SCRUTINY OF ACTS AND REGULATIONS COMMITTEE
The 53rd Parliament
NINTH REPORT TO PARLIAMENT ON SUBORDINATE LEGISLATION
ANNUAL REPORT
concerning
STATUTORY RULES SERIES 1995 and 1996
Ordered to be Printed
Melbourne
Government Printer
May 1997
No. 41 Session 1996/1997
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 pages vii and
viii and 2 and 3 above. Initially, the statutory rules are examined by the Subordinate
Legislation Subcommittee (the Subcommittee). The Subcommittee is appointed pursuant to
s.4L of the Parliamentary Committees Act 1968. Should the rule be one on which the
Subcommittee recommend formal reporting to the Parliament, the Full Committee adopts with
such changes as it wishes the Report prepared by the Subcommittee.
This section of the report is primarily devoted to describing the statutory rules about
which the Subcommittee expressed concerns or requested that amendments be made.
Statutory rule does not appear to be within the powers conferred by the Act under
which the statutory rule was made;
SR 83/95 OCCUPATIONAL HEALTH AND SAFETY (CERTIFICATE OF PLANT USERS AND OPERATORS)
(MISCELLANEOUS AMENDMENTS) REGULATIONS
Regulation 7 of these Regulations fulfills an undertaking concerning SR 108/94 given by
the Ministry for Industry Services to the Committee. Regulation 31 of the latter-mentioned
rule contained a requirement for a statutory declaration for which there was no
authorising power. Regulation 7 of these Regulations substitutes a new sub-regulation
31(2) which makes no reference to a statutory declaration, but rather to a form to be
determined by the Minister.
The Committee thanks the Minister for the prompt manner with which he addressed its
concerns.
Rules of Court are statutory rules which are presented for making by the Governor in
Council without a certificate under section 13 of the Subordinate Legislation Act prepared
in the usual course by the Chief Parliamentary Counsel. The Rules are usually made by
Judges.
There have been a few instances in recent times where the Committee has picked up
minor, but sometimes significant, errors in the text of court rules. This has occasioned
correspondence between the Committee and Parliamentary Counsel's Office such as the
following dated 26 February, 1997:
SR 143/96 MAGISTRATES' COURT CIVIL PROCEDURE (FURTHER AMENDMENT) RULES 1996
The Subcommittee on Subordinate Legislation considered and approved the above Rule
at its latest meeting.
It noted, however, that in the formal printed copy of the Rule the date of the Legal
Practice Act 1996 contained in the new definition of "solicitor" inserted by
Rule 5 is incorrect. The Act referred to is dated 1986.
Members are curious as to whether such an error can be regarded as typographical. It
observes for example that it could be viewed as qualitatively different to the minor
grammatical oversight contained in SR No. 139/1996 where the expression "Order
8" is inserted immediately after the participle "a" rather than the
grammatically appropriate "an".
Could the error in SR No. 143/1996 be corrected by a reissue of the Rule? Does it,
in fact, cause no difficulties at all?
Your advice on this and on the general area of misprints would be appreciated.
A reply was received from the Chief Parliamentary Counsel on 5 March, 1997 which read
as follows:
I refer to your letter ... about the wrong date in the citation of the Legal
Practice Act in SR 143/1996.
The mistake was made in the draft rule and was not identified before the Rule was
made. It will be corrected by an amending Rule expected to be made later this month.
The error ought not to be misleading. It is clearly an error as there was no Act
called Legal Practice in 1986 and the reference to the definition of `solicitor' is
correct as a reference to the definition in the 1996 Act.
However, the error is not "typographical" and cannot be corrected by
reprinting because the error was contained in the Rule as made. Similarly, the mistake
about the `a' which should be "an" in S.R. 139/1996 was in the statutory rule as
made. In this case, there is little purpose to be achieved by amending the provision
though this would be done if other amendments were required.
Errors of this kind should not occur. We recently introduced an additional proof
reading stage for Rules of Court and I hope that it will be successful in picking up
mistakes such as the two mentioned above.
