Annual Review 2004, Regulations 2004
May 2005

Chapter 2 - Significant Issues

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In 2004, the Subcommittee held 9 meetings and 1 informal meeting. During those meetings it considered 121 statutory rules made during 2004. Of those rules 32 were accompanied by regulatory impact statements. Of the total 184 regulations made, 63 were actually considered by the Subcommittee in early 2005. In addition the Subcommittee considered 3 Waste Management Policies, 1 Order in Council and 3 Codes of Practice.

The Subcommittee did not make any reports to Parliament during 2004. However of the statutory rules examined during 2004, the Subcommittee had concerns with 36. In each instance it wrote to the responsible Ministers seeking clarification. Generally, the Subcommittee received satisfactory responses to the issues raised. The Subcommittee thanks the Ministers for their responses.

The Subcommittee's experience this year was that any problems it encountered in respect of the review of the regulations tended to fall within a discrete number of areas. For ease of understanding, the Subcommittee has classified the issues into particular categories. The categories however remain fluid and of course may change from year to year. The categories are as follows:

(a) The statutory rule has been prepared in contravention of any of the provisions of the Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature

(b) Consultation

(c) Technical matters - Incomplete certificates - Dates of publication in the Government Gazette and newspaper - Premier's Certificate - Special circumstances

(d) Sighting of material incorporated by reference

(e) Section 21(1)(i) - requires explanation as to its form or intention

(f) Other matters - general clarification

(g) National Competition Policy Certificates and Assessments

(h) Section 9(1)(a) - Is there any appreciable economic or social burden on any sector of the public?

(i) The 'Basket Approach" - Setting a package of fees

(j) Commendations

(a) The statutory rule has been prepared in contravention of any of the provisions of the Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature

Under section 21(1)(j) of the Act the Subcommittee examines regulations to ensure that they have been properly prepared. It examines them to see whether they have been prepared in contravention of any of the provisions of the Act or of the guidelines with respect to the statutory rule. It examines the regulations to see whether the contravention is of a substantial or material nature.

This was highlighted in SR 9 Country Fire Authority 2004. In relation to this Regulation, the Subcommittee had a number of concerns. These ranged from minor matters of clarification to the much more substantive one of the failure to address alternatives in respect of the RIS. The Subcommittee formed the view that in this instance there had been a clear breach of sections 10(c) and (e) of the Act. In addition, the RIS in this instance was quite unclear and confusing. The Subcommittee sought rectification of all these matters before it ultimately approved the Regulations.

Example 1: SR 9 - Country Fire Authority Regulations 2004

These Regulations provided for the management of officers and employees of the Country Fire Authority, the management and administration of fire brigades, the issue of permits to burn and other fire prevention measures and compensation for personal injury and destruction and other matters. The Subcommittee formed the view that the RIS did not meet the expected standards.

Subcommittee's Letter[27]

The Regulation Review Subcommittee held a meeting on 10 May 2004 to consider the above regulations.

The Subcommittee has deferred approval of the Regulations.

The Subcommittee has a number of concerns in respect of the Regulations.

1. Clarification of operation of clauses 75 and 78

The definition of compensation as set out in clause 75 in Part 6 does not include damages for personal injury (physical or mental injury and includes disease or death). However, clause 78 specifically contemplates damages in respect of a personal injury. How do these two provisions operate? The Subcommittee seeks clarification.

Clause 77 provides that the amount of compensation payable in respect of destruction, damage or loss of wearing apparel must not exceed an amount determined from time to time. What is the amount?

2. Regulatory Impact Statement (RIS) - Failure to address alternatives

The relevant parts of section 10 of the Subordinate Legislation Act 1994 (the Act) are set out: -

10. Regulatory Impact Statements

(1) A regulatory impact statement must include-

(c) a statement of other practicable means of achieving those objectives, including other regulatory as well as non-regulatory options;

(e) the reasons why the other means are not appropriate.

The Executive Summary of the RIS states as follows: -

The Country Fire Authority Regulations 1993 will cease to exist on 31 January 2004 under the sunsetting provision of the Subordinate Legislation Act 1994. A full review of the Country Fire Authority Act 1958 is anticipated in the near future and therefore it is proposed that the existing Regulations should substantially be remade in their current form so that the review of the Act is not pre-empted...

It is a requirement that the RIS consider alternative measures to achieve the identified objectives. In view of the anticipated review of the Act it is not considered appropriate to contemplate alternative options to the regulations as this might pre-empt the review. Moreover, as indicated, many of the Regulations are procedural in nature and have their basis in requirements of the Act. For these reasons alternatives to the regulations have not been assessed.

The Subcommittee is of the view that notwithstanding the reasons expressed in the Executive Summary there has been a clear breach of sections 10(c) and (e) of the Act. The Act clearly sets out the requirements in respect of RISs. There has not been compliance with those requirements.

The fact that a review is under way does not relieve the obligation for procedural compliance. Nor does the fact that many of the Regulations are "procedural in nature" relieve the obligation for compliance. Section 5 of the Act contemplates the extension of the life of Regulations for a period of 12 months. Such an option is always open in respect of Regulations.

Currently, a review is anticipated. There is no indication how long such a review will take and when new legislation will be introduced. The Subcommittee finds it difficult to approve Regulations in circumstances when it is unsure when a review will be complete and there has been a breach of section 10 of the Act.

3. The Regulatory Impact Statement - Unclear - confusing

The RIS itself is quite confusing and unclear. For example, Part 5 of the Regulations covers those matters in respect of Forestry Industry Brigades. The original Forestry Industry Brigades Regulations were introduced in 1988.

Page 33 of the RIS is interesting. In particular, it refers to Options 1 and 2. There are no Options or Alternatives 1 and 2 in the RIS.

In a footnote it refers to the previous RIS prepared in 1988. The Subcommittee obtained a copy of the 1988 RIS. The 1988 RIS refers to Options 1 and 2 which related to the whole of the Forestry Industry Brigades. However, this RIS specifically states that it does not deal with alternatives. It appears that pp33-35 of the current RIS which refer to Options 1 and 2 are directly taken from pp 17-20 of the 1988 RIS. In the context of the current RIS this is confusing to say the least.

Comments in respect of costs are set out at p 35 of the current RIS: -

Additional marginal costs incurred by the CFA in maintaining a larger total and ongoing administration with the need for fire management and control over a greater area and ongoing administration of forestry industry brigades. There would be reduced costs to the funding for the Department of Sustainability and Environment due to the transference of responsibility to the CFA.

It appears that these comments have been directly taken from p 20 of the 1988 RIS. This sheds little light on the costs of the current Regulations as the costs talked about in this contact refer to Forestry Industry Brigades and are already in place. The current Regulations are a continuance of the status quo so far as Forestry Industry Brigades go (see p 35 of the current RIS). The Subcommittee is of the view that the RIS is not clear and may be confusing to a reader.

4. Consultation

It appears that the RIS was not advertised in the Government Gazette in accordance with the requirements of section 11 of the Act. The Subcommittee wishes to emphasise the importance of procedural compliance.

5. National Competition Policy

The assessment which accompanies the National Competition Policy Certificate states provides that: -

The Regulatory Impact Statement prepared for the proposed Regulations describes their operation and the costs and benefits of their implementation. The Regulatory Impact Statement examines the alternative options that are available and concludes that the proposed Regulations provide the only effective mechanism for achieving the stated objectives.

This is clearly not the case. The RIS did not examine alternative options. The Subcommittee is of the view that an appropriate assessment should be provided to it.

The assessment states that the prescription of fire suppression equipment means that other equipment may not considered appropriate to carry. This reduces flexibility and may impose additional costs. It also states that prescribing the Australian standards for knapsack and fire extinguishers restricts the use of potentially equally effective equipment which may be cheaper to purchase. It concludes that the requirements to adopt Australian Standards for equipment to be held in a vehicular heat engine are considered to imply a restriction on competition. The Subcommittee finds it difficult to understand why this is so.

6. Undated certificate

The section 10(4) certificate of compliance is undated. The Subcommittee requests rectification of this.

The Subcommittee requests your response to the issues raised. It considers the matters to be of significance. The Subcommittee operates under strict timelines according to the Act. Therefore the Subcommittee requests your response within 14 days of the date of this letter.

Minister's Response[28]

I refer to your letter of 10 May 2004 and the concerns raised by the Sub-committee of the Scrutiny of Acts and Regulations Committee outlined in that letter.

1. Clarification of the Operation of Regulations 75 and 78

Both in statute and common law, "compensation" is a different form of monetary relief to "damages".

The distinction can best be described as "no fault" v "fault" payments.

Compensation is payable where a volunteer firefighter, casual firefighter and/or volunteer auxiliary worker suffers an injury in the course of, or arising out of Country Fire Authority (CFA) service. Compensation is therefore a "no fault" payment.

Damages are payable to volunteer firefighters, only where "fault", by way of negligence at common law, is established.

The distinction in these regulations between "compensation" and "damages" is the same as other compensation schemes in Victoria, such as the WorkCover scheme administered under the Accident Compensation Act 1985, and the TAC scheme, administered under the Transport Accident Act 1986.

Part 6 deals primarily with the process required in determining claims for compensation by injured volunteers, as opposed to damages.

The specific exclusion of "damages for personal injury" in the definition of "compensation" was inserted on the recommendation of an eminent QC in the compensation arena following the 1997 amendments to the Accident Compensation Act 1985. At the time, CFA was under an obligation to use the Accident Compensation Act 1985 as a "guide" in determining compensation for CFA volunteers. You will recall workers' common law rights to sue for damages as a result of the negligence of an employer were abolished between 12 November 1997 and 20 October 1999. CFA wanted to make it clear its volunteer firefighters retained the right to sue at common law for negligence and was therefore desirous of confining the link to the Accident Compensation Act 1985 to the determination of compensation and not damages.

The link to the Accident Compensation Act 1985 has remained in Regulation 82(2)(b) but is confined to compensation as defined in Regulation 75. CFA is therefore not bound to consider the restrictions contained in the Accident Compensation Act 1985 in dealing with a damages claim.

CFA was, and is, desirous of ensuring volunteer firefighters retain the same common law rights as an ordinary civilian, without the restrictions imposed by the Accident Compensation Act 1985 or processes contained in Part 6 of the Regulations, which are necessary to deal with "compensation" benefits payable under the no fault scheme.

CFA volunteer firefighters therefore retain the right at common law to claim "damages" for negligence by CFA, or any another third party tortfeasor, save for the rights of recovery under Regulation 78. The exclusion of "damages" in the definition of "compensation" removes uncertainty in this regard.

Regulation 77

CFA have resolved that the amount payable with respect to the destruction, damage or loss of wearing apparel will not exceed $1,000.00.

2. Regulatory Impact Statement (RIS) - Failure to Address Alternatives

CFA is currently undertaking a review of its Act and Regulations, both of which are intended to be introduced during the period of the Spring sittings of 2005. At this time CFA is involved in an extensive consultation process with stakeholders for the purposes of completing this review.

The RIS was completed by an independent consultant, Peter Day Consultants Pty Ltd. The consultant took the view that under section 10 of the Subordinate Legislation Act 1994 many of the regulations were procedural in nature having their basis in the requirement of the Act. For this reason alternatives to those regulations were not assessed. I understand that the consultant confirmed this approach with independent assessor, Mr Brian Bottomley of Brian Bottomley and Associates, who provided the certification that the RIS met the requirements of s10 of the Subordinate Legislation Act.

In relation to the regulations where the consultant now regards an alternative is feasible and is not mandated by the Act, I have arranged for Mr Day to prepare a further document which can be incorporated in the RIS and which considers those alternatives (See Appendix 1 to this letter.)

With respect to extending the life of the Regulations, I note that the Regulations had already been extended once under section 5(4) of the Subordinate Legislation Act 1994 and that no additional extension was permissible, by virtue of section 5(5).

3. Regulatory Impact Statement (RIS) - Unclear - Confusing

I agree that the analysis at pages 33-35 of the RIS regarding Forest Industry Brigades is confusing. This Part of the RIS has been re-worded and made clear by Mr Day in Appendix 1 to this letter at paragraph 4.3.

4. Consultation

The omission to advertise the RIS and Regulations, pursuant to s11 of the SLA, in the Government Gazette was an oversight on the part of CFA, for which I apologise. I note however that advertisements were place in both the Herald Sun and The Age on 13 December 2003.

5. National Competition Policy

Having regard to your comments CFA's consultant, Mr Peter Day, has prepared substitute pages to included in the RIS. These are attached as Appendices 1 and 2. Appendix 1 is a consideration of alternative measures considered other than the regulatory approach. Appendix 2 is a further amended and amplified competition policy assessment. As the attached appendices to be included in the RIS now consider alternatives, I am advised that the original assessment provided with the National Competition Certificate is correct.

6. Undated Certificate

This problem has been rectified, and a dated certificate is attached.

Summary

In concluding I would like to make a few observations about the process and what has arisen from the work that has been done in response to your concerns.

First, the re-analysis of the Regulations by CFA's consultants did suggest that a number of alternatives to regulation existed which should have been canvassed in the RIS. As set out in Appendix 1, these relate to Non - Regulation of Brigades and Groups Constitutional Arrangements, Forest Industry brigades, and Non-Prescription of Standards of Fire Suppression Equipment. However, I note that in the analysis of these three areas the RIS consultant has concluded that these areas should be dealt with by the Regulations as drafted. Therefore, while the RIS did not set the alternatives as required under the SLA, it nevertheless arrived at the same conclusion as the consultant's further analysis; ie. That the Regulations should be made.

Secondly, whilst the RIS was not gazetted, it was published in two major daily newspapers whose readership significantly exceeds the readership of the Government Gazette. Therefore, the aim of the SLA in this respect, to ensure that the community has adequate notice of the opportunity to comment on the RIS, was achieved.

Thirdly, I note that only one submission on the RIS was received and would anticipate that, were the exercise repeated, a similarly small number of submissions would result.

I would also like to point out the important of the Regulation to the CFA which has over 60,000 members who rely on the Regulations for many aspects of the CFA's day to day operations. Because of the Regulations' significance, were the Committee to recommend disallowance, I would be compelled to seek a Premier's Certificate to allow the Regulations to continue in operation for a further 12 months to enable the conduct of another RIS process (on the basis of the consultant's further analysis) and the making of new (identical) Regulations.

Notwithstanding my views expressed above and the potential costs involved, I am willing, should the Committee regard it as desirable, to direct CFA to gazette and re-advertise the amended RIS at this point. Further, were any submissions necessitating amendments of the Regulations received, I would expect CFA to recommend amending the Regulations accordingly.

I hope that this satisfies the concerns raised in your letter and I look forward to you response.

Appendix 1

4. Consideration of Alternatives

4.1 Introduction

It is a requirement of the RIS that alternative measures be considered to the proposed regulatory approach. Many of the regulations are required to fulfil the specific requirements of the Act, that is, without the regulations the Act's provisions become inoperable. However, there are alternatives to several of the proposed regulations and these are analysed in this section.

The alternatives considered are:

Non-regulation of constitutional arrangements of Brigades and Groups;
Forestry Industry Brigades; and
Non-Prescription of Standards of Fire Suppression Equipment

4.2 Non-Regulation of Brigades and Groups Constitutional Arrangements

It is not a feasible option to abandon regulations relating to registration and formation of brigades and groups as the Act prohibits the association of persons as a brigade without registration. However, proposed regulations 32 and 33 allow a brigade and group to adopt internal workings and administration consistent with the Act and Regulations but where a brigade does not adopt its own rules the rules contained in the Regulations and detailed in Schedules 5 and 6 apply. For brigades these cover:

Membership, including honorary life membership;
Meetings, including chairing, elections, and voting;
Management; and
Finance, including records and bank accounts, petty cash, purchasing, reporting and audit.

For groups these cover meetings, management and finance.

It is a feasible option therefore to not prescribe these detailed requirements and to simply require that brigades not adopt rules or practices that are inconsistent with the Act and regulations.

4.2.1 Benefits of not prescribing requirements

By not requiring a brigade to have its rules approved by the authority a brigade is free to adopt rules (eg very limited rules) so long as they are not inconsistent with the Act and regulations. This allows for flexibility of operation of brigades;
The contents of Schedules 5 & 6 could be included as a code of practice in the Chief Officer's Standing Operating Procedures. This would provide guidance for those Brigades and Groups that required assistance in the formation of there brigades and groups but would not compulsory;
Because the requirements of Schedules 5 and 6 are very detailed and comprehensive they may not all be applicable for all brigades. By not prescribing these details individual brigades will not be compelled to fulfil unwarranted requirements.

4.2.2 Costs of adopting the alternative arrangement

The proposed regulations and Schedules include detailed requirements and include requirements relating to financial matters of brigades and groups. In the event of no regulation of these matters there may be the potential for inappropriate financial management of funds and records;
The Schedules provide for appropriate conduct of meetings and election of officers. Without prescription of these matters brigades and groups may be inappropriately governed at the local level.
Without the regulations brigade activities may lack transparency and openness expected of publicly funded bodies

4.3 Forestry Industry Brigades

The Regulatory Impact Statement (RIS) prepared for the then new Forestry Industry Brigades Regulations in 1998 identified the following options to regulating forestry industry brigades:

Make the (now) Department of Sustainability and Environment (DSE) responsible for fire prevention and suppression in these areas;
Make CFA responsible for fire prevention and suppression in these areas; and
Have the industry develop an industry code of practice for fire management,

These remain feasible options today and therefore some of the analysis in the earlier RIS of the options is still pertinent.

Option 1 - Give DSE responsibility

Benefits of adopting alternative arrangement

This Option would capture efficiencies of scale where DSE has other fire management roles where Crown lands are adjacent to plantation forests; and
It would avoid increasing workloads for volunteers through the availability of a work force funded through DSE

Costs of adopting alternative arrangement

This Option would provide a direct subsidy to operators of plantation forests;
Would not be effective for the future development and management of the plantation forestry industry;
Would not meet the National Competition Policy requirement that regulatory and service roles should be separated; and
It would dismantle the now highly developed and efficient industry brigades

Option 2 - Give CFA responsibility

Benefits of adopting alternative arrangement

This Option would minimise business costs for industry operators; and
It would provide integration of fire management activities including a single chain of command, commonality of training, equipment and systems

Costs of adopting alternative arrangement

This Option would provide a direct subsidy to operators of plantation forests and incur greater costs for CFA;
Would not be effective for the future development and management of the plantation forestry industry; and
It would dismantle the now highly developed and efficient industry brigades.

