Scrutiny of Acts and Regulations Committee
Tenth Report to Parliament on Subordinate Legislation
Annual Report concerning Statutory Rules Series 1997
CHAPTER 2 Application of the Review Criteria by the Committee to Rules Made in 1997
Section 21(1) of the Subordinate Legislation Act sets out the eleven criteria under which the Committee scrutinises all statutory rules. The section appears on page 3 above.
Initially, the Subordinate Legislation Subcommittee (the Subcommittee) examines the statutory rules. At this stage, the rules are examined for procedural compliance according to sections in Part 2 to the Subordinate Legislation Act. However, any action to be taken by the Committee must be taken under one or other of the criteria in s.21 to the Act.
The Subcommittee is appointed pursuant to s.4L of the Parliamentary Committees Act 1968. Should the rule be one on which the Subcommittee forms the view that a report to the Parliament is requires, it will prepare a report to this effect and bring it to the Full Committee for adoption with such changes (if any) as the Full Committee believes appropriate.
This chapter of the Annual Report is primarily devoted to describing the statutory rules that raised discussion in the Subcommittee, leading possibly to correspondence with the relevant Minister.
SECTION 21(1) AS BROKEN UP INTO PARAGRAPHS
21 Review of statutory rules by the Scrutiny Committee |
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(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament— |
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(a) Statutory Rule does not appear to be within the powers conferred by the authorising Act; |
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SR 49 – Tobacco (Victorian Health Promotion Foundation) Regulations 1997
These Regulations consolidated the appointments of members to the Victorian Health Promotion Foundation, listing all 14 members in the one set of Regulations. At the same time, the Regulations tidied up the statute book by revoking the previously operative Regulations. Unfortunately, the number of one of the revoked regulations was wrongly identified. This could have had the effect of revoking an operative lift fees Regulation, but the particular regulation involved was no longer on the statute book.
To confirm the situation, the Subcommittee wrote to the Chief Parliamentary Counsel. She replied as follows (21 August, 1997):
In your letter you inquired about the effect of an incorrect reference to the number of a statutory rule revoked by (SR No. 49/97).
The Schedule to the Regulations lists the Regulations to be revoked both by name and statutory rule number. The statutory rule numbers are provided for completeness and to assist in the easy identification of the statutory rules.
The Tobacco (Victorian Health Promotion Foundation) Regulations 1994 were identified in that list by their correct title. There are no other Regulations in 1994 with which those Regulations could be confused. Therefore it seems that the revocation was effective despite the fact that the statutory rule number of the Regulations was not correct.
In any event, the overall effect of the Tobacco (Victorian Health Promotion Foundation) Regulations 1997 was impliedly to revoke the Tobacco (Victorian Health Promotion Foundation) Regulations 1994 because the 1994 Regulations are superseded and made redundant by the 1997 Regulations.
The regulations would have been ineffective to the extent that they purported to revoke Statutory Rule No. 40/1994 dealing with lift fees. As you indicated in your letter, that Statutory Rule has been revoked. Furthermore, there is no power under the Tobacco Act 1987 to regulate the subject matter of that particular Statutory Rule.
The Subcommittee appreciated this clear explanation. It is grateful to the Chief Parliamentary Counsel and her Office for the assistance that she gives the Committee.
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When the Subcommittee examined SR No. 157/97 - Tobacco (Victorian Health Promotion Foundation)(Amendment No. 1) Regulations it observed that this error of reference was picked up and corrected. The Committee thanks the Minister for Human Services for this prompt correction.
S. 21(1)(b) Without clear and express authority being conferred by the authorising Act—
(i) has a retrospective effect; or
(ii) imposes any tax, fee, fine, imprisonment or other penalty; or
(iii) purports to shift the onus of proof to a person accused of an offence; or
(iv) provides for the sub-delegation of powers delegated by the authorising Act;
THE IMPOSITION OF FEES BY REGULATION
There are many Regulations which set fees each year. The Subcommittee has discussed the setting of fees generally on several occasions.
Issues addressed include:–
1. The use of the exception to the RIS process provided by section 8(1)(a) of the Subordinate Legislation Act. In particular, in a low inflation environment, the Subcommittee has discussed whether an annual increase in fees of 5% is appropriate as permitted by section 8(1)(a). The Subcommittee is also concerned that Departments might consider it a right to increase fees each year by 5% and so avoid subjecting increases in fees to a RIS process. The Committee has also discussed the administrative cost of setting a fee annually while excepting the increase from the RIS process by obtaining a certificate from the relevant Minister stating that the increase in the fee is by an annual rate that does not exceed the annual rate approved by the Treasurer in relation to the State Budget;
2. Whether the Subordinate Legislation Act should be amended to authorise triennial fee increases of up to (say) 15%. This could provide considerable savings to a Department in the annual preparation of a statutory rule made solely for the purpose of increasing fees. The Subcommittee is aware that many of the fee increase Regulations each year are no more than a single sheet of paper. This single sheet is however accompanied by much formality and time in preparation. The suggestion may also be helpful in situations where for one reason or another, fees have not been increased for some years. See for example SR No. 36/97[6]where fees had not been increased since 1990;
3. Proper interpretation of the Guidelines for setting Fees and Charges Imposed by Departments and Budget Sector Agencies. This document is issued annually by Treasury and includes commentary on the use of section 8(1)(a) of the Subordinate Legislation Act.[7] This matter has been particularly relevant in the examination of SR No. 55/97.
SR 55 – Zoological Parks and Gardens (Administration)(Charges) Regulations 1997
These Regulations increased entry fees and replaced references to "admission" with references to "entry" throughout the Regulations.The increases were by 5% rounded up to the nearest dollar (as permitted by section 8(2) of the Subordinate Legislation Act 1994), except for the category of physically or intellectually disabled children under 16 years of age where the fee was rounded to the nearest half dollar - from $3.20 to $3.50. A 5% increase would have been to $3.36 with the nearest whole dollar actually being $3.00.
The Subcommittee wrote to the Honourable Marie Tehan, MLA, being the responsible Minister as follows (9 September 1997):
The Subordinate Legislation Subcommittee examined the above Regulation at its most recent meeting. SR No. 55/97 is excepted from a Regulatory Impact Statement by virtue of your Ministerial certificate relying on section 8(1)(a) of the Subordinate Legislation Act 1994. The primary explicit objective of SR No. 55/97 is to increase the charges payable for entry to the Sir Colin MacKenzie Zoological Park and to the Royal Melbourne Zoological Gardens. What is unstated is that the fee increases are to be made as allowed by section 8(1)(a) and (2) of the Subordinate Legislation Act, without the requirement for a Regulatory Impact Statement.
The fee increases effected by the Regulations raise questions of the true application of section 8(2) of the Subordinate Legislation Act. The Subcommittee notes that reliance on this provision has authorised increases in fees of up to 11.11%. It also notes, however, that the sums of money involved are not extravagant.
With respect to the increase in the entry fee for the category of physically or intellectually disabled children, the Subcommittee notes that the fee has grown from $3.20 to $3.50. An increase of 5% would be to $3.36. The increase to $3.50 is one of 9.37%. Such an increase would appear to be authorised by neither section 8(1)(a) nor section 8(2) of the Subordinate Legislation Act.
Section 8(2) deems compliance with section 8(1)(a) where the calculation of an increase is made to the nearest whole dollar. There is no mention of half-dollars.
The Subcommittee appreciates the difficulty of handling small sums of money - such as 35 cents would be. However, at this stage we see this single increase as not complying with the Subordinate Legislation Act. We have tentatively formed the view that Item 3 of Schedule 1 to the Zoological Parks and Gardens (Administration) Regulations 1992 has been prepared in contravention of section 8(1)(a) and 8(2) of the Subordinate Legislation Act, and gives the Scrutiny of Acts and Regulations Committee grounds to report to the Parliament under section 21(1)(j) of that Act.
We seek your response to this possibility. It may be that your Department would consider approaching the Premier with a view to formulating an amendment to section 8(2) such as deeming compliance with section 8(1)(a) where a fee is rounded up to the nearest reasonable amount, or more narrowly, to the nearest half-dollar or whole $1.