Once a statutory rule is made, the text cannot be corrected or changed without the
authority of an amending rule.
The Committee thanks the Chief Parliamentary Counsel for her direct advice and notes
that steps have been taken to reduce the likelihood of errors of this nature in the
future.
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;
Where Regulations are simply for the purpose of increasing fees within the limit
approved by the Treasurer there is no requirement for a Regulatory Impact Statement.
Sometimes such Regulations simply list the final or increased fee with no explanation as
to what the fee was before the fee rise. The Department of Human Services, by contrast,
always supplies a Table in the Explanatory Memorandum specifying what the fee was, what it
is to be and what percentage of the total the increase is. This is to be highly commended.
It is hoped that other Departments and agencies will adopt this practice.
By contrast, the presentation of some other fee Regulations is not as clear. As an
illustration, the Administrative Appeals Tribunal (Fees) (Amendment) Regulations 1996 - SR
149/1996 - at least provides in the Regulations what the fees were and what they are to be
as a result of the Regulations. Clause 4 of those Regulations amends regulation 5 of the
Administrative Appeals Tribunal (Fees) Regulations 1993 and reads in part:
(a) in sub-regulation (1) for "$157" substitute "$165"
However, there is no helpful Table in accompanying papers setting out the
exact percentage increase. It may be a solution to require the incorporation of this
information in the Minister's certificate of exception under section 8(1)(a).
SR 97/96 LIQUOR CONTROL (LICENCE AND PERMIT FEES) (AMENDMENT) REGULATIONS
The Regulations reduce fees but there is no specific information in the material
supplied to the Committee confirming this. The Regulations separate licence and permit
fees and reduce the latter fees to reflect full cost recovery. The previous fees
approximated $270 and the new fees are $108 or less. This specific information would be
well placed in the accompanying material and would simplify parliamentary scrutiny.
The Committee wrote to the Minister for Small Business about these Regulations on 5
March, 1997 as follows:
The Subcommittee on Subordinate Legislation met recently and took pleasure in
approving the above statutory rule, which has the effect of reducing fees for applications
for permits under the Liquor Control Act 1987.
The Subcommittee did note, however, that the Explanatory Memorandum did not contain
a Table setting out what the fee originally was followed by what it is now. Such Tables
are most helpful to the Subcommittee in its deliberations and, in this case, would have
had great "marketing appeal"!
The Committee commends the use of clear Tables to you for all future changes of fees
by regulation.
A reply from Minister Asher's office was received dated 17 March, 1997 assuring the
Committee that the Minister has passed its comments on to the appropriate departmental
officers for their noting and action in future. The Committee thanks the Minister for her
actions in this regard.
Appears to be inconsistent with the general objectives of the authorising Act;
SR 106/95 - METROPOLITAN FIRE BRIGADES (GENERAL) (AMENDMENT) REGULATIONS
These Regulations prescribe fire prevention notices as well as make corrections to the
Metropolitan Fire Brigades (General) Regulations 1994 (SR 174/1994) on the basis of
Committee suggestions following its scrutiny of those Regulations in 1994.
The Committee approved the Regulations and wrote and thanked the Minister for Police
and Emergency Services for the attention given to the matters raised.
SR 77/95 - HOSPITALS SUPERANNUATION (AMENDMENT) REGULATIONS
These Regulations vary calculation rules applying to optional retirement and disability
benefits to make the benefits consistent with sections 34 and 36A of the Hospitals
Superannuation Act 1988.
The Regulations are made under section 59(1) of the Hospitals Superannuation Act.
The Committee approved the rule, but noted that section 59 of that Act actually authorises
the Governor in Council to make Regulations "after consideration of a report from the
Board". The introductory form of words used in the regulation reads "on the
recommendation of the Hospitals Superannuation Board."
Although it probably would not matter in the final event, the Committee wrote to the
Minister for Finance (on 21 August 1995) to point out that the introductory words were
wrong. The Committee recommended that future rules be made in strict compliance with the
empowering Act.