Option 3 - Industry Code of Practice

Benefits of adopting alternative arrangement

This Option would give full freedom of commercial decision making to plantation operators in relation to fire management; and
It would give operators flexibility in determining how best to achieve effective, least cost fire management

Costs of adopting alternative arrangement

The industry is not homogenous and may find it difficult to develop an agreed code based on business needs;
This Option would be administratively difficult and expensive to apply enforceable sanctions for non-compliance with a code. This is a crucial area of vulnerability especially as fire management in such a high-risk area that has potential for significant third party effects;
There would be a tendency for some participants to under-invest in fire management and thus to transfer their costs to other participants and the community; and
This would impact on the now highly developed and efficient system of industry brigades

4.4 Non-Prescription of Standards of Fire Suppression Equipment

Section 50(2) of the Act requires that in the country area of Victoria a person must not drive or operate a tractor or a self-propelled farm machine or a traction engine or an earth-moving, excavating or road-making machine propelled by or incorporating a heat engine within nine metres of or in contact with any crop, grass, stubble, weeds, undergrowth or vegetation unless the tractor, traction engine or machine-

is free from faults and mechanical defects which would tend to cause an outbreak of fire; and
is fitted with a spark arrester; and
carries the prescribed fire suppression equipment during a fire danger period

Proposed Regulation 111 and 112 prescribes this equipment and in the prescription requires the equipment (ie knapsack spray pump, fire extinguisher and spark arrestor) to comply with specific Australian Standards. It is a feasible option to not specify the standards and provide only that the equipment be fit for purpose.

4.4.1 Benefits of adopting alternative arrangement

This Option would allow flexibility for persons operating heat engines and non-heat engines to purchase equipment that they consider suitable for the purpose, that is, equipment that has not been subject to Australian Standards testing;
Would allow persons to purchase equipment that may be cheaper than equipment that meets the prescribed standards; and
This would allow manufacturers of equipment that does not meet the Australian Standards to enter the market

4.4.2 Costs of adopting alternative arrangement

Allowing the purchase of equipment that does not comply with Australian Standards provides no assurance that the equipment is fit for purpose and has been subject to rigorous testing;
Without prescription various standards of equipment for fire suppression will be established throughout country Victoria which provides little assurance of the ability to suppress the incidence of fire; and
No prescription would be seen as a loosening of fire prevention controls in an environment where the risks of fire are very high as discussed in Section 1 of this RIS

4.5 Summary of Assessment of Alternatives

From the analysis there are clearly considerable benefits in not detailing constitutional arrangements in the regulations and allowing the contents to be included administratively in, for example, the Chief Officer's Standing Operating Procedures. The potential costs of the option in terms of financial management and governance arrangements are however, not inconsequential, and therefore on balance the proposed regulations are considered appropriate at this stage.

The various options considered in relation to forestry industry brigades clearly impose considerably greater costs that the existing arrangements which are proposed to continue. While these arrangements have only been in operation since 1998 the benefits articulated in the RIS prepared at the time are still appropriate now and the assessment here therefore concludes that the proposed regulations are the best method of achieving the identified objectives.

The option to not prescribe fire suppression equipment that meets Australian Standards, while providing some benefits in increased flexibility and possibly lower costs, importantly provides little assurance of the fitness-for-purpose of the equipment so necessary with the huge risks associated with fire. For this reason alone the proposed regulations are considered more feasible than the option.

Example 2: SR 12 - Police Regulation (Fees and Charges) Regulations 2004

These Regulations prescribed fees and charges that may be imposed for the provision of services by members of the Police Force. Such fees included charges for the deployment of police personnel where charges are made for admission to an event or participation in an event, charges for equipment including police dogs, police horses, police motor cars, police motor cycles and charges for the provision of information.

In this instance, the Subcommittee's concerns ranged from responding to a submission to recording its view as a matter of principle that it was not necessarily comfortable with the notion of increasing fees for the next three years. Whilst there was no one major breach of any section of the Act, the Subcommittee wrote a substantive letter which required a response.

Subcommittee's Letter[29]

The Regulation Review Subcommittee held a meeting on 10 May 2004 to consider the above Regulations.

The Subcommittee has a number of concerns.

(1) Fees increase - To be phased in over three years

The Subcommittee notes that the increase in fees for the use of police members' services will be introduced in three stages. The current charges (as at 29 January 2004) will be imposed until 30 June 2004. The first level of the new charges will not be effective until 1 July 2004. The second level will be effective from 1 July 2005 and the third level will be effective from 1 July 2006. At each of the three levels, the proposed new charges will be phased in at an additional approximate average of 12.5%. The reason for this is set out at page 28 of the Regulatory Impact Statement: -

Introduction of single "one-off" increase would place an onerous burden on service users, with increases of 61 per cent and 72 per cent being required to achieve full cost recovery for police members deployed to the event. A "one-off" increase of this magnitude could undermine community confidence in the user charges policy for police services and preclude the option of providing any subsidisation.

The Subcommittee notes that it is some ten years since the Regulations have been reviewed.

The Subcommittee notes that the phasing in of fees in this manner effectively means there will be fee increases for police members' services for the next three years, in addition to the annual Treasurer's increase. Whilst the Subcommittee notes the rationale provided above, it wishes to record its view that as a matter of principle it is not necessarily comfortable with the notion of Regulations increasing fees for the next three years. The purpose of the RIS process is to ensure that fees are properly reviewed every ten years other than the annual Treasurer's increase. Whilst the Subcommittee understands the reasons for increasing fees in this manner in this instance, it wishes to record its view that it should not be open to Departments to go down this path in terms of a general trend.

(2) Consultation

The Subcommittee understands that due to an administrative oversight the Regulatory Impact Statement was not published as required in the Government Gazette under section 11(1)(a) of the Subordinate Legislation Act 1994. The Subcommittee wishes to emphasise the importance of strict compliance with procedural matters.

(3) Submission from Mr Paul Chadwick, the Privacy Commissioner

Mr Paul Chadwick, the Privacy Commissioner sent a submission in response to the Regulatory Impact Statement.

The essence of his submission is that there appears to be a conflict between the Regulations purporting to authorise access to police records for a fee and the statutory duty of non-disclosure imposed by police by section 127A of the Police Regulation Act 1958. Section 127 sets out the duty of non-disclosure of police. His view is that there appears to be an absence of authority for disclosure of certain police records. Mr Chadwick suggests that Victoria Police may be constrained in disclosing accident information to parties other than the Transport Accident Commission (TAC) because of the duty of non-disclosure in section 127 of the Police Regulation Act 1958.

To overcome this defect he suggests that consideration be given to introducing legislative change to expressly authorise police to make such disclosures. This might be achieved by amending either: -

1. the Police Regulation Act 1958 as part of a wider review of the Act; or
2. the Transport Accident Act to expressly authorise or require police to provide copies of accident information to relevant parties where a common law claim is being contemplated or is pending against the TAC. Alternatively, the Transport Accident Act could be amended to authorise or require the TAC to provide a copy of such information to appropriate recipients.

The Subcommittee notes the response from the Department of Justice: -

Victoria Police releases its traffic accident information for secondary purposes in accordance with the spirit of section 61 of the Road Safety Act. The intention of section 61 is to ensure the exchange of identifying information between all relevant parties to an accident, and it would not seem proper for police to withhold it if it is not then known to the requesting party. The practice of providing police reports to legitimate inquirers (such as solicitors and insurers acting on behalf of parties) is well established and in the public interest...

I understand that Victoria Police has been working through the above issue with you. Accordingly, Victoria Police will continue its practice of releasing traffic accident information to relevant third parties. Should it be resolved that a more explicit legislative basis is required, action will be taken to make the appropriate legislative amendment as soon as possible.

Mr Chadwick has written to the Scrutiny of Acts and Regulations Committee enclosing his submission. His view is that the issue he raises is unresolved. In particular, he refers to the apparent conflict between the regulations purporting to authorise access to police records for a fee and the statutory duty of non-disclosure imposed on police by section 127A of the Police Regulation Act 1958.

The Subcommittee requests your response to the issue raised by Mr Chadwick. Is there a sound legislative basis for the disclosure on police records - in this instance the police practice of releasing police records for a fee? If the legal advice received that the legislation is defective, what amendments would be proposed to cure the matter?

(4) Undated section 6 certificate of consultation and undated s 10(4) certificate of consultation

The Subcommittee constantly receives undated certificates from various Departments. The Subcommittee is of the view that procedural compliance is not a difficult matter with which to deal. In this instance, the section 6 certificate of consultation and the section 10(4) certificate of compliance are undated. The Subcommittee requests rectification.

The Subcommittee operates under strict time limits pursuant to the Subordinate Legislation Act 1994. The Subcommittee requests your immediate response within 14 days of the date of this letter to the matters raised.

Minister's Response[30]

I am writing in response to your letter of 10 May 2004 in which you raised four issues of concern for my response in relation to the making of the Police Regulation (Fees and Charges) Regulations 2004.

I apologise for the delay in responding to the issues you have raised but I understand that the department of Justice has been awaiting legal advice from the Victoria Police on issue 3) pertaining to the matter raised by Mr Paul Chadwick, the Victorian Privacy Commissioner, around the apparent conflict of authorising access to police records for a fee and the statutory duty of non-disclosure imposed by policy by section 127A of the Police Regulation Act 1958.

The following responses are submitted to reply to the Committee's concerns:

1. Fee increase - to be phased in over 3 years

I acknowledge that as a matter of principle the Committee is not necessarily comfortable with the notion of the fees increasing for each of the next three years. As previously advised, this phased approach was adopted to ameliorate some of the impact of moving towards a full cost recovery basis in one step. Nevertheless, I have direct the Department of Justice to ensure that Victoria Police fees and charges are reviewed regularly and levied in accordance with the Government's policies and guidelines for setting fees and charges.

2. Consultation

The failure to include a public notice of the Regulatory Impact Statement in the Government Gazette was an unintentional oversight due to an administrative error. I appreciate the Committee's understanding that every opportunity was made to advertise the RIS as widely as possible, with advertisements appearing in the two main daily newspapers and a direct mail out to over 300 interested users of Victoria Police provision of information and event management services. I have emphasised that importance of strict compliance with procedural matters to the relevant areas within the Department of Justice and Victoria Police.

3. Submission from Mr Paul Chadwick, the Victorian Privacy Commissioner

Victoria Police is seeking, but is yet to receive, further legal advice on this issue. In parallel, I have asked the Department to draft letters to the Attorney-General and the Minister for Transport, in consultation with the Victorian Privacy Commissioner, raising the need for possible legislative changes to the Police Regulation Act 1958, the Road Safety Act 1986 and (if necessary) the Transport Accident Act 1986, as a matter of priority.

4. Undated Section 6 certificate of consultation and undated Section 10(4) certificate of consultation

The omission of the certification on the documentation was an unintentional oversight. As stated in point 2 above, I have emphasised the importance of strict compliance with procedural matters in the making of subordinate legislation to both the Department and Victoria Police.

I will write again when further information is available on the issues raised by the Victorian Privacy Commissioner.

I appreciate the Committee clarifying their issues of concern.

(b) Consultation

Section 6 of the Act sets out the requirements for consultation. These requirements apply to regulations made with or without RISs. Responsible Ministers must ensure that there is consultation "where the guidelines[31] require consultation" with any sector of the community on which an appreciable economic or social burden may be imposed and other Ministers whose area of responsibility may be affected.[32] The Premier's Guidelines provide[33] -

5.20 If the proposed statutory rule 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, special interest groups. The consultation should include discussion of the need for and method of the proposed regulation.

The Premier's Guidelines indicate that the "nature and degree of consultation that is appropriate for any particular rule will vary with the nature of that rule" [34]. This places the final responsibility on Ministers to ensure that appropriate consultation takes place and includes all those affected by a proposed regulation.

While the Premier's Guidelines provide assistance with the consultation process, the Subcommittee acknowledges that some sections are unclear and ambiguous. This makes it difficult for department and agency officers to determine in what circumstances consultation should take place. There is, for example, an inconsistency between the Act and the Premier's Guidelines as to whether consultation must[35] or should[36] occur in accordance with the Premier's Guidelines. It is the strong preference of the Subcommittee that consultation take place with all those affected by a particular regulation and that the current ambiguities be resolved.

The Subcommittee notes that not all departments and agencies provide details of who was consulted in consultation certificates for regulations excepted and exempted from the RIS process. The Subcommittee has had to seek additional information concerning consultation. The Subcommittee considers it is important for all consultation certificates to provide details of all those consulted.

Consideration of submissions - response required

Section 11(3) of the Act imposes a duty on Ministers "to consider all submissions and comments received on a draft statutory rule where a RIS has been prepared". The Premier's Guidelines also emphasise the need for all comments and submissions to be considered before a regulation is made. The Subcommittee considers that appropriate consultation is essential for the effectiveness of the regulatory system.

The Subcommittee expects that submissions will be appropriately considered. To that end, a considered response from the Department to an individual submission is tangible evidence that matters have been considered. The Subcommittee's firm view is that responses ought to be sent to those who have taken the time and effort to send in a submission. The Subcommittee understands that occasionally there may be a large number of submissions in respect of a particular regulation. However, the Subcommittee's view is that the number of submissions does not alter the expectation that an appropriate response should be sent. It simply means that there are a large number of people who have issues with the proposed regulation. Whilst this may mean an increased workload occasionally, the Subcommittee's strong view is that this is simply a part of the democratic regulatory process.

Appropriate weight and consideration ought to be given to the submissions sent in. Transparency is a critical part of the process. The Minister is required to perform his or her duty in accordance with section 11(3) of the Act. This matter was highlighted in SR 10 Occupational Health and Safety (Noise) Regulations 2004. The Subcommittee's firm view is that publication of a response to issues on a website is a quite inadequate response.

Example 1: SR 10 - Occupational Health and Safety (Noise) Regulations 2004

These Regulations provided a regulatory framework for the control of occupational exposure to noise. They also set out the duties of designers, manufacturers and suppliers of plant in respect of the protection from noise emissions.

Subcommittee's Letter[37]

The Regulation Review Subcommittee held a meeting on 19 April 2004 and considered the above Regulations.

The Subcommittee understands that due to an administrative oversight individual responses were not sent to those who made submissions. Twenty individuals made submissions.

The Subcommittee understands that a high level summary of the main issues raised by stakeholders will be placed on the WorkSafe website shortly. Nevertheless the Subcommittee remains of the view that transparency is an important part of the regulatory process. To that end, the Subcommittee expects that all those who send in submissions receive a considered and appropriate written response. The Subcommittee draws your attention to this matter.

Minister's Response[38]

Thank you for your letter of 19 April 2004 concerning the Occupational Health and Safety (Noise) Regulations 2004.

I agree with the Subcommittee's view that transparency is an important part of the regulatory process.

I am advised that it is WorkSafe Victoria's policy to send an acknowledgement letter to persons and organisations providing public comment submissions on regulatory proposals. Unfortunately due to an oversight at WorkSafe Victoria it did not happen for the Noise Regulations.

I have also been advised that WorkSafe Victoria will put procedures in place to ensure that in future an acknowledgement letter is sent to all individuals and organisations that have provided comment on proposed Regulations.

I am advised that WorkSafe Victoria has prepared a summary of the key issues raised by stakeholders during consultations, together with its response. These will be provided to all individuals who made a submission on the draft Regulations.

If you require clarification on any other matters related to WorkSafe Victoria, please do not hesitate to contact Mr John Merritt, Executive Director, WorkSafe Victoria on 9641 1215.

Example 2: SR 43 - Drugs, Poisons and Controlled Substances (Amendment) Regulations 2004

These Regulations inserted a new definition of "nursing home" within the former Regulations. Various issues were raised with respect to the impact of the Regulations on the administration of medication to the elderly in nursing homes and hostels. These issues were canvassed in a lengthy submission received by the Subcommittee from the Australian Nursing Federation. In order to properly consider the matters raised the Subcommittee sent it to the Minister for her response.

Subcommittee's Letter[39]

The Regulation Review Subcommittee has not yet considered the above Regulations.

However the Regulation Review Subcommittee has received a submission from the Australian Nursing Federation dated 24 May 2004. In order to properly consider the Regulations your response to the matters raised in the submission is requested.

Minister's Response[40]

Thank you for your letter of 9 June 2004 advising me of the submission made to your Committee regarding the Drugs, Poisons and Controlled Substances (Amendment) Regulations 2004 and seeking my response.

At the outset, it may be helpful if I clarify the purpose of the regulation. It has been made to ensure that the Government's intention at the time of drafting the regulations in 1995 to limit the requirement to have medication administered by medical practitioners and division 1 nurses in nursing homes, is maintained and to make clear that the definition was not intended to cover aged care services other than nursing homes.

The Minister for Aged Care has met with representatives of the Australian Nursing Federation on a number of occasions to discuss this and other matters in relation to nursing policy and the Government has a clear understanding of the views of the ANF on these matters.

My understanding of the Committee's role is that it may examine any Regulation within the context of the authorising Act and the requirements of the Subordinate Legislation Act 1994.

While the attached Appendix to my letter outlines a response in detail to each element of the submission, it is useful to clarify the role of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") and the Drugs, Poisons and Controlled Substances Regulations 1995 ("the Principal Regulations").

Essentially, the Act and the Principal Regulations govern the manufacture, sale, use and supply of drugs and poisons in relation to matters ranging from appropriate labelling and storage of drugs and poisons to those persons authorised or licensed to manufacture, to supply by retail or wholesale and to possess drugs and poisons in Victoria. In addition, the Act contains penalties for the illegal sale of drugs and poisons and sets out the framework of quantities in relation to drug trafficking of both licity and illicitly drugs and poisons.

However, neither the Act nor the Principal Regulations govern any aspect of clinical care.

There is no reference in the Act or the Principal Regulations to any requirements regarding the quality of clinical care provided either by doctors or nurses or to any patients. Such matters are, in my view, not found or intended to be covered within the scope of the Act or the Principal Regulations.

