (Administration) (Charges) Regulations 1999 At its meeting on 24 February 2000 the Subordinate Legislation Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. At its meeting the subcommittee was informed that fee increases for entry into zoological parks and gardens have in the past been a controversial matter because of the requirements of the Subordinate Legislation Act 1994. Under section 8(1)(a) of the Subordinate Legislation Act 1994 a regulatory impact statement does not have to be prepared if the proposed increase in fees for a particular year do not exceed the annual rate approved by the Treasurer. Section 8(2) provides that in calculating the amount of an increase, the fee can go up to the next dollar. In 1997 the subcommittee wrote to the responsible Minister regarding fee increases for intellectually disabled children under the age of 16 because the increase was in excess of the annual rate approved by the Treasurer. As a consequence of negotiations with the Minister, the regulations were amended – SR 1 of 1998. Later in 1998 new regulations setting fees were made - SR 74. These regulations were made in apparent ignorance of the remaking of the previous regulations. On examining SR 74 the subcommittee found the increase in fees for disabled students involved an increase of more than the amount fixed by the Treasurer. The subcommittee’s legal adviser was told by an officer of the department that SR 74 of 1998 were only temporary regulations, that new regulations were well underway and that these new regulations would give a discretion to the Chairman of the Zoological Parks and Gardens to set fees. The subcommittee is very concerned that the Chairman of the Zoological Parks and Gardens may have been given a discretion (or will be given a discretion) to set fees, especially given the past problems that the subcommittee has encountered when examining some of the fee increases relating to entry into zoological parks. The subcommittee is concerned that the Chairman may have been given this discretion (or will be given this discretion) by legislative instrument which falls outside the subcommittee’s jurisdiction with the consequence that the subcommittee would no longer have the opportunity of scrutinising fee increases for entry into zoological parks. The subcommittee wishes to emphasise the important role it plays in ensuring that regulations are properly and fairly made and that they comply with the provisions of the Subordinate Legislation Act 1994. It would be appreciated if you could advise the subcommittee whether the Chairman of the Zoological Parks and Gardens has been given a discretion to set fees relating to entry into zoological parks or whether there is any such proposal to do so. The subcommittee looks forward to your early reply. |
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| Minister’s Response | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Thank you for your letter of 9 March 2000 concerning fee increases into the
Zoological Parks and Gardens.
In your letter you inquire whether the Chairman of the Zoological Parks and Gardens Board has been given a discretion to set fees relating to entry into the zoological parks or whether there is any such proposal to do so. I understand from officers of my Department that in 1997 and 1998 regulations were made which increased fees to the Melbourne Zoo and to the Healesville Sanctuary in accordance with a rate fixed by the Treasurer but that fees for disabled children were inadvertently increased beyond the rate fixed by the Treasurer. Consequently there was no increase in fees for disabled children in the 1999 regulations. I have been advised that in 1998, new draft regulations were prepared which included a proposal giving the Chief Executive Officer (but not the Chairman) of the Zoological Parks and Gardens Board discretion to set concessional fees. These draft regulations did not proceed due to uncertainty associated with car parking at Melbourne Zoo and there is no current provision of proposal giving the Chairman discretion to set concessional fees. I can assure you that when new regulations are prepared the concerns of the Subcommittee will be taken into account to ensure that the regulations are properly and fairly made and comply with the provisions of the Subordinate Legislation Act 1994. |
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Use of Guidelines There has also been an increasing use of Guidelines, another legislative instrument outside the Subcommittee’s examination. The Subcommittee notes with concern the increasing use of Guidelines containing provisions which have a significant impact on various individuals and groups. The Subcommittee reviewed various electricity regulations where electricians and members of the public seeking information about how the regulations worked were referred to Guidelines. Guidelines are not only unable to be reviewed by the Subcommittee but they are also not subject to the rigors of regulation impact assessment or any of the provisions of the Subordinate Legislation Act 1994 and yet they impose additional compliance requirements. In addition the Subcommittee was concerned to find some regulations had commenced operation and that the Guidelines referred to had not yet been finalised. For example – SR 139 – Electricity Safety (Electric Line Clearance) Regulations 1999 and SR 66 – Forests (Miscellaneous) Regulations 2000 [12]. For further discussion on this issue see SR 138 – Fisheries (Commercial Licences) Regulations 2000, examined at pp 28-30 of this Annual Review. Section 8(1)(a) – Fee Increases Regulations must not increase fees by any more than the percentage set by the Treasurer[13]. The rate for the budget year 1999 to 2000 was 3.5% and for 2000-2001 is 2.5%. Where a regulation increases a number of fees, some of the individual fee increases may fall outside the rate fixed by the Treasurer but when the total average increase for that regulation is calculated, it falls within the rate set by the Treasurer. This approach, referred to as the ‘basket approach’ has been sanctioned by the Treasurer[14] but is not supported by the Subcommittee. Under