A reply from the Minister dated 20 September 1995 read:
Your comments with regard to making rules in strict compliance with the empowering
Act have been noted and all officers concerned have been asked to ensure this compliance
occurs for the making of all future rules.
The Committee thanks the Minister for his cooperation.
Makes unusual or unexpected use of the powers conferred by the authorising Act
having regard to the general objectives of that Act;
The Committee did not object to any rules under this category.
Contains any matter or embodies any principles which should properly be dealt
with by an Act and not by subordinate legislation;
The Committee did not object to any rules under this category.
Unduly trespasses on rights and liberties of the person previously established by
law;
SR 8/95 CO-OPERATIVE HOUSING SOCIETIES REGULATIONS
These Regulations prescribe procedural matters relating to the Co-operative Housing
Societies of which there were many in operation, formed and managed in groups by 65
secretaries. These Regulations replace the 1994 interim Regulations, which in turn were a
`stop-gap' measure to ensure continued regulation after the 1984 Regulations were
sunsetted. It was possible that the changes wrought by the Regulations (for example,
altering the method of payment to Secretaries of Societies) raised questions of trespass
on pre-existing rights.
There was a RIS to which there was a combined response from industry. As the RIS was
advertised prior to the coming into operation of the 1994 Act there was no requirement for
a compliance certificate. The RIS appeared to address adequately the issues specified in
Schedule 3 to the 1962 Act.
The Regulations are made under Section 98 of the Co-operative Housing Societies Act
1958 and nineteen other provisions of that Act.
The Subcommittee resolved to send letters to all Members of the Victorian Parliament
inviting submissions on these Regulations from them under the grounds contained in section
21 of the Subordinate Legislation Act. No such submissions arrived.
Letters were also sent to the Minister for Fair Trading, the Federation of Housing
Societies Victoria and VICFIC. Again no responses were received. The Minister for Fair
Trading had corresponded with the Committee on 9 February, 1995 before the letters
referred to above had been sent.
It thus appeared that there were no critics of non-policy related aspects of the
Regulations. Any matters which the Regulations raised were not issues which the Committee
is authorised to examine under Section 21 of the Subordinate Legislation Act 1994.
The Committee approved the Regulations.
SR 89/96 ROAD SAFETY (PROCEDURES) (LASER SPEED MEASURING DEVICES) REGULATIONS
The Regulations amend the Road Safety (Procedures) Regulations 1988 by prescribing
laser speed measuring devices. Prescribing the devices allows speeds measured by them to
be prima facie proof of the speed detected. Radar devices and digitector devices (which
are currently prescribed and will continue to be prescribed) are difficult to use
effectively on multi lane roads with heavy traffic and on roads with trams.
The Committee was concerned that the laser beam may harm drivers and/or police and
unduly trespass on a right of free passage on the road. It wrote to VicRoads on 19
February, 1997 for more information about the laser to be used as follows:
One of the Members raised a concern about the impact of the device on drivers of
cars. Aware of the use of laser beams in eye surgery with quick and lasting impact, some
elaboration of the statement that the product is "regarded as safe under all
conditions of normal use" is sought (RISp.4).
As well as ensuring that police users of the device are free from harm, the
Committee wishes to be assured that the driving public is also free from harm.
The Committee received this assurance in a letter from VicRoads dated 28 February,
1997. The reply attached a copy of a report from one of Australia's foremost authorities
on laser safety confirming that the three examples of the device prescribed by the
Regulations, when tested, all emitted energy at a rate that fell well within the Class 1
laser product standard under standard tests conditions. Class 1 laser products are safe
under usual conditions of operation, including viewing the beam with optical aids such as
binoculars.
The Committee acknowledged that attention had been paid to safety aspects and approved
the Regulations. The Committee thanks VicRoads for its detailed reply.
Makes rights and liberties of the person unduly dependent upon administrative and
not upon judicial decisions;
The Committee did not object to any rules under this category.