Indeed, neither the Act nor the Principal Regulations grant any rights to anyone with respect to the nature of the clinical care to be provided to them.

Given that no rights are granted to any person, no right is capable of being removed or in any way infringed by any amending Regulation.

It is important to note that section 13 of the Act authorises medical practitioners, veterinarians, pharmacists and nurse practitioners to prescribe drugs and poisons and regulation 46 of the Principal Regulations authorises nurses to administer medication on the orders of a registered medical practitioner. I should also add that any conditions on, for example, a doctor's capacity to prescribe are a matter for the Medical Practitioners Board under the Medical Practice Act 1994.

As you know, there are a number of State acts governing the conduct of health professionals namely the Pharmacists Act 1974, the Nurses Act 1993 and the Medical Practice Act 1994. Each of these Acts contains extensive powers of the relevant registration authority to monitor the behaviour and standard of care provided by doctors and nurses. The Boards are also responsible for accreditation of appropriate training courses provided by tertiary bodies and play a very significant role in determining standards of clinical education and clinical quality.

Most recently, the Nurses Board of Victoria has published an extensive guideline on the administration of medication by Division 2 nurses under its powers under the Nurses Act to provide guidance as to acceptable professional conduct.

The Drugs, Poisons and Controlled Substances Act itself recognises in section 130 that matters of conduct of doctors, nurses and pharmacists are matters expressly to be regulated under those Acts and not within the Act or the Regulations.

The regulation of professional conduct under Victorian legislation is complemented by the regulation of the quality of care in the aged care setting which is properly the responsibility of focused quality assurance framework to govern all aspects of care, including the administration of medication in residential aged care facilities.

In particular, and contrary to some of the assertions of the ANF, the Quality of Care Principles under the Act require all residential aged care services to provide initial and on-going assessment, planning and management of care for high-care residents, carried out by a registered nurse. Further, nursing services required must be carried out by a registered nurse, or other professional appropriate to the service.

The accreditation standards under the Aged Care Act require a medication management system that ensures that each resident's medication is managed safely and correctly. The specific criteria of the standard require policies and practices to provide: safe administration and storage of medications; that incident reporting mechanisms are present, functional and acted upon; that orders are written legibly and are available to administering staff; and that residents' medication is regularly reviewed by appropriate health professionals.

Guidelines provide further detailed guidance for those responsible for complying with the Aged Care Act requirements.

These performance-based requirements provide far greater assurance to consumers of services and the public generally than a regulation that merely imposes an obligation upon a proprietor of a nursing home to require that nurses administer medication.

It is my view that the regulations are within power and that they conform to the requirements of the Subordinate Legislation Act 1994. I have attached a response to each of the issues raised by the submission in an appendix to my letter.

Appendix 1

The submission suggests that the regulation is inconsistent with the general objectives of the authorising Act, the Drugs, Poisons and Controlled Substances act 1981 ("the Act").

There is no objectives provision in the Act. Furthermore, there is no provision in the Act or Principal Regulations which limits the possession, use of supply or administration of medication to "suitably qualified persons in health settings".

While it is correct that the overall purpose of the Act is to protect members of the public from misuse of drugs and poisons by a range of strategies including regulation of the manufacture and sale of drugs and poisons, regulation of labelling and storage requirements, there are no requirements in the Act regarding the administration of medication in health settings.

The only reference to "health service" in the Act is found in the Endnotes to the Act which contain a transitional provision governing short-term permits for obtaining drugs and poisons for health services. Such permits enable services such as hospitals to obtain drugs on a wholesale basis.

The only other reference to "health service" is found in Regulation 45 of the Principal Regulations.

I should also add that the Commonwealth Aged Care Act 1997 contains extensive provisions governing the quality of care of residents in all aged care services in Australia. Therefore, it is incorrect to state that residents of any residential aged care services are being removed from the coverage of legislation governing the quality of care given to them.

It should also be noted that the Act does not govern the quality of care of services given to aged care in Victoria and such matters are outside the scope of drugs and poisons legislation across Australia.

The submission also suggests that the Regulation is" an unusual or unexpected use of the powers conferred by the authorising Act.

First, it is incorrect to state that the regulations have covered other health services by implication. Regulation 45 has always explicitly applied to nursing homes.

Second, there are no established objectives contained in the Act as discussed above and therefore there is no "arbitrary removal of protection". Residents of all aged care services remain protected by several acts including the Aged Care Act (Cth) 1997 and the existing authorising provisions with respect to the supply, possession and use of drugs and poisons provisions of the Act. Those provisions remain unaffected by the regulation.

Section 132B provides the regulations may be of general or limited application; and apply to different classes of persons, licences, permits, warrants, authorisations and approvals. In my view, the Act allows the regulations to be of differing application.

The submission claims that the regulation "unduly trespasses on the rights and liberties of the persons previously established by law".

As I note in my letter, the Act and the Principal Regulations do not establish any rights or liberties of individuals at law. Other than the drug trafficking provisions which specify the maximum sentences for trafficking of drugs in specific quantities as listed in schedule 11 of the Poisons List, the provisions of the act do not interfere with the liberties, in a broad sense, of any person.

As noted above, the Act provides for the licensing and authorising of certain persons to manufacture, sell, possess and use drugs and poisons.

It also provides authorisation for certain health professionals to prescribe drugs and poisons. However, the power for any limitations on these authorisations is imposed under the relevant registration Act. In other words, there are no limiting provisions in the Act on the conduct of persons authorised to prescribe, use or administer drugs and poisons.

Equally there is no limitation on a person for whom a drug has been prescribed. Any person for whom a drug has been prescribed is in lawful possession of the relevant drug.

The submission suggests a contravention of section 21(g) in that it makes rights and liberties of the person unduly dependent upon administrative and not judicial decisions.

The purpose of the provision in the Subordinate Legislation Act is to prevent the making of a regulation which allows for an administrative decision maker to determine the rights or liberty of an individual as it is not appropriate for the location of such decision making power within a subordinate instrument.

As noted above, the Act and regulations do not determine any rights or liberties of any person and the regulation does not provide for any determination of either an administrative or judicial nature in the rights or interests of any person.

The submission argues that "aged care residents have a (statutory) right to be cared for by competent staff..." A requirement to be cared for by competent staff can be found in the Specified care and services set out in Schedule 1 of the Quality of Care Principles set out in the Aged care Act (Cth) 1997.

The submission also argues that the regulation is in breach of section 21(h) of the Subordinate Legislation act in that it is "inconsistent with principles of fairness and justice".

The submission refers to an industrial matter before the Federal Court in 2003 concerning the employment arrangements at an aged care service. Such matters are beyond the scope of the Act and regulations.

The submission argues that the regulation contravenes section 21(1)(i) in that it requires explanation as to its form or intention.

Section 21(1)(i) permits the Scrutiny of Acts and Regulations Committee to report to each House of Parliament if it considers that any statutory rules requires explanation as to its form or intention.

It is my view that the explanation contained in the Explanatory Memorandum to the regulation clearly explains the purpose and intention of the regulation and that there is no ambiguity in the regulation or in the accompanying Explanatory Memorandum.

The contention made by the ANF in support of its argument in this respect, that the regulation will exempt any facility that has one or more low care residents is simply incorrect and represents a fundamental misreading of the regulation.

The submission finally argues that the regulation has been "prepared in contravention of any of the provisions of the Act or guidelines and the contravention is of a substantial or material nature".

I understand that this provision requires the Committee to consider if the regulation is inconsistent or in contravention of the Subordinate Legislation Act.

The submission argues that the regulation does not fall within section 9(c) of the Subordinate Legislation Act and is therefore in contravention of that Act. It argues that the regulation "changes the status quo" following the decision of the Federal Court in Alcheringa.

It is the Government's view that the regulations have been widely understood to apply only to "nursing homes" and not to "hostels".

The submission itself notes that the 80% of all Victorian hostels do employ or obtain the advice of Division 1 nurses with respect to clinical care.

Example 3: SR 107 - Intellectually Disabled Persons' Services (Fees) Regulations 2004

These Regulations amended the previous Intellectually Disabled Persons' Services Regulations 1997 to increase the scale of fees payable for accommodation or care of or for services rendered to eligible persons resident in a residential institution or a residential program operated by the Department. The fee increases represented the first increase in these fees since the passage of the 1997 Regulations.

The Subcommittee requested the Minister's response to a submission sent to it from the Kew Cottages Parents' Association.

Subcommittee's Letter[41]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 29 November 2004.

Two matters were raised.

(1) Submission from Kew Cottages Parents' Association (KCPA)

The Subcommittee has received a submission from the KCPA. A copy of the submission is enclosed. The Subcommittee requests your response to the matters raised in the submission.

(2) National Competition Policy

The Regulations are accompanied by a National Competition Policy certificate which states that the proposed subordinate legislation does not restrict competition. It also states that the proposed regulation "has been assessed in accordance with the guidelines and the results of that assessment are documented in the regulatory impact statement attached to this certificate (refer section 7)."

What is required by the Premier's Guidelines is a certificate in the form of Attachment C. That certificate should state that the Regulation "has been assessed in accordance with the guidelines and the results documented in the attachment to this certificate".

Strictly speaking, the RIS is not attached to the certificate and there is no assessment as required by the Premier's Guidelines. A mere reference to a particular section does not constitute compliance in terms of the attached certificate and assessment required. What is required is a certificate in the proper form and an accompanying attachment/assessment which demonstrates that the proposed legislation does not restrict competition. To further complicate matters, in the RIS provided to the Committee the statement of compliance with National Competition Policy is in fact set out in section 12 at page 18 not section 7 as suggested by the original certificate of compliance.

The Subcommittee requests rectification of this matter.

Minister's Response[42]

Thank you for your letter dated 2 December 2004 in relation to the Intellectually Disabled Persons' Services (Fees) Regulations 2004 (SR 107-2004) advising of the outcome of the review by the Regulation.

The Department has provided the following advice in response to issues raised in your letter.

Submission from Kew Cottages Parents' Association (KCPA)

Issue 1: Perceived inequity and financial disadvantage to ex-KRS residents

A priority of the Victorian State Disability Plan 2002-2012 is to reorient disability supports with a commitment to ensuring that disability supports focus on assisting people with a disability to live in the community. As such, the Department of Human Services (DHS) is committed to relocation of residents from Kew Residential Services (KRS) into departmentally managed Community Residential Units (CRSs).

Individuals residing in institutions such as KRS pay the Board and Lodging fee (Category 1) which includes expenses such as pharmaceuticals, incontinence aids, transport and other costs. Upon relocation to CRUs, these residents commenced payment of a rent only fee (Category 2). Residents paying the rent are required to make separate payments for utilities, food and other provisions. This is consistent with community living norms. This applies to the majority of residents living in government run CRUs, some 1500 residents, with the exception of approximately 250 individuals who are living in St Nicholas CRUs and in the Plenty Residential Services. Other residents relocated from other institutions such as Caloola, Janefield and MayDay Hills also pay the same Category 2 fee as the ex-KRS residents.

St Nicholas CRUs and Plenty Residential Services continue to pay a Board and Lodging fee (Category 1) for historical reasons.

Issue 2: Perceived change in fees policy and financial hardship without adequate RIS consultation

Relocation of KRS residents to CRUs commenced in October 2002. As part of the transition planning process, residents with their families/advocates were consulted and informed of the need to change from a board and lodging fee (i.e. Category 1) to the Category 2 accommodation fee at that time. Residents and families were informed of the differences in costs of service provision in a community setting and that there would be gains and perhaps some potential losses. The Department also provided an undertaking that it would consider any significant financial hardship as a result of this change to community living. This rental policy was in place from the commencement of the relocation, prior to the RIS and there has been no change in departmental policy. The change to paying the Category 2 fee is agreed to by residents/administrators via their authorisation of the agreed financial plan for each resident.

Issue 3: Inadequate public consultation period

During the RIS consultation phase, KCPA identified some information in the RIS which they believed was confusing and misleading which could suggest that ex KRS residents would pay the board and lodging fee. However, the RIS clearly stated that only CRUs listed in Schedule 4 will be paying the Category 1 board and lodging fee and this Schedule did not include the community-based KRS houses. This clarification was provided immediately to KCPA in a telephone discussion and confirmed in writing on 24 June 2004 and in a meeting held with representatives from KRS Management and KCPA. An amended RIS was immediately replaced on the website making this issue clearer.

As noted above, individual families had been advised of the policy as part of the transition planning which commenced in 2002 and in the subsequent development of each individual's financial plan.

This RIS advised of the Department's intention to review and consult with stakeholders regarding the affordability and appropriateness of accommodation charges relative to accommodation services being provided (PG16). This will occur in the broader policy context and goals of the State Disability plan. This was communicated to KCPA.

Given the response and information provided to KCPA and the adherence to existing policy, maintenance of the existing consultation timeline occurred. A submission from KCPA was received on time and responded to on 18 August 2004.

National Competition Policy

Issue 1: Assessment Report to support National Competition Policy Certificate

Please find attached the following documents that you have requested:

Revised Attachment C Certificate of Compliance (Sub Section 3.3) - typographical error corrected;
Statement of compliance with National Competition Policy;

I wish to take this opportunity to thank you for raising these matters with me.

(c) Technical matters - Incomplete certificates - Dates of publication in the Government Gazette and newspaper - premier's certificate - details of 'special circumstances'

The Subcommittee is concerned to ensure technical compliance with the Act. Pursuant to s 11(a) and (b) of the Act, the RIS must be published in the Government Gazette and a daily newspaper circulating generally throughout Victoria. All relevant certificates should accompany the regulations and be signed and dated. Failure to do so will ensure a letter from the Subcommittee requesting rectification of these matters.

Example 1: SR No 11 - Conservation, Forests and Lands (Infringement Notice) (Fisheries) Regulations 2004

These Regulations prescribed further offences against the Fisheries Act 1995 for which an infringement notice may be served. They also prescribe penalties for the offences.

Subcommittee's Letter[43]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 15 March 2004. The Subcommittee deferred approval of the Regulations.

The Subcommittee notes that the section 9 exemption certificate is undated. The Subcommittee would appreciate rectification of the matter.

The Subcommittee looks forward to your response.

Minister's Response[44]

Thank you for your letter of 16 March 2004 regarding the section 9 certificate of exemption from the regulatory impact statement process for the Conservation, Forests and Lands (Infringement Notice) (Fisheries) Regulations 2004.

I note that the section 9 exemption certificate, which was provided for these Regulations, was not dated. I have enclosed a supplementary exemption certificate for these Regulations.

Thank you for drawing this matter to my attention.

Example 2: SR 15 - Australian Crime Commission (State Provisions) Regulations 2004

These Regulations prescribed the form of a warrant to apprehend a person and the form of a search warrant under the Australian Crime Commission (State Provisions) Act 2003.

Subcommittee's Letter[45]

The Regulation Review Subcommittee held a meeting on 19 April 2004 to consider the above regulations.

The Subcommittee has deferred approval of the Regulations.

The section 6 certificate of consultation is signed but undated. The section 9 exemption certificate is also undated. The Regulation Review Subcommittee would appreciate rectification of these matters.

Minister's Response[46]

Thank you for your facsimile of 19 April 2004 on the above matter.

Attached for your and the Subcommittee's information (as requested), please find copies of the sections 6 and 9 certificate stamped with the date on which I signed the certificates.

Example 3: SR 38 - Road Safety (Vehicles)(Concession Fees) Regulations 2004

Often the Subcommittee is required to consider Regulations accompanied by a Premier's certificate. Often details of the 'special circumstances' are outlined in the Explanatory memorandum. It is the Subcommittee's preference that the 'special circumstances' are contained in the certificate so the reasons are clear for the certification.

These Regulations imposed fees for the registration of vehicles registered for social, domestic or pleasure purposes by a person who is an "eligible beneficiary" within the meaning of the State Concessions Act 1986.

Subcommittee's Letter[47]

The Subcommittee considered and approved the above Regulations at a meeting on 27 September 2004.

The Subcommittee notes that the "special circumstances" referred to in the Premier's Certificate are in fact contained in the Explanatory memorandum.

The Subcommittee's expects that details of the "special circumstances" are contained in the section 9(3) certificate itself (see page 70 of the Annual Review 2003). In this instance the Subcommittee formed the view that the "special circumstances" themselves were appropriate. However the expectation is that future certificates should be drawn as outlined above.

Minister's Office Response[48]

The letter has been retained for future reference.

Example 4: SR 78 - Gambling Regulation (Interim) Regulations

The Regulations provided for matters relating to gaming machines, matters relating to wagering and betting, matters relating to trade promotion lotteries, matters relating to Club Keno and matters relating to community and charitable gaming and fees.

In this instance, it was not only the Premier's Certificate which drew comment from the Subcommittee but the manner in which the Regulations were made. The Subcommittee was concerned about the unintentional consequences of making Regulations such that they could be (theoretically) effective for twenty years.

Subcommittee's Letter[49]

The Subcommittee considered and deferred approval of the above Regulations at a meeting on 27 September 2004 pending your response to the matters raised in this letter.

(1) Section 9(3) certificate of special circumstances

The Subcommittee notes that the "special circumstances" referred to in the Premier's Certificate are in fact contained in the Explanatory memorandum.

(2) Sunsetting of Regulations

The second issues relates to the sunsetting of the Regulations. The Subcommittee understands the reason for the remaking and consolidation of the Regulations in this manner. Clearly, a consolidation of Regulations and extension of the life of one statutory rule for a limited period is simpler than extending the life of several individual regulations. In this case, it is proposed that these Regulations will sunset in June 1995.

However, it appears to the Subcommittee that there is nothing other than the Explanatory memorandum to indicate that they will sunset in June 1995. The title of the Regulations incorporates the word "interim". However the Regulations commence on 1 July 2004 and do not appear to have an expiry date. They are a new set of Regulations, albeit consolidated. They would appear to be subject section 5 of the Subordinate Legislation Act 1994 which provides for automatic revocation after 10 years.

The Subcommittee is concerned that the unintentional consequence of making Regulations in this manner is that theoretically they could be effective for 20 years (the previous 10 and the next 10). The intent in the Explanatory memorandum is clear. However, the Subcommittee is of the view that reference should be made in the Regulation itself to ensure that they sunset in June 2005. In this sense they differ from other Regulations, the life of which is extended for twelve months only with a section 8(1)(d)(iii) certificate.

