Annual Review
2001, Regulations 2001
Appendix 3 - Committee Practice Notes
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Competition Policy Certificates
and Assessments
The Regulation Review Subcommittee expects
competition policy certificates and competition policy assessments to be in the form
contained in the Premier’s Guidelines. The Subcommittee also requires all
competition policy assessments and certificates to be forwarded to it.
Part 14 of the Premier’s Guidelines
sets out the requirements for competition policy assessments and certificates. A
competition policy assessment needs to be done where a regulation imposes a restriction on
competition. The assessment needs to show that the benefits of the restriction to the
community outweigh the costs and that the objectives of the legislation can only be
achieved by restricting competition.
Sometimes the Regulation Review
Subcommittee is presented with inadequate competition policy assessments such as those
which simply repeat the contents of Regulation Impact Statements. This is not acceptable
to the Regulation Review Subcommittee. An assessment of competition policy principles
requires a different analysis to that performed for a Regulation Impact Statement and the
form of this assessment must be as set out in Attachment B to Part 14 of the Premier’s
Guidelines.
The Regulation Review Subcommittee has also
been presented with inadequate competition policy certificates which, for example, fail to
contain relevant information. The Regulation Review Subcommittee requires certificates to
be in the form set out in Attachment C to Part 14 of the Premier’s Guidelines.
In order to assist department and agency officers the Subcommittee repeats the required
form for competition policy certificates –
Certificate of Compliance
– Subordinate Legislation that does not restrict competition
I [Minister’s name], Minister for
[portfolio], and Minister responsible for administering the [title of authorising Act for
the subordinate legislation] certify that the proposed [title of regulation] –
Has been assessed in accordance with the
guidelines and the results documented in the attachment to this certificate, and
The assessment shows that the proposed
subordinate legislation does not restrict competition.
DATED:
[Minister]
[Title]
Certificate of Compliance –
Subordinate Legislation that restricts competition
I [Minister’s Name], Minister for
[portfolio], and Minister responsible for administering the [title of authorising Act for
the subordinate legislation] certify that the proposed [title of regulation] –
Has been assessed in accordance with the
guidelines and the results of the assessment are documented in the attachment to this
certificate, and
Restricts competition; and
Each restriction on competition has been
assessed in accordance with the guidelines with the result that –
The objectives of the legislation can only
be achieved by restricting competition, and
The benefits of the restriction to the
community as a whole outweigh the costs.
DATED:
[Minister]
[Title]
Exemptions and Exceptions
- Dating Certificates. The Regulation Review
Subcommittee has been presented with a number of undated exemption and exception
certificates. The Premier’s Guidelines make clear that all certificates
including certificates of exemption and exception must be dated by the Minister at the
time of signing. See sample certificates attached to the Premier’s Guidelines.
The Regulation Review Subcommittee continues to expect all certificates to be dated.
- Reasons for Exemption. The Regulation
Review Subcommittee has received regulations exempted under section 9 with certificates of
exemption which fail to adequately explain the reasons for granting the exemption or with
reasons for granting the exemption contained in the Explanatory Memorandum. It should be
noted that it is a requirement of section 9(2) of the Subordinate Legislation Act 1994
(Vic) that certificates of exemption ‘specify the reasons for the exemption’.
The Regulation Review Subcommittee expects all exemption certificates to contain adequate
explanations of the reasons for granting the exemptions.
- Extension of Regulations for Periods up to 12
months. Regulations expire 10 years after they have been made. The Regulation
Review Subcommittee has been presented with a number of regulations made under sections
8(1)(iii) and 5(3) extending regulations due to expire for periods up to 12 months. Before
an extension of time can be granted, the Minister must certify that due to ‘special
circumstances’ there is insufficient time available to comply with the formal
regulation-making requirements of the Subordinate Legislation Act 1994. The Premier’s
Guidelines indicate that ‘special circumstances’ include cases where a
review of the whole area is underway but incomplete or where national scheme legislation
is being negotiated. ‘Special circumstances’ do not include administrative
oversight and the Regulation Review Subcommittee will not approve regulations made for
these reasons. The Regulation Review Subcommittee expects details of the ‘special
circumstances’ to be contained in the section 5(3) certificate itself as required by
the Subordinate Legislation Act 1994. The Subcommittee remains concerned about
whether the review processes referred to are actually carried out and will continue to
monitor regulations made under this exception very carefully.