Is inconsistent with principles of justice and fairness;
SR 68/95 ADOPTION (INTER-COUNTRY FEES) (AMENDMENT) REGULATIONS
These Regulations fulfill an undertaking by the Minister for Community Services to draw
attention to the fact in the Regulations themselves that the Adoption (Inter - Country
Fees) Regulations 1992 (SR 339/1992) are subject to section 113 of the Adoption Act
1984. Section 113 allows for a waiver or reduction of fees by the Director - General in a
particular case. The new regulation 4 is a result of consultation between the Committee
and the Minister, prompted by the Committee's response to submissions it had received from
adoption organisations on the steep increases in fees brought about by SR 115/1994 - of
471% for approval to adopt a non-citizen child.
The Committee approved the Regulations, and thanks the Minister for his cooperation
with the Committee.
SR 88/95 ZOOLOGICAL PARKS AND GARDENS (ADMINISTRATION) (CHARGES) REGULATIONS
These Regulations establish admission charges to generate adequate revenue for the
essential expenditure of Melbourne Zoo and Healesville Sanctuary and a more equitable
pricing structure.
The Committee examined the rule and the associated RIS and wrote to the Minister for
Conservation and Environment on 11 October 1995:
The Committee examined and approved the above regulations at its meeting of 26
September, 1995. It noted that in the regulatory impact statement the proposed price
structure was considered "equitable and consistent in the application of discounts,
and (was) competitive with other government funded and commercial providers of family
entertainment and recreation."
It occurs to members of the Committee that the new fees for the disabled and the
increases for full-time students and pensioners makes a day at the zoo a costly one.
Has the Zoological Board given consideration to adopting a practice similar to that
of its commercial competitors by providing, for example, half-price entry for full-time
students and pensioners on a particular day of the week?
The Committee would be pleased to receive your comments on such a proposal."
The Committee received no reply, but in 1996 replacement Regulations were made.
SR 53/96 ZOOLOGICAL PARKS AND GARDENS (ADMINISTRATION) (CHARGES) REGULATIONS
These Regulations increase fees payable for entry to the Royal Melbourne Zoological
Gardens (the Zoo) and for entry to the Sir Colin MacKenzie Zoological Park (Healesville).
The Regulations introduce stand alone entry fees to Victoria's Open range Zoo at Werribee.
The Regulations also provide for exemptions from the entry charges which had previously
been done by Order in Council.
There was a RIS which accompanied the Regulations. The RIS dealt only with the new
charges for entry to Werribee Zoo, as the increases fall within the 5% exception from the
RIS process allowed for by section 8(1)(a) of the Subordinate Legislation Act 1994.
A curiosity of the Regulations is that `Friends of the Zoo' (FOTZ) members get into the
Zoo free on any day when the Zoo is open to the public after normal opening hours
provided they are admitted before 4pm, but after 4pm FOTZ members must pay $3.
The Committee wrote to the Minister for Conservation and Land Management on 22 January,
1997 about the position of members of FOTZ and their involvement in the RIS process. A
reply was received on 26 February, 1997. Portions of the Committee letter and the
corresponding reply are extracted below.
The Subordinate Legislation Subcommittee recently examined the above Regulations.
Could you please confirm whether there were any submissions on the Regulatory Impact
Statement. The "section 6" consultation certificate implies that there were
submissions from members of the public.
Could you also please elaborate upon the concerns which the Friends of the Zoo had
about the admission charges to Werribee Zoo. Finally, the Committee is curious to know the
explanation of the fee structure for waiver of admission fees by FOTZ members as set out
in new Regulation 9A(2) and item (10)of Schedule 1 to the Regulations.
The Minister replied as follows:
Thank you for your letter dated 22 January 1997. In response to your specific
queries, I advise as follows.
Paragraph (b) of the consultation certificate refers to the process of making the
regulatory impact statement (RIS) available for interested groups to comment on. However,
following advertisement of the RIS, no submissions were received.