sub-section 8(2) of the Subordinate Legislation Act 1994, the rate of increase is deemed to be in accordance with the rate set by the Treasurer ‘if the calculation is made to the nearest whole dollar’. Using this approach a regulation may increase a number of fees and the total average may fall outside the rate set by the Treasurer but the increases may still be valid because of the effect of rounding up to the nearest whole dollar. The Subcommittee saw a number of instances of the basket approach and the use of rounding up to the nearest whole dollar. The Subcommittee is concerned by these practices. Example – SR 2 – Administration and Probate (Deposit of Wills) (Fees) (Amendment) Regulations 2000 In SR 2 – Administration and Probate (Deposit of Wills) (Fees) (Amendment) Regulations 2000, the Subcommittee noted that while the total average increase of 5.33% fell outside the 3.5% rate set by the Treasurer for 1999-2000, the increases were validated by sub-section 8(2) Subordinate Legislation Act 1994 which allows fee increases to be made to the nearest whole dollar. Even though these fee increases are valid, the Subcommittee wrote to the responsible Minister pointing out that increases of this nature while technically valid fell outside the ‘spirit’ of the Subordinate Legislation Act 1994. |
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SR 2 – Administration and Probate (Deposit of Wills) (Fees) (Amendment) Regulations 2000 At its meeting on 28 April 2000 the Subordinate Legislation Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Administration and Probate (Deposit of Wills) (Fees) (Amendment) Regulations 2000 increase the fees payable to the Registrar of Probates in relation to wills deposited with the probate Registry of the Supreme Court of Victoria. The Subcommittee notes that the fee increases for each item fall outside the annual rate for fee increases fixed by the Treasurer, which for the year 1999 to 2000 is 3.5%. The Subcommittee also notes that the total average increase of 5.33% falls outside the rate fixed by the Treasurer. As the Explanatory Memorandum points out the fee increases prescribed are validated by sub-section 8(2) Subordinate Legislation Act 1994 which allows fee increases to be made to the nearest whole $1. However the Subcommittee is of the view that while the fee increases provided for in these Regulations are valid and fall within the technical requirements of the Subordinate Legislation Act 1994 they fall outside the ‘spirit’ and ‘intention’ of the Act and the Subcommittee wishes to express concern about this. |
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Minister’s ResponseThe Subcommittee did not receive any acknowledgment of its letter. Section 8(1)(b) – Court Rules Regulations made under this section create and amend procedures, practice and fees of courts and tribunals. The Subcommittee noted a number of regulations made under this exception in 2000 which significantly increased various court fees[15]. Court rules are made by Judges and Magistrates who in determining these fees conduct their own consultation. Other regulations increasing fees are either subject to regulation impact assessment (and the rigors which that assessment imposes) or can be excepted under sub-section 8(1)(a) as long as the fee increases do not exceed the amount set by the Treasurer. Regulations increasing court fees made under sub-section 8(1)(b) do not have to comply with the rate set by the Treasurer nor does a regulation impact assessment need to be undertaken. As a consequence the Subcommittee is not able to scrutinise these fee increases. Court fees concern the community generally and affect all those people involved in proceedings before the courts. The Subcommittee is concerned that some of these fee increases may be unfair. The Subcommittee has recently written to the Attorney-General seeking clarification of increases in party/party costs in civil proceedings in the Magistrates’ Court, the County Court and the Supreme Court. These party/party costs have been subject to two significant fee increases in the past six months, with part of the increases being attributed to GST. |
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SR 119 – County Court (Chapter 1
Amendment No. 3) Rules 2000 At meetings on 26 February and 5 March 2001 the Regulation Review Subcommittee examined the above Rules as it is required to do so under the Subordinate Legislation Act 1994. The above Rules increase party/party costs in civil proceedings in the Magistrates’ Court, the County Court and the Supreme Court. The Magistrates’ Court Civil Procedure (Amendment No. 6) Rules 2000 increase party/party costs in civil proceedings in the Magistrates’ Court for solicitors by 4.27% and for barristers by 3.68%. This is the second increase of these party/party costs within six months. On 13 June 2000 these same fees were increased by 10%, with 9% attributed to GST. The County Court (Chapter 1 Amendment No. 3) Rules 2000 increase party/party costs in civil proceedings in the County Court for solicitors by 4.27% and for barristers by 3.86%. This is the second increase of these party/party costs within six months. On 1 July 2000 these same fees were increased by 10.08%, with 9% attributed to GST. The Supreme Court (Chapter 1 Amendment No. 15) Rules 2000 increase party/party costs in civil proceedings in the Supreme Court by an overall average of 4.27%. On 1 July 2000 these same fees were increased by 10.08% with 9% being attributed to GST. The Subcommittee is most concerned about the significant increases in party/party costs for civil proceedings over the last six months and more generally over the last five years. In a submission to the Inquiry into the Subordinate Legislation Act 1994, Mr Mark Derham on behalf of the Victorian Bar comments –