The Subcommittee would appreciate your immediate response to the matters raised.

Minister's Response[50]

Thank you for your letter of 27 September 2004 about the Gambling Regulation (Interim) Regulations 2004 (the Interim Regulations).

Your advice that the special circumstances relied upon for the issue of a Premier's certificate should be detailed in the certificate itself, rather than in the Explanatory Memorandum, will be forwarded to the relevant officers in my Department for their information.

In your letter you also express concern that there is nothing other than the Explanatory Memorandum for the Interim Regulations to indicate that they will expire in June 2005.

The Interim Regulations were made on the basis of a Premier's Certificate issued under section 9(3) of the Subordinate Legislation Act 1994. The certificate was provided on the basis that in the special circumstances of the case, the public interest required the regulations to be made without complying with the regulatory impact statement process. The certificate was issue for a 12 month period.

As noted by you, it is clear from the Explanatory Memorandum for the Interim Regulations that they are intended to expire in June 2005. The preparation of a regulatory impact statement for the regulations to replace the Interim Regulations has already commenced and initial stakeholder consultation has occurred on the basis of this timeframe.

I am advised that the new regulations to replace the Interim Regulations will be prepared in time to ensure they can be made before the expiry of the 12 month period provided for by the Premier's certificate.

For this reason, I suggest that the most appropriate course of action is to continue with the preparation of the new regulations rather than consider whether an amendment to the Interim Regulations may be required.

(d) Sighting of material incorporated by reference

Regulations often include a table of applied, adopted or incorporated matter in accordance with the requirements of regulation 6 of the Subordinate Legislation Regulations 1994. Such a table lists all the material applied, adopted or incorporated by reference in the regulations. Often the Subcommittee is placed in the position where it has to consider and or approve regulations without sighting the material which is incorporated into them. Where the Subcommittee does not sight the material it cannot form a view as to whether it conforms with the requirements of the Act.

The Premier's Guidelines provide some assistance.[51]

7.3 Section 32 of the Interpretation of Legislation Act 1984 prescribes the procedural requirements which must be fulfilled whenever a statutory rule applies, adopts or incorporates material by reference. Section 32(5) of the Interpretation of Legislation Act provides that a failure to comply with the tabling requirements does not affect the validity, operation or effect of a statutory rule but agencies should nevertheless ensure compliance with the requirements of section 32 as amended by the Subordinate Legislation Act 1994.

7.4 When considering whether to incorporate a particular document in a statutory rule it should be remembered:

That the provisions of the rule will only refer to the incorporated material and members of the public affected by the rule must see the incorporated document before they can understand the contents and effect of the rule;
That the incorporated material may not be readily available at a reasonable cost;
That the procedures set out in section 32 are designed to facilitate Parliamentary oversight of incorporation of material and to ensure that such material is publicly available so that members of the public affected by the rule can have access to the rules with which they must comply.

7.5 It needs to be remembered that the incorporated material may not be a single document. The problem is exacerbated by the drafting style adopted by the Standards Association of Australia as these standards are frequently not self contained but adopt the provisions of other standards. This can create a chain of material incorporated by reference leading to the possibility that the need to table a particular document will be overlooked.

7.6 Consideration should also be given in drafting statutory rules as to whether the reference to an Australian Standard should be to a specific standard (eg AS 1234) or to a specific version of a standard by reference to its date (eg AS 1234, 1997). The latter approach means that if a later amended version of a standard is to be adopted it will require the amendment of the statutory rule and the undertaking of the RIS process. The former approach may result in significant changes to the effect of the statutory rule with no automatic mechanism to review the changes to the costs and benefits of the statutory rule.

7.8 In deciding whether to incorporate material by reference, agencies need to take care to balance the drafting convenience with ease of access to the incorporated material and understanding of it by those affected by it or required to comply with it. Agencies should reserve the use of incorporated detailed and extensive technical material to regulations concerning industries familiar with and using material. In such cases agencies should also consider whether performance standards are the more appropriate means of regulation.

The issue of approving material incorporated by reference and not sighted is an ongoing one for the Subcommittee from a general scrutiny perspective.

This year the Subcommittee has noticed that there has been an increased tendency for the material incorporated by reference to be provided to it with the original material in respect of the Regulation. This certainly makes the Subcommittee's task easier. The Subcommittee wishes to acknowledge and thank those Departments who make the effort to forward to it additional material.

However in one instance the standards were provided to the Subcommittee well after it had considered the Regulation. The Subcommittee's preference is that all material is provided to it simultaneously so that it can all be considered in the context of the Regulation.

Example 1: SR 111 - Fair Trading (Safety Standard)(Children's Toys) Regulations 2004

These Regulations prescribed safety standards for toys for children less than three years of age. The standards were based on the Commonwealth mandatory standard for children's toys prescribed under the Trade Practices Act 1974.

Subcommittee's Letter[52]

The Subcommittee considered and approved the above Regulations at a meeting on 25 October 2004.

The Regulations incorporate in the Table of Applied, Adopted or Incorporated Matter the national safety standards. The Subcommittee has not sighted or scrutinised the national safety standards. To that extent, the issue of approving material incorporated by reference and not sighted is an ongoing one for the Subcommittee from a general scrutiny perspective.

The Subcommittee seeks your advice as to whether the material has been scrutinised at some other level. In addition, the Subcommittee makes the suggestion that in the future such incorporated material is sent to it so that it may be scrutinised.
The Subcommittee requests your immediate response.

Minister's Response[53]

Thank you for your letter dated 25 October 2004.

I apologise for the delay in forwarding the incorporated material for the Fair Trading (Safety Standard) (Children's Toys) Regulations 2004 ("the Regulations") to your office. I am advised that it is the usual practice for Consumer Affairs Victoria ("CAV") to forward all of the material relevant to regulations to the Executive Officer of the Scrutiny of Acts and Regulations Committee as soon as practicable after the relevant regulations are made. The relevant materials were delivered to your office by hand on Friday 5 November 2004 under cover of a letter dated 3 November 2004.

In this case CAV identified an error in the citation of an ISO Standard that was referred to in the new safety standard for children's toys. The error is detailed in the covering letter to you of 3 November 2004. I am advised that dealing with this issue delayed CAV's forwarding the material to you, because liaison was required with Standards Australia, and Standards Australia had to liaise with the International Organisation for Standardization in Denmark in order to determine whether the incorrect citation affected the validity of the safety standard and the regulations. CAV have now determined that the incorrect citation was a technical editorial error which will be amended by ISO in the near future and that the incorrect citation does not affect the operation of the regulations as the ISO standard in question has not been incorporated into the regulations.

In relation to your question about scrutiny of the incorporated material at some other level, the incorporated standards from Standards Australia and the International Organisation for Standardization were the subject of extensive Australian and international consultation respectively, in their development.

The standards were incorporated and applied initially by the Commonwealth Government in its prescribed mandatory standard made on 17 December 2003 under the Trade Practices Act 1974, which Victoria has now replicated.

The Commonwealth mandatory standard was the subject of a regulatory impact statement which involved consultation with industry and the general public. The Commonwealth's regulatory impact statement was scrutinised and approved by the Office of Regulation reform before it was publicly released, in accordance with the COAG Principles and Guidelines for National Standard Setting and Regulatory Action by Ministerial Councils and Standard-Setting Bodies.

If you require further information regarding the scrutiny of the material, Anne Cadogan from the department can be contact on 9627 6378. Thank you for bring this matter to my attention. The delay in this case was a one-off instance and I trust that it will not be a regular occurrence.

The relevant standards were provided to the Subcommittee on 8 November 2004.

(e) Section 9(1)(a) - section 21(1)(I) - requires explanation as to its form or intention

This year the Subcommittee was required to consider whether a Regulation in the context of section 21(1)(i) of the Act required explanation as to either its form or intention. The issue rose squarely in respect of five sets of Regulations. The Regulations were SR 88 Monetary Units Regulations 2004, SR 115 Property Law (Fees) Regulations 2004, SR 116 Subdivision (Registrar's Fees) Regulations 2004, SR 117 Instruments (Fees) Regulations 2004 and SR 118 Transfer of Land (Fees) Regulations 2004.

All these Regulations converted fees into units rather than numerical amounts as was previously the case. The Subcommittee took issue with the manner in which a fee was expressed. Generally, the fee was expressed as a fee unit rather than a monetary figure. How does the average person know what a fee unit means? The question as the Subcommittee saw it was one of accessibility for the average person. The Subcommittee took the firm view that there ought to be some easy way for a person to find out precisely what a fee unit in a particular year or moments means in terms of the fees to be paid.

Example 1: SR 115 - Property Law (Fees) Regulations 2004
SR 116 - Subdivision (Registrar's Fees) Regulations 2004
SR 117 - Instruments (Fees) Regulations 2004
SR 118 - Transfer of Land (Fees) Regulations 2004

All these Regulations prescribed various fees in respect of property transactions, registrations, subdivisions and transfers.

Subcommittee's Letter[54]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 29 November 2004.

Section 21(1)(i) of the Subordinate Legislation Act 1994 - requires explanation as to its form or intention

The Scrutiny Subcommittee has a general power of review pursuant to section 21 of the Subordinate Legislation Act 1994. Section 21(1)(i) provides as follows: -

21- Review of statutory rules by the Scrutiny Committee

The Scrutiny Committee may report to each House of Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament-

(i) requires explanation as to its form or intention

The Regulations convert fees and penalties.

How does the average person understand the Regulations? How does the average person work out what fee is applicable?

One important issue in respect of all four sets of Regulations is the manner in which the fee is expressed. Generally, the fee is expressed as a fee unit rather than a monetary figure. For the average person reading the Regulations this represents a real problem. For example, in the Property Law (Fees) Regulations 2004, clause 5 refers to a fee as 2.93 fee units. What exactly does this mean to the average person?

To find out just what the fee unit means, the average person must first know to read the Monetary Units Act 2004. How does one know this exactly unless you are a lawyer or a person with resources? The person must then examine sections 5 and 6. The relevant extracts are set out:-

5. Calculation of value of fee and penalty units

(1) The value of a fee unit is the amount fixed with respect to a financial year by the Treasurer by notice published in the Government Gazette.

(2) The value of a penalty unit is the amount fixed with respect to a financial year by the Treasurer by notice published in the Government Gazette.

6. Notification of values of fee and penalty units

Before 1 June in each year the Treasurer must publish in the Government Gazette and in a newspaper circulating generally throughout Victoria notice of-

(a) the value of the fee unit that is to apply for the financial year commencing on 1 July in that year; and

(b) the value of the penalty unit that is to apply for the financial year commencing on 1 July in that year.

That person must then locate the particular Government Gazette in which the notice is located. In the case in point this year the relevant notice was located at page 1683 of the Government Gazette (G 25) published on 17 June 2004. The notice was extremely difficult to locate and in fact published after the required date, namely 1 June. The relevant issue of the Government Gazette was some 64 pages in length. There was no reference in the index at the beginning of the Government Gazette as to the location of the notice. The average person must then use that notice and go back to the original Regulations to multiply the relevant factor to work out the cost of the fee. Alternately, the average person must spot and keep the notice from a newspaper and go through the same process back to the Regulations to work out what fee is required.

The Subcommittee's view is that it extremely difficult, indeed almost impossible for the average person to work out what fee they are actually required to pay. There is no reference in the Regulations to the Monetary Units Act 2004 in the first place. The authorising Acts in the case of the Regulations considered are the Property Law Act 1958, Transfer of Land Act 1958, Instruments Act 1958, Subdivision Act 1988 and not the Monetary Units Act 2004. The person must know to read the Monetary Units Act 2004 to locate the relevant section which refers to the publication of the notice in the Government Gazette. A lawyer would find it difficult and a non lawyer would find it extremely difficult. The person must then go the relevant issue of the Government Gazette, find the notice and the value of the fee unit. The person must then go back to original Regulations and calculate the value of the fee accordingly. The question is one of accessibility for the average person. It is arguable that the Regulations require contravene section 21(1)(i) in that they require explanation as to form or intention.

The Subcommittee is of the firm view that there ought to be some easy way in which a person can find out precisely what a fee unit in a particular year or moment means in terms of the fees to be paid. This is necessary since it is not possible to understand this from the ordinary reading of the legislation. A list provided by a Department would not necessarily solve the problem. Not everyone goes to a Department to obtain information. Such information should be easily understood from reading the legislation itself. A practical problem has arisen which requires careful consideration and resolution.

The Subcommittee looks forward to your response.

Please do not hesitate to contact me should you wish to discuss any of the above.

Minister's Response[55]

Thankyou for your letter of 2 December 2004 seeking advice on how the average person understands what fees (expressed in fee units) are applicable in the above Regulations.

Parliamentary Counsel has advised on this matter as follows -

"The Monetary Units Act 2004 makes provision for an annual rate of increase in fee units and penalty units. This is broadly based on the CPI and the rate is not required to be published.

The Monetary Units Act 2004 makes provision for publication of the value of a fee unit in the Government Gazette. For the financial year commencing on 1 July 2004, there was a special transitional provision overriding section 6 providing that the value of the fee unit was not required to be published in the Government Gazette until 1 July 2004.

However section 10 of that Act also requires the Minister responsible for administering a statutory rule that provides for fee units to take reasonable steps to ensure that notice of the monetary amounts of the fees calculated in accordance with section 7 is notified to the public generally or to the sector of the public likely to be affected by the fee.

I understand the fees in the regulations commented on were subject to a RIS and were expressed in both fee units and monetary amounts for the purposes of the RIS and the exposure draft of the regulations. Consequently, the section 10 notification is satisfied for those initial fees."

The Department of Treasury and Finance supports the view of Parliamentary Counsel and has advised -

"The appropriate method of advising fee increases will very depending on the fee. The issue of notification of the new value of a fee and penalty unit was debated when the Bill was introduced and it was determined that publishing the new value of a fee and penalty unit in the Government Gazette was sufficient notification of the new values.

As for specific fee increases, it is the responsibility of the Minister to take reasonable steps to ensure that notice of the monetary amounts of the increased fees are notified to the public generally or to the sector of the public likely to be affected by the fee. Depending on the fee, newspaper or website notification may be suitable, other examples that have been mentioned are industry bulletins and club newsletters."

For future years and fee increases without a RIS, the Department will ensure that reasonable steps are taken to give notice of the monetary amounts of the increased fees to the public generally or to the sector of the public likely to be affected by the fee by publishing the fees in newspapers, website notification, industry bulletins and newsletters.

Please contact my adviser Rachael Joiner on 9637 8000 if you wish to discuss the matter further.

Example 2: SR 88 - Monetary Units Regulations 2004

These Regulations converted various fees and fines into penalty units.

Subcommittee's Letter[56]

The Regulation Review Subcommittee considered the above regulations at a meeting on 29 November 2004.

Section 21(1)(i) of the Subordinate Legislation Act 1994 - requires explanation as to its form or intention

The Committee has a general power of review pursuant to section 21 of the Subordinate Legislation Act 1994. Section 21(1)(i) of the Subordinate Legislation Act 2004 provides as follows:-

21 - Review of statutory rules by the Scrutiny Committee

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

………

(i) requires explanation as to its form or intention.

The Regulations converts fee and penalties in some 57 Regulations in total.

How does the average person understand the Regulations? How does the average person work out what fee is applicable?

One important issue in respect of the Regulations is the manner in which the fee is expressed. Generally, the fee is expressed as a fee unit rather than a monetary figure. For the average person reading the Regulations this represents a real problem. For example, in the Estate Agents (Fees) Regulations the old "$125.00" refer to 12.5 fee units. What exactly does this mean to the average person?

To find out just what the fee unit means, the average person must first know to read the Monetary Units Act 2004. How does one know this exactly unless you are a lawyer or a person with resources? Even a lawyer would not necessarily find this knowledge particularly easy to acquire. The person must then examine sections 5 and 6 of the Monetary Units Act 2004. The relevant extracts are set out:-

5. Calculation of value of fee and penalty units

(1) The value of a fee unit is the amount fixed with respect to a financial year by the Treasurer by notice published in the Government Gazette.

(2) The value of a penalty unit is the amount fixed with respect to a financial year by the Treasurer by notice published in the Government Gazette.

6. Notification of values of fee and penalty units

Before 1 June in each year the Treasurer must publish in the Government Gazette and in a newspaper circulating generally throughout Victoria notice of-

(a) the value of the fee unit that is to apply for the financial year commencing on 1 July in that year; and

(b) the value of the penalty unit that is to apply for the financial year commencing on 1 July in that year.

The Subcommittee's view is that it extremely difficult, indeed almost impossible for the average person to work out what fee they are actually required to pay. There is no clear reference in the Regulations to the Monetary Units Act 2004 in the first place other than it as an authorising Act. The person must know to read the Monetary Units Act 2004 to locate the relevant section which refers to the publication of the notice in the Government Gazette. The person must then go the relevant issue of the Government Gazette, find the notice and the value of the fee unit. The person must then go back to original Regulations and calculate the value of the fee accordingly. The question is one of accessibility for the average person. This raises an issue in respect of the Subcommittee's terms of reference under section 21(1)(i) of the Subordinate Legislation Act 1994 in that the Regulations may require explanation as to form or intention.

The Subcommittee is of the firm view that there ought to be some easy way in which a person can find out precisely what a fee unit in a particular year or moment means in terms of the fees which are to be paid. This is necessary since it is not possible to understand this from the ordinary reading of the legislation. A list provided by a Department would not necessarily solve the problem. Not everyone goes to a Department to obtain information. Such information should be easily understood from reading the legislation itself. A practical problem has arisen which requires careful consideration and resolution.

The Subcommittee looks forward to your response.

Please do not hesitate to contact me should you wish to discuss any of the above.

Minister's Response[57]

I refer to your letter dated 2 December 2004, regarding the monetary Units Regulations 2004 (the Act).

Your letter raises the following concerns:

1) How does the average person understand the regulations? and

2) How does the average person work out what fee is applicable?

The Treasurer publicly advertises the value of a fee unit and penalty unit to apply each year. This ensures public notification of changes in the value of the fee unit and penalty unit.

