Tenth Report to Parliament on Subordinate Legislation
Annual Report concerning Statutory Rules Series 1997

The Subordinate Legislation Subcommittee examined each of the 175 rules made in 1997 to determine whether or not they offended against any of the above criteria. The grounds for review enable the Committee to regard the substance of a statutory rule as well as procedural aspects of rules, including where applicable, the statutory requirements for regulatory impact statements.

Substantive review

7. During its examination of the 1997 series of statutory rules, the Committee found statutory rules which it considered to be in contravention of sub-paragraphs (a), (b), (d), (f), (h), (i), (j) and (k) of s. 21(1). These matters are discussed in Chapter 2 of this Report.

Procedural review

8. Procedural matters have a greater importance in the 1994 Act. A new provision for consultation before the making of rules is found in s.6 of the Act. A certificate evidencing that consultation occurred must be provided to the scrutiny committee for all but the most minor regulations.

Part 2 of the Act is entitled "Preparation of Statutory Rules". Its centrepiece is s.7 of the Act, which reads:

The regulatory impact statement (RIS) has been pivotal in Victoria’s approach to regulations since 1987. It is not without its critics, but enables Departments to assess whether or not regulation in a certain area is justified. Increasingly, concerns that the Committee might raise about statutory rules relate to inadequacies in a RIS rather than questions of substantive breach of the developed law pertaining to delegated legislation.

As apparent from s.7 itself, not all regulatory change requires a RIS. Certificates of exception (s.8) from a regulatory impact statement (RIS) and exemption (s.9) from RIS must be provided to the scrutiny committee if a rule is to be made without a RIS. In most cases there should be consultation in compliance with s.6 of the Act.[2]

In 1997, there were 36 regulations prepared with input from the public by means of the RIS process. Tables 2 and 3³ set out numerical information concerning exceptions and exemptions to RIS for 1997.

SR No. 111/97 is interesting because it is a rule that is both excepted and exempted from the RIS process. The rule contains a 5% fee increase and so is accompanied by an exception certificate on the grounds that the increase does not exceed the annual rate approved by the Treasurer in relation to the State Budget. An exemption certificate on the basis that the other amendment it effects is fundamentally declaratory also accompanies it.

Combinations like this have been sighted by the Committee before. It [4]notes that while this is an extremely sensible and cost-effective approach (because one rule only need be made) it is aware that it is not available to the Attorney-General to make rules which contain more than court procedural, practice and costs matters in a single regulation if her wish is to be excepted from RIS. This is because the provision in section 8(1)(b) contains the limiting word "only" which deprives the Attorney-General of combining court practice rules with (say) a rule relating to something which is not procedural but is fundamentally declaratory. Any other minor changes she could make must be in a separate rule.

State Environment Protection Policies (SEPPs)

9. Late in 1996, the Parliamentary Committees Act 1968 was amended with respect to the functions of the Scrutiny of Acts and Regulations Committee. A new paragraph was added to s.4D of that Act which reads:

(ca) such functions as are conferred on the Committee by the Environment Protection Act 1970.

Part 3 of the Environment Protection Act was amended at the same time to authorise the Scrutiny of Acts and Regulations Committee to consider state environment protection policies (SEPP) and report to the Parliament if a SEPP was beyond power or did not in other ways comply with the Environment Protection Act.

In August 1997 the Governor in Council endorsed a variation of the State Environment Protection Policy (Waters of Victoria) to add a new Schedule for the Waters of Victoria.

For the previous 20 years, the environmental values of Port Phillip Bay were protected by the Waters of Victoria Policy and the separate SEPP (Waters of Port Phillip Bay). Over this time the major threats to the environmental quality of the Bay have changed from gross pollution from point source discharges to less visible sources of pollution. The Schedule (F6) provided a new approach focussing on long term planning and the prevention of pollution for the next 10 years.

The documents provided to the Committee appeared to comply with the Act and presented a lucid elaboration of the goals expected to be achieved. Thirty nine submissions were received and a document responding to the comments made was provided to the Committee as required.