The correspondence of the same date with the Premier, as Minister responsible for the administration of the Subordinate Legislation Act read as follows:
The Subordinate Legislation Subcommittee has had cause to examine the effect of section 8(2) of the Subordinate Legislation Act 1994 in relation to the increase of fees in such a manner as to be excepted from preparation of a regulatory impact statement (RIS) under section 7 of the Act.
The issue has arisen in relation to SR No. 55/97 - the Zoological Parks and Gardens (Administration) (Charges) Regulations 1997. These Regulations increase entry fees to the Royal Melbourne Zoological Gardens and the Healesville Sanctuary. The Regulations increase entry fees by amounts of up to 11.11% without a RIS having been prepared, relying on the deeming provision of section 8(2).
Section 8(2) reads:
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.
In the case of the increase effected by Item 3 to the new substituted Schedule 1 , an increase is made not to the nearest whole dollar, but to the nearest half-dollar. The increase is of an amount of 9.37%. A 5% increase would be to $3.36.
The Subcommittee has formed a tentative view that such an increase is in contravention of the relevant provisions of the Subordinate Legislation Act, giving the Scrutiny of Acts and Regulations Committee grounds to report to the Parliament under section 21(1)(j) of that Act.
We have sought a response from the responsible Minister, and suggested to her that she might raise with you an amendment to section 8(2) to the effect that increases to the nearest reasonable amount, or more narrowly, to the nearest half-dollar be deemed to have complied with section 8(1)(a). A copy of our letter to her is attached.
The Subordinate Legislation Subcommittee acknowledges the difficulty of handling small amounts of money - such as 35 cents - and believes that an amendment along the lines outlined is in the interest of efficient government, as well as being in the best interests of the Zoo.
Amending regulations were made in 1998.8 The Committee thanks the Minister for her prompt response.
- SR No. 55/97 involved an increase to a higher half-dollar. The Committee has also examined Regulations that increase fees above the allowed 5% to a higher whole dollar. These were Court fees. A brief description of the rules is set out below.
SR 116 – Supreme Court (Fees)(Amendment) Regulations 1997
The increase in fees are excepted from RIS because of an exception certificate signed by the Minister indicating that the fees do not exceed the 5% increase authorised by the Treasurer in the Annual State Budget.While the majority of fee increases do comply with section 8, two of the fee increases are to amounts that exceed the allowance in section 8(2) of the Subordinate Legislation Act for a calculation "made to the nearest whole dollar". These are Item 12 in Schedule 1 and Item 9 in Schedule 2.
Item 12 increases from a 5% increase of $154.35 to a prescribed $155.00.
Item 9 prescribes $72.00 when a 5% increase is to $71.40.
SR 114 – County Court (Bailiff's Fees)(Amendment) Order
The bailiff’s fees are increased by 5% or less by this Order but one fee is increased by 5.45% and the increase does not appear justified by section 8(1)(a) or 8(2) of the Subordinate Legislation Act 1994.This fee is the fee imposed by Item 1(a). The current fee is $137.50. The fee increased by 5% would be $144.38 and the "rounded fee" prescribed is $145.00. This is an increase that cannot be described as to the "nearest whole dollar". The Subcommittee noted that Chief Parliamentary Counsel has indicated in her certificate that the proposed statutory rule "appears" to be within the powers conferred by the authorising Act.
SR 118 – Supreme Court (Sheriff's Fees)(Amendment) Regulations
These regulations prescribe increases in the fees payable for certain actions taken by the Sheriff in enforcing judgements of the Supreme Court. In the exception from RIS certificate which accompanies the regulations, the Attorney has "formed the opinion" that the fee increases do not exceed the 5% approved by the Treasurer. However, two of the fees do exceed this amount and are not helped by section 8(2) of the Subordinate Legislation Act that allows a calculation "made to the nearest whole dollar".Item 1(a) increases a fee from $137.50 to $145.00 which exceeds a 5% increase by 62¢.
Item 1(e) increases the fees from $85.00 to $90.00 which exceeds a 5% increase by 75¢.
In neither case is such an increase to the nearest whole dollar.
As the 1994 Subordinate Legislation Act is premised on the requirement of every regulation to be subjected to RIS unless it falls within the exception or exemption categories, it would seem that interpretations of section 8 and 9 should be narrow rather than broad. It is certainly arguable that the three regulations above are invalid in part.
The Committee wrote to the Attorney General on 27 November, 1997 about seeking the rationale behind the increases in fees contained in the regulations SR No. 114/97 – County Court (Bailiff’s Fees)(Amendment) Order 1997, SR No. 116/97 – Supreme Court (Fees)(Amendment) Regulations 1997 and SR No. 118/97 – Supreme Court (Sheriff’s Fees)(Amendment) Regulations 1997 as follows:
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The Subcommittee recently met and examined the above three sets of Regulations.
Each Order or Regulation increases fees and is excepted from compliance with the regulatory impact statement process by virtue of a certificate from you under section 8(1)(a) of the Subordinate Legislation Act 1994. This certificate indicates that the fee increases do not exceed the annual rate approved by the Treasurer in relation to the State Budget for the purposes of this section. Currently, the annual approved rate is 5%.
Section 8(2) provides that a fee increase is deemed to have been in accordance with section 8(1)(a) "if the calculation is made to the nearest whole dollar".
Each of the statutory rules referred to above contain fee increases which exceed 5% where the fee is increased up by more than 50c to the next whole dollar.
In SR No. 114/97, Item 1(a) increases a fee from a 5% increase of $144.38 to the fee prescribed of $145.00.
In SR No. 116/97, Item 12 increases a fee from a 5% increase of $154.35 to a prescribed fee of $155.00, and Item 9 increases a fee from a 5% increase of $71.40 to a prescribed fee of $72.00.
Finally, in SR No. 118/97, Item 1(a) increases a fee from a 5% increase of $144.38 to a prescribed fee of $145.00, and Item 1(e) increases a fee from a 5% increase of $89.25 to a prescribed fee of $90.00.
In none of the above cases is the prescribed increase to the nearest whole dollar.
The Committee has authority to report to the Parliament where a statutory rule has been prepared in contravention of the Act and the contravention is of a substantial or material nature.
The Subcommittee’s present inclination is to recommend to the Committee that it report in this way, unless we receive from you an undertaking to have the regulations amended to comply with the Act.
However, at this stage, the Subcommittee writes seeking the rationale behind the increases which on the face of it do not comply with the Subordinate Legislation Act.
The Attorney-General replied by letter dated 16 January, 1998 in this way:
Thank you for your letter of 27 November 1997, in which you sought advice of the rationale behind the rounding of particular fees upwards to the next dollar, rather than to the ‘nearest dollar’. In the cases you identify this would have required rounding to a whole dollar figure below the 5% figure.
The statement of the Treasurer in relation to the Budget allowed an increase in fees at a rate not exceeding 5%. In this light, to select a whole dollar amount that is less than the actual 5% calculation is not, in fact, a ‘rounding’ ut is merely increasing the fee to an amount that does not exceed the Treasurer’s ceiling envisaged and permitted by section 8(1)(a) of the Subordinate Legislation Act. The rounding process has been previously discussed at officer level with the Office of Chief Parliamentary Counsel.
A rounding could, by implication, only be a rounding upwards which exceeded the Treasurer’s approved rate, and it is therefore implied in the legislation that the nearest whole dollar is intended to be the nearest higher whole dollar.
The table showing the pre-existing fee, the 5% calculation and the rounded figure based on the rationale above was provided to Parliamentary Counsel who issued the section 13 certificate certifying that the regulations were within power.
The Subcommittee’s interpretation raises the issue of whether it is appropriate to continue to adjust other fees within the basket to whole dollar amounts that are less than the nearest whole dollar to the 5% calculation, and whether it is proper to totally withhold increases in relation to certain fees fixed within the regulations. I am confident that this was not Parliament’s intention.