These Rules are made by Judges and Magistrates and are excepted under sub-section 8(1)(b) of the Subordinate Legislation Act 1994 from complying with the rate set by the Treasurer and from the need to undertake a regulation impact assessment. Other regulations increasing fees are either subject to regulation impact assessment (and the rigors which that assessment imposes) or can be excepted under sub-section 8(1)(a) as long as the fee increases do not exceed the amount set by the Treasurer, which is currently 3.5%. The Subcommittee is concerned about the significant increase in party/party costs in civil proceedings which have occurred in the Magistrates’ Court, the County Court and the Supreme Court over the last six months. The Subcommittee seeks clarification from you as to why these fees have been increased so regularly and significantly. Finally I note that this issue is one that the Subcommittee has identified as part of its Inquiry into the Subordinate Legislation Act 1994 which it is currently undertaking and your views on this issue would be most welcome. The Subcommittee looks forward to receiving your response. |
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| Minister's Response At the time of publishing this Annual Review no response has been received from the Attorney-General[16]. The Subcommittee however remains concerned about fee increases made under sub-section 8(1)(b) and will examine this issue as part of its Inquiry into the Subordinate Legislation Act 1994. Section 8(1)(d)(iii) – Extension of Operation Under sub-section 5(1) of the Subordinate Legislation Act 1994, regulations expire 10 years after they have been made. When a regulation is due to expire and the regulatory impact assessment process for that regulation is incomplete, sub-section 5(3) of the Subordinate Legislation Act 1994 allows the responsible Minister to extend the life of the existing regulation for a period of up to 12 months if that Minister is satisfied that ‘special circumstances’ exist. The Premier’s Guidelines[17] indicate that examples of ‘special circumstances’ include cases where a review of the whole area is underway but is incomplete or where national scheme legislation is being negotiated. In 1999, 14 regulations were made under this exception, while in 2000 the number of regulations made under this exception climbed to 19. This effectively allows regulations a life of 11 years instead of 10. The Subcommittee is concerned over the growing number of regulations made under this exception and in particular that some extensions may have been granted for administrative convenience rather than the existence of ‘special circumstances’. The Subcommittee wrote to Ministers on several occasions seeking further explanation of the reasons for granting extensions[18]. The Subcommittee disappointingly notes that it has only received two responses to its requests for further information and that both these responses came from the Minister for Planning[19]. The Subcommittee is carefully monitoring regulations made under this exception to ensure that the review processes referred to are in fact carried out. Section 9(1)(a) – No Economic and Social Burden The Premier’s Guidelines suggest that this exemption should be used where a regulation affects a small group and has only a minor impact on that group. The Subcommittee’s legal adviser has received a number of enquiries from department and agency officers as to when to use this exemption. This is an issue which the Subcommittee will clarify as part of its Inquiry into the Subordinate Legislation Act 1994. Another issue which arose concerning section 9(1)(a) exemptions was the level of consultation required when determining whether a regulation imposes an appreciable economic and social burden and the need to provide the Subcommittee with certificates of consultation. In the opinion of Subcommittee members paragraphs 5.30 and 5.31 of the Premier’s Guidelines require consultation to take place to determine whether a regulation imposes an appreciable economic and social burden and a certificate of consultation should be provided. The Subcommittee learnt that the past practice of many departments and agencies was not to provide certificates of consultation. The Subcommittee sought an opinion from the Department of Premier and Cabinet, being the Department responsible for producing the Premier’s Guidelines. The Subcommittee was informed that its interpretation of the Premier’s Guidelines was correct. The Subcommittee decided not to pursue this issue further with Ministers but to resolve this matter as part of its Inquiry into the Subordinate Legislation Act 1994. Section 9(1)(e) – No Advance Notice Sub-section 9(1)(e) of the Subordinate Legislation Act 1994 allows regulations to be exempted from the regulation impact assessment process on the basis that notification and advertising of the proposed regulations would render the regulations ineffective or would unfairly advantage or disadvantage persons likely to be affected by the proposed regulations. Regulations are usually made under this sub-section where there is a need to protect scarce resources and where notice "would allow a scarce resource to be exploited pending operation of the proposed" regulations – paragraph 5.36 Premier’s Guidelines. There is no requirement for consultation for regulations exempted under this sub-section. Example – SR 138 – Fisheries (Commercial Licences) Regulations 2000 The only regulations made under this exemption in 2000 were SR 138 – Fisheries (Commercial Licences) Regulations 2000 and they commenced operation on 19 December 2000. These Regulations set the maximum number of fishing licences to be issued for various commercial fishing industries. The certificate of exemption states that these Regulations were made under this exemption on the basis that public notice could have resulted in a flood of applications for licences placing Victoria’s fishery resources at risk. These Regulations were made as a consequence of a decision by the Fishing Appeals Tribunal (the Tribunal) on 13 November 2000 in the Falck case. The Tribunal was established under section 6D of the Fisheries Act 1968 and its operation was continued by the current Fisheries Act 1995[20]. The Tribunal consists of three people – including an experienced lawyer, a person nominated by the Secretary of the Department of Natural Resources & Environment and a person nominated by the Minister after consultation with