Several changes resulted from the public commentary process often improving or simplifying language used.

The Committee is pleased to have the opportunity to extend its reach into other types of subordinate legislation. It believes that the Parliament can be well assisted by advice it provides and acknowledges the role it could play if a situation were to arise on which the Committee would report to the Parliament.

The Committee appreciates the willingness of the Environment Protection Authority and the Minister for Conservation and Land Management to expose its processes to parliamentary scrutiny.

• The Subcommittee has examined another SEPP made during 1997. This was the SEPP (Groundwaters of Victoria). It focused on avoiding groundwater pollution and permits the EPA to monitor groundwater quality and direct cleanups of polluted groundwater. It appeared to comply with the procedural requirements of the EPA Act resulting as it did from a long consultative process.

Law Reform Committee’s Discussion Paper on Regulatory Efficiency Legislation

10. In May 1997, the Law Reform Committee distributed a Discussion Paper on another development in subordinate legislation. This is a concept that derives from alternative approaches to government regulation, and allows a business to establish its own compliance regime to standards equivalent to those adopted by government in regulation.

The Scrutiny of Acts and Regulations Committee submitted a response to this proposal. The Committee’s response is reprinted in its entirety as Chapter 3 to this Report.

The Final Report of the Law Reform Committee on Regulatory Efficiency Legislation was tabled in October 1997. Amongst other matters, it recommends the introduction of certain alternative compliance mechanisms. It also recommends that the Scrutiny of Acts and Regulations Committee undertake an inquiry into the regulatory impact statement process. The Committee would be pleased to receive such a reference.

Minor technical inconsistency

11. A student has drawn attention to a possible internal inconsistency found when sections 15 and 23 of the Subordinate Legislation Act 1994 are read together. The particular circumstance discussed is when a regulation has not been tabled in a House of the Parliament, but the Scrutiny of Acts and Regulations Committee wishes to report on the regulation recommending disallowance.

The Subordinate Legislation Act is premised on the position that all statutory rules are tabled in compliance with section 15 of the Act. The disallowance timetable refers back to the day "after the rule is laid before that House". If section 15 is not complied with it would appear arguable that the Parliament cannot disallow that rule even if it breached one of the significant heads of scrutiny contained in section 21 of the Act.

Discussions with Parliamentary Officers revealed that there is no record of such a situation arising. One persuasive view is that it might be a bit ridiculous - and certainly uncommon - for an Act to be amended to provide for situations where steps had not been taken in accordance with the obligatory process specified in the Act. Nonetheless, the Committee mentions the matter for the consideration of the responsible Minister.

Where a Regulation permits the making of notices in Victoria Government Gazette by General Manager

12. Regulation 724 of the Road Safety (Vehicles) Regulations 1988 is an example of a regulation that allows the Roads Corporation (VicRoads) to make a notice in the Government Gazette removing limitations spelt out earlier in the same Regulations.

This is an instance of subordinate legislation that is beyond the purview of the Scrutiny of Acts and Regulations Committee. The Subcommittee has been maintaining an informal collection of similar pieces of subordinate legislation, which are not in the ordinary course subject to scrutiny by the Scrutiny of Acts and Regulations Committee. These include municipal planning schemes, hospital by-laws, cemetery rules, various orders, ministerial directions and notices. Some of these are published in the Government Gazette. Many are not. This raises the parallel issue of public access to the laws that affect the citizen in daily life.

In the case of Regulation 724 of the Road Safety (Vehicles) Regulations 1988 a further question of whether there is unlawful delegation by a delegate also arises. The Subcommittee formed the views that as there were clearly spelt out limits on the delegation found in Regulation 724 this was unlikely to be the case.

The Principal Regulations would have sunsetted in 1988 but their operation has been extended until February 1999 by the Subordinate Legislation (Road Safety (Vehicles) Regulations 1988 - Extension of Operation) Regulations 1997. The Regulations were extended because the empowering Road Safety Act 1986 is currently under review.