The Act makes provision for publication of the value of a fee unit and penalty unit in the Government Gazette before 1 June in relation to the following financial year. For the financial year commencing on 1 July 2004, there was a special transitional provision overriding section 6 providing that the value of the fee unit was not required to be published in the Government Gazette until 1 July.

It is recognised that the Act also explicitly requires that the responsible Minister take reasonable steps to ensure that notice of the monetary amounts of the fees calculated in accordance with section 7 be notified to the public generally or to the sector of the public likely to be affected by the fee. This type of accountability has always existed, and mechanisms that have previously been used by Departments to advise customers of particular fees will continue to be utilised.

I trust that this clarifies that adequate mechanisms are in place to allow the average person to find out what fee they are actually required to pay.

(f) Other matters - general clarification

Often the Subcommittee considers the overall operation of a regulation. It may consider just how the regulation works in practice. The Subcommittee sometimes writes to a Minister seeking general clarification of various matters. For instance, how long after leaving a vehicle is a person obliged to carry a ticket to be checked? The Subcommittee sought clarification of the practical matters raised in respect of ticketing in SR 28 Transport (Infringements)(Amendment) Regulations 2004. The range of matters raised by regulations can vary enormously. In the case of SR 63 Prevention of Cruelty to Animals (Amendment) Regulations 2004, the Subcommittee sought advice on how choker collars worked in relation to larger dogs. It also sought clarification of the scientific research relied upon to make the assertion that there was sufficient evidence to prohibit pronged collars.

Example 1: SR 28 - Transport (Infringements)(Amendment) Regulations 2004

These Regulations made provision for the payment of administrative costs of $20 to a passenger transport or bus company in respect of ticket infringements.

Subcommittee's Letter[58]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 31 May 2004.

The Regulations make provision for the insertion of a new offence which specifically relates to the checking of tickets after a person has left a vehicle. The current words in Column 2 of Part 2 (Infringements) are "unable to produce a valid ticket while making a journey". Under the new rules the words have been amended to "unable to produce valid ticket".

The Regulation Review Subcommittee seeks your advice as to how it is proposed this operates in practice. How long after leaving a vehicle is a person obliged to carry a ticket? When is it to be checked? Under what circumstances is it envisaged this offence will occur?

The Regulation Review Subcommittee seeks your response within 14 days as it operates under strict time limits pursuant to the Subordinate Legislation Act 1994.

Minister's Response[59]

I refer to your letter dated 31 May, 2004 addressed to the Minister for Transport. I am the officer responsible for the above Regulations and have been requested to respond to your letter.

The working in Column 2 of the last item in the Table in regulation 201 of the Principal Regulations was changed to "unable to produce a valid ticket" so that the one item could cover the related ticket offences in sections 221(4) and 221AA(2). Section 221(4) is the basic ticket offence section, requiring a person to produce a valid ticket on request by an authorised officer. Section 221AA(2) requires a person, who has "just left" public transport land or a tram, train or bus to produce their ticket if asked to do so by an authorised officer. Section 221AA(2) came into effect on 3 December, 2003 and was included in the Act to overcome the effect of a previous Supreme Court decision. The items are included in the one item of the Regulations because they are related and similar ticket offences.

In practice, the authorised officers working on trams have been instructed to request tickets either while the passenger is on the vehicle or, if the officer is on the tram stop as the tram arrives, to ask passengers as they leave the vehicle to pause on the tram stop (either road side, or on the super-stop or safety zone) and produce their ticket for inspection. Passengers are not required to continue to carry their ticket any longer than that approach requires. This issue has been subject to substantial discussion and consideration and it was decided that any attempt to limit the offence enforcement frame by distance or time would lead to absurdities, particularly because of the various types of tram stop and circumstances which might apply. It was decided that the most reasonable approach would be for officers to require a ticket to be produced only as or immediately after a person left a tram.

The specific offence was included in the Transport Act to overcome the common situation where a person travelling without a ticket, on seeing authorised officers board a tram, immediately alights from the vehicle. In the Orlowski matter in the Supreme Court, the Court held that the power to require production of a ticket did not extend beyond the completion of the journey. The Department received very strong legal advice from Counsel that the decision was wrong in law, but senior Counsel advised that rather than appeal to the Full Court of the Supreme Court, it would be preferable to clarify the legislation.

Officers have been instructed not to pursue passengers who leave the tram stop or cross the road in the other direction after failing to produce a ticket on request. The safety of staff and passengers is regarded by both the Government and by Yarra Trams as being of paramount importance.

Officers checking the tickets of train travellers either check tickets on the vehicle or as passengers leave the platform or station premises via the ticket barrier. The amendment to the provision in the Act and the change to the infringement regulation have not resulted in any change to the way in which tickets are checked at railway stations.

Please do not hesitate to contact me if there are any further queries.

Example 2: SR 63 - Prevention of Cruelty to Animals (Amendment) 2004

These Regulations prohibited the use of certain procedures and devices on animals. They prohibited the use of pronged collars on dogs and the use of electronic training collars. They prohibited the possession of dog or cock fighting implements and updated certain references.

Subcommittee's Letter[60]

The Subcommittee considered and deferred approval of the above Regulations at a meeting on 27 September 2004 pending your response to the matters raised in this letter.

Pronged (pinch) collars

The Regulations prohibit the use of pronged (pinch) collars.

The Subcommittee seeks your advice in respect a number of matters.

(1) The RIS at page 12 discusses the use of pronged collars and refers to their use to control dogs that are large relative to their owner's size. In terms of larger dogs, what sort of dogs is it envisaged this covers?

(2) The RIS and submissions refer to choker collars. What precisely are choker collars and how do they work particularly in relation to larger dogs?

(3) Almost 50% of the submissions refer to the prohibition of pronged collars. They suggest that pinch collars are safer and more effective than choker chains in powerful dogs. The Department's response to this in its 3 page summary of the main issues is "Inappropriate selection of dog for person. Generally owners of Rottweilers and larger active dogs that cannot be physically controlled without this device being used constantly. Absence of permanent behaviour change in most depositions". The Subcommittee is of the view that issue is not the inappropriate selection of a dog for a person but rather whether pronged (pinch) collars are of assistance in controlling such dogs. In that regard why are choker collars allowed and pronged collars prohibited? Do pronged collars assist with the control of larger dogs?

(4) The Department sent a standard letter of response to those who made submissions. It states that: -

Although each submission was individually considered, the major criticisms of the RIS and/or proposed Regulations were:

Pinch collars were safer and more effective than choker chains in powerful dogs…

Following consideration of the submissions received and a review of the published research papers available it was considered that there was sufficient evidence and public opinion to conclude that the use of pronged collars should be prohibited and the use of electronic dog collars should be regulated to require veterinary practitioner and dog trainer involvement before use.

Upon what scientific research is it relied to make the assertion there is sufficient evidence that pronged collars should be prohibited?

The Subcommittee would appreciate your immediate response so that it may further consider the Regulations.

Minister's Response[61]

Thank you for your letter of 27 September 2004 (Ref SR 63-2004), in which you request additional information with regard to the Prevention of Cruelty to Animals (Amendment) Regulations 2004.

A. What size of dogs is it envisaged that pronged collars should be useful for?

The issue is one of relative physical size and strength between the owner and the dog. Pinch collars are advertised in standard sizes ranging from 35 cm to 65 cm in circumference. Links may be added or removed to fit the standard lengths to a particular dog. It is therefore possible to fit them to any size dog. They are advertised for use in sporting and hunting breeds in particular. The Bureau of Animal Welfare is aware of significant use in more powerful medium to large companion dogs, e.g. Rottweilers and Dobermans.

B. What are choker collars?

The attached photo 'trgcollars.jpg' compares a choker collar on the left with two types of prong (pinch collars) on the right. Essentially the choker collar is a loop of smooth link chain (sometimes of synthetic material such as nylon that may be reinforced) placed around the neck that can be shortened and tightened by pulling on the attached lead. Advice on their use include statements such as 'A choke chain must be used correctly to be effective and human'. The risk with these collars is that they may be jerked too sharply or harshly closed on the neck and cause injury to the larynx, trachea and throat areas of the dog.

C. The issue of use of pinch (pronged) collars in dogs relates to control of large dogs rather than inappropriate selection of those dogs?

Examples of pinch (pronged) collars and their fitting are attached. They are reportedly designed to mimic the teeth of another dog giving a corrective bite. By pulling on a sliding chain the prongs on a second chain are raised and forced into the neck of the dog.

Suppliers of these devices arranged for a number of standard submissions to the RIS public consultation from their clients, in particular from Rottweiler owners in Victoria and overseas. For example, of 55 submissions suggesting that pinch collars were more humane than choker chain collars 14 were late submissions from Victoria and 27 were from overseas addresses, mainly the USA, who appeared to be involved with Rottweiler breeding organisations or trainers.

The issue for discussion in the RIS in terms of animal welfare regulations was specifically the peculiarities of the use of pronged collars of any type on any animal. Animal welfare organisations (e.g. Australia Veterinary Association, Victorian Canine Association, RSPCA and the Animal Welfare Advisory Committee) objected to pronged training devices and pointed to their use on dogs as a major example. Most dog training organisation during stakeholder consultation pointed out that these devices should be viewed as unnecessary training methods that were potentially cruel. They also viewed choker collars in the same way. But the issue brought forward for consideration was for a ban on the use of pronged collars on animals.

Users of these collars submitted that they believed they were an effective tool for training of dogs that they previously could not control. There appeared to be no recognition of the manner of operation of the prongs on the skin and upper neck of the dog.

Dog training and animal welfare organisations pointed to the device's negative training purpose (punishment) and design intended to push metal points increasingly into the skin and underlying tissues of the upper neck where dogs are most sensitive. They are difficult to maintain high on the neck as required when used, are liable to cause skin injury if not fitted and used correctly, and are generally viewed by mainstream dog trainers as liable to cause injury when other training techniques are recommended.

The relative merits between two negative reinforcement devices was not considered. The issue was broader than use merely on dogs, although pronged collar use in dogs was the central issue discussed by stakeholders. The protection of the welfare of the animal was the prime consideration.

D. What scientific evidence was relied on to asset that pronged collars should be prohibited?

In the specific case of pronged collar use on dogs there was no published research papers available in peer reviewed literature. Reliance was therefore placed on public opinion and that of professional organisations such as the Australian Veterinary Association, approved dog training organisations such as the Victorian Canine Association, and animal welfare organisations as to whether the devices were a risk to the welfare of animals, irrespective of their reported effectiveness by users.

For your consideration.

Example 3: SR 79 - Plumbing (Water and Energy Savings) Regulations 2004

In respect of this Regulation the Subcommittee made general comments in respect of the RIS. Although it was not considered to have significant defects the Subcommittee reminded the Minister of the importance of compliance with the consideration of alternatives in respect of a RIS.
The Regulations made further provision for water savings and energy efficiency measures. In respect of new houses they provided for the reduction in flow rates, reduction in water pressure in buildings and for the use of water from the roof catchment areas.

Subcommittee's Letter[62]

The Subcommittee considered and approved the above Regulations at a meeting on 27 September 2004.

Pursuant to section 10(1)(c) of the Subordinate Legislation Act 1994 a Regulatory Impact Statement (RIS) must include:-

A statement of other practicable means of achieving those objectives, including other regulatory as well as non-regulatory options.

The RIS at page 30 assesses the various alternatives in respect of the Regulations.

The RIS refers to allowing the market place to determine the issues. However further expansion of this would have been helpful to the Subcommittee in its deliberations. The conclusion that is reached in the RIS that there is no alternative to the proposed Regulations does not necessarily follow on from the previous discussion of long term benefits and standards of plumbing work.

The Subcommittee is of the view that consideration may have been given to alternatives such as:-

A voluntary code of compliance;
No regulation.

These are normally considered as obvious alternatives to regulation.

The Subcommittee is of the view that it is important that a RIS discusses alternatives to regulation properly and fully. The Subcommittee draws your attention to these matters for future reference.

Minister's Response[63]

I am responding to your letter of 28 September 2004 regarding the above Regulations.

I am pleased that the Regulation Review Subcommittee has approved the Regulations.

Your comments regarding alternatives that should be considered as part of the Regulatory Impact Statement (RIS) will be considered in any future RIS in respect of regulations within my portfolio.

Thank you for your approval and comments made.

(g) National Competition Policy Certificates and Accompanying Assessments

This year the Subcommittee has been troubled by the manner in which National Competition Policy Certificates and Assessments have been handled. The requirements in respect of a National Competition Policy Certificate and the particular form of words to be used are quite clear. They are set out in Part 14, 14.4, 14.5 and Attachment C in the Premier's Guidelines. On several occasions, the incorrect form of words have been used. The other problem is that there is no accompanying assessment attached to the Certificate. It is clear that such an assessment should be attached to the Certificate. The Subcommittee's strong view is that any assessment simply presented as part of the RIS and then referred to in the certificate does not comply with the Premier's Guidelines.

To that end, the Subcommittee received correspondence, the text of which is set out below in respect of SR 16 - Marine (Designated Ports) Regulations 2004. The correspondence suggested that the view of the Office of Regulation Reform is that mere referral to the assessment in a RIS is sufficient compliance with the Premier's Guidelines. The Subcommittee's view is that it has a statutory charter to ensure compliance with legislative requirements. The Office of Regulation Reform may well express a view which is contrary to or different from the Subcommittee's view. However, ultimately it is the Subcommittee which has charter to report to Parliament any potential breaches of the Act, not the Office of Regulation Reform. To that end, the Subcommittee will of course consider any material put forward by the Office of Regulation Reform. Ultimately, it will however form its own independent views after considering its responsibilities and the matter for resolution before it.

Example 1: SR 16 - Marine (Designated Ports) Regulations 2004

These Regulations provided for more effective management of designated ports, they consolidated the port manager's power and the current port rules. They also allowed penalties to be levied for specified offences.

Subcommittee's Letter[64]

The Regulation Review Subcommittee (the Subcommittee) met to consider the above Regulations at a meeting on 19 April 2004.

The Subcommittee has deferred consideration of the Regulations.

(1) National Competition Policy Certificate - incorrect form of words used

The requirements in respect of a National Competition Policy Certificate of Compliance are clearly set out in Part 14 and 14.4 and 14.5 of the Premier's Guidelines. The particular form of words is set out in Attachment C. The relevant parts of the Guidelines are set out: -

"14.4 Before a proposed statutory rule will be considered by the Governor in Council, the Minister must issue a certificate in the form of Attachment C to these guidelines stating that an assessment consistent with the requirements of these guidelines and the Premier's Guidelines for the Application of the Competition Test to New Legislative Proposals has been made of the provisions of the proposed statutory rule and that: -

The proposed statutory rule does not contain a restriction on competition; or

The proposed statutory rule does contain a restriction(s) on competition but satisfies the Guiding Legislative Principle

14.5 The certificate, with the documentation of the assessment attached, must be provided to the Clerk of the Executive Council."

The Subcommittee notes firstly that the completely incorrect form of words is used in the Certificate of Compliance.

(2) Accompanying assessment - not attached to certificate

The other problem is that there is no accompanying assessment attached to the certificate.

The Subcommittee made preliminary enquiries of the relevant officer as to the accompanying assessment. The Subcommittee understands that there is no separate assessment. Any such assessment was presented as part of the text of the regulatory impact statement.

The effect of the above is that it appears to the Subcommittee that there has not been compliance with the Premier's Guidelines in respect of the National Competition Policy and Assessment.

The Subcommittee would appreciate immediate rectification of this matter.

Minister's Response[65]

Thank you for your letter of 19 April 2004 and 31 May 2004 in relation to the Regulation Review Subcommittee consideration of SR 16 - Marine (Designated Ports) Regulations 2004.

Advice has been sought from the Office of Regulation Reform (ORR) on this issue. The ORR has advised that the use of the phrase "in the form of" in the Guidelines suggests that it would be acceptable for words to the same effect to be used. The ORR has reviewed the documents submitted to the Governor in Council, and indicated that they do not believe that the requirements of the Subordinate Legislation Act 1994 or the Guidelines have been compromised.

The ORR has also confirmed that it is appropriate for the National Competition Policy (NCP) assessment in the Regulatory Impact Statement (RIS) to serve as the "documentation of the assessment" requirements of the Premier's Guidelines. The ORR has drawn the Department's attention to the fact that the NCP assessment in the RIS is required to be "adequate" for the purposes of the Subordinate Legislation Act 1994, this is, to follow the Premier's Guidelines Tests for Restrictions on Competition.

However, in order to allay an concerns the Committee may have in relation to the compliance with NCP requirements I have endorsed a further certificate which follows the wording of the Attachment C exactly, and which includes a separate attachment detailing the NCP assessment.

I trust that this satisfies the Committee's concerns.

Example 2: SR 44 - Drugs, Poisons and Controlled Substances (Division 2 Nurses Amendment) Regulations 2004

These Regulations added a category of persons registered in Division 2 of the register of nurses whose registration has been endorsed under section 8C of the Nurses Act 1993.

Subcommittee's Letter[66]

The Regulation Review Subcommittee approved the above Regulations at a meeting on 30 August 2004.

(1) National Competition Policy Certificate - SR 44-2004

The Regulation Review further considered SR 44-2004 Drugs, Poisons and Controlled Substances (Division 2 Nurses Amendment) Regulation 2004. An issue was raised in respect of the National Competition Policy Certificate.

Strictly speaking, the RIS is not attached to the certificate and there is no assessment as required by the Premier's Guidelines. A mere reference to a particular section does not constitute compliance in terms of the attached certificate and assessment required. What is required is a certificate in the proper form and an accompanying attachment/assessment which demonstrates that the proposed legislation does not restrict competition. To further complicate matters, in the RIS provided to the Committee the statement of compliance with National Competition Policy is in fact set out in section 12 at page 21 not section 7 as suggested by the original certificate of compliance.

The Subcommittee would appreciate rectification of this matter.

(2) Undated Certificates - SR 44 -2004

The Subcommittee notes that that National Competition Policy Certificate and the section 10(4) certificate are undated. The Subcommittee would also appreciate rectification of this.