The overall fee structures were calculated to minimise compliance costs associated with any requirement for parties to purchase ‘small change’ amounts of duty stamps and requiring the numerous court registries to maintain and account for supplied of coinage for change.
The Subcommittee considered this opinion and resolved to seek advice from the Chief Parliamentary Counsel. It advised firstly the Attorney-General of this course of action by letter to her on 6 February, 1998.
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The Subcommittee noted the rationale behind the fee increases. We also noted that you have conducted discussions at officer level with the Office of Chief Parliamentary Counsel. It is apparent that the relationship between section 8(1)(a) and section 8(2) of the Subordinate Legislation Act is open to interpretation. We note that section 8 provides an exception to the otherwise mandatory regulatory impact statement.
In the event, the Committee has approved the regulations and order and has written to the Chief Parliamentary Counsel to seek assistance from her as to the approach the Subcommittee might take with respect to fee increases which rely on the exception provided by section 8 of the Act.
We will keep you informed.
A letter from the Committee to the Office of the Chief Parliamentary Counsel followed, dated 13 February, 1998:
The Subordinate Legislation Subcommittee has had cause recently to examine the relationship between sections 8(1)(a) and 8(2) of the Subordinate Legislation Act 1994. These provisions offer an exception to the otherwise mandatory scrutiny of regulation making through regulatory impact statements.
We have been advised that discussions on this point have already taken place in Parliamentary Counsel’s Chambers at officer level. We write to ask that you assist us in forming a view as to the correct interpretation of the provisions mentioned.
The Subcommittee has already taken a view in respect of "rounding up" to a higher half-dollar amount. This arose when the Subcommittee examined the regulations which set fees for admission to the Zoo. The Minister responsible has undertaken to have the matter rectified in a future regulation. The background is set out below.
SR No. 55/1997
An increase of fees over 5% - which is the annual rate approved by the Treasurer - occurred in the Zoological Parks and Gardens (Administration)(Charges) Regulations 1997 [SR No. 55/1997]. In these regulations, one fee grew from $3.20 to $3.50, where a 5% increase would be to $3.36. The Committee considered such an increase, which was to a half-dollar amount, to be unauthorised. The related correspondence is attached and marked "A".
SR Nos. 114/1997, 116/1997 and 118/1997
Increases in fees which on their face do not comply with section 8 occurred in several court fee regulations. The Subcommittee expressed its concerns that these fees were not lawfully imposed. The Attorney General has taken a different position. The background is set out below.
While the Zoo regulations involved an increase to a higher half-dollar, these regulations involved increases to a whole dollar amount where the increases exceeded 5% and were not increases to the "nearest whole dollar". For example, one fee increase was to $155.00 when a 5% increase would be to $154.35. The nearest dollar to this amount is $154.00. Again, the relevant correspondence is attached and marked "B".
In the case of the Zoo regulations, an undertaking to amend was provided. In the Court fees instance, the Committee approved the three regulations, accepting that for the small amounts of money involved and to avoid the need for registries to maintain and account for coinage, approval was an appropriate action.
The Subcommittee has taken a narrow view up to now in the belief that section 8 should be read narrowly. The Subcommittee’s view was that fee increases over 5% were allowable, but only with a RIS, unless the 5% addition resulted in a sum of money where the cents were more than 50 cents. In such a case, section 8(2) would apply and a rounding up could take place with an increase of over 5% in the original fee.
The view that section 8(2) extended the range for fee increases only where the original 5% calculation came out above the half-dollar amount does, however, leave a lot to chance. Nonetheless, the Subcommittee’s position was that generally increases should be 5% or less, with the opportunity to increase up to the next whole dollar where the sums turned out. This reading appeared to be consistent with the focus and emphasis of the Subordinate Legislation Act.
I write to seek suggestions from you as to the basis of future Committee actions in this area. The Committee would appreciate your considered advice.
The Committee received a reply from the Chief Parliamentary Counsel dated 4 March 1998. It read:
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The provisions of section 8(1)(a) allow certain increases in fees (without an impact statement) within a percentage rate of increased determined by the Treasurer.
Section 8(2) provides that an amount determined in accordance with section 8(1)(a) may be made to the nearest whole dollar.
It is correct to say that section 8(2) only has meaning if its purpose is to permit a rounding up of an amount to an amount that exceeds the determined percentage. Any increase not exceeding the percentage is permitted in any event.
The difficulty with the two provisions lies in the difference in the application of section 8(2) to low figures as against its application to higher figures.
The lower the initial amount the greater is the percentage increase effected by a rounding up to the nearest dollar. The higher the initial amount, the lower is the difference between the percentage amount and the rounded up amount.
Section 8(2) could be amended to apply an appropriate mathematical formula to rounding up so that the total increase is restricted. This could be done, for instance, by permitting rounding to the nearest tenth or twentieth part of a dollar, or the nearest whole dollar, provided the final figure satisfied specified limitations.
However, without an amendment, there is a dilemma. The example of the Zoological Gardens Regulations shows the extent of the obvious conflict between the apparent intention of section 8(1)(a) and the strict words of section 8(2). At the other end of the scale, applying section 8(2) to increases in fees of $175 is far less significant.
I would not be surprised if the Committee continues to query fees to which a rounding has been applied with the result that the increase is close to twice the permitted increase.
The Committee appreciates the attention which the Chief Parliamentary Counsel has paid to this ‘dilemma’. We thank her for her advice.
The question of fee increases continues to prompt discussion in the Subcommittee.9
- Until the matter is resolved by legislative amendment, the Committee will only approve fee increases which would technically not comply with the narrow interpretation of the Subordinate Legislation Act which it presently favours where increases are very small when compared with the size of the original fee.
SR 48 – Racing (Mixed Sports Gatherings)(Revocation) Regulations 1997
These Regulations purport to be authorised by sections 19(1) and 36(1)(c) of the Racing Act 1958. In fact, section 19(1) of the Racing Act authorises mixed sports gatherings with the consent of the Minister "and on payment of the prescribed fee". It would seem arguable that the Act requires that a fee be prescribed.
The Regulations revoked SR No. 194/92 that prescribed an application form and a prescribed fee. Thus there is now no longer a prescribed fee in existence and a query arose as to whether there could be compliance with the Racing Act.
Inquiries originally revealed that Parliamentary Counsel raised the same point with the Office of Racing when settling the Regulations. The Executive Director of Sport, Recreation and Racing undertook in writing to amend the Racing Act as soon as possible. The Office of Racing had gone ahead with the Regulations so that the fee would be abolished to coincide with the 1997-1998 financial year.
The Regulations had been reviewed resulting in a decision that it was inappropriate to impose full cost recovery on community and sporting bodies but that the current nominal fee was not cost effective.
- Another issue discussed by the Subcommittee is whether a 5% increase can result in an excessive compliance cost. This came up in relation to the Alpine Resorts Cross-Country Trail Regulations where fees were increased by exactly 5% to amounts difficult to collect as $1.05. Is the compliance burden too high here?
SR 39 – Alpine Resorts (Cross Country Trail Fees)(Amendment) Regulations 1997
These Regulations increased cross-country fees by 5%. The increase was required to recover enforcement, administration and management costs associated with the use of cross-country trails in alpine resorts. The Subcommittee was concerned that not only will the Alpine Resorts Commission have difficulties in supplying correct change, but that the public too might be encumbered by the small amounts of change now required.
Such a Regulation might be advantaged by an authorised triennial increase - or by amendments permitting increases to the nearest half-dollar.
Appears to be inconsistent with the general objectives of the authorising Act; |
No statutory rules were discussed under this paragraph.
| S. 21(1)(d) | Makes unusual or unexpected use of the powers conferred by the authorising Act having regard to the general objectives of that Act; |
SR 43 – Liquor Control (Prescribed Substances) Regulations 1997
These Regulations prohibit the sale by retail (without a liquor licence) of alcohol-based food essences which are packaged, in the case of vanilla essence, in a container of more than 100 millilitre capacity and, in any other case, in a container of more than 50 millilitre capacity.
Thus, for those supermarkets, which are also licensed premises, larger sized bottles of alcohol-based food essences will only be located in the attached liquor shop and laws relating to sales to persons over 18 years apply.
