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Eleventh Report to
Parliament on Subordinate Legislation Chapter 1 - Overview INTRODUCTION1.1 The Subordinate Legislation Subcommittee reviews statutory rules and other subordinate legislation. What are statutory rules?1.2 Statutory rules are "regulations" made by the Governor in Council or with the approval of the Governor in Council. Regulations made by local councils are not statutory rules. Court rules and some other rules or by-laws which are deemed to be statutory rules under their respective authorising Acts are also statutory rules.3 Statutory rules are rules made by the Executive wing of government. 1.3 Regulations themselves can be divided into principal (or main) regulations and amending regulations. There are also regulations which are small, stand alone regulations which are never amended or changed. The Subcommittee saw all of these in 1998. 1.4 All regulations are law. Citizens are required to obey
them. The regulations are made by the Executive and not the Parliament for good and
practical reasons including:– Even so, it is imperative in our parliamentary democracy that Members of the Parliament have opportunity to examine them and ensure that law thus being made is not inappropriate. The Subordinate Legislation Subcommittee comprises 5 Members of Parliament who review regulations shortly after they are made. They also review certain other pieces of subordinate legislation. 1.5 The regulations made in 1998 covered many different areas of interest and of importance to Victorians. As they are made by the Governor-in-Council4 and not by the Parliament it is very important that these laws are examined by a committee of Parliamentarians. The Scrutiny of Acts and Regulations Committee examines regulations to ensure that the regulations are lawfully made and that they are not inconsistent with justice and fairness. 1.6 In 1998 there were regulations which had an impact
on:– The above list refers to only a sample of regulations and other delegated instruments made in 1998, but it is plain that the canvas covered by them touches many Victorians. It is most important therefore that the Subordinate Legislation Subcommittee of the Scrutiny of Acts and Regulations Committee regularly examines them and follows up any matter of concern. 1.7 It is also sensible that the legislation according to which the Subcommittee operates is contemporary and effective. It is appropriate that members of the Victorian public have suitable opportunities to participate in the process leading up to the making of regulations. 1.8 It is in this context and for the above reasons that the Scrutiny of Acts and Regulations Committee is pleased to present to the Parliament its Eleventh Report on Subordinate Legislation. This is its Seventh Annual Report. The Report concerns the 171 statutory rules that were made in 1998. In addition, the Report contains some discussion of those statutory rules made in 1997 of which the Subcommittee had not finalised consideration when its previous Report to the Parliament was tabled. The Report also examines other delegated instruments. 1.9 The Committee engages in scrutiny of a technical nature. It fosters a non-partisan approach by avoiding detailed policy criticism. While the Committee has a limited scrutiny role in the policy area, debate on policy matters is more the domain of Parliament - not the Scrutiny of Acts and Regulations Committee. 1.10 The Report describes the scrutiny of statutory rules as provided for by the Subordinate Legislation Act 1994. Different to previous years, the scrutiny is set out according to the procedural requirements rather than under headings of disallowance. This reflects the meeting procedure of the Subcommittee as well as the practical structure of the Subordinate Legislation Act. The Subcommittee is always conscious that it has power to recommend disallowance of regulations as provided for in section 21 of the Act. Accordingly, in this Annual Report, for the first time, analysis is according to the provisions required for compliance with the procedural heads of the Act. This is what the Subcommittee initially looks for. If there is failure in procedural compliance and the Committee regards it as of a "substantial or material nature", and there is no successful outcome in negotiating to amend the regulation, the Scrutiny of Acts and Regulations Committee may recommend to the Parliament that the rule be disallowed (See s.21(1)(j) and 21(2)). 1.11 Apart from informal negotiation opportunities, the key formal power of the Committee with respect to statutory rules is that of disallowance. The central heads of disallowance are set out in section 21 of the Subordinate Legislation Act. These have essentially remained unaltered for many years and will be familiar to readers of past Reports. The major heads of disallowance are held in common by all of the Australian Parliaments. Apart from a recommendation to disallow on the basis of non-compliance with the Subordinate Legislation Act under section 21(1)(j), the Scrutiny of Acts and Regulations Committee has power to report to the Parliament if it considers that a statutory rule offends any of the other review criteria set out in s.21 of the Subordinate Legislation Act. This section is found on page viii herein. 1.12 A report may contain any recommendations that the Committee believes to be appropriate. This may be a recommendation that a statutory rule be disallowed in whole or in part, or a recommendation that the rule be amended. The Committee may also recommend under s.22 of the Act, where it is of the opinion that considerations of justice and fairness require it, that the rule or any part of it be suspended pending consideration of the rule by the Parliament. Finally, a report may simply be for the information of the Parliament. 1.13 The first approach of the Committee, where the Committee uncovers a defect or possible defect in a rule, is to write to the responsible Minister seeking an explanation. Often there is a suggestion on the part of the Committee that the error could be rectified by amendment and an undertaking to this effect is sought from the Minister. As is demonstrated in Appendix 6 to this Report, the Committee experiences a high degree of cooperation from Ministers in undertakings to amend rules. 1.14 The Committee continues to rely on the release of its own Memorandums20 for the assistance of drafting officers. These are now referred to in the Premier's Guidelines, which were released on 24 November 199721. 1.15 The main task of the Subordinate Legislation Subcommittee is to examine the 171 statutory rules made in 1998. These may be divided into groups according to the definition of "statutory rule" contained in section 3 of the Subordinate Legislation Act. The definition is as follows:– "Statutory rule" means– (a) a regulation– (i) made by the Governor-in-Council; or (b) a rule relating to a court or tribunal or the