- Appreciable Economic and Social Burden and
Consultation. Section 9(1)(a) exempts regulations from the Regulation Impact
Statement process where no appreciable economic or social burden is imposed. There has
been confusion as to the level of consultation required and over the need to provide
certificates of consultation to the Regulation Review Subcommittee. Some departments and
agencies do not provide certificates of consultation for regulations made under this
exemption. It is the opinion of the Regulation Review Subcommittee that paragraphs 5.30
and 5.31 of the Premier’s Guidelines indicate that consultation should take
place to determine whether or not a regulation imposes an appreciable economic or social
burden and that the Subcommittee should be provided with a certificate of consultation.
Legal opinion from the Department of Premier and Cabinet indicates that the Regulation
Review Subcommittee’s interpretation of the Premier’s Guidelines is
valid. The Regulation Review Subcommittee continues to prefer consultation to be
undertaken to determine whether a regulation imposes an appreciable economic or social
burden and to receive certificates of consultation evidencing that consultation.
- Using Appropriate Exemption and Exception
Categories. Department and agency officers need to be careful when determining
which category to use when exempting and excepting regulations from the Regulation Impact
Statement process. The Regulation Review Subcommittee has received regulations exempted
and excepted incorrectly.
- Typographical Errors. Department and agency
officers need to be careful when preparing certificates to ensure that they do not contain
typographical errors. The Regulation Review Subcommittee has received certificates
containing typographical errors.
Explanatory Memoranda
The Regulation Review Subcommittee expects
an Explanatory Memorandum to comply with the requirements contained in the Premier's
Guidelines. An Explanatory Memorandum must contain –
- A brief outline of each provision.
- An explanation of the changes brought about by each
provision.
- A statement of the reasons for making the regulation.
- A statement as to whether consultation has taken place and
if no consultation has taken place a statement as to why a decision was made not to
consult.
- A statement as to the reasons for not making a Regulation
Impact Statement where none was prepared.
It is a requirement that all Explanatory
Memoranda be forwarded to the Scrutiny of Acts and Regulations Committee.
Fee Increases: 8(1)(a) and 8(2)
Regulations increasing fees made under
section 8(1)(a) of the Subordinate Legislation Act 1994 (Vic) must not increase
fees by more than the percentage set by the Treasurer. For each financial year a
percentage increase is set by the Treasurer in a document entitled Guidelines for
Setting Fees and Charges Imposed by Departments and Budget Sector Agencies. The rate
for the budget year 2002-2003 is 3.0%.
A regulation may increase a number of fees,
with some individual fee increases falling outside the rate set by the Treasurer. However
when the total average of fee increases for that regulation is calculated, it falls within
the rate fixed by the Treasurer. This practice is referred to as the ‘basket
approach’. The Regulation Review Subcommittee does not support this practice.
Section 8(2) of the Subordinate
Legislation Act 1994 (Vic) validates the rounding up of fee increases to the nearest
whole dollar. Sometimes the total average increase may be greater than that set by the
Treasurer but may be validated on the basis that there has been rounding up to the nearest
whole dollar. The Regulation Review Subcommittee may only approve such increases where the
extra amount can be considered trifling when compared to the whole fee. Where the amount
is significant in proportion to the whole fee, the Regulation Review Subcommittee may
request the Minister to reconsider the increase.