Clarification of the nature of the authorising provisions in regulations

13. The Committee had an opportunity to raise the nature of the authorising provisions when it considered the Financial Institutions Duty (Amendment) Regulations 1997 - SR No. 63/97. These Regulations were made under section 18(3)(o), 86 and the definition of "financial institution" found in section 3(1) of the Financial Institutions Duty Act 1982. Regulation 2 wrongly cites the Act relied upon as having been made in 1992. This could be confusing, as there is a Financial Institutions (Victoria) Act 1992. It could lead to the amendment being ineffective.

Accordingly, the Subcommittee wrote to the State Revenue Office on 5 September 1997 raising this matter. On 24 September 1997 the Office wrote back to the Committee attaching advice it had received from Parliamentary Counsel Victoria.

The advice of 16 September 1997 read in part:

Whilst it is unfortunate that there was an error in the date of the Act in the authorising provisions of the Financial Institutions Duty (Amendment) Regulations 1997, it is not necessary to amend this. The authorising provisions in regulations are declaratory in nature, and should not effect the operations of the regulations, especially in the case of obvious error. The regulations have already operated to make the relevant amendments to the Principal Regulations and are therefore spent. There is no point in amending them now. (Underlining added).

The Committee was pleased to have this helpful advice.

Information brochure

14. In 1997, the Subcommittee prepared a distinctive brochure setting out its functions, its recent achievements and a list of its publications. The content of the brochure has been printed in this Report in Appendix 8. During the year, the Committee has been present on occasions where information about its activities in an easily readable format has been received with interest. Copies may be obtained from the Committee.

High Court Decision

15. The High Court of Australia handed down a decision in Levy v. The State of Victoria & Ors on 31 July 1997.

This case involved examination of the Wildlife (Game)(Hunting Season) Regulations 1994. The Regulations prohibited persons from entering a permitted hunting area on the opening day of the duck-hunting season. The plaintiff had been removed against his will from a permitted hunting area near Lake Buloke on the opening day. He was charged with offences returnable before the St Arnaud’s Magistrates’ Court, Victoria. He had challenged the validity of the regulation-making power in the Supreme Court of Victoria. This was dismissed, but he then took the matter to the High Court.

Mr Levy commenced proceedings in the High Court claiming that the regulations were "invalid and inoperative as beyond the powers of the Parliament of the State of Victoria". This was because they were in conflict with the constitutionally protected freedom of communication upon political and governmental matters.

Mr Levy said that his purpose in entering the area was to speak publicly and be seen to do so, especially on television. He claimed the protection of the implied constitutional freedoms of the Constitution of the Commonwealth of Australia as well as those in the Constitution Act 1975 of Victoria.

Mr Levy was not successful. As His Honour Justice Kirby found:

It may be conceded that the effect of (the Regulation concerned) is to inhibit political communication to some degree. However, it cannot be argued that it does so in a way inconsistent with the freedom of communication implicit in the system of representative government for which the Australian Constitution and the Victorian Constitution provide.

There is a plainly legitimate interest of the Victorian Parliament, and laws made by or under its authority, in the protection of the safety of the public. That interest is expressly invoked to support the law challenged here. Commonsense suggests that safety of human beings could indeed be put at risk by confrontation between angry protesters and other persons armed with and using guns.[5]

The Regulations were upheld.

It is not often that Victorian Regulations are considered in the High Court. It was pleasing to see that the Regulations were upheld.

Consolidated Version of Acts with Regulations

16. The Committee has observed that there is a consolidated version of the Acts pertaining to the Melbourne Cricket Ground and the Melbourne Cricket Club available in printed form together with the Melbourne Cricket Ground Regulations 1994.

Section 1 of the Melbourne Cricket Ground (Guarantees) Act 1984 provides that that half a dozen Acts loosely described as the "Melbourne Cricket Ground Acts" are to be read and construed as one Act. This is why these Acts have been reproduced together in this publication. For completeness, two other Acts and the Melbourne Cricket Ground Regulations 1994 have also been reproduced in the same volume.