It may seem extreme to so control the sale of food essences commonly found in the family pantry, particularly given the purpose of the Liquor Control Act 1987 under which SR No. 43/97 was made:
| 1. | Purpose | |
| The purpose of this Act is to make provision relating to the sale, disposal and consumption of liquor. | ||
| The Act defines liquor as follows: | ||
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The abuse by under age persons of essences in beverages is of concern to Victoria Police. Food additives or essences have been available in Victoria for many years. The product range has been expanded to include essences such as ouzo essence, imitation brandy and imitation rum.
The State Forensic Science Laboratory has run tests on 25 such products which found that the alcohol content ranged from 14.6% for Hoyt’s Vanilla to 94.4% for Medaglia Anice. Hoyt’s Rum and Brandy are 71.6% and 76.7% respectively, with Queen Lemon and Lime rating 85.6% and 86.8% respectively.
Apparently, the larger bottles (ie the 375ml bottles) have a lower concentration of food essence than the small bottles of alcohol-based essences, which makes the larger bottles more palatable as a mixture in beverages. As stated in the RIS:
At 82 per centum alcohol by volume, a 375ml bottle contains the equivalent of
25 standard drinks. A bottle retails for approximately $4.60.
There were regulatory controls in NSW, SA, WA and Tasmania at the retail level when Victoria explored the area.
The regulations are narrowly focussed as they do not affect the two largest areas of demand for alcohol-based food essences, which are domestic users, and manufacturers who use the product as an additive to such things as ice cream, chocolates and other confectionery.
The RIS cited only one actual example of a seriously effected girl. The Minister for Police and Emergency Services, as well as the Minister for Health commented upon this weakness in correspondence with the responsible Minister.
The Minister for Police and Emergency Services wrote to the Minister for Small Business of this lack of quantification positively as follows (10 April, 1997):
However, I understand your intention is to restrict access to these essences before the problems they have caused escalates and, in that regard, I applaud your foresight. I am further comforted by the fact that four other States have seen fit to regulate the retail supply of such essences.
The Minister for Police raises another problem and that is of a young person buying lots of smaller bottles rather than one big bottle of an alcohol-based essence. He writes (10 April 1997):
My only concern with the regulations is the apparent ease with which their ultimate objective of restricting the availability of such essences in "beverage sized" containers to young people can be thwarted by the purchase of multiple small volume bottles. This is an area that I consider warrants further consideration. One possible solution may be to amend the definition in Regulation 3 by adding words to the effect of "or containers which in aggregate exceed this capacity."
An answer to the buying of lots of bottles may be that the food essence taste of the smaller bottle is stronger and therefore less palatable.
The Response to the RIS from Queen Fine Foods was quite positive although it notes that country cooks in particular buy up larger bottles of vanilla essence for convenience. It hopes to have approval for a non-alcoholic vanilla essence soon which might fill the gap that the Regulations will make in their market.
Hoyt’s Food was not at all happy with the effect of these Regulations from the point of view of its business. It pointed to other products (such as home brew products, cooking wine products and liquor used for medicinal or religious purposes) which would not be subject to limitations.
The Committee approved the Regulation.
Contains any matter or embodies any principles which should properly be dealt with by an Act and not by subordinate legislation; |
No statutory rules were discussed under this paragraph.
Unduly trespasses on rights and liberties of the person previously established by law; |
Under this heading, the Subcommittee mentions SR No. 52/97 not because there is a trespass on the previously established rights contained in it but to demonstrate how far the government will go to ensure that rights are protected! These regulations were tidied up 10 days before they were revoked! This was because they will continue to control pension payments for 290 Port of Melbourne Authority workers. This is a scheme that no one can join any longer.
SR 52 – Port of Melbourne Authority (Superannuation)(Amendment) Regulations 1997
These Regulations amended the Port of Melbourne (Superannuation) Regulations 1989, which in actual fact were revoked by the Superannuation (Miscellaneous Amendments) Act 1997, the relevant provisions of which came into operation on 30 June 1997.
SR No. 52/97 was made on 20 June 1997 with the result that the revoked Regulations contain all the amendments effected by SR No. 52/97. The Regulations will continue to govern the entitlements of the 290 pensioners who have been transferred now to the State Superannuation Fund.
As the Port of Melbourne Authority (Superannuation) Regulations had not been kept up to date, there was a need to amend or revoke a number of provisions to bring the rules up to the requirements of Commonwealth Superannuation and anti-discrimination legislation.
The amendments related primarily to rewriting to incorporate anti-discrimination law in relation to entitlements of de facto spouses.
Even the Principal Regulations themselves could not be located by the Scrutiny of Acts and Regulations Committee without the assistance of the Department of Treasury and Finance.
Makes rights and liberties of the person unduly dependent upon administrative and not upon judicial decisions; |
No statutory rules were discussed under this paragraph.
Is inconsistent with principles of justice and fairness; |
SR 162 – Education (Amendment) Regulations 1997
These Regulations are authorised by section 25C(2) of the Education Act 1958. They were made in the context of current legal challenge when it was too late for Regulations to be made and a RIS process to be completed before school commenced in 1998.The Regulations therefore were exempted from the RIS process by a Premier’s certificate. All appropriate certificates were supplied including a certificate issued by the Chief Parliamentary Counsel indicating that the proposed Regulations did not appear to be inconsistent with principles of fairness and justice.
The Regulations amend the Principal Regulations which are due to be reviewed before the end of 1998. These amending regulations will expire and be revoked on 15 December 1998. By this time, the RIS process of examination and public comment of all the Education Regulations including these will have taken place.
These regulations provide enrolment parameters for age at State schools, including Special State schools, non-metropolitan schools and English language State schools.
They make clear that children must be 5 years by 30 April of the year they start school and in the usual case should not be more than 18 years in the year they finish.
There is provision for exemptions to be granted by the Minister in particular circumstances. The exemptions allow the Minister to extend schooling age up to 21 years for able bodied young people doing VCE. Persons attending special schools must leave at the end of the year in which they turn 18 years.
Unlawful discrimination and issues of fairness and justice
The differential treatment of persons at special schools and those not at special schools is something which the Subcommittee considered.
This differential treatment does not amount to discrimination under the Equal Opportunity Act 1995 of Victoria because of the application of section 69 of that Act.
Section 69 of the Equal Opportunity Act allows discrimination "if the discrimination is necessary to comply with, or is authorised by" a provision of an Act or other enactment. This covers the Education Act and all regulations made under it.
However, the question arises of whether the regulations discriminate under the provisions of the Disability Discrimination Act 1992 of the Commonwealth.
Section 22 of the Disability Discrimination Act 1992 of the Commonwealth, which relies on the external affairs power of the Commonwealth for legitimacy, provides that it is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability. The Disability Discrimination Act 1992 contains an exemption provision. It is different to that in the State’s Act. The exemption reads:
S. 47(2) This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.
As of December 1997 there had been no prescriptions whatsoever.
Now, section 22(4) of the Disability Discrimination Act 1992 of the Commonwealth provides a defence for discrimination by educational authorities. (An educational authority is defined in section 4 of the Disability Discrimination Act 1992 to be a body administering an educational institution.)
The defence is that "the provision of (the required services or facilities) would impose unjustifiable hardship on the educational authority". This is a question of fact. The defence might cover such things as the cost of the program, funding issues and other factual policy reasons.
In accordance with section 109 of the Constitution of Australia where it is found that a law of the Commonwealth ‘covers the field’ the relevant laws in the states are invalidated. This was the core of the finding in the original MABO case.
The Subcommittee raised its concerns in a letter to the Minister for Education (24 February 1998). This letter also contained the suggestion that the Regulations be amended to extend the discretion of the Minister in a manner that treated all students equally.
The text of the correspondence is set out below:
The Subordinate Legislation Subcommittee has given some consideration to the above regulation. It has concerns about the ambit of the regulation as assessed against our statutory charter.