procedure, practice or costs of a court or tribunal; or 1.16 The types of statutory rules made in 1998 according to this definition are found in Table 1 of Appendix 1 to this Report. 1.17 In addition to statutory rules, the Subcommittee examined 3 pieces of delegated legislation made under the Environment Protection Act 1970 and Directions issued by the Commissioner for Public Employment under the Public Sector Employment and Management Act 1998. 1.18 Regulations under the Subordinate Legislation Act 1994 have a ten-year life, with an extension of no more than one year available if the responsible Minister is satisfied that special circumstances warrant the extension. 1.19 Under the Subordinate Legislation Act, regulations must either be made with a Regulatory Impact Statement (RIS) or with a certificate excepting or exempting the regulation from the RIS process. SECTION 21 – GROUNDS FOR DISALLOWANCE1.20 The Committee's power to scrutinise statutory rules derives from s.21(1) of the Subordinate Legislation Act, which provides as follows:– 21. Review of statutory rules by the Scrutiny Committee (1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament– (a) does not appear to be within the powers conferred
by the authorising Act; (i) has a retrospective effect; or (c) appears to be inconsistent with the general
objectives of the authorising Act; 1.21 The Subordinate Legislation Subcommittee examined each of the 171 statutory rules made in 1998 to determine whether or not they had been prepared in contravention of any provisions of the Act. Under section 21(1)(j) the Subcommittee pays close attention to the statutory requirements for regulatory impact statements. PROCEDURAL REVIEW1.22 Procedural matters have a greater importance in the Subordinate Legislation Act 1994. A new provision for consultation before rules are made is found in s.6 of the Act. A certificate evidencing that consultation occurred must be provided to the scrutiny committee for all but minor regulations. 1.23 Part 2 of the Act is entitled "Preparation of Statutory Rules". Its centrepiece is s.7 of the Act, which reads:– 7. Circumstances in which regulatory impact statement is to be prepared Unless an exception certificate or an exemption certificate is issued in respect of a proposed statutory rule, the responsible Minister must ensure that a regulatory impact statement is prepared in respect of the proposed statutory rule. 1.24 The RIS has been pivotal in Victoria's approach to regulations since the mid-1980's. The RIS is not without its critics, but its intended purposes are to enable 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 legislation22. 1.25 As s.7 itself makes clear, not all regulatory change requires a RIS. Certificates of exception (s.8) and exemption (s.9) from a RIS must be provided to the scrutiny committee if a rule is to be made without a RIS. Also, in most cases there should be consultation in compliance with s.6 of the Act23. 1.26 In 1998, there were 42 regulations prepared with input from the public by means of the RIS process. Tables 2 and 3 in Appendix 1, set out numerical information concerning exceptions and exemptions to RIS for 1998. 1.27 As in previous years24 there were two examples of regulations which are both excepted and exempted from the RIS process. SR Nos. 34 and 35 of 1998 impose a 5% fee increase and were firstly excepted from RIS on the grounds that the increase does not exceed the annual rate approved by the Treasurer in relation to the State Budget. In addition, the regulations had an exemption certificate on the basis that the other amendments that they effect are fundamentally declaratory. DIRECTIONS UNDER THE PUBLIC SECTOR MANAGEMENT AND EMPLOYMENT ACT 19981.28 The Committee received Directions for scrutiny in 1998. These are discussed more fully later in the Report. The Committee is pleased to have the opportunity of involvement in examining the Directions which will impact on many government employees. It was also grateful for the opportunity to meet with the Commissioner for Public Employment and his Assistant. STATE ENVIRONMENT PROTECTION POLICIES (SEPPS)1.29 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 adds to the functions of the Committee:– (ca) such functions as are conferred on the Committee by the Environment Protection Act 1970. 1.30 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 (SEPPs) and report to the Parliament if a SEPP was beyond power or did not in other ways comply with the Environment Protection Act. 1.31 The Committee is pleased to have the opportunity to review other types of subordinate legislation. It believes that the Parliament will be well assisted by the supervisory role the Committee has been given in this area. 1.32 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. INFORMATION BROCHURE1.33 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 is printed in this Report as Appendix 11. 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. For example, at the Royal Melbourne Show, members of the public took a keen interest in the work of the Scrutiny of Acts and Regulations Committee. Copies of the brochure may be obtained from the Committee. ISSUES RAISED1.34 In its scrutiny of regulations, the Subcommittee discusses serious matters of legal interpretation and of developments in the law. It also explores less serious matters. Set out below is a compilation of the issues and topics it addressed in the past year. 1.35 The Subcommittee is very aware of the end-users of legislation and discussions often turn to questions of how useable and comprehensible legislation before it is. CONTINUE browsing Chapter 1 - Overview
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