Scrutiny of Acts and Regulations
Committee
Eleventh Report to Parliament on Subordinate
Legislation
Annual Report
concerning
Statutory Rules Series 1998
Ordered to be Printed
By Authority. Government Printer for the State of Victoria
May 1999
No. 43 Session 1999
In this Chapter, regulations will be discussed under the
various procedural headings found in Part 2 of the Subordinate Legislation Act
1994. In other years, the Annual Report discussed regulations according to the
categories of disallowance found in section 21 of the Subordinate Legislation Act.
It is the practice of the Subcommittee to examine the
regulations under the procedural provisions in the Act. Procedural compliance is one of
the heads of disallowance. If there are other matters that could lead to disallowance,
these are commented upon in the advice provided to the Subcommittee by the Legal Adviser
or brought into discussion by Members.
This chapter of the Annual Report is devoted to describing
the statutory rules and other statutory instruments that raised discussion in the
Subcommittee, leading possibly to correspondence with the relevant Minister. As earlier
mentioned, in this Annual Report the discussions are set out under the procedural
provisions in sections 7, 8 and 9 of the Subordinate Legislation Act.
The Subordinate Legislation Subcommittee examines all of
the statutory rules after they are made. The rules are examined for procedural compliance
according to sections in Part 2 to the Subordinate Legislation Act. They are also reviewed
by the Committee for compliance with the criteria in s.21 to the Act. It examines other
delegated instruments according to the terms of the Acts which authorise them.
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 required, 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. The Full Committee will then formally bring the
recommendations to the attention of the Parliament. The Parliament will then debate the
recommendations or note the report.
Here follows a section by section presentation of the
sections relevant to the preparation of statutory rules. The effect of each section is
outlined, together with illustrations taken from statutory rules examined. Discussion of
the two other types of delegated instrument which the Committee is authorised to
scrutinise follows after.
The following material will give readers an understanding
of the wide range of duties of Members of the Subordinate Legislation Subcommittee.
Members meet frequently throughout the year. They review regulations after they have been
made in compliance with an understanding of the doctrine of separation of powers.
The Premier's Guidelines38 spell out when consultation is not
necessary as well as the parameters of consultation with other government agencies and
with business and other affected sectors of the public.
In the common course, it seems that consultation before
undertaking a regulatory impact statement eventually forms part of that document.
In the Subcommittee's experience, section 6 certificates
are a brief statement that consultation has taken place and with whom.
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 that proposed
statutory rule.
SR No. 59 – Children's Services
Regulations 1998
The Children's Services Regulations are made under the Children's
Services Act 1996 and replace now outdated regulations formerly made under the Health
Act 1958.
The regulations cover matters such as forms, records to be
kept, minimum child/staff ratios, and qualifications for staff. They describe the programs
and equipment to be provided at centres as well as the information to be supplied to
parents and displayed by a centre.
The regulations were developed in consultation with the
industry and were the subject of an attractively presented and well argued Regulatory
Impact Statement. The RIS itself was over 200 pages long. The RIS was easy to use. 20,000
copies of the RIS were printed. It is a brightly coloured A4 page bound document. Members
were most impressed with the presentation of the Regulatory Impact Statement and with the
significant responses from the public which it prompted.
1,200 responses were received to the RIS. A special
tear-out format was supplied for individuals and for organisations at the front of the
RIS. The response form allowed for background information to be supplied, anonymously if
preferred, and provided a response format for points of substance.
The high response rate is an indication both of community
interest in childcare and the availability of a prepared form for comments forming part of
the document.
The intentions of the regulations were widely supported
and the alternatives provided were not supported. Some respondents were concerned that
Family Day Care and Out of School Hours programmes are not included in the regulations –
more from the point of giving those programmes an unfair advantage and not taking the
opportunity to improve standards in these sectors. These two types of childcare programmes
do not fall within the ambit of the Children's Services Act 1996.
Greatest concern was raised in relation to criminal record
checking, but comments on the observance of children using the toilets and aspects of
child-staff ratio also received much attention.
Ernst & Young were engaged to summarise the responses
and extract key themes and provide an indication of the weight of opinion for each issue.
The key issues extracted from the responses were:
1. QUALIFICATIONS – Why is the focus of the
regulations on early childhood qualifications only leaving out possible other
qualifications such as secondary educational training or equivalent life experience as a
qualification?
Firstly, the summary document makes this point:
Secondly, it is apparent that the regulations are premised
on ensuring that adults who spend time with children in childhood centres have appropriate
training.
The Minister has made this point clearly in correspondence
with the Subcommittee. This correspondence is set out below.
2. CORE TIME – Why is there no longer an
obligatory "core time" for staff at centres?
