Annual Review 2006, Regulations 2006
August 2007

Chapter 2 - Significant Issues

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In 2006, the Subcommittee held 6 meetings. During those meetings it considered 78 statutory rules made during 2006. Of those rules 20 were accompanied by Regulatory Impact Statements. Of the total regulations made 101 were actually considered by the Subcommittee in early 2007.

The Subcommittee did not make any reports to Parliament during 2006. However, of the statutory rules examined during 2006, the Subcommittee had concerns with five. In each instance, it wrote to the responsible Minister. Generally, the Subcommittee received satisfactory responses to the issues raised. The Subcommittee thanks the Ministers for their responses.

Generally, the Subcommittee has classified the issues it encounters into particular categories. This year the Subcommittee did not encounter any significant problems. From the Subcommittee’s perspective, the area of regulation review is working well.

Communication from Departments is generally punctual and addresses concerns. The Subcommittee wishes to thank departmental officers for the prompt and friendly manner with which they respond to queries. This greatly facilitates the work of reviewing regulations.

For the sake of consistency the areas which have been discussed on previous occasions are listed 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) Consideration of Submissions – General expectation – Response required

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

(e) Setting a package of fees – The basket approach – The impact of the Premier's Guidelines

(f) Sighting of material incorporated by reference

(g) Section 9(1)(a) – Section 21(1)(i) – Requires explanation as to its form or intention

(h) Other matters – General clarification – The 'Balanced scorecard approach' – What is it?

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

(j) Commendations

(k) Human Rights

(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 year no statutory rules came within this category.

(b) Consultation

Section 6 of the Act sets out the requirements for consultation. These requirements apply to regulations made with or without RIS’s. Responsible Ministers must ensure that there is consultation “where the guidelines require consultation”[26] with “any sector of the public on which an appreciable economic or social burden may be imposed.”[27]

The Premier’s Guidelines[28] provide as follows:–

5.19 If the proposed statutory rule is likely to impose any appreciable burden, cost or disadvantage on any sector of the public, consultation must take place with that sector, eg business groups, community groups, special interest groups. That 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.”[29] 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 or should 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 considers it is important for all consultation certificates to provide details of all those consulted.

(c) Consideration of Submissions – General expectation – 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.”[30] The Premier’s Guidelines also emphasise the need for proper consultation[31] 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. The Subcommittee’s firm view is that publication of a response to issues on a website is a quite inadequate response.

This year the Subcommittee has noticed a considerable improvement in the quality of responses prepared by the Departments in respect of submissions. Generally, Departments prepare a table summary of the issues raised in the submissions. This is the case particularly where there are a large number of submissions. The Subcommittee finds this to be extremely helpful. This year, in many Regulations where there are a large number of submissions, Departments have sent a general letter covering the various themes to those who made submissions. In other instances, where there were few submissions Departments have written individual letters to those who made submissions, discussing the various matters raised in detail. Frequently, the Subcommittee has written commending a particular Department on its outstanding work.

The Department’s response in respect of SR No. 96 – Rail Safety Regulations 2006 was excellent. Below is the Subcommittee’s letter to the Minister.

Example 1: SR No. 96 – Rail Safety Regulations 2006

Subcommittee’s Letter[32]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 21 February 2007.

Over sixteen submissions were received during the regulatory impact statement process. The Subcommittee was provided with an extremely thorough analysis of the submissions. The comprehensive manner in which the Department summarised the issues facilitated the Subcommittee’s work. In addition, the Department wrote a detailed letter to each organisation or individual responding to the issues raised.

The Subcommittee wishes to acknowledge the outstanding manner with which the Department dealt with the submissions. The Subcommittee commends those involved and requests that you forward its comments to the relevant officers.

A letter of commendation was also sent to the Minister in respect of SR No. 68 – Building Regulations 2006.

Example 2: SR No. 68 – Building Regulations 2006

Subcommittee’s Letter[33]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 12 February 2007.

Over two hundred submissions were received during the regulatory impact statement process. The Subcommittee was provided with an extremely thorough analysis of the submissions. The comprehensive manner in which the Department and the Commission summarised the issues facilitated the Subcommittee’s work. In addition, the Building Commission wrote a detailed letter to each organisation or individual responding to the issues raised.

The Subcommittee wishes to acknowledge the outstanding manner with which the Department and the Building Commission dealt with the submissions. The Subcommittee commends those involved and requests that you forward its comments to the relevant officers.