The Friends of the Zoo (FOTZ), when first advised of the proposed admission charges
for the redeveloped Werribee Zoo, stated that, whilst it appreciated the problems of the
Zoological Parks and Gardens Board in relation to redevelopment costs and the reasons for
the charges, it felt some disappointment. However, FOTZ did not elaborate further on its
concerns and merely sought clarification of several issues relating to the new charges.
FOTZ did not forward a submission on the RIS.
The fee structure set out in regulation 9A(2) and Schedule 1 item (10) provides for
the waiving of admission charges for FOTZ members to the Melbourne Zoo during normal
visiting hours. The reason for waiving charges for FOTZ members is that 40% of each FOTZ
membership fee is directed back to the Board to assist in the costs of the day to day
management of Board properties. Further, the waiver recognises the contribution of FOTZ
members to the funding of certain capital development works.
After hours functions and entertainment have been introduced by the Board as a means
of attracting additional visitors to the zoo to generate additional revenue to fund both
the direct costs associated with the activity, as well as contributing to the provision of
funds for general operating costs. Item 10 of Schedule 1 imposes a charge on FOTZ members
who visit the zoo after 4.00 pm on any day on which the zoo is open after normal hours and
is providing a function or entertainment for the public. The charge set for FOTZ members
visiting the zoo at these times is $3.00, compared to the normal adult fee of $12.60. The
additional costs associated with conducting these value-added activities are not built
into the FOTZ membership charge.
Whilst the contribution of FOTZ to the funding of zoo operations is recognised, the
inability of the Board to generate sufficient revenue to fund all its operations has
necessitated that it ensure that all visitors contribute to the funding of costs of
running the zoos.
The Committee thanks Minister Tehan for her reply. The Regulation was approved.
Requires explanation as to its form or intention;
SR 97/95 TRANSPORT (PASSENGER VEHICLES) (CONSEQUENTIAL AMENDMENTS) REGULATIONS
These Regulations reflect the change of management from the Roads Corporation to the
Secretary to the Department of Transport, consequent upon the coming into operation of the
Road Safety (Miscellaneous Amendments) Act 1995. The amendments are machinery in
nature. Unfortunately, regulation 3(a) wrongly defines `licensing authority' by reference
to Division 4 of Part 6 of the Transport Act 1983, which contains no mention of
`licensing authority' at all.
The Committee wrote to the Minister for Roads and Ports about this on 11 October, 1995
and sought his undertaking to have the mistaken reference amended. The Minister has
replied to the Committee indicating that an amending regulation is being prepared, and
thanking the Committee for bringing the matter to his attention.
SR 106/95 BUSINESS FRANCHISE (TOBACCO AND PETROLEUM PRODUCTS) (AMENDMENT)
REGULATIONS
These Regulations provide new application forms for tobacco licences and new forms for
the issue of those licences.
A curiosity arises in the forms where the applicant must complete a section which
reads:
Names of spouse(s) and/or de facto spouse(s) (if any)
The Committee wrote to the Treasurer on 11 October, 1995 as follows:
The Committee was amused to read in the forms that the following information is
required of applicants:
`Names of spouse(s) and/or defacto spouse(s) (if any).'
We are aware that we live in a society whose focus is on deregulation, but as far as
we know the prohibition on multiple marriages is still in place!
The matter has been mentioned to one of your officers, who agreed that the plural
reference was superfluous.
The Committee seeks your undertaking to amend the forms in this regard at your earliest
convenience.
The Committee received a reply dated 8 November, 1995 from the Commissioner of State
Revenue as follows:
The plurality of the word spouse in the Regulations relating to Form 2 and
regulations is indeed superfluous. Amendment to these forms has been included in
regulations that are awaiting the passing of the State Taxation (Further Amendment) Bill
currently before the Parliament.
Thank you for drawing this issue to my attention.
The Committee approved the Regulations and thanks the Commissioner of State Revenue for
his cooperation.
SR 23/95 CORRECTIONS (POLICE GAOLS) REGULATIONS
Police gaols are premises appointed as such by Order of the Governor in Council.