The Regulation Review Subcommittee also
prefers if Explanatory Memoranda accompanying regulations increasing fees under section
8(1)(a) clearly set out the existing fee, the proposed fee and the percentage increase as
follows:
Description |
Current Fee |
Proposed Fee |
% Increase |
Application for
….. |
$100.00 |
$105.00 |
5.0 |
Application for … |
$320.00 |
$325.00 |
1.6 |
This assists the
Regulation Review Subcommittee in understanding the fee increases which have taken place.
Independent Advice Certificates: 10(3)
Under section 10(3) of the Subordinate
Legislation Act 1994 (Vic) a Minister must ensure that independent advice as to the
adequacy of a Regulation Impact Statement and of the assessment included in the Regulation
Impact Statement is obtained. While there is currently no requirement under the Subordinate
Legislation Act 1994 (Vic) to provide the Regulation Review Subcommittee with a copy
of that independent advice, the Subcommittee prefers to receive a copy of that independent
advice. This assists the Regulation Review Subcommittee in its assessment of whether there
has been compliance with the requirements of the Subordinate Legislation Act 1994 (Vic).
Legislative Instruments
outside the Subordinate Legislation Act 1994
The Regulation Review Subcommittee
plays a vital role in ensuring that rights are adequately protected. It cannot do this if
provisions are incorporated in legislative instruments outside its scrutiny. The
Regulation Review Subcommittee prefers department and agency officers not to use
Guidelines. Where Guidelines are used the Regulation Review Subcommittee would like those
Guidelines to be published and available to the public at the same time as the regulation
commences operation.
Provision of Documentation to Regulation Review
Subcommittee
The Regulation Review Subcommittee needs to
receive Explanatory Memoranda, all certificates, competition policy assessments and
certificates, Regulation Impact Statements and comments and submissions made in relation
to Regulation Impact Statements within 7 days after a regulation has been made. The
Regulation Review Subcommittee has a limited time within which to review regulations. If
the Committee wants to move for disallowance of a regulation it must do so within 18
sitting days of that regulation being tabled in Parliament. Prior to the Committee moving
a motion for disallowance the Regulation Review Subcommittee corresponds and negotiates
with the particular Minister. The Regulation Review Subcommittee needs sufficient time to
allow it to firstly correspond and discuss the issues with the Minister.
The Regulation Review Subcommittee notes
that frequently it does not receive the required documentation promptly and Subcommittee
staff have to follow up the missing materials. The Regulation Review Subcommittee reminds
department and agency officers of the need for all documentation to be sent to it as
provided for in Part 14 of the Notes for the Guidance of Legislation Officers
issued by the Office of the Chief Parliamentary Counsel Victoria, on 1 March 1999. Part 14
provides as follows –
Within 7 days after a statutory rule
is made, the Department or Board, Committee or body responsible for the rule must send to
the Secretary of the Scrutiny of Acts and Regulations Committee –
7 copies of the explanatory memoranda as
required to be sent to the Clerk of the Executive Council; and
a copy of the section 13 certificate of the
Chief Parliamentary Counsel under section 13 of the Act; and
if the guidelines require consultation, a
certificate under section 6(c) of the Act certifying that there has been consultation in
accordance with the guidelines; and
if a regulatory impact statement was
prepared, a copy of the compliance certificate, copies of all comments and submissions
received in connection with it, and the response of the Department, Board, Committee or
body to those comments and submissions; and
if a regulatory impact statement was not
required, a copy of the exception certificate under section 8 or the exemption
certificate under section 9.
Recommendations
The Regulation Review Subcommittee notes
that some regulations are made on the recommendation of a Minister or some other
authorised body. If the Regulation Review Subcommittee is provided with a copy of the
recommendation, it can certify that the regulations have been validly made in accordance
with that recommendation. Where the Regulation Review Subcommittee is not provided with a
copy of that recommendation, it cannot certify that the regulations have been validly made
in accordance with the recommendation. The Regulation Review Subcommittee therefore
appreciate receiving copies of all recommendations.
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