The Subcommittee also considered the matter of responses to the submissions in relation to SR No. 29 – Working with Children Regulations 2006. The Subcommittee advised the Minister of its expectations. It also sought further information in relation to the matters raised by the Privacy Commissioner. The Subcommittee is pleased to note that as a result of the correspondence, written responses were ultimately sent to those who made submissions. The Subcommittee thanks the Minister for his prompt response. Set out below are the relevant letters.

Example 3: SR No. 29 – Working with Children Regulations 2006

Subcommittee’s Letter[34]

The Regulation Review Subcommittee considered the above Regulations at a meeting on 12 July 2006.

Advertisement of Regulatory Impact Statement

Please advise the date on which the Regulatory Impact Statement (RIS) was advertised in the Government Gazette and in a daily newspaper. Please also advise the name of the newspaper in which the RIS was advertised.

Consideration of submissions

Thirty eight submissions were received. The Department provided to the Subcommittee an analysis of the submissions and the various issues. This was of considerable assistance to the Subcommittee. However, there has been no written response sent to those who made submissions. The Subcommittee made relevant enquiries of the Department by email on 27 June 2006. The Subcommittee’s expectation is that a written response ought to be sent to those who made submissions. Transparency and accountability are an integral part of the RIS process. Accordingly, please advise the Subcommittee when a written response has been sent to those who sent submissions.

Submission from the Privacy Commissioner

In particular, the Privacy Commissioner raises some sensible matters. The Privacy Commissioner made the following submission. Question 10 of the prescribed form asks applicants to indicate ‘all areas’ of child-related work in which they work or volunteer or intend to volunteer. The question then lists each of the categories of a child-related work set out in section 9 of the Working with Children Act 2005. The list ends with a work category for “Other” (specify)”. The Privacy Commissioner argues that this form of question is likely to result in an excessive collection of information. The Privacy Commissioner made the point that the list of child-related areas is exhaustive. Individuals are not required to apply for the Working with Children check for any ‘other’ category of child-related work. The Subcommittee seeks your response to the matters raised by the Privacy Commissioner. The Subcommittee is of the view that a written response ought to be sent to the Privacy Commissioner. Please advise the Subcommittee when this occurs.

The Subcommittee looks forward to your immediate response to the above matters.

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

Minister’s Response[35]

Thank you for your letter of 19 July 2006 regarding the review of the Working with Children Regulations 2006 by the Regulation Review Subcommittee.

The Working with children Regulatory Impact Statement was advertised on 5 January 2006 in the Government Gazette and in a number of metropolitan and regional newspapers between 5 and 18 January 2006. A comprehensive list of the newspapers the RIS was advertised in is attached for your information.

Written responses to the Regulatory Impact Assessment submissions have been sent to all those (with the exception of one) who made submissions including the Privacy Commissioner. The one outstanding response has been delayed as it refers to a complex issue which has legal and policy implications. This issue and a response to the submission are currently under review by legal officers and a response will be forwarded to the author shortly.

In his submission the Privacy Commissioner raised the issue that the option for specifying a work category that is not included in Section 9 of the Working with Children Act goes beyond the requirements of the Act and is likely to result in an excessive collection of information.

Since receiving the Privacy Commissioner’s submission, the application form and guide for a Working with Children Check have been amended. In the new form, the table of child-related categories that the applicant uses to fill out Section 11 of the form specifies that “other” only relates to those involved in the ‘administration of the Working with Children Act 2005.’ It is considered that this amendment has addressed the Privacy Commissioner’s concerns about the use of ‘other’ on the form.

If you have any further queries regarding the Regulatory Impact Statement or the Working with Children Check please contact Mr Peter Hibbins, director Working with children Check Unit on telephone 8684 1200.

The Subcommittee also considered the adequacy of the response in relation to SR No. 17 – Fisheries (Fees, Levies and Royalties) Regulations 2006.

Example 4: SR No. 17 – Fisheries (Fees, Levies and Royalties) Regulations 2006

Subcommittee’s Letter[36]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 12 July 2006.

Seven submissions were received in relation to the accompanying Regulatory Impact Statement (RIS). The Subcommittee acknowledges the work undertaken by the Department in relation to the submission. However, the Subcommittee’s view is that an appropriate response ought to be communicated to those members of the public involved in the RIS process. The Subcommittee contacted the Department on 5 June requesting information as to whether responses had been sent. The Subcommittee received confirmation on 7 June 2006 that responses were in the process of being prepared but had not been sent out.

The Subcommittee requests confirmation that the responses have been sent.
Please do not hesitate to contact me should you require any further information.

Department’s Response[37]

Please find attached copies of the response sent to authors of submissions to the Regulatory Impact Statement Fisheries (Fees, Levies and royalties) Regulations 2006 which was published in January 2006.