The demise of core time is implied in regulation 23 which
requires there to be at least 2 staff members on duty whenever children are being cared
for. This is of greater concern to providers than to parents, possibly because of the
financial consequences of the requirement. Currently, centres employ less expensive,
unqualified staff over the lunchtime break for the children or early in the morning when
few of the children have arrived. This has been factored into the economics of childcare
centres. There is also argument that childcare centres legitimately provide both care and
education and that it is appropriate to use cheaper caregivers for small portions of the
day.
Again this is an issue which the Subcommittee has raised
with the Minister. The Minister's response is that he will interpret the regulation in
such a fashion to allow staff to have breaks away from the children provided they can be
reached immediately if an emergency occurs.
Correspondence between the Subcommittee and the Minister
on this point is set out below.
3. CRIMINAL HISTORY CHECKS – How are
volunteers to be checked for criminal history?
The regulations originally obliged a service to obtain a
current criminal history check for all people working as staff or as volunteers at a
centre before allowing those people to have contact with the children. As a result of the
RIS process, the regulations were amended to exclude volunteers and young people working
with the children from having their criminal histories checked if they were under the
"immediate supervision" of staff.
Cost of the checks was one concern but so also was the
confidentiality of such records as well as the fact that criminal record checks are
actually not possible for persons of 15 years who can now under the regulations be staff
at a service.
4. OBSERVANCE OF CHILDREN USING JUNIOR TOILETS –
Should junior toilets be visible from indoors and outdoors?
The draft regulations required junior toilets to be
visible from the outdoor space as well from rooms in a centre. Not only would this
requirement impose major costly renovations to some centres, but argument was put that
requiring visibility from outside areas lacks respect for the privacy of children and
might expose children to unwanted and undesirable attention. In response to RIS comment
the regulations have been amended to require only that the toilets are in the view of
staff from the children's rooms.
The Subcommittee continued to follow up the requirements
relating to staff qualifications and the disappearance of core time on the basis that
these matters were arguably either likely to result in compliance costs that outweigh the
likely benefits sought to be achieved (s.21(1)(k)) or to unduly trespass on rights
previously established by law (s.21(1)(f)). These were issued raised both at meetings with
representatives of the Office of the Family in the Department of Human Services and in
correspondence.
Meeting with Officers from the Department of
Human Services on 21 August 1998
Mr Ken Baker, Mr Greg McConnell and Ms Heather Butow
attended a meeting of the Subcommittee on Friday 21 August 1998. The officers spoke most
helpfully and gave answers to questions which were asked by Subcommittee members. While
discussion traversed all four of the Key Issues, the two areas of greatest concern to
Members were the limiting nature of the regulations in the matter of necessary
qualifications and the situation of qualified staff being required to be present with the
children all day.
On the matter of qualifications, it was emphasised that
60% of children in the services are under 4 years old. To have teachers with
qualifications for primary or secondary aged children only caring for or educating these
children is inappropriate. The case of specialist teachers making occasional visits did
not raise the same concerns because they could always be under the supervision of the
qualified staff member. It was suggested that this was clearly a matter of principle and
also something which most or all parents would support and expect.
As regards the latter concern, the officers gave Members a
copy of a letter which the Minister wrote to all services. One issue specifically
commented upon in that letter was the "lunch break" issue. Minister Napthine
wrote that while he was committed to there being qualified staff in attendance all day, he
will accommodate the need to have a break at lunchtime by interpreting the regulation
which determines minimum staff requirements such that "services may satisfy the
requirements of the Regulations if the qualified staff members necessary to meet the
prescribed ratios remain on the premises and are on duty".
These two issues were of continuing concern. Some Members
were aware of the Early Childhood Centres established in conjunction with independent
primary and secondary schools. It would seem that in such an educational environment
flexibility of qualifications might be permitted. The limiting of staff to the premises
throughout the day also caused concern. For example, it seems unduly restricting to
prevent a staff member from visiting a bank at lunchtime.
External Correspondence
The Committee received two pieces of correspondence about
the Children's Services Regulations directly. These were from the Association of
Independent Schools of Victoria (AISV) and the Director of Early Childhood Programmes at
the Carey Baptist Grammar School. The Chairman of the Subcommittee also received a letter
from the Headmaster of the Mentone Grammar School. The letter from Carey Grammar focussed
on the implications of the removal of core time and that from Mentone Grammar expressed
concern at the alteration in required qualifications. The AISV indicated that it
represented the interests of 180 Victorian independent schools and that approximately 70
of these schools provide pre-preparatory programmes and are therefore affected by the
regulations.