Section 21(1)(h) of the Subordinate Legislation Act 1994 empowers the scrutiny committee to report to the Parliament if it considers a statutory rule to be inconsistent with principles of fairness and justice. SR No. 165/1997 treats children attending special State schools differently from those attending State schools in non-metropolitan and metropolitan areas. The latter two groups of young people are entitled to stay on at school to 21 years of age in certain circumstances while the former must finish school at 18 years.
Commonwealth Act
It would seem that the Commonwealth Disability Discrimination Act 1992 could have application, and in covering the field would render Victoria’s regulations invalid.
The relevant provisions are found in Part 2 of the Act:
S. 22(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:
(a) by refusing or failing to accept the person’s application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the persons as a student.
…
(4) This section does not render it unlawful to refuse or fail to accept a person’s application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.
S. 47(2) This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.
Our research has indicated that there has been no prescription. The question of "unjustifiable hardship" is a question of fact.
Suggested remedy
The Subcommittee has given some thought to this and suggests a possible remedy.
The remedy proposed is that the regulations be amended to extend the Minister’s powers of exemption to young people in special State schools to allow for two broad situations. The first situation is to extend entitlement to complete schooling to a young person with a disability or impairment who due to causes of a temporary nature had not finished the relevant secondary curriculum by the age of 18. The second situation relates to those young people with disabilities or impairments who would benefit in an educational sense from schooling beyond 18 years and who might with the appropriate Ministerial exemption stay on until the age of 21 years.
It may be that the Department has legal opinion to the effect that the regulations as they stand are valid. The Subcommittee would be grateful to receive a copy of any such advice.
The Minister replied in a letter dated 2 April 1998. This letter reads as follows:
…
In response to (the points raised in the Subcommittee’s letter), it appears that 2 separate issues are being raised, namely —
whether the regulations are valid, and
whether the regulations infringe the rules of fairness or justice.
WHETHER THE REGULATIONS ARE VALID
In reply to this issue, I am advised that the Department sought legal advice in respect of the regulations, and that the advice concluded that the regulations are not inconsistent under section 109 of the Commonwealth Constitution with any Commonwealth law and that the regulations are not invalid.
The legal advice is subject to legal privilege, and is exempt from being produced in legal proceedings, or being accessed under the FOI act. The Department considers it is not in the public interests(sic) to disclose or produce material which is subject to legal privilege, and considers it reasonable and appropriate in the present matter that the privileged nature of the legal advice be maintained.
WHETHER THE REGULATIONS INFRINGE THE RULES OF FAIRNESS OR JUSTICE
In reply to this issue, reviews conducted by previous and current Victorian governments have determined the inappropriateness of the continued attendance of young adults at schools with much younger students.
A detailed report on the issue, titled report of the working party on students with intellectual disability aged over 18 in Ministry of Education Office of Schools Administration Special Schools (report) was handed down in April 1989. The working party stated that it was committed to the development of appropriate options for all people with intellectual disabilities. The report made the following two policy recommendations.
-
Recommendation 1
The Office of Schools Administration provide programs for students in special schools with intellectual disabilities up to and including the year in which they turn 18 years. -
Recommendation 2
The Division of Further Education take responsibility take responsibility for the development of literacy, numeracy, special interest and leisure skills programs and take over those elements of schools programs for these adult students.
Between 1991 and 1994 approximately 1,000 students with disabilities aged over 18 years transferred from special schools to Department of Human Services administered day programs for people with disabilities.
On 13 November 1996, the Futures for Young Adults Program was launched. The program was a joint initiative of the Department of Education and the Department of Human Services, and to date approximately 1800 students aged 18 and over with disabilities have moved from schools to more appropriate adult education, training and support vocational settings. The Futures for Young Adults Program is designed to provide young adults with disabilities appropriate options in employment, adult education or adult day programs geared to their individual needs. The primary intent of the program is to provide a pathway from school-age settings into post school adult options for young adults with disabilities.
The above regulations are designed in part to assist in implementing the Futures For Young Adults Program. The regulations implement the Department of Education’s age-based policy which was announced at the same time as the Futures For Young Adults Program in November 1996.
The policy of the Department is that generally —
(i) no student who is aged 18 years or older on 1 January in any year will be permitted to enrol unless he or she is formally enrolled in VCE (units 1-4) in a secondary school, and under 21 years of age at 1 January in the year of enrolment, and
(ii) the student will not be permitted to remain enrolled beyond 31 December of the year in which he/she turns 18 unless he or she is formally enrolled in VCE (units 1-4) in a secondary school, and under 21 years of age at 1 January in the year of enrolment.
The fairness of the regulations must be considered in the context of the above history, and the objectives and availability of the Futures For Young Adults Program. In essence the regulations are not considered to infringe the rules of fairness or justice for the following reasons —
(i) The Futures for Young Adults Program is considered to offer students with disabilities a greater range of options best suited to their particular needs after 18 years of age.
(ii) Students with disabilities over 18 that so wish may enrol in mainstream schools to do their VCE. For example, the Victorian College for the Deaf is located next to Wesley College, and the school has an arrangement with the College to enable deaf children to undertake the VCE.
(iii) In reply to your suggestion that the regulations be amended to allow the Minister to extend entitlement to complete schooling to a young person with a disability or impairment —
(i) "who due to causes of a temporary nature had not finished the relevant secondary curriculum by the age of 18", or
(ii) "who would benefit in an educational sense from schooling beyond 18 years and who with the appropriate Ministerial exemption might stay on until the age of 21 years",
I am advised that the Department would have great difficulty implementing such a proposal in that special schools do not offer a recognised secondary curriculum. There is no externally mandated curriculum for special schools, and the curriculum is at the discretion of the special school having regard to the disability and the specific needs of the students. The Disabilities range from mild disabilities (eg deaf with no intellectual disability) through to students with profound and multiple disabilities.
In conclusion, this is an area that needs to be approached with empathy and understanding for those students with disabilities attending special or regular schools and directly affected by the Futures For Young Adults Program. There are approximately 6800 students with disabilities attending regular school, and approximately 4800 attending special schools. The Futures For Young Adults Program applies to both groups, and to merely focus on the regulations in a vacuum would not do justice to all those students over 18 years for whom the Futures For Young Adults Program is designed to assist.
The Subcommittee appreciated the detail supplied and the consideration given to the Subcommittee’s suggestion for amendment. It nonetheless wrote another letter to the Minister on 16 April 1998, seeking an undertaking from him. The letter reads as follows:
I refer to your letter of 2 April 1998 and to discussions with your officers.
In the context of current practice and the earlier expressed concerns of the Subcommittee, it would seem to be appropriate that, when the Regulations are remade, consideration be given to including a Ministerial discretion.
It is my understanding that all current students have been placed for 1998. The Education (Amendment) Regulations will sunset at the end of 1998 and similar age-parameter regulations will be included in Principal Regulations which are then to be remade. The Subcommittee notes that the new Regulations will be made with a Regulatory Impact Statement which would include a discussion of the range of options for the education of young people with disabilities.
In the event that you give an undertaking to the Subcommittee that when Regulations are reviewed you will examine the inclusion of a Ministerial discretion effecting the continuation of education for young people in special State schools beyond 18 years of age in the circumstances discussed, I believe that the Subcommittee would respond favourably with respect to SR No. 162/1997.
The Subcommittee received this response from the Minister dated 21 April 1998:
Thank you for your letter dated 9 April 1998.
Your letter notes that the present regulations sunset at the end of 1998, and that any new regulations will need to be made with a Regulatory Impact Statement which would include a discussion of the range of options for the education of young people with disabilities.
In the circumstances, I am prepared to provide the undertaking sought, namely that when the regulations are remade, consideration will be given to including a Ministerial discretion effecting the continuation of young people in special State schools beyond 18 years of age in special or appropriate circumstances.
I appreciate your raising this matter with me.
The Subcommittee accordingly thanks the Minister.
The Subcommittee notes that these issues will be considered in the RIS process later this year and would expect to have its concerns allayed at that time.
The Committee approved the Regulations, subject to the Minister’s undertaking.