Department’s Response to Submissioners

On behalf of the Minister, I would like to thank you for submission on the Regulatory Impact Statement (RIS) – Fisheries (Fees, Levies and Royalties) 2006.

After close consultation with industry through the Fisheries Cost Recovery Standing Committee (FCRSC), the RIS was prepared and circulated to all licence holders in January 2006. Seven submissions were received and analysed to determine whether further amendments to the proposed Regulations were required. Following advice from the Department, it was determined that the statutory rules would be amended to ensure that the amount of abalone royalty payable on an individual quota unit does not vary depending on whether or not an Abalone Fishery Access Licence is also held.

The FCRSC, consisting of industry and Departmental representatives, will continue to meet on a regular basis to discuss and analyse cost data associated with the delivery of fisheries management services and will advise the Minister on further implementation of the cost recovery program. Please forward any issues or concerns you may have regarding the cost recovery process to your industry representative on the FCRSC so that it may be presented to the Committee.

Thank you, once again, for your input into this process.

The Subcommittee has frequently been provided with a thorough summary of the issues raised during the RIS process. The Subcommittee’s view is that transparency is an important part of the regulatory statement process. To that end, the Subcommittee’s view is that an appropriate response ought to be communicated to those members of the public involved in the process. The fruit of the considerable labour already undertaken needs to be shared to add a further degree of transparency.

(d) 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 section 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 the matter.

The Subcommittee had no concerns in respect of this area this year.

(e) Setting a package of fees – 'The basket approach' – The Premier's Guidelines

The Guidelines[38] 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.

By way of example in SR No. 57 – Plumbing (Fees Amendment) Regulations 2005[39] increased a number of fees. This was done using the ‘basket’ approach. In this instance, four of the seventeen fee increases exceeded the Treasurer’s approved rate of 2.25% although the actual monetary increases were extremely small. In addition, the package as a whole fell within the Treasurer’s approved rate. The increases were 0.03% above the approved rate. The table set out below illustrates the dollar value of the four fee increases which were marginally above the approved rate. In real terms, the largest monetary amount above an increase of 2.5% was eight cents. The smallest monetary amount above an increase of 2.5% was three cents.

The Subcommittee is bound by the Guidelines. A strict interpretation of the Guidelines leads to the view that as a matter of principle individual fees in a ‘basket’ package should not exceed the Treasurer’s annual rate. However, the Subcommittee is of the view that fee increases and the Guidelines need to be read in a commonsense manner. Clearly, it is often sensible to introduce a ‘basket’ package of fees. It is a more efficient and streamlined manner of introducing a large number of routine fee increases. In this instance monetary increases were extremely small.

The Subcommittee will examine each regulation carefully. The Subcommittee is conscious of its statutory obligations. The Subcommittee’s view is that it is a matter of balance. The ‘basket’ of fees in its entirety must not exceed the Treasurer’s approved annual rate.

However if, in a package of a number of fees, three or four slightly exceed the Treasurer’s annual rate then that may not necessarily be an immediate cause for concern. Rather, the Subcommittee will examine each fee increase, the monetary amount and what the fee is for. Each Regulation will be examined on its merits and in context.

During the year, there have been Informal discussions with officers from the various Departments and the Legal Adviser. The discussions suggest that a strict interpretation of the Guidelines may make it difficult for Departments in practical terms in setting a package of routine fee increases. Ultimately, Regulations are the practical arm of the legislation. They need to function and be made in a commonsense and practical manner where possible. The Subcommittee will continue to monitor the impact of the Guidelines. If and when appropriate it will recommend changes to the wording of the Guidelines. At this stage, the Guidelines have only been in operation for over a year. The Subcommittee’s will carefully scrutinise the Regulations and the Guidelines during the coming year. The Subcommittee welcomes input from Departments.

(f) 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. Occasionally, 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:–[40]

7.03 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 1984 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.

7.04 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.

7.05 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.

7.06 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.

7.07 The aim of the procedures set out in section 32 of the Interpretation of Legislation Act 1984 is to guarantee the availability of any material which is incorporated into a statutory rule by reference, to ensure that citizens may have access to the laws with which they must comply.

7.08 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 the material. The use of the material then has the benefit of removing duplication. In such cases agencies should also consider whether performance standards are the more appropriate means of regulations.

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.

This year the Subcommittee has again noticed that generally material incorporated by reference has been 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.

(g) Section 9(1)(a) – Section 21(1)(i) – Requires explanation as to its form or intention

This year the Subcommittee wrote seeking further explanation in respect of one regulation. The Subcommittee sought clarification of a fee for uncertified copies of historical records. The Subcommittee’s letter is set out:–

Example: SR No. 61 – Births, Deaths and Marriages Registration (Fees) Regulations 2006

Subcommittee’s Letter[41]

The Regulation Review Subcommittee considered and approved the above Regulations at a meeting on 4 September 2006.