the peak body representing commercial fishing interests[21]. It has power to determine a ‘reviewable decision’ as defined in section 137 of the Fisheries Act 1995 and includes, for example, a refusal to issue a licence, a refusal to approve the transfer of a licence and so on. When reviewing a decision the Tribunal is not bound by the Rules of Evidence[22] and it must make a decision based on the substantive merits of the case without regard to legal technicalities[23]. Mr Tim Falck applied for a Wrasse (Ocean) Fishery Access Licence and was refused a licence on the basis of a Ministerial Direction which provided that no new Wrasse (Ocean) Fishery Access Licences would be issued. The Minister has power to make Directions concerning commercial fishing industries under sections 61 and 62 of the Fisheries Act 1995. These Directions may concern – the eligibility criteria for various fishery licences or for the transfer or renewal of those licences, a reduction in licence numbers or a requirement for the Secretary of the Department to cancel licences[24]. Any Ministerial Directions made by the Minister must be published in the Victorian Government Gazette[25]. The Minister is also required to undertake extensive consultation with the Fisheries Co-Management Council and other relevant bodies before any Ministerial Directions are made[26]. Until the decision in the Falck case, Ministerial Directions under the Fisheries Act 1995 were relied upon to refuse to issue licences. In the Falck case, the particular Ministerial Direction provided as follows –
Mr Falck appealed against the decision to refuse to issue him a licence to the Tribunal. The Tribunal upheld the appeal and directed that Mr Falck be issued with the licence which he sought. The Tribunal’s decision was based on the content of the Ministerial Direction[27]. At the time of the appeal there were 3 or 4 less licences in force than at the time the original Ministerial Direction was made and Tribunal members felt that Mr Falck should therefore be able to be issued with a licence. A copy of the Tribunal Decision is contained in Appendix 6 of this Annual Review. Six other applicants who had been refused licences were waiting for the outcome of the decision by the Tribunal. The Department of Natural Resources and Environment therefore needed to take urgent action to protect scarce fishery resources. Fixing the content of the Ministerial Direction would have required extensive consultation and may possibly have led to a large number of appellants seeking to overturn decisions refusing to issue licences. This would have put fishing resources at risk. The decision was made to enact Regulations as quickly as possible in order protect the sustainability of various fishing industries. Whether these Regulations remain in force or whether new Ministerial Directions are written, remains a question to be resolved in the future. The Subcommittee will follow this issue with keen interest. The issue of commercial fishing licences is a serious one and has a significant impact on the livelihood of commercial fishers. It is important that these types of legislative instruments (ie Ministerial Directions) and all other legislative instruments be subject to the provisions of the Subordinate Legislation Act 1994 so as to be subject to scrutiny by the Subcommittee. This matter only came to the Subcommittee’s attention because of the enactment of Regulations and yet the matter of issuing licences significantly impacts on rights – the very heart of the Subcommittee’s work. The Subcommittee will examine this issue further as part of its Inquiry into the Subordinate Legislation Act 1994. Section 9(3) – Premier’s Certificates Under sub-section 9(3) of the Subordinate Legislation Act 1994 the Premier can exempt a regulation from the regulation impact assessment process ‘in cases of emergency or overriding public interest’. The Premier’s Guidelines indicate that Premier’s certificates should not be issued merely for administrative convenience and that there is a need to carefully balance the public interest involved in the regulatory impact assessment process and the need to make regulations without delay in emergency situations. The Subcommittee reviewed 4 regulations made in 1999[28] and 3 regulations made in 2000[29] using Premier’s certificates. Example 1 – SR 45 – Trans-Tasman Mutual Recognition (Victoria) (Temporary Exemptions) Regulations 1999 and SR 110 – Tobacco (Grands Prix Events) Regulations 1999 The Subcommittee wrote to the Premier in relation to SR 45 – Trans-Tasman Mutual Recognition (Victoria) (Temporary Exemptions) Regulations 1999 and SR 110 – Tobacco (Grands Prix Events) Regulations 1999 expressing concern that these Regulations appear to have been made repeatedly in similar form and each time relying on Premier’s certificates. The Subcommittee indicated that Premier’s certificates should only be issued in exceptional circumstances, where regulations need to be made without delay and where it is in the public interest to do so. |
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SR 45 – Trans-Tasman Mutual
Recognition (Victoria) (Temporary Exemptions) Regulations 1999 At its meeting on 7 March 2000 the Subordinate Legislation Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The aim of the Trans-Tasman Mutual Recognition (Victoria) (Temporary Exemptions) Regulations 1999 is that certain Victorian laws relating to energy efficiency labelling of electrical appliances are exempt for 12 months from the operations of the Commonwealth Act, namely the Trans-Tasman Mutual Recognition Act 1997. In effect these Regulations mean that certain electrical appliances from New Zealand may not be sold in Victoria without complying with the exempted Victorian laws. The Subcommittee notes that these Regulations have been exempted from the Regulatory Impact Statement process by a Certificate of Exemption issued by the Premier under section 9(3) of the Subordinate Legislation Act 1994 due to ‘special circumstances’ namely that a permanent agreement with New Zealand was pending and that failure to make the Regulations would adversely affect Australian