It argues that while it accepts that the State should play
a role in ensuring safety and accountability for pre-school programmes the schools it
represents are in an unique position compared with stand-alone facilities and should have
their pre-school programmes regulated by the Education Department. This is a policy
argument which is beyond the purview of the Subordinate Legislation Subcommittee. AISV
goes on to argue for granting permission to specialist secondary teachers to conduct their
programmes at the pre-prep level without supervision and to draw attention to the
difficulties faced by these independent schools with respect to running financially viable
before and after-school care programmes. Regulation 6 states that no more than 30% of the
children can be in a programme conducted for children under school age. This limit
presents real difficulties for combined out of school hours programmes.
The Chairman of the Subcommittee wrote to the Minister on
1 March 1999 in the following terms:
The Subordinate Legislation Committee has spent some
time reviewing the (Children's Services Regulations 1998) and I advise that there are two
ongoing concerns at this stage.
Mentone Girls Grammar has over a number of years
successfully conducted a pre-school program where secondary trained specialist teachers in
music, literacy (library) and physical education have contributed to the program.
I have had some difficulty quantifying the benefits of
the new regulations in the context of the corresponding burden.
Under Section 21(1)(k) of the Subordinate Legislation
Act 1994, the Committee is required to consider whether a rule:
(k) is likely to result in administration and
compliance costs which outweigh the likely benefits sought to be achieved by the statutory
rule.
The second issue relates to the lunchtime supervision
of the children.
It is appreciated that this has been suggested as a
matter which could be resolved between the committee of management and the staff
themselves.
Nevertheless, the regulations require a minimum level
of staff to be in attendance. This could perhaps, on a number of occasions, be fulfilled
if a second staff member was having lunch in the staff room.
However, in the event of a staff member moving off
site, the children's service would be operating in technical breach of the regulations.
The broader interpretation to be placed on the words
"on duty" as suggested in earlier correspondence distributed to all licensees
results in a degree of ambiguity.
In practice, the regulation could only be satisfied by
the staff members remaining on the premises at all relevant times and, in my opinion,
would preclude off site lunchtime activities.
The Minister replied to this letter on 9 April 1999 making
his position very clear. The letter reads:
Your first concern relates to the status of secondary
trained and other specialist teachers in pre-preparatory programs operated by independent
schools.
As you are aware, the regulations require children's
services to have qualified staff providing care or education for children at all times in
the prescribed ratios. The regulations prescribe minimum qualification of at least two
years tertiary study in early childhood for a person to be considered a qualified staff
member. Unless teachers have one of the prescribed early childhood qualifications they
cannot be counted as qualified staff.
One of the key objectives of the new Regulations is
that all children's services deliver educational and recreational programs which meet the
developmental needs of children. In addition, the care provided to children must be
appropriate to their needs. Only staff with an approved early childhood qualification can
meet these objectives.
This position was strongly supported when the draft
Regulations was released in October 1997 for public comment. I believe parents using
services would share this view.
Specialist teachers can contribute to the
pre-preparatory program as long as the required number of qualified staff members are
caring for or educating the children.
You also raise the issue of staffing over lunch breaks.
In August 1998 I advised services that, during the lunch break of a qualified staff
member, services may satisfy the Regulation if the qualified staff members necessary to
meet the prescribed ratios remain on the premises and are on duty. This
means that a qualified staff member must be able to be directly and immediately accessed
by the staff caring for the children (if the need arises) during their lunch break.
Thank you for raising your concerns with me. I trust
this clarifies the situation for you.
The Subcommittee is grateful to the Minister and his staff
for spending time in responding to Subcommittee concerns. It reflects the approach taken
by the Department throughout the RIS process and is praiseworthy.
The Minister makes it plain that the policy taken is that
all those engaged as staff by children's services must have early childhood training. He
also confirms that while some leeway is given to staff over the lunch period there is to
be no resumption of an approach which allowed for "core time".
The Committee notes the expressed policy position with
respect to qualifications and encourages parties involved to continue to make their case
for change. The Committee is mindful of new initiatives in the area of Alternate
Compliance Mechanisms and Regulatory Efficiency Legislation and believes that there is
scope to provide for guidelines which would satisfy the intent of government to safeguard
children while allowing for some flexibility for licensees to utilise specialist staff.
The Committee comments that the success of the
implementation of the arrangements pertaining to staff breaks will be determined in their
application. In the meanwhile the Committee notes that the fundamental premise of the
Regulations is the care and well-being of small children and acknowledges a commitment to
the highest possible standard of care.
SR No. 138 – Occupational Health and
Safety (Plant)(Amendment) Regulations 1998
These regulations impose a specific duty on employers and
self-employed persons to fit roll-over protective structures (ROPS), which are protective
frames, on pre-1981 tractors to protect operators from death or serious injury in the
event of tractor roll-over.