The Subcommittee seeks your advice in respect of the following matters.

1. Which two genealogical bodies were consulted in relation to the Regulations?

2. The standard letter sent to those who made submissions states that the ‘fees for uncertified copies of historical records either downloaded on-line (using the Registry’s online service) or purchased in person or via mail (if a customer supplies the correct registration number) will not increase and will remain at $17.50.’ Please verify that this is the case.

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

Minister’s Response[42]

Thank you for your letter of 8 September 2006 regarding the Births, Deaths and Marriages Registration (Fees) Regulations 2006.
In response to your questions:

1. The two genealogical bodes consulted regarding the Regulations were the Genealogical Society of Victoria and the Australian Institute of Genealogical Studies.

2. I can confirm that if a customer wishes to purchase an uncertified copy of an historical record from the register and that they either:

1. download the record online (via the Registry’s website) or

2. apply via mail or in person and quote the correct registration number
   they pay a fee of $17.50.

If you require any further information regarding the above please do not hesitate to contact the Acting Registrar Ms Camille Kingston on 9613 5931.

(h) Other Matters – The 'Balanced scorecard approach' – What is it?

The ‘Balanced Scorecard Approach’ – What is it?

Generally a RIS which accompanies the Regulations includes a summary of alternatives. Often the summary of alternatives includes a Table. The Table contains a subjective assessment of the proposed regulations and the alternatives compared to the ‘Base Case’ using the ‘Balanced Scorecard Approach’.

The Subcommittee reiterates the comments made last year.[43] It is fair to say that the Subcommittee does not find that the use of such a Table provides great illumination in the context of an assessment of alternatives. On one view, the inclusion of such a Table to the average reader of the RIS adds little in terms of understanding and clarity. If such a Table is to be used, then there ought to be appropriate commentary which explains it.

The Subcommittee notes that some RISs this year have included further explanation. This is of assistance to the Subcommittee but more particularly to the average reader of the RIS. The Subcommittee acknowledges these efforts and hopes this trend will continue.

(i) 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 5.33 of the Premier’s Guidelines[44] set out the particular requirements in respect of the exemption certificates.

The Minister must include in the exemption certificate detailed reasons as to why 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 and will examine those reasons closely.

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.

(j) Commendation

The Subcommittee commends Ministers to the particular attention to detail in respect of the work presented to it. The Subcommittee acknowledges properly drawn certificates. The Subcommittee also acknowledges the excellent work by many Departments in responding to the large number of people and organisations who sent in submissions in respect of a particular RIS.

(k) New Area of Scrutiny – New Legislative Requirements – Human Rights

History

For the sake of completeness, mention should be made of the Subcommittee’s new area of scrutiny. At the time of writing this Report the Subcommittee is required to consider whether all statutory rules are incompatible with human rights. However, this applies to all statutory rules in the 2007 series, not the 2006 series the subject of this Report.

SARC has a considerable history in terms of the protection of human rights. The review of subordinate legislation has been conducted in the Victorian Parliament since 1956. The scrutiny of bills[45] was first mooted and indeed recommended in 1987 in a “Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights”[46] prepared by the Legal and Constitutional Committee, the predecessor to this Committee. The scrutiny of bills commenced in Victoria in 1993. Section 21(f) of the Subordinate Legislation Act 1994 uses the language of human rights. For several years, the Subcommittee has had to consider whether a regulation:–

Unduly trespasses on rights and liberties of the person previously established by law;

Rights

The Chair’s introduction to the First Annual Report[47] is useful in considering the concept of rights. It demonstrates the complexities associated with rights.

[48]Human rights have been generally argued to include civil and political rights and legal and political rights.[49] There is much greater division on the status of socio-economic rights and cultural rights……..The legislative charter of the Committee is broad. The word ‘rights’ include natural rights and other moral rights established by the writings of the philosophers, jurists and churchmen. It most certainly includes the positive, empirical category of legal rights – rights whose existence is established by examining existing statutes, codes and decisions comprising the common law of Victoria. There are also internationally acknowledged human rights which can be found in the instruments of international and domestic law.

It is now some thirteen years since the Committee was required to grapple with the concept of rights. The Australian Capital Territory introduced a statutory Bill of Rights in 2004. The idea of a Bill of Rights for Victoria was floated in 2004. The Victorian Government appointed a Human Rights Consultation Committee in 2005. During 2005 that Committee heard submissions and compiled a report. The report recommended a Bill of Rights in December 2005. The Charter of Human Rights and Responsibilities 2006 (the Charter) was enacted in July 2006 and commenced operation on 1 January 2007. As a result of the introduction of the Charter and other legislative amendments there are now defined human rights which the Subcommittee must consider in the scrutiny of subordinate legislation.