manufacturers who have to meet higher standards for safety and labelling than their New Zealand counterparts. The Subcommittee also notes that very similar Regulations were made in 1998 and that at the time these 1998 Regulations were also exempted from the Regulatory Impact Statement process by a Premier’s Certificate. The object of the Tobacco (Grands Prix Events) Regulations 1999 is to exempt from the prohibition on tobacco advertising the Australian Motorcycle Grand Prix held in October 1999 and the 2000 Qantas Australian Grand Prix held in March 2000. The Subcommittee notes that these Regulations are exempted from the Regulatory Impact Statement process by a Certificate of Exemption issued by the Premier under section 9(3) of the Subordinate Legislation Act 1994 on the basis of the ‘special circumstances’ which are not referred to in the Certificate of Exemption nor the Explanatory Memorandum. The Subcommittee also notes that very similar Regulations were made in 1997 and 1998 and that on those occasions the Regulations were also exempted from the Regulatory Impact Statement process by a Premier’s Certificate. The Premier’s Guidelines issued under section 26 of the Subordinate Legislation Act 1994 make clear that a Premier’s Certificate of Exemption issued under section 9 of the Act is only to be issued ‘in cases of emergency or overriding public interest’. The Premier’s Guidelines also indicate that Premier’s Certificates are not to be issued merely for administrative convenience and that there is a need to carefully balance the public interest involved in the regulatory impact assessment process and the need to make regulations without delay in emergency situations. In addition the Premier’s Guidelines point out that such an exemption should only be given if the proposed rule is to sunset within 12 months. The Subcommittee realises that these Regulations (in the first instance) and the accompanying Certificates were made under the previous Government. The Subcommittee has carefully considered the Premier’s Guidelines and it is of the view that section 9(3) Exemption Certificates should only be issued in exceptional circumstances, that is where the regulations need to be made without delay and where it is in the public interest to do so. The Subcommittee is particularly concerned that the Regulations discussed above appear to be remade in similar form repeatedly. The Subcommittee would appreciate it if you could give some consideration to the above issues. |
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Minister’s ResponseAt the time of publishing this Annual Review no response has been received by the Subcommittee. Example 2 – SR 105 – Subdivision (Body Corporate) (Interim) Regulations 2000 Issues of a different nature were raised by the only other regulations made in 2000 using a Premier’s certificate - SR 105 – Subdivision (Body Corporate) (Interim) Regulations 2000 (the Interim Regulations). The original Regulations governing body corporates – the Subdivision (Body Corporate) Regulations 1989 were extended for 12 months under sub-sections 8(1)(d)(iii) and 5(3) of the Subordinate Legislation Act 1994 on the basis that extra time was needed to complete a comprehensive review of the provisions governing body corporates. On 16 October 2000 the extended Regulations expired without the review process having been completed and without new regulations in place. Under the Subordinate Legislation Act 1994 the life of regulations which are about to expire may only be extended once. The Subcommittee is concerned that the Subdivision (Body Corporate) Regulations 1989 were extended once and then expired without completion of the review process. Without the enactment of Interim Regulations, there would have been no legislative provisions in place governing body corporates. The Interim Regulations provide for the on-going operation of bodies corporate and have been made as a temporary measure only, expiring on 16 April 2001. While many of the provisions contained in the Interim Regulations are the same as the Subdivision (Body Corporate) Regulations 1989, some significant changes have been made. For example under the Interim Regulations body corporates no longer have the power to charge penalty interest when members are late in paying their fees. The major issue raised by these regulations is whether members of bodies corporate are aware of the changes which have been introduced by the Interim Regulations. The Subcommittee wrote to the Minister expressing its serious concerns. |
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SR 105 – Subdivision (Body Corporate) (Interim) Regulations 2000 At its meeting on 19 March 2001 the Regulation Review Subcommittee examined the above Regulations, as it is required to do so under the Subordinate Legislation Act 1994. The Subdivision (Body Corporate) Regulations 1989 were extended for 12 months under sub-sections 8(1)(d)(iii) and 5(3) of the Subordinate Legislation Act 1994 on the basis that extra time was needed to complete a comprehensive review of the provisions governing body corporates. On 16 October 2000 the extended Regulations expired without the review process having been completed and without new regulations in place. The Subcommittee is concerned that the review was unable to be completed prior to 16 October 2000 and without the enactment of Interim Regulations, there would have been no legislative provisions in place governing body corporates, which is a matter of serious concern. The Subcommittee wishes to remind department officers that reviews of regulations coming to the end of their 10 year lifespan should be commenced well in advance of their expiry date. The Subcommittee believes that the additional time obtained as a result of the extension of the Subdivision (Body Corporate) Regulations 1989 should have provided ample opportunity to complete a thorough review and put in place new Regulations. The Interim Regulations provide for the on-going operation of bodies corporate and have been made as a temporary measure only, expiring on 16 April 2001. While many of the provisions contained in the Interim Regulations are the same as the Subdivision (Body Corporate) Regulations 1989, the Subcommittee notes that some significant changes have also been made. For example –