ROPS have been required for most post-1981 tractors, by
regulation and with a subsidy scheme. As of mid November 1997 about 7,500 tractors (of an
estimated 17,500 tractors in Victoria) have been fitted with ROPS under the subsidy
scheme. It is considered that ROPS are the solution to the hazard of death from tractor
roll-over. While the number of deaths per year from tractor roll-over is not large the
flow on costs (in both financial terms and personal trauma) warrant regulation of the
pre-1981 situation to minimise fatal accidents. ROPS assist in reducing serious injury for
the non-fatal roll-overs.
Every so often the Committee comes across a clear
explanation of the purpose of the regulatory statement process. The RIS for the
Occupational Health and Safety (Plant)(Amendment) Regulations 1998 provides such a
statement:
In preparing an RIS, two purposes are paramount. First,
to demonstrate that only those regulations which represent the most effective response to
a policy problem are adopted; and second, to demonstrate to the community the reasons for
initiatives in the area.
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 is that the benefits
of a proposal should normally exceed its costs. Cost-benefit analysis generally involves
maximising the discounted present value of net benefits at an appropriately chosen rate of
social discount. Alternatively, cost-effectiveness measures may also be used.
One controversial issue in RISs is estimating the value of
a life. This RIS takes the following approach:
In the case of the proposed Regulations, the principal
benefit is lives saved. Since the value of a life is subject to much debate, and the
values vary widely according to the methodology of valuation used, this analysis will use
a cost-effectiveness approach. In other words, the cost per life will be determined and
this value will be compared with various valuations of life in order to determine whether
the proposed Regulations are cost-effective.
The analysis is undertaken over a ten year time
horizon. This period is sufficient to ascertain the impact of the proposed Regulations.
The costs are estimated in 1997 prices.
SR No. 161 – Country Fire Authority
(Forest Industry Brigades) Regulations 1998
These regulations put in place the format for the creation
and operation of Forest Industry Brigades. They provide for the day-to-day arrangements
under which forestry industry brigades will operate.
The RIS document itself sets a high standard of
information. It may be even too complicated for the average reader, for whom the Committee
has always felt RISs should be written.
The RIS has some passages about RISs which are worth
repeating. For example:
Regulatory reform has been pursued by State and
Commonwealth governments for the past decade. Reducing the costs, delays and uncertainty
for business, and thus improving the overall "business climate" in Victoria are
major goals of regulatory reform. In 1994, as part of its emphasis on regulatory reform,
the Victorian Government revised the Subordinate Legislation Act 1962, to improve the
processes for making and scrutinising subordinate legislation. Under the revised Act,
there is a requirement for the preparation of a Regulatory Impact Statement (RIS) whenever
a proposed statutory rule imposes an "appreciable economic or social burden on a
sector of the public".
The purpose of the RIS is to:–
1. Explain the purpose of the proposed regulation;
2. Explore the economic implications of the proposed
regulation; and to
3. Demonstrate that regulation is the most suitable way
of dealing with the presenting problem.
On cost-benefit analysis, it has this to say:
One of the main aims of the Regulatory Impact Statement
(RIS) process is to ensure that only the most efficient regulations are adopted. The RIS
also needs to quantify the regulatory burden, (if any), imposed by the proposed
Regulations.
To demonstrate that the proposed Regulations are the
most efficient policy option, the analysis needs to show first, that the benefits exceed
the costs, and second, that this net benefit would be greater than any of the feasible
alternative approaches. The analysis should also inform policy makers and the community of
the regulatory burden, (if any), imposed by the proposed Regulations.
...
The analysis of the costs and benefits needs to take
account of the losses to the community and the plantation forest operators from fires in
plantation forests. While it is recognised that these losses would never be completely
eliminated, it makes sense for the industry and the community to expend resources on fire
protection and suppression services to the point where the marginal benefits (that is the
reduction in potential fire losses) equals the marginal costs (or the resources expended
in these activities.
...
Cost-benefit analysis is a method of comparing the net
social benefits produced by alternative policies or approaches. The role of the analysis
is to assist policy makers to identify the course of action that will maximise the
community's welfare. `Net social benefits' relates to the difference between social
benefits and social costs.
...
The estimation of monetary values of costs and benefits
is not always straightforward. For example, there are costs and benefits for which it is
not possible to make dollar estimates. These costs and benefits, termed `intangibles', are
separately presented for assessment in conjunction with the quantified estimate of the net
social benefits. Even for those costs and benefits for which values are estimated,
(`tangibles'), definitive values are not always available. To provide an indication of the
effects of uncertainty with respect to these values, net present values are estimated
across a range of values (a lower range and an upper range value). (p. 15ff)
| Footnote |
| 38 |
See Premier's Guidelines – Part 5:C and D. |
CONTINUE to Chapter 2 -
Application of the Act
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