(3) SR 43-2004 and SR 44-2004 - Minister's response

The Subcommittee received correspondence from the Minister in respect of both these Regulations addressing matters raised in submissions. The detailed nature of the Minister's response assisted the Subcommittee considerably in respect of its consideration of these Regulations. The Subcommittee wishes to acknowledge the work and thank the Minister for her clarification of many matters.

Minister's Response[67]

Please find enclosed the additional documentation requested by the Subcommittee in relation to the above regulations.

I trust this satisfies the Subcommittee's requirements.

Assessment against the Guiding Legislation Principle on Competition National Competition Policy tests

1. Relevant Government policies and guidelines

1.1 National Competition Policy

In April 1995, the Commonwealth, State sand Territories agreed to the implementation of the National Competition Policy. As part of the agreement, all jurisdictions have agreed to accept the guiding principle that legislation should not restrict competition unless it can demonstrate that:

(a) the benefits of the restriction on competition, if any;

(b) the objectives of the legislation can only be achieved by restricting competition.[68]

To successfully pass the competition and cost-benefit tests, for each proposed Regulation, it is necessary to:

Step 1: Identify the restriction on competition, if any;

Step 2: Show that the restriction, if any exists, is necessary to achieve the objective;

Step 3: Assess the costs to the community caused by the restriction;

Step 4: Assess the community benefits; and

Step 5: Assess whether the benefits outweigh the costs.

If no restriction on competition is found in the course of Step 1, it is not necessary to complete the remaining steps (that is, Steps 2 to 5).

1.2 Competitive Neutrality Policy

The Government of Victoria is also a party to the inter-governmental Competition Principles Agreement (CPA), which is one of the three agreements that collectively underpin the National Competition Policy (NCP). The Victorian Government is committed to the ongoing implementation of the NCP in a considered and responsible manner. This means that public interest considerations should be taken into account explicitly in any Government decisions on the implementation of the NCP.

Competitive neutrality is about ensuring that the significant business activities of publicly owned entities compete fairly in the market when it is in the public interest for them to do so. It is about transparent cost identification and pricing in a way that removes net cost advantages arising from public ownership.

Competitive neutrality policy does not apply to non-business, non-profit activities of government.[69]

No fees or other revenues are obtained from division 2 registered nurses, administering, or possessing drugs, poisons and controlled substances.

2. Identification of markets

A market is defined as:

"The organisation in which the co-ordination of specialised economic units occurs as a consequence of individual agents interacting as buyers and sellers for the purpose of facilitating exchange".[70]

A market is deemed to be perfectly competitive if it exhibits the following characteristics:

It has many buyers and sellers;
All businesses sell a substitutable product or service;
There is ease of entry into and exit from the industry for businesses; and
Buyers are perfectly informed about alternative choices.

While few markets are perfectively competitive, the key characteristics of competitive markets are substitutability of products and services and mobility between buyers and sellers.[71]

The key groups that could be affected by the proposed regulations are:

Patients of a health service requiring administration of scheduled drugs and poisons who would otherwise have medications administered by a nurse registered in division 1, 3 or 4, and
Nurses registered in divisions 1, 3 or 4 who would otherwise have been required to administer patient medications in a health service setting.

The current drugs, poisons and controlled substances legislation imposes considerable barriers to competition both in terms of who can participate in the market (market access) and also in the manner in which they can participate (business conduct).

Market Access

The market access controls limit who can participate in the market by:

Restricting consumer access to certain substances (i.e. the need to obtain a prescription from an authorised prescriber and the requirement within health services for administration of drugs and poisons by a more costly nurse registered in division 1, 3 or 4).
Placing barriers on access to the market, (i.e. only those who hold specified qualifications).

Current legislation (the Drugs, Poisons and Controlled Substances Act 1981 - "the Act") prevents anyone, other than a registered medical practitioner, pharmacist, veterinary practitioner or a nurse (division 1, 3 or 4) for administering or possessing products containing scheduled substances in a health service. By precluding competition from others, these restrictions can be expected to result in higher costs for services than if there were open competition. These higher costs are likely to be paid by the consumer in obtaining the service (i.e. through the need to employ a nurse registered in division 1, 3 or 4 to administer medications) and by government who provides funding to health services to purchase nursing services.

The also limit consumer access, making it more difficult and more costly (in time, convenience and money) for consumers in health services to be administered products containing scheduled substances.

Business Conduct

Current drugs poisons and controlled substances legislation also imposes a number of controls on the business conduct of those who enter the market. As described above, these controls cover such matters as advertising, labelling and packaging as well as manufacturing, storing and handling products. For some substances there are also requirements for recording and reporting.

These restrictions pose significant limitations on competition.

While there are restrictions on competition contained in the primary legislation and other parts of the Regulations, these specific regulatory amendments are part of a total package of reform that is pro-competitive. They increase the range of health care professionals in a health service who are authorised to administer and possess certain drugs.

These specific regulatory amendments are targeted primarily at:

Ensuring consistency in approach in regulating the administration and possession of drugs by nurses in a health service;
Enhancing the efficiency with which nursing resources are used, by improving staffing flexibility for employers of nurses;
Providing improved career development though training and employment opportunities for division 2 nurses; and
Moving toward achieving national uniformity in the scope of practice for division 2 nurses.

These issues do not involve any significant restrictions on competition. These amendments simply require endorsed division 2 nurses to follow the same processes as all other authorised health care professionals who administer medications in health service settings.

The restriction to endorsement of registration of division 2 nurses (reflecting training and qualifications) is in the public interest to ensure patient and community safety. The discussion on alternative approaches in the Regulatory Impact Statement demonstrates that the objectives of this policy cannot be achieved without restricting competition.

Quality of care will continue to be assured due to the requirement that only those division 2 nurses that have undertaken appropriate training will be able to possess and administer Schedule 4, 8 and 9 medicines in the circumstances covered by the principle regulations, and subject to professional standards of practice.

3. Tests to restriction on competition

3.1 How the proposal will affect key groups and markets

The proposed Regulations provide for the orderly administration and possession of drugs, poisons and controlled substances by endorsed division 2 nurses thereby expanding the range of nurses who may administer poisons and controlled substances in a health service.

3.2 Deemed restrictions on competition

Under the Guidelines for the application of the Competition Test to New Legislative Proposals, legislative schemes are deemed to contain restrictions if they:

Allow only one company or person to supply a good or service (monopoly);
Require producers to sell to a single company or person (monopsony);
Limit the number of producers of goods or services (duopoly or oligopoly);
Limit the output of an industry or individual producers;
Limit the number of persons engaged in an occupation.

The possible markets are not restricted by the proposed Regulations as the Regulations provide for an increase in competition and consumer choice therein opening up the market to new entrants.

Extant drugs, poisons and controlled substances legislation was nationally examined in 2001 with a number of restrictive practices being identified. Issues identified within the Victorian Drugs, Poisons and Controlled Substances Act 1981 have since been the subject of legislative amendments. Non-competitive issues identified with respect to the Regulations will be dealt with in the course of the obligatory 10 year review of the Regulations as required under the Subordinate Legislation Act 1994.

3.3 Restrictions imposed through a statutory prohibition or licensing or accreditation schemes that create a barrier to market entry

The Act, through defining which persons are relevantly qualified, and hence authorised, to obtain, possess, use, sell, administer or supply scheduled poisons, hands over the function of defining lawful conduct of each of the professional groups to the Regulations. The proposed regulations establish the parameters of what constitutes lawful practice endorsed division 2 nurses with this being consistent with other nurses currently authorised to administer and possess scheduled drugs and poisons in a health service. Hence, the inclusion of endorsed division 2 nurses into the cohort of authorised persons into the Regulations increases the size and nature of the market with this bringing about a decrease in the restrictions to competition.

In summary, the proposed regulations do not impose restrictions on competition.

(h) Section 9(1)(a) - Is there any appreciable economic or social burden on any sector of the public?

Many regulations are accompanied by a section 9(1)(a) certificate of exemption which states that they do not impose an appreciable economic or social burden on any sector of the public. Paragraph 5.31 of the Premier's Guidelines set out the particular requirements in respect of the exemption certificates.[72]

In this context it is important to remember that the Minister not only has to provide the Scrutiny Committee with a certificate of consultation under section 6(c), but is required to give reasons as to why he or she is of the opinion that the proposed rule does not impose an appreciable economic or social burden on a sector of the public under section 9(2).

The Subcommittee takes the view that it is not sufficient to simply assert that there is no appreciable economic or social burden on a sector of the public in the exemption certificate. The Subcommittee expects that detailed reasons will be given as to why there is no appreciable economic or social burden on a sector of the public.

This year there have been no Regulations on which the Subcommittee has commented in respect of this matter. The Subcommittee acknowledges the high standard of the exemption certificates provided to it. The quality of the work presented to the Subcommittee has made its consideration of these matters easier. The detailed nature of the exemption certificates signifies to the Subcommittee a very real attempt to grapple with whether there "is an appreciable economic or social burden" imposed or not. The Subcommittee's is guided by the Premier's Guidelines. It also uses a common sense approach. Each Regulation will be considered in its context and on its merits.

Following are matters that the Subcommittee may consider in the context of a Regulation: -

What does this regulation do specifically?
Who does it effect?
How many people does it effect?
How does it effect them?
What is the extent of the effect?
Is there an economic burden imposed?
Is there a social burden imposed?
Are these burdens "appreciable"?

Below are some examples of section 9(1)(a) exemption certificates which set out detailed reasons for the exemption. The range is extensive.

Example 1: SR No 84 - Road Management (Interim) Regulations 2004

I, Peter Batchelor, Minister for Transport and Minister responsible for the administration of the Road Management Act 2004 certify under section 9(1)(a) of the Subordinate Legislation Act 1994 that, in my opinion, the proposed Road Management (Interim) Regulations 2004 do not impose an appreciable economic or social burden as a sector of the public and are therefore exempted from the requirements to prepare a Regulatory Impact Statement under section 7 of that Act.

The proposed Road Management (Interim) Regulations 2004 are required to support the introduction of certain provisions of the Road Management Act 2004 ("the Act") by providing for the matters detailed below. My reasons supporting this exemption in relation to each Part of the proposed Regulations are explained under each heading.

Review and amendment of road management plans

Part 2 of the Regulations makes provision in relation to the review and amendment of road management plans by a road authority under Division 5 of Part 4 of the Act.

Under section 49 of the Act, a road authority may develop and publish a road management plan. If a road authority decides to develop and publish a road management plan, section 54(5) of the Act requires that it must be reviewed, in accordance with the regulations, at intervals to be prescribed by the regulations. For these purposes, regulation 4 prescribes a review procedure and prescribes an interval of 4 years.

Section 54(6) of the Act provides that a road authority may amend its road management plan in accordance with the regulations. Regulations 5 to 8 set out the procedure to be followed for the purposes of this section.

It is clear under section 49 of the Act that the making of a road management play by a road authority is voluntary. However, if a road authority decides to make a road management plan, the act imposes an obligation on the road authority to periodically review, and, if necessary, amend that plan in accordance with the Regulations.

Consultation with road authorities has indicated that 4 years is an appropriate period for the review of road management plans. In the cases of municipalities, 4 years is consistent with the review period of Council Plans prepared under section 125 of the Local Government Act 1989. Further, some road authorities have indicated that they already have road management plans in place, and in many cases, they are being reviewed on an annual basis. The 4 year interval is therefore not considered an onerous obligation. It should also be noted that the review interval is being prescribed to fulfil the requirements of section 54(%) of the Act. However, as the review period is 4 years, no road authority will in fact be obliged by these Regulations to actually carry out a review before these Regulations expire on 1 January 2005. It is intended that further regulations will be developed and put in place by that date which will deal with this issue on an ongoing basis.

Likewise, the procedure prescribed for the review and amendment of road management plans has been determined in consultation with road authorities and is consistent with the practice required by the Act in respect of the making of road management plans. These processes ensure that there is an opportunity for interested persons to examine, and have input to, proposals relating to the review or amendment of road management plans that propose to diminish road maintenance standards.

The public notice and consultation procedures for road management plan amendments are modelled on the procedures set out in the Act for the making of the plans themselves. These procedures will ensure that there is proper consultation on amendments to road management plans that affect road maintenance standards, and will ensure amendments to road management plans will be publicly available in the same way as the plans themselves.

The public notice and consultation procedures will apply to amendments that affect the standards of road maintenance determined by a road authority. However, the procedures will not apply to purely machinery changes, such as the deletion from a road management plan of a closed road, or where the road authority is proposing to increase the standard of maintenance. In particular, the procedures in regulation 6 do not apply if the chief executive officer of a road authority certifies in writing that the proposed amendment to the plan results in the determination under section 41 of the Act of a standard and -

(a) that standard is higher than a relevant standard previously determined under section 41 of the Act;

(b) the determination of that standard only deals with administrative procedures within or between road authorities; or

For the reasons described above, the interval and procedures that the Regulations prescribe are not considered to impose an appreciable economic or social burden on a sector of the public.

Notices of incidents for claims relating to condition of road

Part 6 of the Act makes provision in relation to civil liability and proceedings relating to road management. Section 115 of the Act requires a person who wishes to make a claim against a road authority in relation to the condition of the road to provide a notice of claim to the relevant authority. This will enable the road authority to take remedial action to remove a hazard, if necessary, and will enable the authority to prepare a condition report (see section 116) for the purposes of future proceedings.

Section 115 also requires the notice to contain the particulars prescribed by the regulations. Part 3 of the Regulations prescribes the details that must be included in a notice of an incident to a responsible road authority for the purposes of section 115. The details required are only those that are plainly required to inform the road authority of the person giving the notice plus sufficient details of the incident itself to enable a condition report to be prepared under section 116. In particular, the regulations will require that a notice contain:

the claimant's name and address;
the signature of the claimant or the person lodging it on his/her behalf;
the date of the notice;
a description of the incident; and
a description of the road or infrastructure concerned, sufficient to enable it to be identified.

Again, this Part is of an essentially administrative nature and is necessary to give effect to the obligations imposed by the Act. As such, it does not impose an appreciable economic or social burden on any sector of the public.

Sunset on 1 January 2005

These Regulations will be revoked on 1 January 2005. A consolidated set of regulations to give effect to a range of matters under the Act will be developed over the coming months and a Regulatory Impact Statement prepared as required under the Subordinate Legislation Act 1994. The matters covered by these Regulations will be absorbed into this larger consolidated set which are expected to take effect with the remaining provisions of the Act on 1 January 2005.

Example 2: SR 105 - Occupational Health and Safety (Mines)(Amendment) Regulations 2004

I, Rob Hulls, Minister for WorkCover and Minister responsible for administering the Occupational Health and Safety Act 1985, certify under section 9(1)(a) of the Subordinate Legislation act 1994 that, in my opinion, the proposed Occupational Health and Safety (Mine) (Amendment) Regulations 2004 would not impose an appreciable economic or social burden on any sector of the public.

The effect of the proposed Occupational Health and Safety (Mine)(Amendment) Regulations 2004 is to transfer the regulation of the use of sodium cyanide in mines from the Occupation Health and Safety (Major Hazard Facilities) Regulations 2000 (hereinafter called the MHF Regulations) to the Occupational Health and Safety (Mines) regulations 2002 (hereinafter called the mines Regulations). The Mines Regulations were made in 2002 to address hazards particular to the mining sector whilst at the same time bringing that sector under the umbrella of OHS.

Administration of the Occupational Health and Safety Act 1985 and OHS regulations in mines is undertaken by the Department of Primary industries, with the exception that WorkSafe remains responsible for the administration of the MHF Regulations in all workplaces. Until recently, 200 tonne of sodium cyanide has resulted in only 20 tonne of sodium cyanide being required to constitute MHF status. This change means that a significant number of gold mines are now major hazard facilities under the MHF Regulations. When the MHF Regulations were made, there was no intention to regulate small gold mines as MHF's.

The proposed amendment removes use of sodium cyanide in gold mines from the MHF Regulations and amends the mines Regulations to include use of sodium cyanide in mines as a "mining hazard". Under the Mines regulations the operator of a prescribed mine is required to take account of the use of sodium cyanide when conducting a systematic Safety Assessment 9SA) and when implementing their "Safety Management System" for the control of risk associated with health and safety that is associated with mining hazards. The proposed amendment would mean that this issue will be covered by one regulation only, hence there is no increase in the overall compliance burden imposed on duty holders by this regulatory proposal. Rather, the regulatory proposal may actually lead to a decrease in compliance costs because it may relieve the duty holder of some regulatory burden with respect to obtaining a licence to operate as a MHF. The proposed amendment will also ensure that the Department of Primary Industries retains overall responsibility for OHS legislation in mines.

I have therefore concluded that under section 7 Subordinate Legislation Act 1994, a regulatory impact statement is not required for the proposed statutory rule.

Example 3: SR 126 - Transport (Passenger Vehicles) (Amendment) Regulations 2004

Nature and effect of proposed regulations

The effect of the proposed Transport (Passenger Vehicles) (Amendment) Regulations 2004 will be:

to amend the Transport (Passenger Vehicles) Regulations 1994; and
to extend the offence of drinking any alcoholic beverage or intoxicating liquor on a public commercial passenger vehicle or a public passenger vehicle operated for the purpose of a regular passenger service to being in possession of an open container of alcoholic beverage or intoxicating liquor.

Proposed operative date and the reason for that date

The proposed Regulations are to come into operation on 1 November 2004 to enable the Regulations to be brought to the notice of the public.

Exemption

I, Peter Batchelor, Minister for Transport, being the Minister responsible for administering the Transport Act 1983, exempt the proposed Transport (Passenger Vehicles)(Amendment) Regulations 2004 from the need to prepare a regulatory impact statement as required by section 7 of the Subordinate Legislation Act 1994, as I have formed the opinion that:

the proposed Regulations would not impose an appreciable economic or social burden on a sector of the public (section 9(1)(a) of the Act).

The reasons for forming this opinion are that the proposed Regulations:

do not have the characteristics of 'social burden' as they merely extend the offence of drinking any alcoholic beverage or intoxicating liquor on a public commercial passenger vehicle or a public passenger vehicle operated for the purpose of a regular passenger service to being in possession of an open container of alcoholic beverage or intoxicating liquor;
do not have the characteristics of 'economic burden' as they are not associated with commercial activity.

