Annual Review 2001, Regulations 2001

Introduction

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This Annual Review examines the major issues arising out of the review and scrutiny by the Regulation Review Subcommittee of regulations made in Victoria in 2001.

What is the Regulation Review Subcommittee?

The Scrutiny of Acts and Regulations Committee (the Committee) is a joint investigatory Committee of the Parliament of Victoria with members 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.[1]

What are ‘regulations’?

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 Regulation Review 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’.

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 the Executive and other non-Parliamentary bodies including government departments and statutory authorities and agencies in accordance with Parliament’s authority as contained in Acts of Parliament.

Parliamentary Oversight

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 there is insufficient 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[2] the history of delegated legislation–

reflects the tension between the needs of those who govern and the just expectations of those who are governed. For those who govern, subordinate legislation, free of the restraints, delays and inelasticity of the parliamentary process, offers a speedy and flexible mode of law-making. For the governed it may threaten subjection to laws which are enacted in secret and of whose commands they cannot learn: their reasonable expectations that laws shall be both announced and accessible will only be assured of realization by the imposition and enforcement of appropriate controls upon the power of subordinate legislators, whose power, as Fifoot observed "requires an adequate measure of control if it is not to degenerate into arbitrary government".

Parliamentary scrutiny committees, with power to examine regulations made by the Executive, are one of the most important safeguards against the misuse of Executive power. Since the 1930s 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.[3]

Victoria has had a committee to scrutinise regulations since 1956.[4] 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 (Vic) and it took over the scrutiny of regulations.

The Subordinate Legislation Act 1994 (Vic) contains the procedures for making regulations and the scrutiny functions of the Regulation Review Subcommittee. Only those regulations which come within the definition of ‘statutory rule’ as contained in section 3 of the Subordinate Legislation Act 1994 (Vic) are subject to its procedures and to scrutiny by the Regulation Review Subcommittee. Section 3 defines ‘statutory rule’ to include–[5]

• Regulations made, approved or consented to by the Governor-in-Council;
• Regulations which may be disallowed by the Governor-in-Council excluding regulations made by local authorities;
• Rules relating to a court or tribunal or the procedure, practice or costs of a court or tribunal;
• Instruments prescribed to be statutory rules by the Governor-in-Council; and
• Instruments deemed to be statutory rules by their own authorising Act.

Regulations in the form of statutory rules constitute only a small portion of the continually growing number of different types of regulations made each year. Some examples of regulations which fall outside the definition of ‘statutory rule’ are – guidelines, ministerial directions, local laws, codes of practice, notices, declarations and licences. Regulations which fall outside the definition of ‘statutory rule’ are not subject to –

• the procedures of the Subordinate Legislation Act 1994 (Vic) but remain subject to any requirements contained in legislation which empowers them to be made;
• scrutiny by the Regulation Review Subcommittee and generally not subject to Parliamentary review. However it should be noted that some regulations which fall outside the definition of ‘statutory rule’ are subject to specific Parliamentary review requirements. For example, planning schemes (and amendments) must be tabled in Parliament for 10 sitting days.[6]

The Committee remains concerned about regulations which fall outside the definition of ‘statutory rule’ because it means that they are not subject to consistent regulation-making procedures nor generally to Parliamentary review, allowing the potential for powers to be used improperly and for rights to be adversely affected. This issue is discussed in detail in the Committee’s recently completed Report on the Subordinate Legislation Act 1994.[7]

Role of the Subcommittee

The Regulation Review Subcommittee examines and reviews –

• regulations within the meaning of ‘statutory rule’ contained in the Subordinate Legislation Act 1994 (Vic);
• State Environment Protection Policies and Waste Management Policies made under the Environment Protection Act 1970 (Vic);
• Directions made under the Public Sector Management and Employment Act 1998 (Vic).

The Regulation Review Subcommittee meets at least twice each month to discuss regulations. Meetings of the Regulation Review Subcommittee are not open to the public. However the Regulation Review Subcommittee may invite members of the public or representatives from various organisations or departments and agencies to address it at one of its meetings. At its meetings the Legal Adviser presents the Regulation Review Subcommittee with written and verbal advice concerning each regulation. The Regulation Review Subcommittee members discuss each regulation and any issues and concerns. When the Regulation Review Subcommittee is satisfied that a regulation complies fully with the requirements of the Subordinate Legislation Act 1994 (Vic) it passes a motion approving the regulation.

Where the Regulation Review Subcommittee is dissatisfied with any matters or needs clarification, it corresponds with the responsible Minister pointing out its concerns and seeking an explanation or amendment of the regulation. If the Regulation Review 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 Committee for formal approval and adoption.[8] The Committee may adopt or reject the Report or part of it or make any changes it thinks necessary.[9] 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 Committee’s concerns. As a regulation has already commenced operation by the time it comes before the Regulation Review Subcommittee, the power to recommend disallowance is only used in exceptional circumstances and where all other efforts of resolving the issue have failed.