Regulation 7(5) imposes a penalty of 5 penalty units on a person who does not obey
"an order under this regulation". Regulation 7(9) composes a penalty of 2
penalty units should a person not "comply with an order under sub-regulation
(8)". Confusion could arise.
The Committee wrote to the Minister for Police and Emergency Services on 6 April, 1995
asking that he consider clarifying the intention of regulation 7 by a future amending
regulation.
The Minister replied on 17 May, 1995 as follows:
Thank you for your letter dated 6 April concerning these Regulations and in
particular the potential confusion in relation to the applicable penalty under regulation
7.
As you suggest the intention of regulation 7 could be clarified by an amendment to
sub-regulation (5) so that it applies only to failure to obey orders other than orders
given under sub-regulation (8).
I agree to make the necessary amendment.
The Committee commends the Minister for his undertaking, and approved the regulation.
SR 131/95 fulfills this undertaking. The Committee thanks the Minister for his
cooperation.
SR 71/95 SUPREME COURT (COURT OF APPEAL INTERIM ARRANGEMENTS) RULES
These rules are intended to be short-lived, with a thorough overhaul in the near
future. They make miscellaneous amendments, aimed to assist legal practitioners.
The Committee noted some minor slips or oversights and wrote to the responsible officer
as follows:
The Committee noted some minor slips or oversights which it wishes to draw to your
attention for the assistance of the Judges.
There appears to be an omitted reference to Rule 21.08 (5) rule 5 (b); omitted
references to orders 2M and 2P in Rule 6(a); and omitted references to Rules 2E and 2K in
Rule 6(c) and possibly also a mistaken reference in Rule 5.02 of that amending Rule.
The Committee approved the Rules.
SR 74/95 CONSERVATION, FORESTS AND LANDS (INFRINGEMENT NOTICE) (AMENDMENT)
REGULATIONS
These Regulations provide for infringement notices for offences against the Wildlife
(State Game Reserve) Regulations 1994. There was a drafting duplication which the
Committee brought to the attention of the then Minister for Conservation and Natural
Resources. His office advised that a correcting amendment was to be made soon. The
Committee approved the Regulations and thanks the Minister for his correspondence.
SR 140/95 FISHERIES (KING CRAB) (AMENDMENT) REGULATIONS
These Regulations change the definition provision of the King Crab Regulations (SR
96/1995) by omitting the Latin or scientific name (pseudocarcinus gigas) of the
Giant Crab and inserting instead the better known English version.
The Committee was pleased to see this development. It believes that, in the interests
of open access to subordinate legislation and the law generally, at the very least both
the scientific name of a species and its common name ought be given in legislation which
might affect members of the public. In this case, it was interesting to observe that even
the expert used the common name "giant crab" in his support of the original
Regulations.
SR 70/96 ADMINISTRATIVE APPEALS TRIBUNAL (TAXATION DIVISION) REGULATIONS
These Regulations substantially followed the revoked Regulations, with a modernisation
of drafting and presentation. The Regulations establish time limits and prescribe forms of
notice and summons, amongst other procedural matters.
The Committee wrote to the Attorney-General as follows:
The Subordinate Legislation Subcommittee met and approved the above Regulations
recently.
Members were impressed with the modernisation of drafting and presentation of the
Regulations. Please pass this commendation on to the staff involved.
SR 191/95 TRANSPORT (TAXI-CABS) (SAFETY DEVICES) REGULATIONS
These Regulations were made under sections 162 (1)(b) and 256 of the Transport Act
1983. The purpose of the Regulations was to improve the safety of taxi-cab drivers by
requiring the installation of driver duress alarms and boot lock release devices to all
taxi-cabs other than those exempted from the requirement by the Secretary.
The Regulations were prompted by the Crime Prevention Committee's report entitled
"Developing a Safer Taxi Industry" released in October, 1993.
There was a RIS accompanying the Regulations which appeared to comply with section 10
of the Subordinate Legislation Act 1994. The RIS explained the nature of the two
new safety devices, indicating that the newer model EF Falcon and VS Commodores already
have boot opening devices. Boot release devices are necessary to enable a driver to escape
should he or she be locked in the boot by a passenger. The duress alarm was to be fitted
flush against the rear window to display a cry for help, activated by the driver.