The Subcommittee is most concerned that Interim Regulations have been used to implement some significant changes given that it believes that many people are probably unaware of the new provisions. We understand that the Interim Regulations were enacted so that there would continue to be legislative provisions in place governing body corporates, while new Regulations, which are undergoing a regulatory impact assessment are finalised. The Interim Regulations have not been subject to a regulatory impact assessment nor have they been subject to consultation or any of the other rigors which are part of that process. The Subcommittee understands that there have been many submissions as part of the regulatory impact assessment process for the new Regulations. However the Subcommittee remains most concerned that many of these people are probably unaware that changes have already been introduced in the Interim Regulations. In addition Regulations which are exempted or excepted from the regulatory impact assessment process have more limited public notification requirements, in that the only requirement is that notice be published in the Government Gazette. The lack of public awareness of the changes introduced by the Interim Regulations may mean that people are not complying with some of the new provisions. For example an owner may fail to pay body corporate fees and the body corporate may charge that owner penalty interest – when in fact under the Interim Regulations a Body Corporate no longer has power to charge penalty interest. The Subcommittee seeks clarification as to what steps were undertaken to notify members of the community and in particularly body corporate members of the changes introduced by the Interim Regulations. The Subcommittee looks forward to receiving your response. |
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| Minister's Response At the time of publishing this Annual Review no response has been received from the Minister[30]. Competition Policy Certificates and Analysis Part 14 of the Premier’s Guidelines require regulations prepared with a regulation impact statement to be assessed to determine whether they contain a restriction on competition. The Minister must issue a certificate. Where regulations contain a restriction on competition they must also be accompanied by an assessment showing that the proposed restriction satisfies the Guiding Legislative Principle, that is that the benefits of the restriction to the community outweigh the costs and the objectives of the legislation can only be achieved by restricting competition. On a number of occasions the Subcommittee’s Legal Adviser has had to request Department and Agency officers to provide copies of competition certificates and assessments to the Subcommittee. The Subcommittee has also noted that some Competition Policy Assessments merely repeat the regulation impact statement[31]. Failure to Specify Reasons in Exemption Certificates Sub-section 9(2) of the Subordinate Legislation Act 1994 requires certificates of exemption to specify the reasons for granting the exemption. On some occasions the Subcommittee was presented with certificates of exemption which did not specify the reasons for granting the exemption, while on other occasions the reasons for the exemption were contained in the Explanatory Memorandum rather than in the certificate of exemption. On each occasion the Subcommittee wrote to the Minister raising these issues. Example – SR 38 – Water (Permanent Transfer of Water Rights) (Amendment) Regulations 2000 SR 38 – Water (Permanent Transfer of Water Rights) (Amendment) Regulations 2000 were exempted from the regulation impact statement process under sub-section 9(1)(a) of the Subordinate Legislation Act 1994. While the Explanatory Memorandum gave some indication of the reason for granting the exemption, the sub-section 9(1)(a) certificate failed to specify the ‘reasons’ as required by sub-section 9(2). The Minister responded indicating that this and other matters raised in the Subcommittee’s letter had been drawn to the attention of relevant officers. |
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SR 38 – Water (Permanent Transfer of Water Rights) (Amendment) Regulations 2000 At its meeting on 30 October 2000 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Subcommittee notes that the above Regulations were granted an exemption from the requirement to prepare a regulation impact statement under sub-section 9(1)(a) of the Subordinate Legislation Act 1994. Sub-section 9(2) of the Subordinate Legislation Act 1994 requires an exemption certificate granted under sub-section 9(1) to specify the reasons for granting the exemption. While the Explanatory Memorandum gives some indication of the reason for granting the exemption, the Subcommittee would like to point out the need for the sub-section 9(1)(a) exemption certificate to specify the ‘reasons’ as required by sub-section 9(2) Subordinate Legislation Act 1994. The Subcommittee also notes that the exemption certificate is undated. The Premier’s Guidelines, made under section 26 of the Subordinate Legislation Act 1994, make clear that all exception and exemption certificates must be dated. The Subcommittee understands that a number of departments have been using the Executive Council Handbook as a guide and that the Handbook apparently does not make provision for exception and exemption certificates to be dated and that this may have led to some confusion. The Subcommittee will examine this issue as part of its inquiry into the Subordinate Legislation Act 1994, but wishes to indicate that in the future all exception and exemption certificates should be dated. The Subcommittee would very much appreciate it if you could draw these matters to the attention of officers in your Department. |
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| Thank you for your letter dated 13 November 2000, concerning the Water (Permanent
Transfer of Water Rights) Amendment Regulations 2000.