Example 4: SR 114 - Electricity Safety (Infringements) (Amendment) Regulations 2004

I, Theo Theophanous, Minister for Energy Industries, and Minister responsible for administering the Electricity Safety Act 1998, certify under section 9 of the Subordinate Legislation Act 1994 that the Electricity Safety (Infringements)(Amendment) Regulations 2004 in my opinion are exempted from the requirement to prepare a Regulatory Impact Statement under section 7 of that Act.

The reasons for forming this opinion are that the proposed rule provides the ability to issue infringement notices as an alternative to prosecution of certain offences under the Electricity Safety Act 1998 and certain regulations made under that Act. The proposed rule also omits references to offences under the Electricity Safety (Equipment Efficiency) Regulations 1999 that have been revoked.

Section 9 of the Subordinate Legislation Act 1994 enables the responsible Minister to exempt a proposed rule from the requirement to prepare a Regulatory Impact Statement. In my opinion, the Electricity Safety (Infringements)(Amendment) Regulations 2004:

would not impose an appreciable economic or social burden on a sector of the public (section 9(1)(a) of the Subordinate Legislation Act 1994). The proposed rule does not create any new offences or impose now obligations.
Is of a fundamentally declaratory or machinery nature (section 9(1)(c) of that Act). The proposed rule allows infringement notices to be issued in relation to further offences under the Electricity Safety Act 1998 and certain regulations under that Act.

The proposed rule will come into operation on the day on which the rule is made.

(i) The 'Basket Approach' - setting a package of fees

The following letter illustrates the Subcommittee's view in respect of "basket" approach set out in the 'new' Premier's Guidelines.[73]

SR 142 - National Parks (Fees and Charges) (Amendment) Regulations 2004

Subcommittee's Letter[74]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 21 February 2005.

The new Premier's Guidelines which were tabled on 9 December 2004 provide as follows: -

5.25 It is acceptable to make a statutory rule setting a package of fees. This is known as the 'basket approach'. However, the exception available in section 8(1)(a) does not apply if any individual fee component in the package exceeds the Treasurer's annual rate. It does not matter if the average fee increase across the package is less than the annual rate. If any individual fee is increased above the annual rate, a RIS process needs to be undertaken as the fee increase may have a significant and adverse impact on the community and business.

The Subcommittee notes that some of the fee increases exceed the Treasurer's approved rate of 2.25%. To that extent, the Regulations do not conform with the Premier's Guidelines. In this instance, the Subcommittee notes that the actual increases in monetary terms are small. However, as a matter of principle the Subcommittee wishes to reinforce its view that individual fees in a 'basket' package should not exceed the Treasurer's annual rate. The Subcommittee will continue to monitor such 'basket' packages closely in the future. The Subcommittee would appreciate it if you could advise the relevant policy officers of the foregoing.

Please do not hesitate to contact me should you wish to discuss any of the above.

(j) Commendations

On several occasions this year the Subcommittee has commended Ministers for the particular attention to detail in respect of the work presented to it. Such commendations are for properly drawn certificates. In another instance the Subcommittee acknowledged the significant work from the Department in responding to the large number of people and organisations who sent in submissions in respect of a particular regulatory impact statement.

Example 1: SR 4 - Estate Agents (General Accounts and Audit)(Amendment) Regulations 2004

Subcommittee's Letter[75]

The Regulation Review Subcommittee considered and approved the above regulations at a meeting on 15 March 2004.

The Subcommittee notes the detailed nature of the s 9 exemption certificate and the reasons given for the exemption. The Subcommittee wishes to commend the officers involved in their preparation.

Example 2: SR No 7 - Forests (Timber Promotion Council) Regulations 2004

Subcommittee's Letter[76]

The Regulation Review Subcommittee considered and approved the above regulations at a meeting on 15 March 2004.

The Subcommittee notes the detailed nature of the s 9 exemption certificate and the reasons given for the exemption. The Subcommittee wishes to commend the officers involved in their preparation.

Example 3: SR 62 - Control of Weapons (Amendment) Regulations 2004

Subcommittee's Letter[77]

The Subcommittee examined and approved the above Regulations at a meeting on 25 October 2004.

The Subcommittee notes that the section 6 certificate of consultation, section 10(4) certificate of compliance and National Competition Policy certificate are signed but undated. The Subcommittee requests immediate rectification of the matter.

The Subcommittee also acknowledges the significant work from the Department in carefully responding to the large number of people and organisations who sent in submissions.

Example 4: SR 159 - Road Safety (General)(Alcohol and Other Drugs) Regulations 2004

Subcommittee's Letter[78]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 16 March 2005.

The section 9(1)(a) certificate is extremely detailed and of a high standard. The Subcommittee wishes to commend those officers involved in its preparation.

Section 9 Exemption Certificate[79]

I, Peter Batchelor, Minister for Transport, and Minister responsible for administering the Road Safety Act 1986 (RSA), certify under section 9(1)(a) of the Subordinate Legislation Act 1994 that the Road Safety (General)(Alcohol and Other Drugs) Regulations 2004 in my opinion are exempted from the requirement to prepare a Regulatory Impact Statement under section 7 of that Act.

Purpose of the Proposed Regulations

The proposed Regulations amend the Road Safety (General) Regulations 1999 ("the Principal Regulations")-

(a) to prescribe the procedures for the collection of urine samples and the devices and procedures for obtaining and testing oral fluid samples under the RSA; and

(b) to prescribe the particulars to be included on certificates under sections 57A and 57B of the RSA; and

(c) to amend the description of the way in which the prescribed concentration of alcohol can be measured consistent with amendments made to the RSA by the Road Safety (Amendment)Act 2003; and

(d) to prescribe a drug driving infringement for the purposes of Part 7 of the RSA.

Background

Breath Alcohol Conversion

Due to the development by the National Standards Commission of a new Australian Standard for Evidential Breath Analysers, Victoria Police is in the process of modifying its existing breath analysing instruments that express the amount of alcohol measured in breath in terms of the equivalent concentration of alcohol in blood, so that they will directly express the concentration of alcohol in breath. This will ensure that those instruments continue to comply with the requirements of the National Measurements Act 1960 of the Commonwealth. In order to give effect to this, section 8 of the Road Safety (Amendment) Act 2003 made provision for drink-driving offences to be established by direct reference to the measurement of the concentration of alcohol in breath, as well as by reference to the concentration of alcohol in blood.

It is necessary to amend some of the provisions of the Principal Regulations that refer to the concentration of alcohol in blood to ensure consistency with these amendments.

Drug-Driving

The Road Safety (Drug Driving) Act 2003, which came into operation on 1 December 2004, made a range of amendments to the RSA in relation to the testing of drivers for the presence of drugs and created new offences for failing a drug test. Regulations are required for various purposes to support and give effect to the RSA as amended by this Act.

Urine Testing

Provisions were inserted into the RSA by the Road Safety (Amendment) Act 2000 to enable the taking of urine samples to test for the presence of alcohol or drugs. Regulations are required to give effect to these provisions.

The nature and effect of the proposed Regulations

The proposed Regulations amend the Road Safety (General) Regulations 1999 as follows:

Regulations 1-4 contain the usual preliminary provisions and provide that the Road Safety (General) Regulations 1999 are called the Principal Regulations. Those Regulations deal with a range of matters, including prescribing devices and procedures for obtaining evidence as to the presence or concentration of alcohol or other drugs and prescribing the matters to be included on traffic infringements and the penalties for such infringements.

Breath Alcohol Conversion

Regulation 5 amends regulation 101 of the Principal regulations to extend the objective which relations to prescribing devices and procedures for obtaining evidence in relation to blood alcohol concentration, to breath alcohol concentration in accordance with the amendments to the RSA made by section 8 of the Road Safety (Amendment) Act 2003 which are described above.

Regulations 9 amends regulations 208(1) and 208(3) of the Principal Regulations which relate to the matters which must be contained in a notice of immediate licence suspension under sections 51(1) and 51(1B) of the RSA. These amendments are required to include a reference to breath alcohol concentration in accordance with the amendments to the RSA made by section 8 of the Road Safety (Amendment) Act 2003 which are described above.

Drug-Driving

Regulation 8 inserts new regulations 207C-207H into the Principal Regulations to give effect to amendments to the RSA made by the Road Safety (Drug Driving) Act 2003 when it came into operation on 1 December 2004. These amendments to be RSA required certain matters relating to the devices used to collect oral fluid samples and to the taking and analysis of those samples, as well as certain evidentiary certificates, to be prescribed.

Regulation 207C prescribes the devices which may be used to conduct a preliminary oral fluid test under section 55D of the RSA and an oral fluid test under section 55E of the RSA.

Regulation 207D prescribes the procedure for carrying out a preliminary oral fluid test under section 55D of the Act.

Regulations 207E prescribes the procedure for the provision of an oral fluid sample under section 55E.

Regulation 207F prescribes the procedure to be followed after taking an oral fluid sample under section 55E that relates to the labelling of the sample, or (if the sample is broken into parts) each part of the sample.

Sections 57B(3) and 57B(4) of the RSA enable certain certificates that contain the prescribed particulars, that are signed by certain persons as set out in those sections and that certify as to matters specified in those sections, to be admissible in evidence in proceedings referred to in section 57B(2). In the absence of evidence to the contrary, the certificate is proof of the matters contained in it. For example, a certificate under section 57B(4) may be issued by an approved analyst to certify as to the presence in an oral fluid sample of a substance that is prescribed illicit drug. This procedure generally avoids the need for the person to attend court.

Regulations 207G and 207H prescribe the particulars that must be contained in a certificate under sections 57B(3) and 57B(4) of the RSA.

Regulation 13 revokes the amendments made to the Principal Regulations by these Regulations on the date on which section 23 of the Road Safety (Drug Driving) Act 2003 comes into operation. When section 23 of the act comes into operation it will repeal the amendments made to the RSA by that Act in relation to drug driving and this provision of the Regulations will revoke the supporting regulations at the same time. The purpose of the repeal is to enable the drug-driving provisions to be trialled so that their effectiveness can be monitored and reviewed to determine whether more permanent measures relating to drug driving are appropriate.

Urine Testing

Regulation 10 inserts new regulations 210-214 into the Principal Regulations to support and give effect to the urine testing provisions of the RSA.

Proposed regulation 210 prescribes the procedure for collecting a urine sample.

Proposed regulation 211 prescribes the procedures to be followed after collecting a urine sample, including requirements for dividing, sealing and labelling the parts of the sample.

Sections 57A(3), 57A(4) and 57A(5) of the RSA enable certain certificates that contain the prescribed particulars, that are signed by certain persons as specified in those sections and that certify as to matters specified in those sections, to be admissible in evidence in proceedings referred to in section 57A(2). In the absence of evidence to the contrary, the certificate is proof the matters contained in it. For example, a certificate under section 57A(4) may be issued by an approved analyst to certify as to the presence in a urine sample of a drug. This procedure generally avoids the need for the person to attend court.

Proposed regulations 212, 213 and 214 prescribe the particulars to be contained in certificates issued under sections 57A(3), 57A(4) and 57A(5) of RSA.

Traffic Infringements - Breath Alcohol and Drug Driving

Section 88 of the RSA enables a traffic infringement notice to be issued in respect of a traffic infringement of a kind that is prescribed for the purposes of Part 7. A traffic infringement includes various kinds of offences against the RSA and regulations and includes a drug-driving infringement. Section 89A of the RSA provides that certain serious traffic infringements, including a drug-driving infringement, take effect after 28 days as a conviction for the offence unless a notice of objection is received as provided for in that section.

Schedule 4 to the Principal Regulations prescribes the offences in respect of which a traffic infringement notice may be issued under section 88 of the RSA. Regulation 603 of the Principal Regulations prescribes the particulars which must be included in a traffic infringement notice (TIN).

Regulation 11(1) amends regulation 603(1) of the Principal Regulations to include reference to the concentration of alcohol in breath in the description of an alleged drink-driving infringement. This is to ensure consistency with the amendments to the RSA made by section 8 of the Road Safety (Amendment) Act 2003 which are described above.

Regulation 11(2), (3) and (4) amend regulation 603(1) and (2) to ensure that the same particulars that are required on a TIN for an alleged drink-driving infringement are required in respect of a TIN for an alleged drug-driving infringement, including details relating to the provisions of section 89A of the RSA.

Regulation 12(1) amends a number of existing traffic infringements which relate to offences for driving or being in charge of a motor vehicle with specified levels of blood alcohol concentration. These infringements require amendment to change the description of the way in which the prescribed concentration of alcohol can be measured to include reference to the breath alcohol concentration. This is to ensure consistency with the amendments to the RSA made by section 8 of the Road Safety (Amendment) Act 2003 which are described above.

Regulations 12(2) inserts a new item into Schedule 4. This item relates to a drug-driving infringement, which is defined to include the new offences in section 49(1)(bb), (h) and (i) of the RSA. These offences relate to a person driving or being in charge of a motor vehicle with more than the prescribed concentration of a prescribed illicit drug present in the person's blood or oral fluid and to a person who has had a sample of blood or oral fluid taken within 3 hours of driving or being charge of a motor vehicle and that sample has been found to contain a prescribed illicit drug. A penalty of 3 penalty units applies in respect of this infringement.

Other Consequential Amendments

Regulations 6 and 7 amend regulations 207(e) and 207A(g) of the Principal Regulations to ensure that the prescribed particulars to be included in certain certificates issued under the RSA in respect of blood tests are consistent with the wording of hose particulars as they relate to oral fluid and urine tests. The provisions that are being amended relate to the requirement to include on the certificate a description of the contents of the identification label attached to a blood sample.

Proposed operative date and reason for it

The proposed Regulations will come into operation as follows:

The Regulations, except regulation 13, will come into operation on the day they are made. This will enable the commencement of provisions relating to drug-driving to be in force soon after the commencement of the Road Safety (Drug Driving) Act 2003. It is also appropriate for the provisions relating to the breath alcohol conversion to come into operation on that day to support amendments to the Act made by the Road Safety (Amendment) Act 2003 which are already in operation.
Regulation 13 will come into operation on the date on which section 23 of the Road Safety (Drug Driving) Act 2003 comes into operation. When section 23 of that Act comes into operation it will revoke the amendments made to the RSA by that Act in relation to drug driving and this provisions is required to revoke the supporting regulations on the same date.

Reasons for exemption

The reason for forming the opinion that a regulatory impact statement is not required is that the proposed Regulations do not impose an appreciable economic or social burden on any sector of the public. They do not create new offences or impose new obligations. Rather, they amend the Principal regulations for the purposes described above, which are essentially to give effect to, or ensure consistency with, amendments to the RSA made by the Road Safety (Amendment) Act 2003, the Road Safety (Drug Driving) Act 2003 and existing provisions of the RSA relating to urine testing.

Example 5: SR 173 - Health Services (Supported Residential Services) (Amendment) Regulations 2004

Subcommittee's Letter[80]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 16 March 2005.

The section 9(1)(a) and (c) exemption certificate is extremely detailed and of a high standard. The Subcommittee wishes to commend those officers involved in its preparation.

Section 9 Exemption Certificate[81]

I, Bronwyn Pike, Minister for Health, acting under sections 9(1)(a) and (c) of the Subordinate Legislation Act 1994, hereby certify that, in my opinion, the proposed Health Services (Supported Residential Services)(Amendment) Regulations 2004-

(a) will not impose an appreciable economic or social burden on a sector of the public; and
(b) are of a fundamentally declaratory or machinery nature.

The reasons for the exemption from section 7 of the Subordinate Legislation Act 1994 are as follows-

1. The proposed regulations are largely consequential to the amendments to the Health Services Act 1988 brought about by the Health Services (Supported Residential Services) Act 2004. The only substantive changes being made to the Health Services (Supported Residential Services) Regulations 2001 do not impose an appreciable economic or social burden on any sector of the public. These changes relate to the following-

The inclusion of a new item in the prescribed information to be included in residential statements provided to residents (see regulation 10 of the proposed regulations). The new item requires that any conditions of tenure be set out in the residential statement. Many supported residential services already include this information in their residential statements as it is good practice to do so and for those who do not the change is quite minor (in that it only requires an update of existing statements). It is anticipated that including this information in statements will provide a benefit as it will assist in reducing disputes over the tenure of residents.
Amendments to section 108H(1) of the Health Services Act 1988 introduced a limit to the amount of money that a proprietor can manage on behalf of a resident. That limit is to be prescribed. The proposed regulations add a new regulation to set that prescribed amount (see regulation 11 of the proposed regulations). The proposed prescribed amount is equivalent to 1 month's accommodation charges. This is unlikely to have an appreciable impact as very few proprietors manage the money of residents. The majority of those that do would come under this prescribed limit, due to the fact that most supported residential service residents whose finances are managed are on pension incomes for those proprietors who manage amounts above the prescribed amount it is a relatively simple process to have an administrator appointed to manage the relevant resident finances.

Fundamentally declaratory or machinery nature

2. As noted above, the proposed regulations are largely consequential to the amendments to the Health Services Act 1988 brought about by the Health Services (Supported Residential Services) Act 2004. The majority of the proposed regulations, which are designed to make the Health Services (Supported Residential Services) Regulations 2001 consistent with the amended Health Services Act 1988, are of a fundamentally declaratory or machinery nature-

Several regulations change the terms "administrator" and "guardian" to "resident's administrator" and "resident's guardian" respectively (see regulations 5, 7 12 and 14 of the proposed regulations);
Two of the regulations revoke existing regulations that provide for matters now dealt with in the Act (see regulations 6 and 13 of the proposed regulations); and
One of the regulations is concerned solely with the correction of a typographical error (see regulation 8 of the proposed regulations).

Example 6: SR 179 - Births, Deaths and Marriages Registration (Fees) Regulations 2004

Subcommittee's Letter[82]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 16 March 2005.

The section 9(1)(a) exemption certificate is extremely detailed and of a very high standard. The Subcommittee was impressed with the analysis given to the two limbs which form part of the exemption pursuant to section 9(1)(a) of the Subordinate Legislation Act 1994. The detailed discussion of "sector of the public" and "appreciable social or economic burden" greatly assisted the Subcommittee with its deliberations.