Requires explanation as to its form or intention; |
SR 63 – Financial Institutions Duty (Amendment) Regulations 1997
These Regulations were made under sections 18(3)(o) and 86 and the definition of "financial institution" found in section 3(1) of the Financial Institutions Duty Act 1982. The Regulations wrongly cite the Act as from 1992, which could be confusing as there is a Financial Institutions (Victoria) Act 1992.
The Subcommittee wrote to the State Revenue Office (SRO) about this (9 September 1997).
After consultation with Parliamentary Counsel the SRO indicated that it had been advised that there was no point in pursuing an amendment because SR No. 63/97 was spent. The advice from Parliamentary Counsel (16 September, 1997) was as follows:
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 operation 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 therefor spent. There is no point in amending them now.
The Subcommittee acknowledges Parliamentary Counsel’s expertise in this matter and approved the Regulations.
Has been prepared in contravention of any of the provisions of this Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature; |
This paragraph covers such matters as compliance with section 10 of the Subordinate Legislation Act. Section 10 of the Act specifies what a RIS must contain.
SR 93 – Health (Infectious Diseases)(Notification of HIV) Regulations 1996
Members of the Subordinate Legislation Subcommittee met informally with senior departmental officers in August, 1997. The Committee discussed SR No. 93/96 and its RIS with the officers. The Committee Members had concerns that the codes which medical practitioners were obliged by the Regulations to use to record details about their HIV patients were in fact not impenetrable and that, as a result privacy could be invaded. It could be that doctors might be reluctant to complete the forms for that reason.
The Chairman drew the attention of the visitors to the wording in the RIS that was not correct. This is found on page 4 of the RIS:
There would be no direct impact on the patient because only non-identifiable epidemiological information is requested from the doctor concerned and there is no possibility of the patient being identified or contacted by Departmental staff direct ie without the doctor’s permission. (Emphasis added)
The Subcommittee raised this issue conscious of the power it had to report to Parliament under section 21(1)(h) (a rule must be just and fair) and also under section 21(1)(j) (which covers scrutiny of RIS).
Constructive discussion took place.
The visitors conceded that if a person had the required notification data in hand, that data could lead to the identification of the individual. However, the visitors indicated that such a situation is extremely remote because only 4 screened officers have keys to the two safes in which all the hard copy information is stored. While many people pass through the Department, there is strong emphasis on secrecy and strict confidentiality of this data. It is part of the culture of the workers in this field.
The visitors indicated that there was a need for a coding system able to be completed by treating doctors, which was specific enough to provide sufficient information. Accurate information is essential to ensure accuracy of overall records for the sake of funding allocation, the placement of treating centres and, importantly, to assess whether prevention programs have been successful. One particular concern has been the need to ensure accuracy of statistics by facilitating minimisation of double counting.
Another matter raised by the Members was whether notification of the postcode was essential. The visitors indicated that post code data was needed for forward planning for health facilities. Members raised the possibility of separating postcode information from the name data. This would increase privacy. The visitors will make further inquiries about the possibility of this.
A further question raised was whether the date of birth was necessary. The visitors’ response was that at such a level the issue was a question of marginal returns. All along it has been a question of counter balancing privacy rights with public health protection.
The Manager of the Infectious Diseases Unit of the Department of Human Services faxed relevant background information to the Committee on 7 August 1997. These were excerpts from the Final Report of the Legal Working Party of the Intergovernmental Committee on AIDS (November 1992) and the current National HIV/AIDS Strategy. These confirmed that there is no evidence to suggest that codes have ever been misused.
A formal reply from the Manager of Health Protection in the Department of Human Services was received on 12 August, 1997 and read in part:
The Manager of the STD/Blood Borne Virus Program within Health Protection has contacted other State and Territory representatives on the Inter-Governmental Committee on AIDS and Related Diseases (IGCARD) to ascertain their views on the concerns raised in our meeting on 6 August, 1997. The question he asked was, "whether there are concerns with name code and postcode notification of HIV infection which could be used to vet the electoral roll in order to narrow it down to a small list of individuals who may be HIV positive."
All State and Territory representatives were contacted. All use the same coding system as Victoria. There were no concerns expresses by any of the seven representatives. The possibility of "narrowing down: to individuals who may be HIV positive has not been considered except in Tasmania. This possibility was raised in discussion, by field workers in Tasmania, but has never been a practical issue of concern.
I would like to stress once again the existing measures used to protect the confidentiality of the notified information, as outlined in our discussion….
The Committee was satisfied with the reply and the Chairman of the Subordinate Legislation Subcommittee responded to the Manager in this way (13 August 1997):
Subcommittee Members appreciated our discussion. We acknowledge that a balance has attempted to be sought between respecting privacy and preventing spread of the virus. We accept that confidentiality concerns are protected as best as can be by limited access of screened personnel to the two safes in which the hard copy data is kept.
I am grateful for the material faxed to the Subcommittee by (the Manager of the Infectious Diseases Unit), and note that the national emphasis has been on coded details of name and birth date, with post code data being supplied in a secondary or supportive fashion. I look forward to any developments in this area along the lines we discussed.
WHERE ONE RIS COVERS TWO REGULATIONS
Sometimes the situation arises where one RIS is prepared to cover more than one regulation. This occurred in relation to SR Nos. 24 and 25 of 1997.
SR No. 24/97 is authorised by section 36(2) of the Equipment (Public Safety) Act 1994. The Regulations are totally new, replacing former revoked plant-specific Regulations.
These Regulations were accompanied by a RIS that assessed the impact of
SR No. 24/97 together with the impact of the Occupational Health and Safety (Incident Notification) Regulations 1997 – SR No. 25/97.
In the Regulatory Impact Statement accompanying the statutory rules, the analytical framework of cost-benefit analysis is most helpfully described in the following way:
In preparing an RIS, two purposes are paramount, first, to demonstrate to the community the reasons for initiatives in the ares: and second, to demonstrate that only those regulations which represent the most effective response to a policy problem are adopted.
A principal tool which is used in achieving these objectives is cost-benefit analysis. This is a widely used technique of applied welfare economics which is used to throw light on the social desirability of undertaking projects - whether it be an investment undertaking, introduction of a new commodity or a change in government policy. The basic decision rule of cost-benefit analysis generally involves maximising the discounted present value of net benefits at an appropriately chosen rate of social discount. (p.17)
There was substantial interest from public organisations in the Regulations as reflected in the 30 public comments formally received by WorkCover. Even after the RIS process was completed, and the Regulations were made, the Scrutiny of Acts and Regulations Committee itself received two further submissions.
The case for regulatory control of incident notification was presented as essential for quick response by inspectors while witnesses’ recollections are fresh. The collection of data by WorkCover is considered most helpful as a performance indicator over time, which will assist in reducing accidents.
A detailed cost and benefit analysis was presented, based on an estimated 5,500 notifiable incidents. Of this number, 50 involve prescribed public equipment. The specific benefits of SR No. 24/97 were not quantified but benefits were said to include reduced medical costs and less damage to prescribed equipment as part of improved information relating to health and safety. This meant that benefits were underestimated. Benefits to Government are meeting its policy objectives in securing the health and safety of persons in relation to prescribed equipment.
As mentioned above, the RIS relates to both sets of Regulations. However, the RIS statistics are almost totally related to the cost of complying with SR No. 25/97. This is a handicap of doing two Regulations in one RIS, although it appeared that SR No. 24/97 is of very much smaller impact all over.
SR 32 – Firearms Regulations 1997
These Regulations, while brief, require some understanding of the firearms world. Principally, they impose fees and prescribe particulars to be entered into registers kept by firearms dealers and collectors. They also authorise the use of registered Category C longarms for the suppression of pest animals, provided that the police have been notified that pest suppression will commence on a particular day.
There was a well-presented RIS accompanying these Regulations.
