Scrutiny of Acts and Regulations Committee
Tenth Report to Parliament on Subordinate
Legislation
Annual Report concerning Statutory Rules Series
1997
Appendix 6 – Committee Memorandums
GROUNDS FOR DISCIPLINARY PROCEEDINGS OF MEMBERS OF PROFESSIONAL BODIES
DATE: 20 March 1995
Recently, the Scrutiny of Acts and Regulations Committee had cause to examine Regulations prescribing grounds for cancellation or suspension of persons registered under the Optometrists Registration Act 1958.
Concerns were raised about paragraph (c) of Regulation 202 that introduced a wide, undefined notion of behaviour that brought the profession of optometry "into disrepute".
The matter was followed up with the Minister for Health, and, in turn, the Optometrists Registration Board of Victoria. The Committee was given an undertaking that the Regulation would not impinge upon any optometrist’s freedom of expression and that members of professions should have the right to make reasonable comment about their chosen field.
In the event, having canvassed the matter, the Scrutiny of Acts and Regulations Committee has approved the particular regulation. However, as a general finding, the Committee formed the view that it would not wish to be seen as encouraging the use of such and vague catch-all expressions.
The Committee recommends to all drafting officers that possible disqualification from professional practice be limited to specific grounds related to professional competence and conduct. Attached is a copy of the definition of "unprofessional conduct" contained in section 3 of the Medical Practice Act 1994 that satisfies the Committee’s concerns.
(Section 3, Medical Practice Act 1994)
| "unprofessional conduct" means any or all of the following— | |||
| (a) | professional conduct which is of a lesser standard that which the public might reasonably expect of a registered medical practitioner; or |
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| (b) | professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or | ||
| (c) | professional misconduct; or | ||
| (d) | infamous misconduct in a professional respect; or | ||
| (e) | providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person’s well being; or | ||
| (f) | influencing or attempting to influence the conduct of a medical practice in such a way that patient care may be compromised; or | ||
| (g) | the failure to act as a medical practitioner when required under an Act or Regulations to do so; or | ||
| (h) | a finding of guilt of— | ||
| (i) | an indictable offence in Victoria, or an equivalent offence in another jurisdiction; or | ||
| (ii) | an offence where the practitioner’s ability to continue to practice is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the practitioner to continue practice because of the finding of guilt; or |
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| (iii) | an offence under this Act or the Regulations; or |
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| (iv) | an offence as a medical practitioner under any Act or Regulations. | ||
ABOUT EXPLANATORY MEMORANDUMS
DATE: 24 May 1995
The Committee has recently examined an Explanatory Memorandum that simply listed the headings of the various Regulations within the Statutory Rule. Nothing else was provided by way of explanation. The Committee advises that this is not adequate and that it will report adversely upon any future rule which is accompanied by an Explanatory Memorandum of such inadequate standard.
ABOUT OPEN–ENDED, CATCH–ALL PROHIBITIONS
DATE: 24 May 1995
The Committee recently had the responsibility of examining certain Statutory Rules that included some Regulations which concluded with unqualified, catch–all provisions.
One of these read:
"[X] may determine that entry ... is to be prohibited ...
(...) for any other particular purpose or activity ..."
In the circumstances, and on receipt of a substantial letter from the Minister concerned, the Committee approved the Regulations.
However, it wishes it to be clearly noted that, other than where good public policy reasons prevail, such non–specific but all–inclusive provisions will not meet with the Committee’s approval.
Where there are good public reasons supporting the regulation, the Committee believes that they ought to be stated in the Explanatory Memorandum, or where appropriate, in the RIS.
The Committee also believes that it is possible for new Regulations to be made where unexpected or unforeseen circumstances occur, and at the very least open–ended provisions are able to be expressly qualified by the objective of the regulation.
ABOUT SECTION 10(3) CERTIFICATES OF INDEPENDENT ADVICE
ABOUT: Regulatory Impact Statements and certificates of adequacy under the Subordinate Legislation Act 1994.
DATE: 26 February 1997
The Committee advises that to assist it to evaluate Regulatory Impact Statements properly, it requests Government Departments and authorities to forward to the Committee a copy of the independent advice as to the adequacy of each Regulatory Impact Statement required to be obtained by section 10(4) of the Subordinate Legislation Act 1994.
Cooperation on the part of officers is warmly appreciated.
ABOUT THE USE IN EXPLANATORY MEMORANDUMS OF CLEAR TABLES SETTING OUT CHANGES TO FEES
DATE: 5 March 1997
One of the major uses of subordinate legislation is to formalise changes to fees charged to members of the public for particular services. The Subordinate Legislation Subcommittee recommends highly to those responsible for preparing accompanying Explanatory Memorandums the use of a clear table setting out what the particular fee in question was and what it is to be after the Regulation comes into effect. In the usual case where the changes are within annual rate approved by the Treasurer in relation to the State Budget, the exact percentage increase is most helpful.
By way of illustration, something like the following might be employed:
| (a) on application for …. | $100.00 |
$105.00 |
5.0 |
| (b) on application for …. | $320.00 |
$325.00 |
1.6 |
APPLICATION OF SECTION 8(1)(a) AND 8(2) TO FEE INCREASES WITHOUT RIS
DATE: 26 March 1997
The Subordinate Legislation Subcommittee has examined statutory rules which increase fees (without a regulatory impact statement) on the basis of the exception provided by section 8(1)(a) and 8(2) of the Subordinate Legislation Act 1994.
Currently, the Treasurer has approved an annual rate of fee increase of 5% for the purposes of a section 8 exception certificate. Section 8(2) deems an increase of an amount in excess of 5% to comply with section 8(1)(a) where the total increase results from a rounding up of a 5% increase to the nearest whole dollar. Such an increase would only arise where the exact 5% increase has the result of a sum of cents over 50 cents.
A few Regulations purport to rely on section 8(2) of the Subordinate Legislation Act by rounding up a fee to a whole dollar amount beyond the 5% authorised by the Treasurer in the annual Budget where the 5% amount includes cents amounts which are less than 50 cents.
To date the Subcommittee has only approved such increases where the extra amount can be considered trifling when compared to the whole fee. It has sought remaking where the amount has significance in proportion to the whole fee.
So, for example, the fee increase relating to the admission of disabled young people to zoos was not approved and a replacement fee was sought and obtained. By contrast, fees under the Planning and Environment Act 1987 were approved when, for example, the fees exceeded $1000 and the extra increases were of only a few dollars.
The Subcommittee has obtained advice from the Chief Parliamentary Counsel on the matter. She agrees that there is conflict between the intention of the fee increase provisions in the Subordinate Legislation Act and the strict words of the Act.
The Subcommittee notes that a number of Regulations are challenged in the courts.
The supporting rationale and impetus for legislative amendment is to ensure that any fees imposed by a statutory rule which relies for power on an incorrect reading of section 8(2) of the Subordinate Legislation Act are not overturned by the courts.
An amendment to the provisions to clarify the application of section 8(1)(a) and 8(2) of the Subordinate Legislation Act will remove the Subcommittee’s concern. The Subcommittee has passed the issue on to the Premier, as Minister responsible for the Subordinate Legislation Act.
ACTION
Until such time as an appropriate amendment is made, the Subcommittee will query fees
that do not comply with a strict construction of section 8(1)(a) and
8(2) where the amounts involved are significant in proportion to the original fee.
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