Your Subcommittee clarifies the fact that the sub-section 9(1)(a) exemption certificate needs to specify the ‘reasons’ as required by sub-section 9(2) of the Subordinate Legislation Act 1994 – rather than the explanation just being given in the Explanatory Memorandum. The Subcommittee has also alerted us that the sub-section 9(1)(a) exemption certificate should be dated, in accordance with the Premier’s guidelines – the Executive Council Handbook is misleading in this regard. Thank you very much for drawing these matters to my attention. As you suggested, I have drawn these points to the attention of relevant officers, so that they will be complied with in all future cases. |
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| Failure to Date Certificates The Premier’s Guidelines make clear that all exception and exemption certificates must be dated. The Subcommittee has been presented with a number of undated exception and exemption certificates[32]. The Subcommittee understands that a number of department and agency officers have been using the Executive Council Handbook as a guide and that the Handbook does not refer to the requirement for exception and exemption certificates to be dated. Where certificates have been undated the Subcommittee has, on most occasions, written to Ministers indicating the need for certificates to be dated. Appropriate Exception and Exemption Categories The Subcommittee notes that it has been presented with some regulations which may more appropriately have been excepted or exempted under other categories[33]. Example – SR 135 – Victims of Crime Assistance (Special Financial Assistance) Regulations 2000 SR 135 – Victims of Crime Assistance (Special Financial Assistance) Regulations 2000 specify which acts of violence fall into the various categories of compensation available to victims of crime. These regulations were excepted under sub-section 8(1)(b) of the Subordinate Legislation Act 1994 on the basis that they relate only to the procedure and practices of a tribunal. The Subcommittee wrote to the Attorney-General pointing out that regulations which concern courts and tribunals should not be automatically excepted under sub-section 8(1)(b). In this case the Subcommittee believes that they should more appropriately have been exempted under sub-section 9(1)(c), as fundamentally declaratory or machinery in nature. As these Regulations set out the level of compensation to be awarded by assigning various acts of violence to particular compensation categories, they are declaratory in nature. |
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SR 135 – Victims of Crime Assistance (Special Financial Assistance) Regulations 2000 At its meeting on 5 March 2001 the Regulation Review Subcommittee examined the above Regulations as it is required to do so under the Subordinate Legislation Act 1994. The Victims of Crime Assistance (Amendment) Act 2000 provides compensation for pain and suffering (referred to as ‘special financial assistance’) to victims of crimes committed after 1 July 2000 and for certain pre-July 2000 childhood sexual assaults. Under the Act offences have been divided into four categories, each with prescribed minimum and maximum award levels: These Regulations specify which acts of violence fall into each of these categories. They also set out the circumstances in which a victim of a lower category act of violence will be able to access a higher maximum award level from a higher category. This provides victims with access to additional compensation where the offence is in some way aggravated or where the victim suffers a particularly serious injury. These Regulations were excepted from the requirements to prepare a regulation impact statement on the basis that they relate only to the procedure and practices of a tribunal under sub-section 8(1)(b) of the Subordinate Legislation Act 1994. The Subcommittee wishes to point out that regulations which concern courts and tribunals should not automatically be excepted under sub-section 8(1)(b). In some circumstances regulations which concern courts and tribunals may be more appropriately excepted or exempted under another section of the Subordinate Legislation Act 1994. While these Regulations concern the operation of the Victims of Crime Assistance Tribunal, what the Regulations really do is set out the level of compensation to be awarded by assigning various acts of violence to particular compensation categories and are therefore declaratory in nature. The Subcommittee believes that these Regulations should more appropriately have been exempted from the regulation impact statement process under sub-section 9(1)(c), in that they are fundamentally declaratory or machinery in nature. The Subcommittee would very much appreciate it if this matter could be drawn to the attention of the legislative officers in your Department. |
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| Minister's Response At the time of publishing this Annual Review no response has been received from the Attorney-General[34]. Additional Scrutiny Functions – Privacy Principles Later this year the Subcommittee will have two new scrutiny functions. One will require the Subcommittee to ensure that regulations do not adversely affect personal privacy within the meaning of the Information Privacy Act 2000) and the other will require the Subcommittee to check that regulations do not adversely affect the privacy of personal health information within the meaning of the Health Records Bill 2000. The Information Privacy Act 2000 will insert a new section 21(1)(ga) into the Subordinate Legislation Act 1994 giving the Subcommittee the power to report to each House of Parliament if any regulation –