In principle, it seems eminently sensible to the Committee that Acts and Regulations commonly used together should be grouped and printed together in this way. Acts that are not expressly declared to be read and construed with each other may still relate to overlapping fields or may still be used with regulations empowered by the Act. The Committee suggests that there be an on-going assessment of the merit of this approach.

The Imposition of Fees

17. During 1997, there have been occasions when regulations have increased fees without the increase being explored by the RIS process on the basis that the increase complies with section 8(1)(a) of the Subordinate Legislation Act. On the face of it, it appears that there has not been compliance with section 8(1)(a) of the Subordinate Legislation Act, even taking into account the extra increase permitted by section 8(2).

18. Section 8(2) of the Subordinate Legislation Act reads:

(2) For the purposes of sub-section (1)(a), in calculating the amount of an increase the amount is deemed to have been calculated in accordance with sub-section (1)(a) if the calculation is made to the nearest whole dollar.

This issue is further explored on p.15ff.

The matter was referred to the Office of Parliamentary Counsel for elucidation. The reply from the Chief Parliamentary Counsel dated 4 March 1998 was most helpful. It confirmed that the Subcommittee’s observations on use of the section were appropriate. The last sentence of her letter reads:

I should not be surprised if the Committee continues to query fees to which a rounding has been applied with the result that the increase is closer to twice the permitted increase.

At present, the Subcommittee is of the view that if an increase is trifling when compared to the whole fee it will overlook possible non-compliance.

TABLE 1
Subordinate Legislation made in 1997 Examined by Scrutiny Committee
According to Type

Subordinate Legislation Type	Statutory Reference	Quantity
Regulations made by the Governor in Council; or made with the consent or approval of the Governor in Council; or able to be disallowed by Governor in Council	s.3, Subordinate Legislation Act 1994, definition of "statutory rule", paragraphs (a)(i),(ii) and (iii)	152
Court Rules	s.3, Subordinate Legislation Act 1994, definition of "statutory rules", paragraph (b)	22
Instruments prescribed to be statutory rules under s.4(1)(a) Subordinate Legislation Act 1994	s.3, Subordinate Legislation Act 1994, definition of "statutory rule", paragraph (c)
Instruments deemed to be statutory rules under the authorising Act	s.3, Subordinate Legislation Act 1994, definition of "statutory rule", paragraph (d)	1

TABLE 2
Exceptions to Section 7,
Under the Several Categories laid out in Section 8

Category	Subsection of s.8 Subordinate Legislation Act 1994	Quantity
Treasury approved fee increase	s.8 (1)(a)	20
Court Rule	s.8 (1)(b)	22
Equalisation factor for the Land Tax Act 1958	s.8(1)(c)	1
Instrument prescribed under s.4(1)(a) of the Subordinate Legislation Act 1994	s.8(1)(d)(i)	-
Exemption under s.4(1)(b) from the Subordinate Legislation Act 1994	s.8(1)(d)ii)	-
Extension of operation of statutory rule under s.5(4) of the Subordinate Legislation Act 1994	s.8(1)(d)(iii)	20

TABLE 3
Exemptions from Section 7,
Under the Several Categories laid out in Section 9

Category	Subsection of s.9, Subordinate Legislation Act 1994	Quantity
No appreciable economic or social burden on a sector of the public	s.9(1)(a)	33
National uniform legislation scheme where cost/benefit assessment has been undertaken	s.9(1)(b)	-
Fundamentally declaratory or machinery	s.9(1)(c)	32
Administration of procedures within a government department	s.9(1)(d)	3
Administration of procedures within a department of the Parliament	s.9(1)(da)	-
Notice would make rule ineffective or unfairly advantage or disadvantage persons	s.9(1)(e)	-
Premier’s certificate	s.9(3)	8

Footnotes
[1]	See for eg 8.4 Premier’s Guidelines.
[2]	See Part Five of the Premier’s Guidelines for situations where consultation is not required.
[3]	Tables 2 and 3 pp. 11 and 12.
[4]	See Health Services (Private Hospitals and Day Procedure Centres)(Amendment) Regulations (SR No. 159/96).
[5]	71 ALJR 837 at 871

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