The Subcommittee wishes to commend those officers involved in its preparation. The Subcommittee requests that you kindly convey its congratulations to the relevant staff.

Section 9 Exemption Certificate[83]

I, Johnstone William Thwaites MP, Minister for Victorian Communities, certify under section 9(1)(a) of the Subordinate Legislation Act 1994, that in my opinion, the proposed Births, Deaths and Marriages Amendment (Fees) Regulations 2004 impose no appreciable economic or social burden on a sector of the public and are therefore exempted from the requirement to prepare a Regulatory Impact Statement under section 7 of that Act. Consultation with representative stakeholder groups has confirmed that the proposed Fee Regulations will not impose an appreciable social or economic burden on the sector of the public who will benefit from the Fee Regulations [see separate consultation certificate]. Representative stakeholder groups have agreed to the proposed fees as reasonable and appropriate.

The proposed operative date for the proposed regulations is 1 January 2005. This is the date on which the relevant provisions of the Births, Deaths and Marriages Registration Act 1996 (BDMR Act) commence operation. Part 4A was inserted in that Act by the Births, Deaths and Marriages Registration (Amendment) Act 2004.

The Proposed Regulation

The proposed Births, Deaths and Marriages Amendment (Fees) Regulations 2004 prescribe the fees payable to the Registrar of Births Deaths and Marriages for two new applications that may be made by an unmarried person who has undergone sex affirmation surgery:

if their birth is registered in Victoria, the person may apply to the Registrar for alternation of the person's birth registration; or
if their principal place of residence is and has been for at least 12 months in Victoria and their birth is not registered in Victoria, the person may apply to the Registrar for a document that acknowledges the person's name and sex.

Reasons for the Exemption

I am satisfied that the proposed Fee Regulations do not impose an appreciable economic or social burden on a sector of the public.

Sector of the Public

The group to benefit from the Regulations is likely to be a limited and small one, and is not a "sector of the public" within the meaning of s.9(1)(a) and the Premier's Guidelines to the Subordinate Legislation Act (para 6.3), given the limited number of potential applicants. That prospective applicants under the new provisions of the BDMR Act share a characteristic (having had sex affirmation surgery) and that this issue has a profile that is disproportionate to the number of people who have undergone such surgery does not mean there are large enough numbers to constitute a "sector of the public" within the meaning of the SL Act. In addition, the Fee Regulations will not impact on the whole community.

Based on discussions with stakeholder groups, perhaps 100 applications are expected in the first six months, reflecting the number of people who have been waiting for some time for legislation to allow changes to their birth records. However, applications are expected to taper off. In a resident population estimated at 4.9 million in June 2003 by the Australian Bureau of Statistics, this is a very small number that does not constitute a sector of the public. The legislation enabling applications to the Registrar for the recognition of sex affirmation has been keenly anticipated in Victoria by concerned individuals and organisations. Until the BMDRA Act, Victoria was the only jurisdiction in Australia which did not provide a mechanism by which a person with transsexualism could apply to have the sex on their birth certificates changed, and this had a significant negative impact on many lives.

It is noted that as a guide, the NSW Registrar received 22 applications in the 03/04 financial year, making a total of 151 records of this kind since the provisions commenced in 1996. The Queensland Registrar has received a total of 20 applications of this kind since the provisions commenced in 2003.

Appreciable Social or Economic Burden

I am satisfied that the proposed fees do not impose an appreciable economic or social burden on prospective applicants within the meaning of the SL Act and the Premier's Guidelines to that Act. In forming this opinion, I have considered the level of the proposed fees, the impact the fee may have on an individual and the overall size of the particular revenue based involved in relation to the particular fee imposed (see figures referred to above), in the context of the policy objectives and consultation that has taken place.

Whilst it may be argued that any fee (ie anything other than a fee-free application) constitutes a burden, this is not the meaning conveyed by the SL Act as explained in which is grievous, oppressive, or difficult to bear; an obligation" (para 6.4). The proposed fees will not be a load or weight, grievous, oppressive or difficult to bear nor an obligation in that sense. The level of the fees is not "considerable", as set out in the Premier's Guidelines (para6.5), but rather are modest fees.

The fees are the same as fees that were set in 1997 for comparable applications to the Registrar:

Application to Alter Register (s.30A) - $41.00

This is comparable to an application to register a change of name or to add registrable information to an entry in the Register for which there is an existing fee of $41.00, pursuant to Item 1 and item 2 in Schedule 2 to the BDMR Regulations and ss.25(2), 26(2) and 43(6) of the BDMR Act. As with those existing applications, if a person also requires a copy of the amended birth certificate, this will be available for an additional fee of $17.50, as prescribed in Item 3 and 4 of Schedule 2 to the BDMR Regulations.

Application for Document Acknowledging Identity (s.30E) - $58.50

This is comparable to an application to register a change of name or to add registrable information to an entry in the Register, an existing application fee for which is $41.00, plus an application for a certified copy of an entry in a register - for which there is an existing fee of $17.50, pursuant to Items 3 and 4 in Schedule 2 to the BDMR Regulations. A search will need to be made of the Register when the application is made, to ensure a Victorian birth registration does not exist, and to ascertain whether a previous application for an identity document has been made - a record will need to be kept on the Register of the identity documents issued. In addition, because this is an application for a document, this fee includes the component for production of the document.

Certificates, including birth certificates and certificates acknowledging identity, issued by the Registry are considered to be cardinal identity documents and as such have a range of security features as well as associated steps to ensure the identity of the applicant.

When these fees were set in 1997, the Regulations were subject to a regulatory impact statement, as they replaced existing regulations [see copy of RIS attached]. The fees were justified on a user-pays and cost-recovery basis, and were a reduction on the previous fees. Victoria's fees were then the lowest in Australia, and will be the lowest in Australia for these types of applications. In 2002, the fees were increased by 3% ($1.00) in line with the Treasurer's Guidelines for setting fees and charges.

It is appropriate to continue the principle of cost-recovery and user-pays for fees for these applications, consistent with fees required to accompany existing application to the Registrar, though those fees essentially remain at levels set in 1997. It would be inequitable to impose fees on some applications and not others. It is noted that given the documents required to accompany the new applications (and to be assessed and processed by the Registry), it is likely that fees set at 2004 market level would be higher than the 1997 fees. However until a fee review of all fees is conducted and concluded by the Registrar, it is considered inappropriate to increase the fees for the new applications alone.

Footnotes
[27]	Letter dated 10 May 2004 to the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services from the Regulations Review Subcommittee.
[28]	Letter dated 21 May 2004 to the Regulation Review Subcommittee from the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services.
[29]	Letter dated 10 May 2004 to the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services from the Regulations Review Subcommittee.
[30]	Letter dated 8 July 2004 to the Regulation Review Subcommittee from the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services.
[31]	Department of Premier and Cabinet, Premier’s Guidelines, December 1997.
[32]	Subordinate Legislation Act 1994 (Vic), s. 6.
[33]	Department of Premier and Cabinet, Premier’s Guidelines, December 1997, paragraph 5.20.
[34]	Department of Premier and Cabinet, Premier’s Guidelines, December 1997, paragraph 5.17.
[35]	Subordinate Legislation Act 1994 (Vic), s. 6.
[36]	Department of Premier and Cabinet, Premier’s Guidelines, December 1997, paragraph 5.20.
[37]	Letter dated 19 April 2004 to the Hon. Rob Hulls, MP, Minister for WorkCover from the Regulations Review Subcommittee.
[38]	Letter dated 16 July 2004 to the Regulation Review Subcommittee from the Hon. Rob Hulls, MP, Minister for WorkCover.
[39]	Letter dated 9 June 2004 to the Hon. Bronwyn Pike, MP, Minister for Health from the Regulations Review Subcommittee.
[40]	Letter dated 20 August 2004 to the Regulation Review Subcommittee from the Hon. Bronwyn Pike, MP, Minister for Health.
[41]	Letter dated 2 December 2004 to the Hon. Sheryl Garbutt, MP, Minister for Community Services from the Regulations Review Subcommittee.
[42]	Letter dated 22 March 2005 to the Regulation Review Subcommittee from the Hon. Sheryl Garbutt, MP, Minister for Community Services.
[43]	Letter dated 16 March 2004 to the Hon. Bob Cameron, MP, Minister for Agriculture from the Regulations Review Subcommittee.
[44]	Letter dated 13 April 2004 to the Regulation Review Subcommittee from the Hon. Bob Cameron, MP, Minister for Agriculture.
[45]	Letter dated 19 April 2004 to the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services from the Regulations Review Subcommittee.
[46]	Letter dated 1 June 2004 to the Regulation Review Subcommittee from the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services.
[47]	Letter dated 27 September 2004 to the Hon. Peter Batchelor, MP, Minister for Transport from the Regulations Review Subcommittee.
[48]	Response on 16 December 2004 to the Regulation Review Subcommittee from the Office of the Hon. Peter Batchelor, MP, Minister for Transport.
[49]	Letter dated 27 September 2004 to the Hon. John Pandazopoulos, MP, Minister for Gaming from the Regulations Review Subcommittee.
[50]	Letter dated 11 November 2004 to the Regulation Review Subcommittee from the Hon. John Pandazopoulos, MP, Minister for Gaming.
[51]	The Premier’s Guidelines – Part 7, p. 24.
[52]	Letter dated 25 October 2004 to the Hon. John Lenders, MLC, Minister for Consumer Affairs from the Regulations Review Subcommittee.
[53]	Letter dated 9 December 2004 to the Regulation Review Subcommittee from the Hon. John Lenders, MLC, Minister for Consumer Affairs.
[54]	Letter dated 2 December 2004 to the Hon. Mary Delahunty, MP, Minister for Planning from the Regulations Review Subcommittee.
[55]	Letter dated 11 March 2005 to the Regulation Review Subcommittee from the Hon. Rob Hulls, MP, Minister for Planning.
[56]	Letter dated 2 December 2004 to the Hon. John Brumby, MP, Treasurer from the Regulations Review Subcommittee.
[57]	Letter dated 25 January 2005 to the Regulation Review Subcommittee from the Hon. John Brumby, MP, Treasurer.
[58]	Letter dated 31 May 2004 to the Hon. Peter Batchelor, MP, Minister for Transport from the Regulations Review Subcommittee.
[59]	Letter dated 6 July 2004 to the Regulation Review Subcommittee from Ms Geraldine Sharman, General Manager, Transport Legal Services.
[60]	Letter dated 27 September 2004 to the Hon. Bob Cameron, MP, Minister for Agriculture from the Regulations Review Subcommittee.
[61]	Letter dated 4 November 2004 to the Regulation Review Subcommittee from the Hon. Bob Cameron, MP, Minister for Agriculture.
[62]	Letter dated 28 September 2004 to the Hon. Mary Delahunty, MP, Minister for Planning from the Regulations Review Subcommittee.
[63]	Letter dated 18 January 2005 to the Regulation Review Subcommittee from the Hon. John Pandazopoulos, MP, Acting Minister for Planning.
[64]	Letter dated 19 April 2004 to the Hon. Peter Batchelor, MP, Minister for Transport from the Regulations Review Subcommittee.
[65]	Letter dated 3 September 2004 to the Regulation Review Subcommittee from the Hon. Peter Batchelor, MP, Minister for Transport.
[66]	Letter dated 4 September 2004 to the Hon. Bronwyn Pike, MP, Minister for Health from the Regulations Review Subcommittee.
[67]	Letter dated 26 April 2005 to the Regulation Review Subcommittee from the Hon. Bronwyn Pike, MP, Minister for Health.
[68]	State Government of Victoria (1996) National Competition Policy, Review of Legislative Restrictions on Competition Guidelines.
[69]	Department of Treasury and Finance (200), Competitive Neutrality Policy Victoria 2000, Melbourne, p. 1.
[70]	Rivers, G. and Ward, I. (2002) Economics in the Business Environment, Pearson Education.
[71]	Tim Harding & Associates (2001) Regulatory Impact Statement, National Parks (Fees and Charges) Regulations, Department of Natural Resources and Environment, Melbourne
[72]	Paragraph 5.31, Premier’s Guidelines
[73]	Premier’s Guidelines tabled on 9 December 2004.
[74]	Letter dated 23 February 2005 to the Hon. John Thwaites, MP, Minister for Environment from the Regulations Review Subcommittee.
[75]	Letter dated 16 March 2004 to the Hon. John Lenders, MLC, Minister for Consumer Affairs from the Regulations Review Subcommittee.
[76]	Letter dated 16 March 2004 to the Hon. John Thwaites, MP, Minister for Environment from the Regulations Review Subcommittee.
[77]	Letter dated 25 October 2004 to the Hon. Andre Haermeyer, MP, Minister for Police and Emergency Services from the Regulations Review Subcommittee.
[78]	Letter dated 16 March 2005 to the Hon Peter Batchelor, MP, Minister for Transport from the Regulation Review Subcommittee.
[79]	Section 9 Exemption Certificate – SR 159 – Road Safety (General) (Alcohol and Other Drugs) Regulations 2004
[80]	Letter dated 16 March 2005 to the Hon Bronwyn Pike, MP, Minister for Health from the Regulation Review Subcommittee.
[81]	Section 9 Exemption Certificate – SR 173 – Health Services (Supported Residential Services)(Amendment) Regulations 2004
[82]	Letter dated 16 March 2005 to the Hon John Thwaites, MP, Minister for Victorian Communities from the Regulation Review Subcommittee.
[83]	Section 9 Exemption Certificate – SR 179 – Birth, Death and Marriages Registration (Fees) Regulations 2004

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria

Annual Review 2004, Regulations 2004 May 2005

Chapter 2 - Significant Issues

[Back to Table of Contents]

(a) The statutory rule has been prepared in contravention of any of the provisions of the Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature

Example 1: SR 9 - Country Fire Authority Regulations 2004

Subcommittee's Letter[27]

Minister's Response[28]

Example 2: SR 12 - Police Regulation (Fees and Charges) Regulations 2004

Subcommittee's Letter[29]

Minister's Response[30]

(b) Consultation

Consideration of submissions - response required

Example 1: SR 10 - Occupational Health and Safety (Noise) Regulations 2004

Subcommittee's Letter[37]

Minister's Response[38]

Example 2: SR 43 - Drugs, Poisons and Controlled Substances (Amendment) Regulations 2004

Subcommittee's Letter[39]

Minister's Response[40]

Appendix 1

Example 3: SR 107 - Intellectually Disabled Persons' Services (Fees) Regulations 2004

Subcommittee's Letter[41]

Minister's Response[42]

Submission from Kew Cottages Parents' Association (KCPA)

National Competition Policy

(c) Technical matters - Incomplete certificates - Dates of publication in the Government Gazette and newspaper - premier's certificate - details of 'special circumstances'

Example 1: SR No 11 - Conservation, Forests and Lands (Infringement Notice) (Fisheries) Regulations 2004

Subcommittee's Letter[43]

Minister's Response[44]

Example 2: SR 15 - Australian Crime Commission (State Provisions) Regulations 2004

Subcommittee's Letter[45]

Minister's Response[46]

Example 3: SR 38 - Road Safety (Vehicles)(Concession Fees) Regulations 2004

Subcommittee's Letter[47]

Minister's Office Response[48]

Example 4: SR 78 - Gambling Regulation (Interim) Regulations

Subcommittee's Letter[49]

Minister's Response[50]

(d) Sighting of material incorporated by reference

Example 1: SR 111 - Fair Trading (Safety Standard)(Children's Toys) Regulations 2004

Subcommittee's Letter[52]

Minister's Response[53]

(e) Section 9(1)(a) - section 21(1)(I) - requires explanation as to its form or intention

Example 1: SR 115 - Property Law (Fees) Regulations 2004 SR 116 - Subdivision (Registrar's Fees) Regulations 2004 SR 117 - Instruments (Fees) Regulations 2004 SR 118 - Transfer of Land (Fees) Regulations 2004

Subcommittee's Letter[54]

Minister's Response[55]

Example 2: SR 88 - Monetary Units Regulations 2004

Subcommittee's Letter[56]

Minister's Response[57]

(f) Other matters - general clarification

Example 1: SR 28 - Transport (Infringements)(Amendment) Regulations 2004

Subcommittee's Letter[58]

Minister's Response[59]

Example 2: SR 63 - Prevention of Cruelty to Animals (Amendment) 2004

Subcommittee's Letter[60]

Minister's Response[61]

Example 3: SR 79 - Plumbing (Water and Energy Savings) Regulations 2004

Subcommittee's Letter[62]

Minister's Response[63]

(g) National Competition Policy Certificates and Accompanying Assessments

Example 1: SR 16 - Marine (Designated Ports) Regulations 2004

Subcommittee's Letter[64]

Minister's Response[65]

Example 2: SR 44 - Drugs, Poisons and Controlled Substances (Division 2 Nurses Amendment) Regulations 2004

Subcommittee's Letter[66]

Minister's Response[67]

Assessment against the Guiding Legislation Principle on Competition National Competition Policy tests

(h) Section 9(1)(a) - Is there any appreciable economic or social burden on any sector of the public?

Example 1: SR No 84 - Road Management (Interim) Regulations 2004

Example 2: SR 105 - Occupational Health and Safety (Mines)(Amendment) Regulations 2004

Example 3: SR 126 - Transport (Passenger Vehicles) (Amendment) Regulations 2004

Example 4: SR 114 - Electricity Safety (Infringements) (Amendment) Regulations 2004

(i) The 'Basket Approach' - setting a package of fees

SR 142 - National Parks (Fees and Charges) (Amendment) Regulations 2004

Subcommittee's Letter[74]

(j) Commendations

Example 1: SR 4 - Estate Agents (General Accounts and Audit)(Amendment) Regulations 2004

Subcommittee's Letter[75]

Example 2: SR No 7 - Forests (Timber Promotion Council) Regulations 2004

Subcommittee's Letter[76]

Example 3: SR 62 - Control of Weapons (Amendment) Regulations 2004

Annual Review 2004, Regulations 2004
May 2005

Example 1: SR 115 - Property Law (Fees) Regulations 2004
SR 116 - Subdivision (Registrar's Fees) Regulations 2004
SR 117 - Instruments (Fees) Regulations 2004
SR 118 - Transfer of Land (Fees) Regulations 2004