The Committee observed that the provision empowering the Secretary was broadly drafted
and raised a concern by letter dated 9 August, 1996 with the Minister for Roads and Ports
as follows:
The Committee is concerned that the breadth of the exemptions provided for under
Regulation 13C is not clear on the face of the Regulations. Such lack of clarity may be
reportable to the Parliament under section 21(1)(i) of the Subordinate Legislation Act
1994 as requiring explanation as to its form or intention.
The Committee accepts that exemptions from the obligation for taxi-cabs to have
fitted boot lock release devices and driver duress alarms may be required in certain
circumstances. However, the Committee believes that Regulation 13C could be narrowed down
to limit appropriately such circumstances.
Thus, rather than being aware only from reading the RIS that country drivers are to
be exempt from mandatory duress alarms, it should be clear from reading the Regulations
themselves that an exemption is available in country areas specifically and not in the
non-specific, broadly drafted, "particular area" referred to in Regulation 13C
(1)(c). Similarly, the Regulation should make it clear that it is only where certain
models of car are not suitable for boot lock release devices that an exemption is
available, and not for any reason as currently drafted.
The Committee would be satisfied to receive an undertaking from you to redraft the
provision when next these Regulations are being amended.
The Minister replied on 3 September, 1996 in this way:
I note your comment about Regulation 13C and have asked the Victorian Taxi
Directorate to liaise with Parliamentary Counsel to develop an appropriate amendment
clarifying the breadth of the exemptions contained in the Regulations.
Thank you for bringing this matter to my attention and you have my assurance that I
will have the amendment made at the first available opportunity.
The Committee thanks the Minister for his reply and, noting the undertaking, approved
SR 191/95. The amendment was made by SR 162/96 after an earlier attempt by SR 101/96
referred mistakenly to the wrong regulation. The Department itself picked up the error.
The Committee is pleased to see the statute book tidied up in this manner.
SR 104/96 ROAD SAFETY (PROCEDURES) (PARKING PENALTIES) REGULATIONS 1996
The Committee noted the drafting technique in regulation 3 of these Regulations. For
example, Regulation 3 amends Schedule 5 to the Road Safety (Procedures) Regulations quite
extensively. Sub-regulation (h) of Regulation 3 reads simply ` in clause 4, for
"$60" substitute "$100". There is no indication of what
particular offence is being amended. While details of the relevant statutory rule are
listed in SR 104/1996, members of the public who wish to track down when a change was made
might find that it was not necessary to obtain all of the amending rules.
The Committee will note all such rules where non-identified amendments are made. In the
interests of plain English and user friendliness Departments should consider providing
public information, by way of headnote or otherwise, when amendments such as these are
made.
SR 127/96 VETERINARY SURGEONS (FEES) REGULATIONS 1996
These Regulations increase fees payable by veterinary surgeons for registration under
the Veterinary Surgeons Act 1958. The drafting approach mentioned
above is also employed here. The fee increase is stated in regulation 20(1)(b); for
"$80" substitute "$120". The increase is of the registration
fee but the Regulations themselves do not identify this. Once more, for ease of reading by
the public, further detail in the amending regulation is desirable.
SR 32/95 CHILDREN AND YOUNG PERSONS (CHILDREN'S COURT) (AMENDMENT) REGULATIONS.
These Regulations insert a statutory declaration, undertaking to produce a child
at a hearing, and amend forms relating to appearing before Court, as well as Youth
Attendance and Weekend Detention Orders.
Some mirth was occasioned at the Subcommittee meeting where this rule was examined by
the use of the word "produce" in the statutory declaration in Form 5A, where the
declarant undertakes "to produce the child... before the Children's Court at (venue)
on (date) at (time)...".
The Committee wrote to the Attorney-General on 24 May, 1995 drawing this to her
attention, and suggesting that:
"In the interest of advancing plain English, the Committee suggests that the
word "bring" or "present" rather than "produce" would be
appropriate in this context."