Another aspect of compliance with the Act is the content and existence of a certificate under section 10(3) of the Subordinate Legislation Act - the independent certificate of adequacy. This actually is not required by legislation to be sent to the Scrutiny of Acts and Regulations Committee but the Subcommittee has issued a practice note in recommending it be sent.[10]
The certificate of adequacy in this instance is from the Office of Regulation Reform (ORR). The certificate comments on the lack of information given about the costs of the proposed fees. It notes that Cabinet has approved the partial cost recovery approach. This is as opposed to the normal approach these days of full cost recovery. The certificate nonetheless states that the RIS appears adequately to address the specific requirements set out in Section 10(1).
The Subcommittee approved the two Regulations.
There are sometimes cases where a Regulation would appear on a superficial reading to require a RIS but no RIS was prepared. This was discussed when examining SR No. 34/97.
SR 34 – Fisheries (Abalone)(Amendment) Regulations 1997
The Regulations amend the Fisheries (Abalone) Regulations 1996 to clarify the intention of the Regulations and to ensure improved administration of the audit trail. The regulations also re-introduced the "Bay Line".
Regulation 5 provides for a larger minimum size for abalone taken from the lower end of Port Phillip Bay by reinstating the "Bay line". (The "Bay line" had been in place for some time prior to 1992 but was inadvertently omitted when the Fisheries (Commercial) Regulations 1992 were remade.) This change could be said to "impose an appreciable burden" on Central Zone divers because it constitutes a restriction on them, but it also removes the existing burden of danger to those divers who fish in Bass Strait and who could not until this change was made undertake a decompression dive in the shallower water of the Bay, owing to the one size zone rule per day. No RIS was provided with these Regulations. All divers appear to want the change. This raised the thorny issue of what should happen when industry WANTS something that would impose a burden on them. Is a RIS needed then?
The Subcommittee’s conclusion was that "appreciable burden" had a subjective component. If those supposedly subject to a burden had sought the change, reintroduction of the Bay line could not be viewed as an appreciable burden.
Both these sets of regulations are authorised under section 81 of the Fisheries Act 1968. They arise principally to amend minor errors which arose in an attempt to correct SR No. 34/97 and then SR No. 53/97.
SR No. 34/97 amend the Fisheries (Abalone) Regulations 1996 to clarify the intention of the Principal Regulations and to ensure improved administration of the audit trail. It was also intended that the Secretary issue written authority to processors and storers similar to that available under the Principal Regulations for divers. Such authorities would allow the licence holder to undertake activities that would otherwise contravene the Regulations. In the event, however, an error was made in the amending Regulations whereby these Regulations introduce Secretary’s authorities for processors and storers but mistakenly remove them from divers.
SR No. 53/97 correctly rectifies this mistake and makes it clear that a diver may have a Secretary’s authority to contravene the regulations. Unhappily, another mistake appeared SR No. 53/97. In Column 1 of Schedule 4, there are two references to column 2 rather than a reference to column 2 followed by a reference to column 3.
The Committee withheld approving SR No. 53/97 until the subsequent amending Regulation was examined. This was effected by SR No. 72/97.
This situation highlighted the watchdog role of the Committee. While the errors may appear small, a prosecution could fail on the issue of quantity of abalone for lack of sense in the Table as amended by SR No. 53/97. As a result of Committee correspondence, the whole situation was finally cleared up in SR No. 72/97.
When all of the minor inconsistencies had been resolved, all of the related amending regulations were approved.
During the year, discussions were conducted with the Office of Regulation Reform (ORR) on the question of what is the nature of cost-benefit analysis.
ORR suggested that there were two sorts of regulations. There are narrow economic regulations and social or behavioural regulations.
It is only the former which lend themselves to numerical analysis. Usually, such regulations are fee-setting regulations. For these the cost-benefit analysis is a straight accounting exercise.
At other times, the RIS uses a break-even analysis, based on the supposed value of a human life. This benchmark has been set by the National Roads and Transport Commission and is updated annually. Textbooks accept this form of analysis, but ORR believes strongly in "sensitivity analysis" which determines the appropriateness of the chosen ratio within a range of ratios.
Sensitivity analysis ensures that an agency does not overstate its case for the advantages of a regulation. ORR admits that often RISs are not so much scientific as full of "scientisms".
Sometimes, for example, a RIS will place great weight on supposed indirect costs (such as cost of replacement, the flow on to the economy, disturbance of home life, loss of productivity) and having built up how much indirect cost there could be will say that added to the smaller direct costs the Regulations are obviously justified. A reader may not even pick this up if the RIS is without sensitivity analysis.
Other than for fee-setting, a RIS is not a straight accounting exercise. It is not a precise science, but rather a guide for decision-makers. A RIS tries to answer the question of whether the regulations planned are plausible. It wants to persuade a reader that the regulations chosen are the most appropriate. To this end the alternatives presented should be focussed on how the objective can be achieved.
ORR offered two illustrations. These are, firstly, the Duck-shooting regulations.
These regulations were focussed on safety issues, and the protection of shooters and protesters. It would not have been appropriate to present as an alternative the banning of duck shooting. This is because the Principal legislation allows for duck shooting. Alternatives might be matters of distance between hunters and protesters.
Secondly, the National Park behavioural regulations were looked at.
Such regulations may restrict activities in parks. In the cost-benefit analysis, the cost is seen as restrictions on recreational behaviour. It is a cost on peoples’ freedom to act however they might wish. It would not be appropriate for an RIS to argue that there is a land cost because the land has been reserved under Principal Legislation. To analyse the regulations in terms of land cost is meaningless. On the benefits side it is also very difficult to provide legitimate comparisons. ORR suggests that the best approach here is to look for social justifications such as safety of park users, with the narrow and intersecting pathways in the parks making some activities dangerous.
Also discussed was what an RIS should do. Conclusions along the following lines were drawn:
An RIS should facilitate informed comment from affected parties. In doing an RIS, ORR asks that Departments clearly establish —
(1) what the PROBLEM is;
And THEN
(2) what the objective of the regulations is;
And THEN
(3) what alternatives there may be.
Correct identification of the objectives leads to clear and feasible alternatives.
ESTABLISHMENT OF SUBCOMMITTEE OF AUSTRALIAN PARLIAMENTARY SCRUTINY COMMITTEES
In Sydney on 10 March 1998, a steering Subcommittee was formed from parliamentary scrutiny committees to examine how best to approach the study of cost-benefit analysis. The Victorian Subordinate Legislation Subcommittee is a member of this Subcommittee.
During 1997, 20 statutory rules extended the life of rules made in 1987 which apart from the extension would have been automatically revoked in 1997.
The Subcommittee noted the comparatively high number of extension of operation regulations. The Subcommittee made inquiries of the Departments which produce the most statutory rules – and of those which this year had produced a significant number of extension of operation rules - as to what system was in place to prompt remaking of necessary rules before they were automatically revoked. The Subcommittee sought to ascertain the process followed by departments.
One departmental officer sends out notices within the Department about 18 months before regulations are scheduled to be sunsetted. This timetable usually gave the relevant officers adequate time to prepare and circulate a Regulatory Impact Statement if one was necessary. Rules that could be excepted or exempted from the RIS process were usually remade, if appropriate, before sunsetting. What held up the RIS process could be Commonwealth plans for uniform legislation or proposed new Acts to replace the current legislation within the Victorian Parliament itself. Comments were made that the implementation of National Competition Policy might cause unexpected delays.
Another departmental officer indicated that reminders were sent out 2-3 years ahead of expiry asking whether it was intended to remake the regulations. If so, the notice reinforced that a RIS could take between 3 and 6 month’s preparation time. This officer suggested that delays could occur because staff must be pulled away from other projects to prepare RISs. Another cause of delay might be the fact that there are new Acts coming - on the State or Commonwealth level - or because the Departmental section seriously underestimates how long RISs take, or because of National Competition Policy considerations. In the past, problems and arguments with the Office of Regulation Reform caused significant delays.
It appears from these inquiries that the large numbers of extension of operation regulations in 1997 are not because of there being no system or trigger in place.
The Committee has another suggestion about what may have contributed to the 20 extension of operation regulations made in 1997.
There were 406 regulations made in 1987, and this is clearly a large number to keep an eye upon. Not all of these were Principal regulations of course. However, a look at the Regulation Reduction Study graph below will demonstrate that in 1987 there were over 1200 Principal Regulations in force. This was the peak of regulation in Victoria. Possibly this fact has contributed to the large number of extension of operation regulations in 1997 in conjunction with the matters discussed above.