Where the 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.[10] When regulations are suspended in this manner they are deemed not to have been made, which means that they have no effect and people are not required to comply with them during the period of suspension.[11]

Any Member of either House of Parliament may give notice of a disallowance motion but must do so within 18 sitting days of the tabling of the regulation in that House. Disallowance will not be effective unless that House passes a disallowance resolution within 12 sitting days of the disallowance notice. If the Committee wants to Report to Parliament recommending disallowance, it must also comply with the 18 sitting days requirement. This means that the Regulation Review Subcommittee must review and discuss all regulations within strict time limits.

The Regulation Review Subcommittee scrutinises regulations after they have been made to determine whether they comply with the legislative principles specified in the Subordinate Legislation Act 1994 (Vic).[12] These principles require the Regulation Review Subcommittee to ensure that regulations do not unduly trespass on rights and freedoms and that they comply with the procedural and practical requirements of the Subordinate Legislation Act 1994 (Vic). The Regulation Review Subcommittee does not comment on matters involving government policy – its review focuses on the technical criteria contained in the Subordinate Legislation Act 1994 (Vic). More specifically, under section 21 of the Subordinate Legislation Act 1994 (Vic) the Regulation Review Subcommittee ensures that regulations –

• Are within the powers of the authorising Act;
• Do not, without clear and express authority –
  - have a retrospective effect;
  - impose a tax, fee, fine, imprisonment or other penalty;
  - purport to shift the onus of proof to a person accused of an offence;
  - provide for the sub-delegation of powers delegated by the authorising Act;
• Are consistent with the general objectives of the authorising Act;
• Do not make unusual or unexpected use of the powers conferred by the Authorising Act having regard to the general objectives of the Authorising Act;
• Do not contain any matters which should be contained in an Act of Parliament rather than subordinate legislation;
• Do not unduly trespass on rights and liberties of the person previously established by law;
• Do not make rights and liberties of the person unduly dependent on administrative rather than judicial decisions;
• Do not authorise or require any acts or practices which may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000 (Vic);
• Do not authorise or require any acts or practices which may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2000 (Vic);
• Are consistent with principles of justice and fairness;
• Do not require explanation as to form or intention;
• Do not substantially or materially contravene the practical requirements of the Subordinate Legislation Act 1994 (Vic) or the Premier’s Guidelines;[13] and
• Are not likely to result in administration and compliance costs which outweigh the benefits sought to be achieved.

The Regulation Review Subcommittee also ensures that there has been compliance with the procedural requirements of the Subordinate Legislation Act 1994 (Vic). Where a RIS has been prepared, some of the procedural issues the Regulation Review Subcommittee examines include whether –

• all appropriate certificates have been received by the Regulation Review Subcommittee;
• consultation is adequate and in particular whether appropriate organisations and individuals have been consulted;
• certificates are dated and signed by the responsible Minister;
• certificates contain all the required information;
• the competition policy assessment has been completed in accordance with the Guidelines for the Application of the Competition Test to New Legislative Proposals;[14] and
• the RIS is adequate and in particular whether it properly explains the nature and extent of the problem to be dealt with by the new regulation; the extent to which alternatives have been considered and the appropriateness of those alternatives; the costs and benefits of the proposed regulations and whether the benefits outweigh the costs.

Where a regulation is excepted or exempted from the RIS process, some of the procedural requirements the Regulation Review Subcommittee examines include whether –

• the regulation is correctly exempted or excepted or whether it should have been made with a RIS;
• the regulation is exempted or excepted under the appropriate category in the Subordinate Legislation Act 1994 (Vic);
• the exemption or exception certificate specifies the section under which the exemption or exception was granted;
• the exemption or exception certificate is signed and dated by the responsible Minister;
• the exemption certificate contains reasons for granting the exemption as required by section 9(2);
• a regulation exempted by a Premier’s certificate sunsets within 12 months.

The Regulation Review Subcommittee also ensures that –

• explanatory memoranda clearly set out the nature and extent of any changes and the reasons for the changes; and
• there is compliance with all notice, gazettal and tabling requirements of the Subordinate Legislation Act 1994 (Vic).

The Regulation Review Subcommittee also has responsibility for reviewing policies made under Part 3 of the Environment Protection Act 1970 (Vic). These policies include State Environment Protection Policies and Waste Management Policies.

More specifically State Environment Protection Polices include –

• policies concerning the environment generally;[15]
• policies concerning the removal, disposal or reduction of litter in the environment;[16]
• policies concerning the re-use and recycling of substances.[17]

Until recently waste management policies made under the Environment Protection Act 1970 (Vic) applied only to industrial waste. With changes brought about by the Environment Protection (Resource Efficiency) Act 2002 (Vic) waste management policies now apply to waste generally.[18] Waste management policies are now enacted under s. 16A of the Environment Protection Act 1970 (Vic).[19]

Waste Management Polices include policies dealing with – [20]

• the generation, storage, treatment, transport and disposal and general handling of waste;
• the procedures to be implemented in the recycling, recovery, reclamation and re-use of waste and recycled substances;
• the methods of disposal of specified substances;
• the routes and methods of transportation of waste;
• the location of treatment and disposal plants;
• the allocation of responsibility for waste management operations and disposal; and
• the use and disposal of notifiable chemicals.