Legislative scheme and requirements

The Charter of Human Rights and Responsibilities Act 2007

The Charter of Human Rights and Responsibilities Act 2007 (the Charter) commenced on 1 January 2007. Section 30 of the Charter is set out:–

30. Scrutiny of Acts and Regulations Committee

The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

Note: The Scrutiny of Acts and Regulations Committee must also review all statutory rules and report to Parliament if it considers the statutory rule to be incompatible with human rights: see section 21 of the Subordinate Legislation Act 1994.

The Subordinate Legislation Act 1994 – section 21(ha)

Amendments were also made to the Subordinate Legislation Act 1994. The general principle of review is set out in section 21(ha) of the Subordinate Legislation Act 1994. Section 21(ha) is set out:–

Section 21. Review of statutory rules by the Scrutiny Committee

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

……

(ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;

The particular responsibilities of the Subcommittee to review Human Rights certificates are set out in section 12A.

12A. Human rights certificate

(1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed statutory rule, unless the proposed statutory rules is exempted under sub-section (3)

(2) A human rights certificate must–

(a) certify whether, in the opinion of the responsible Minister, the proposed statutory rule does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and

(b) if it certifies that, in the opinion of the rule does limit a human right set out in the Charter of Human Rights and Responsibilities, set out–

(i) the nature of the human right limited; and

(ii) the importance of the purpose of the limitation; and

(iii) the nature and extent of the limitation; and

(iv) the relationship between the limitations and its purpose; and

(v) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Sub-section (1) does not apply if the responsible Minister certifies in writing that in his or her opinion–

(a) the proposed statutory rule is a rule which relates only to a court or tribunal or the procedure, practice or costs of a court or tribunal; or

(b) the proposed statutory rule only–

(i) prescribes under section 4(1)(a) an instrument or class of instrument to be a statutory rule: or

(ii) exempts under section 4(1)(b) an instrument or class of instrument from the operation of this Act; or

(iii) extends under section 5(4) the operation of a statutory rule that would otherwise be revoked by virtue of section 5.

Subcommittee’s obligations – What are human rights?

Compatibility – Ensure that human rights protected and promoted by the Charter are protected in subordinate legislation

Essentially, the Subcommittee is required to consider whether each statutory rule is compatible with human rights as enunciated in the Charter. The Subcommittee needs to ensure that the human rights protected and promoted in the Charter are also protected in subordinate legislation.

In order to properly scrutinise and assess every statutory rule and the section 12A certificate, the Subcommittee must have a working knowledge of and consider the particular human rights set out in Part 2 of the Charter. The human rights are set out below.

• Recognition and equality before the law

• Right to life

• Protection from torture and cruel, inhuman or degrading treatment

• Freedom from forced work

• Freedom of movement

• Privacy and reputation

• Freedom of thought, conscience, religion and belief

• Freedom of expression

• Peaceful assembly and freedom of association

• Protection of families and children

• Taking part in public life

• Cultural rights

• Property rights

• Right to liberty and security of person

• Humane treatment when deprived of liberty

• Children in the criminal process

• Fair hearing

• Rights in criminal proceedings

• Right not to be tried or punished more than once

• Retrospective criminal laws

These human rights are based in part on the International Covenant on Civil and Political Rights (ICCPR). The Subcommittee needs to consider whether there is any possibility that these human rights may breached.

If a statutory rule does not comply with the Charter, there is a possibility that it may fall outside the scope of the authorising Act

The Subcommittee is required to consider the compatibility of the regulations with the Charter and to report to Parliament where it considers a statutory rule to be incompatible with the Charter. In determining this the Subcommittee must consider the section 12A Human Rights certificate provided by each Minister in respect of each statutory rule. First, the Subcommittee must consider whether it agrees on assessment that a particular regulation does not limit any human right set out in the Charter. However, if there is some limitation in respect of a human right, the Subcommittee must consider:–

• The nature of the human right limited; and

• The importance of the purpose of the limitation; and

• The nature and extent of the limitation; and

• The relationship between the limitation and its purpose; and

• Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

If the Subcommittee decides on the basis of the information that the proposed regulations are incompatible with the Charter, it may report this to the Parliament.

The Subcommittee will report on the operation of the Charter in the context of the scrutiny of subordinate legislation next year in its Annual Report of the statutory rule series 2007.

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Scrutiny of Acts and Regulations Committee
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