In 1988 there were 526 statutory rules made. If anything, the above comment should prompt officers to turn their minds quickly to those regulations in their charge which are due to expire in 1998.
SECTION 8(1)(a) AND SECTION 8(2) AND THE RELATIONSHIP BETWEEN THEM
The relationship between section 8(1)(a) and 8(2) has been the focus of much Committee discussion. Details of the discussion and initial correspondence to the Premier and the responsible Minister are found on pp.15ff.
SR 55 – Zoological Parks and Gardens (Administration)(Charges) Regulatiosn 1997
The Regulations increased entry fees to the Zoo and Healesville Sanctuary by an amount of by 5% rounded up to the nearest dollar or in one case to the nearest half dollar. While the former is permitted by section 8(2) of the Subordinate Legislation Act 1994, the Subcommittee took the view that the latter was not permitted.
The Regulations purported to raise entry for the category of physically or intellectually disabled children under 16 years of age to both the Zoo and the Sanctuary in such a way that the fee was rounded to the nearest half dollar - from $3.20 to $3.50. A 5% increase would have been to $3.36 - with the nearest whole dollar actually being $3.00.
Minister Tehan replied on 16 October, 1997 providing an explanation for how the fee was increased in the way it had been as follows:
…
The increase in this fee was made in reliance of section 8(1)(a) of the Subordinate Legislation Act 1994 which allows for increases in fees at an annual rate not exceeding the annual rate approved by the Treasurer in connection with the budget.
The amount set by the Treasurer for 1996-97 is 5% but allows for rounding to the nearest reasonable amount. Specifically, the ‘Guidelines for Setting Fees and Charges Imposed by Departments and Budget Sector Agencies, 1996-97’ provide:
"For 1996-97 this rate has been set at 5 per cent. It is legitimate to allow for rounding provided it is to the nearest reasonable amount and the difference is not materially significant."
In reliance of this, an increase of 5% from $3.20 to $3.36 was rounded up to what was considered the nearest reasonable amount from the point of view of ease of collection, being $3.50. The additional 14 cents was not considered materially significant.
Consequently, section 8(2) which deems and increase to have been calculated in accordance with the amount stated in the Budget if it is rounded to the nearest whole $1, was not relied on for this category of entry fee, as the increases was considered to be within the annual rate approved by the Treasurer.
On this basis I do not consider that Item 3 of Schedule 1 to the Zoological Parks and gardens (Administration) Regulations 1992 has been prepared in contravention of section 8(1)(a) and 8(2) of the Subordinate Legislation Act 1994.
I appreciate the difficulty of interpretation in this instance and refer to your suggestion for the amendment of section 8(2) of the Subordinate Legislation Act 1994 to allow for rounding to the nearest reasonable amount or to the nearest half-dollar under this provision and advise that, as suggested, I will approach the Department of Premier and Cabinet with a view to consideration of such an amendment.
…
The Minister indicated in her concluding remarks that she would undertake to amend the regulations should the Committee not be persuaded by her foregoing argument.
The Department of Premier and Cabinet replied to the Committee’s letter (21 November, 1997). In part that letter read:
In these letters, Mr Thompson commented on the unconformable relationship between sections 8(1) and (2) of the Subordinate Legislation Act 1994 when these provisions are applied to small fees. He raised the possibility of amending section 8(2) of the Subordinate Legislation Act 1994. The Department of Conservation and Natural Environment has also written to me on this matter, proposing that section 8(2) be amended to allow rounding to the nearest "half dollar or whole dollar".
Legal Branch will ensure that this matter is considered by the Premier when the next set of amendments to the Subordinate Legislation Act is proposed.
The Subcommittee carefully considered the response of the Minister for Conservation and Land Management but nonetheless formed the view that the increase did not comply with the Subordinate Legislation Act.
In correspondence with the Minister (27 November, 1997) it indicated:
Thank you for your letter of 16 October, 1997.
At the conclusion of your letter you indicate your willingness to amend SR No. 55/97 should the Committee not be satisfied that the particular fee concerned was raised in a manner which complied with the Subordinate Legislation Act 1994.
The Committee sought additional advice from the Department of Premier and Cabinet on the relationship between section 8(1)(a) and 8(2) of the Subordinate Legislation Act. This advice appears to confirm the approach adopted by the Committee, and we are advised that legislative amendments will be forthcoming to allow increases in fees without regulatory impact statements in a more generous range.
In the meantime, however, the Committee is not in a position to approve that part of SR No. 55/97 which does not comply with section 8 of the Subordinate Legislation Act.
Accordingly, we would appreciate confirmation of your undertaking to amend that part of the Regulations with which the Committee has concerns. The Committee will not report to the Parliament on SR No. 55/97 if an amending rule is made within 3 months.
As noted earlier on p.17, an amending rule was made in 1998. The Committee thanks the Minister for the constructive approach in correspondence with the Committee over a small but significant question.
In a final letter to the Department of Premier and Cabinet (27 November, 1997) the Chairman wrote:
The Committee will look forward to amendments to section 8 of the Subordinate Legislation Act 1994 as indicated in your letter.
In the meantime, the position of the Committee with respect to fee increases made without a regulatory impact statement, is that section 8(2) may only be lawfully used where a 5% increase would bring about a cents figure over 50¢.
The Committee trusts that the position will be finally clarified shortly. The Committee refers readers to the discussion of a helpful response from the Chief Parliamentary Counsel above at p.22ff.
| Is likely to result in administration and compliance costs which outweigh the likely benefits sought to be achieved by the statutory rule. |
SR 39 – Alpine Resorts (Cross Country Trail Fees)(Amendment) Regulations 1997
See discussion of this Regulation in comments arising under paragraph 21(1)(b) above.[11]
SR 122 – Education (Maintenance Allowance Payments) Regulations 1997
These Regulations are authorised by section 82(i) of the Education Act 1958, which allows for the granting of educational allowances and allowances for maintenance in respect of pupils.
The Regulations will alter the manner of payment of the education maintenance allowance (EMA) so that the Chief Executive of the Department of Education can recommend payment either wholly or in part to the parent or wholly or in part to the school which the child attends. The purpose is to increase the amount of funds made available to schools, ensuring that there is a stronger link between the EMA and educational expenses.
In effect, they continue the 50/50 split that was begun by SR No. 6/97. The difference is that these regulations do not in the text specify a 50/50 split, thereby allowing for flexibility.
The Regulations were accompanied by a RIS which states that the objective of the proposal is "to ensure that the EMA allowance is directly associated with educational expenditures; that bureaucratic processes are streamlined; and that there is a higher level of accountability relating to the distribution of public funds."
The Subcommittee invited the officers responsible for the regulations and the RIS to attend a meeting. The Subcommittee requested that it be furnished with copies of the survey and review mentioned in the RIS before the meeting.
Members raised questions with the officers relating to the content of the RIS; to whether the cost of administrative arrangements for compliance with the statutory rule would exceed the benefit being sought; and relating to whether the breadth of the regulation required explanation as to its form or intention. Issues pertaining to justice and fairness were also canvassed.
On the basis that the RIS appeared to comply with section 10 of the Subordinate Legislation Act 1994 and bearing in mind the generosity of the scheme when compared to other States and Territories, the Committee approved the regulation.
The Subcommittee thanks the officers for their attendance before it and for their assistance with deliberations.
Footnotes |
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Pathology Services Accreditation (General)(Fees) Regulations 1997 (SR No. 36/97) |
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See the discussion of existing fees and charges in the ‘Guidelines for Setting Fees and Charges Imposed by Departments and Budget Sector Agencies’ for each financial year. |
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Zoological Parks and Gardens (Administration)(Amendment) Regulations 1998 (SR No. 1/98). |
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See Planning and Environment (Fees)(General Amendment) Regulations 1997 (SR 151/97) |
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See Committee Memorandums, Appendix 6. |
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See p.24. |
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