State Environment Protection Policies and Waste Management Polices are made by the Governor-in-Council on the recommendation of the Environment Protection Authority (EPA) by publishing an Order declaring the policy in the Victorian Government Gazette.[21] These policies must be tabled in each House of Parliament on or before the sixth sitting day after the Order is published in the Victorian Government Gazette.[22]

Section 18A of the Environment Protection Act 1970 (Vic) sets out the requirements which must be followed when making State Environment Protection Policies and Waste Management Policies. Certain policies are excluded from the provisions concerning the preparation of policies. For example, the variation of a State Environment Protection Policy or Waste Management Policy which the EPA determines to be fundamentally declaratory, machinery or administrative in nature. Otherwise the following procedures must be followed –

• during a minimum period of 21 days, the EPA must publish on three occasions in a relevant newspaper – notice of intention to declare a policy. The notice must include the area affected and advise that any person affected may submit information to the EPA;
• the EPA must consider information provided to it by any person affected or likely to be affected;
• the EPA must consult with any government department or statutory authority whose responsibilities may be affected by the policy;
• the EPA must prepare a draft policy;
• the EPA must prepare a draft impact assessment;
• during a minimum period of 21 days the EPA must publish on three occasions in a relevant newspaper – notice of preparation of a draft policy. The notice must include the reasons for and objectives of the policy, a description of the area affected, details of where a copy of the draft policy may be obtained and specify that any person likely to be affected may make a submission;
• the EPA must allow a period of at least three months for submissions;
• the EPA must consider all submissions; and
• the EPA must write a separate letter to each person who has lodged a submission.

Section 18C of the Environment Protection Act 1970 (Vic) sets out the matters which a policy impact assessment must discuss –

• the purposes of the policy;
• the alternatives for achieving the objectives, including consideration of not declaring the policy or varying the existing policy; and
• an assessment of the possible financial, social and environmental impacts of each alternative in qualitative and, where practicable, in quantitative terms.

A copy of the following documents must be forwarded to the Committee –

• the final policy impact assessment;
• a summary of submissions;
• a statement of the EPA’s evaluation of the submissions and any changes made to the draft policy;
• a copy of the review panel’s advice if there was a review panel.

The Committee may report to Parliament where these policies are beyond power or do not comply with the provisions of the Environment Protection Act 1970 (Vic). Section 18D(3) provides that the Committee may report to Parliament where a
policy –

• does not appear to be within the powers conferred by the Environment Protection Act 1970 (Vic);
• has been prepared in contravention of the Environment Protection Act 1970 (Vic); or
• contains any matter in contravention of Environment Protection Act 1970 (Vic).

Initial reviews of State Environment Protection Polices and Waste Management Policies are carried out by the Regulation Review Subcommittee. Where the Regulation Review Subcommittee is unable to resolve any issues, it may recommend to the Committee that a report be made to Parliament. A report to Parliament by the Committee may make any recommendations considered appropriate including that a policy be disallowed in whole or in part.[23]

The disallowance provisions contained in sections 23 and 24 of the Subordinate Legislation Act 1994 (Vic) apply to State Environment Protection Polices and Waste Management Policies.[24] This means that the 18 sitting day deadline applies, that is the Committee must table a motion for disallowance within 18 sitting days after the Order has been tabled before that House.

Scrutiny of Directions of the Commissioner for Public Employment

The Regulation Review Subcommittee also reviews Directions made by the Commissioner for Public Employment. The Directions issued by the Commissioner for Public Employment concern the application of employment and conduct principles contained in sections 7 and 8 of the Public Sector Management Employment Act 1998 (Vic). The employment principles require agency and public sector authority heads to establish employment processes that will ensure that –[25]

• employment decisions are based on merit;
• employees are treated fairly and reasonably;
• equal employment opportunities are provided; and
• employees have a reasonable avenue of redress against unfair or unreasonable treatment.

The conduct principles require public sector employees to –[26]

• act impartially;
• act with integrity and avoid any real or apparent conflicts of interest;
• be accountable for their results; and
• to provide responsive service.

Section 40 of the Public Sector Management Employment Act 1998 (Vic) provides that the tabling and scrutiny provisions of the Subordinate Legislation Act 1994 (Vic) apply to Directions, thus giving the Committee the power of review. This means that if Directions do not comply with the tabling requirements or the principles of review contained in section 21 of the Subordinate Legislation Act 1994 (Vic), the Committee may report to Parliament recommending disallowance in whole or in part or recommending amendment.

Directions were last issued in 1998 – Directions on Public Sector Employment and Conduct Principles in the Victorian Public Service 1998. These Directions covered five major areas –

• selecting on merit;
• managing and valuing diversity;
• managing under performance;
• reviewing personal grievances; and
• upholding public sector conduct.

The Regulation Review Subcommittee reviewed the 1998 Directions and found that adequate consultation had taken place and that they complied with the requirements of the Public Sector Employment and Management Act 1998 (Vic).