The Subcommittee will commence reviewing regulations against this privacy principle when the Information Privacy Act 2000 commences operation – which is either on a day to be proclaimed or if not proclaimed earlier on 1 September 2001. The Health Records Bill 2000 will insert a new section 21(1)(gb) into the Subordinate Legislation Act 1994 giving the Subcommittee the power to report to each House of Parliament if any regulation –
Practice Notes In order to assist the Subcommittee with its work, the Subcommittee has prepared a series of Practice Notes[35]. These are designed to provide department and agency officers with additional guidance when preparing regulations. The Practice Notes deal with reoccurring issues which the Subcommittee has been presented with over the past 12 months. It would assist the Subcommittee in its work if department and agency officers could be guided by the procedures contained in the Practice Notes. Inquiry into the Subordinate Legislation Act 1994 On 14 March 2000 the Victorian Parliament requested the Scrutiny of Acts and Regulations Committee to inquire into, consider and report on the Subordinate Legislation Act 1994. As the Subordinate Legislation Act 1994 concerns regulations, the Regulation Review Subcommittee was given responsibility for conducting this Inquiry on behalf of the Committee. The Inquiry involves a comprehensive evaluation of the existing Victorian scrutiny and regulatory systems. Some of the issues the Subcommittee is examining as part of this Inquiry include –
There are many other issues which the Subcommittee is examining as part of its comprehensive review of the regulation-making process in Victoria. As part of its Inquiry the Subcommittee circulated a detailed Discussion Paper and invited public submissions. While the formal date for submissions has closed, the Subcommittee will continue accepting submissions up to the middle of 2001. All submissions received will be taken into account and form evidence upon which the Final Report will be based. Public Hearings will now be held on 26 and 27 April 2001. Further information or copies of the Discussion Paper are available by contacting Jenny Baker, Legal Adviser to the Subcommittee on 9651 3619 or from the Scrutiny of Acts and Regulations Committee website at www.parliament.vic.gov.au/sarc OECD – Conference on Regulatory Reform, Puebla,
Mexico – Two members of the Subcommittee – Mr Martin Dixon, MLA and Mr Tony Robinson, MLA and the Legal Adviser, Ms Jenny Baker had the opportunity of attending an important conference in Mexico last year. The conference was hosted by the Organisation for Economic Co-operation and Development and Puebla State. The conference was the first international conference to bring together national, federal and regional representatives to discuss current trends in the regulation-making process and how to improve the quality of regulations in federations. It provided an excellent opportunity for representatives from OECD regional and federal countries to discuss their experiences with regulation reform. It provided a forum for the exchange of ideas on how problems with the regulation-making process can be overcome and how regulatory systems can be progressed forward in a way which eliminates inconsistencies and yet maintain the benefits of diversity and innovation. Delegates found the Conference a rewarding and most worthwhile experience, providing the opportunity to learn about the regulatory experience in overseas jurisdictions – which systems were working well and which systems were experiencing problems. See Appendix 7 for an Overview of the OECD Conference. Australian Institute of Administrative Law Presentation The Honourable Jenny Mikakos, MLC, the Chair of the Subcommittee was invited to make a presentation to members of the Australian Institute of Administrative Law on Wednesday 14 March 2001. Mr Stephen Argument, a Senior Associate with Clayton Utz Solicitors in Canberra and co-author with Professor Dennis Pearce of the second edition of Delegated Legislation in Australia[36] also made a presentation at the same seminar. The topic for discussion was "Delegated Legislation in Victoria – is it out of Control?" The Honourable Jenny Mikakos provided an overview of the regulatory system in Victoria explaining the role of the Subcommittee in scrutinising regulations and protecting rights and freedoms and examining how the Subordinate Legislation Act 1994 works. During the second part of the presentation Jenny Mikakos focussed her discussion on the Inquiry into the Subordinate Legislation Act 1994 – the issues the Subcommittee is examining and some of the possible options for reform. Mr Stephen Argument discussed the Victorian regulatory system, mentioning that the Victorian approach to regulations "should be regarded as a benchmark for other jurisdictions". However Stephen Argument indicated that there is one major flaw with the Victorian system – that is the definition of ‘statutory rules’ contained in section 3 of the Subordinate Legislation Act 1994. In the latter part of his presentation, Stephen examined the difference between ‘legislative’ and ‘administrative’ action. Attendees learnt that this is an complex area and that the distinction between the two is often very difficult to determine. The seminar was interesting and generated worthwhile questions and discussion as to the role of the Subcommittee. |
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