Scrutiny of Acts and Regulations
Committee
Tenth Report to Parliament on Subordinate Legislation
Annual Report concerning Statutory Rules Series 1997
CHAIRMAN’S
FOREWORD
Subordinate legislation committees are traditionally
composed of unusual politicians. Overwhelmingly the subject matter of their committee work
does not lend itself to intrinsic personal interest, parliamentary oratory, media exposure
or, as a consequence, much public comprehension. It does on the other hand offer abundant
opportunities for some Ministers, most public servants and ministerial staffs and some
politicians to dismiss such committee work as trivial, time-wasting and potentially
destabilizing and disloyal.
And yet a strange breed of men and women of both the right and the left
still gravitate to serve on these committees with a willingness and motivation that is
becoming rare in Australian politics. Their concern is to protect ordinary people’s
rights and to use one of the last politically unsullied parliamentary forums to engage in
a genuinely parliamentary activity.
Peter O’Keeffe,
Secretary, Senate Regulations and Ordinances Committee
The Parliamentarian
April 1987, p. 70.
The above quotation is more than 10
years’ old, but it could still be said of today’s parliamentary participants in
the scrutiny of statutory rules. We are in the main "unusual politicians".
However, Committee life provides many interesting moments. There are tricky rules to
examine; there are conferences with those whose work also takes them into the study of
subordinate legislation; and there are meetings with colleagues in other contexts. The
year of 1997 has offered something from each area to the Subordinate Legislation
Subcommittee of the Scrutiny of Acts and Regulations Committee.
As earlier reported in 1997, the members of the Committee travelled to
New Zealand to participate in the 4th Commonwealth Conference on Delegated
Legislation. In the Journal of the Parliaments of the Commonwealth in July, 1997
the Clerk of the New Zealand Regulations Review Committee in writing on the Conference,
wrote as follows:
In contrast with judicial and parliamentary scrutiny of delegated
legislation, negotiated regulation-making was a strategy for previewing delegated
legislation.
…
It was learnt that negotiated regulation-making had been operating in
Victoria (Australia) since 1985, under the provisions of what is now the Subordinate
Legislation Act 1994.The general object was to require government departments to consider
various matters (including the existence of alternative methods of achieving the desired
ends) before introducing Regulations.
There was also a requirement that the making of the proposed
Regulations be publicized in advance and that interested parties be consulted. Finally, in
most cases a regulatory impact statement was prepared by the government department
proposing the regulation, in which the costs and benefits of the regulation - both
economic and social were evaluated.
The concept of negotiated regulation-making was enthusiastically supported by
delegates, with many expressing a desire to incorporate this mechanism into their scrutiny
procedures.
In reading this, I became aware of how advanced our scrutiny of
Regulations is and how well regarded the Victorian model is in Commonwealth countries.
Sometimes, one does not fully realise the virtues of the system one works with until those
without its advantages point them out!
In July, 1997 the Full Committee attended the Sixth Australasian and
Pacific Conference on Delegated Legislation and Third Australasian and Pacific Conference
on the Scrutiny of Bills. I presented a paper on the important work of the Redundant
Legislation Subcommittee in tidying up the Statute Book. In the paper I was able to
portray life in Victoria through the years of its legislative record. We were reminded of
the relevance of legislation to the day’s needs.
The Chairman of the Scrutiny of Acts and Regulations Committee, my
colleague, Mr Peter Ryan, MP, delivered a paper at that Conference in which he addressed
the question "Are we doing ourselves out of a job?". While the answer was a
strong "no", Mr Ryan was pleased to comment on the improvements in legislation
which the very existence of scrutiny committees bring about.
During my preparation reading for that Conference, I was amused by the
comment of a distinguished Victorian in the Australian Senate, Austin Lewis, who remarked
at the Second Australasian Conference on Delegated Legislation in Canberra in 1989:
I am sure that all of us here today can reflect wryly on how little
personal political mileage or prestige there is in legislative scrutiny, particularly
scrutiny of delegated legislation.
Senator Lewis’s observation may in fact still be true, but those
of us engaged in the work are aware of the importance of the constant vigilance it
entails.
In relation to the 1997 Series of Statutory Rules, there have been no
Reports to the Parliament. Partly this is because the number of statutory rules is lower
than ever before but also this signifies the good working relationship which the
Subcommittee has developed with relevant Departments. In this Annual Report there is a
summary of correspondence between the Committee about those Regulations which the
Committee sought to examine further against its statutory charter. These concerns were, by
and large, minimised or removed after such letters either clarified the reasons for doing
certain things or resulted in a Ministerial undertaking to amend the Regulations next
time.
In September, 1997 the Subcommittee was visited by the Joint Standing
Committee on Delegated Legislation from the Western Australian Parliament. That Committee
had held inquiries into the framework for subordinate Legislation in Western Australia.
Two Reports resulted. Recommendations in the Reports related to staged sunsetting and a
process for regulatory impact assessment including cost-benefit analysis. In the event,
the Attorney-General of the State opposed the reforms. The Committee’s recent visit
to Victoria was to conduct further investigations into both these areas - and particularly
the costs entailed - in order to be in a position to respond appropriately.
As readers may know, the Subordinate Legislation Act 1994
of Victoria is future oriented. It aims to improve the quality of Victoria’s
statutory rules by automatic revocation - or sunsetting - where regulation is no longer
considered necessary. It subjects all major rules to a process of regulatory impact
assessment which allows the public to participate formally in the method of creating
Regulations.
As the Minister for Small Business writes in the Victorian Regulation
Alert 1997-98:
The aim of this process is to constantly improve the quality of
Victoria’s regulation by consulting with business and the community about the costs
of regulation and inviting suggestions on alternative, more efficient, ways of achieving
the objectives of regulation.
The focus in Victoria is legitimate cost-cutting for business thereby
reducing the overall cost of statutory rules to all taxpayers.
The Subcommittee entered into fruitful discussions with the Western
Australians and wishes them well in the outcome of their investigations.
In March, 1998 I attended a meeting of Chairs of all Australian
Scrutiny Committees in Sydney. The meeting was called to discuss a resolution from the
Adelaide Conference about cost-benefit analysis and "sunsetting". The Victorian
Committee will contribute to the work of an implementation subcommittee to further
investigate practical questions on how the Australian Scrutiny Committees may pursue
research on this important resolution.
In October, 1997 the Committee was saddened to learn of the death of
Emeritus Professor Douglas Whalan, AM. Formerly with the Australian National University,
Professor Whalan had long been associated with the task of Parliamentary Scrutiny of
subordinate legislation in the Senate. In more recent times, with the arrival of
self-government for the ACT, he became involved with the examination of the primary
legislation as well as the subordinate legislation of that Territory. His contribution to
expert discussions and his friendliness to all will be greatly missed. The Subcommittee
sent condolences to Professor Whalan’s wife and family.
As always, the Subcommittee is indebted to its staff. It relies heavily
on the legal work of Tanya Coleman and on the organisational skills of the Assistant
Executive Officer. During 1997, this position was filled by Rhonda MacMahon who left the
Committee for overseas and by Simon Dinsbergs who replaced her. I am grateful to the
conscientiousness of each of these people.
I also am aware of the work for the Committee of its Senior Legal
Adviser, Helen Mason and of the Office Manager, Richard Kings. During the year, the
Redundant Legislation Subcommittee gained a Research Officer, Nadia Krivetz. With her, the
Committee staff is complete.
Murray H. Thompson, MP
Chairman, Subordinate Legislation Subcommittee |