The Attorney replied on 7 June 1995 as follows:
"I understand that the term was specifically chosen by Parliamentary Counsel to
accurately reflect that it is the child's presence that is required at the Court, and that
the attendance of the person undertaking to secure the child's attendance at Court is not
required. This is of some importance if the child is hospitalised as a consequence of
child abuse, and the undertaking is given by the supervising medical practitioner
nominated as the "suitable person", into whose care the child is placed on an
interim basis. It is under these circumstances that the procedure would be most frequently
required, and use of the term "bring" would connote a requirement that the
doctor accompany the child.
I also note that the term "produce" in relation to securing a child's
attendance was used in the 1991 principal regulations in forms 3 and 5 for similar
reasons. In all the circumstances, I consider that the existing wording should be
retained."
SR 45/95 BUSINESS NAMES (AMENDMENT) REGULATIONS
These Regulations fulfilled an undertaking given by the Attorney-General in relation to
concerns raised by the Committee following its examination of SR 237/1993.
The Regulations revoke paragraph (c) of regulation 10A of the Business Names
Regulations (No.2) 1992 to clarify the powers of the Commissioner. Unhappily, the
objective of the Regulations (Clause 1) mistakenly refers to clarifying the powers of the Registrar
and not the Commissioner.
The Committee advised the Minister for Fair Trading of this by letter dated 28 July,
1995. The letter reads:
The Committee wants to point out that the objective of the regulations is to clarify
the powers of the Registrar under the Business Names Regulations (No.
2) 1992" (emphasis added) when, in fact, the effect of the regulations is to allow
the Commissioner of Corporate Affairs to waive fees etc. under certain
conditions (emphasis added). The regulations therefore do not (and, in fact, cannot)
fulfil the stated objective. The Committee will not report on this matter to the
Parliament, but draws it to your attention to ensure that such oversights do not recur.
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;
SR 81/95 OCCUPATIONAL HEALTH AND SAFETY (PLANT) REGULATIONS
The objective of these Regulations is to protect people at work against risks to health
or safety arising from plant and from systems of work associated with plant. They replace
out-of-date Regulations made under 3 other Acts as well as plant-related Regulations made
under the Occupational Health and Safety Act 1985.
A RIS was prepared, which appeared to cover the ground required by section 10 of the
Subordinate Legislation Act.
Prior to meeting to examine the Regulations, the Committee took the unusual step of
writing to those who had submitted a response to the RIS.
By letter dated 31 July, 1995 the Committee asked the respondents :
The Subcommittee is aware that you submitted a response to the Regulatory Impact
Statement on these regulations. There may be additional matters arising out of the
regulations, particularly now that they are in operation, which you would wish to draw to
the Subcommittee's attention. It is emphasised again that the ambit of the Subcommittee's
scrutiny is restricted to legal and technical matters and that policy issues are not
within its purview.
The Committee received two letters from respondents and passed these onto the Minister
for Industry Services for his comment.
The Minister's letter of 22 September, 1995 was very detailed and satisfied the
Committee with its answers to the matters raised by the two respondents.
The Committee approved the Regulations, commending the Minister for his reply.
SR 181/95, 182/95 and 183/95 DANGEROUS
GOODS FEES REGULATIONS
These Regulations increased fees within the 5% range approved by the Treasurer in the
annual budget. The Committee had previously corresponded with the Minister responsible for
the Dangerous Goods Act 1985 under which the Regulations are made. The
Committee had been concerned that the Regulations did not on their face comply with
section 53 of the Dangerous Goods Act which appeared to require public circulation of the
draft of the Regulations for 30 days prior to their making.
The Committee wrote to the Minister for Finance on 19 February, 1997 and received the
following reply dated 21 March, 1997:
Section 53 of the Dangerous Goods Act 1985 was repealed on 28 November 1995
by section 8(1) of the Dangerous Goods (Amendment) Act 1995. As indicated by the
previous Minister, section 53 was never intended to apply to machinery-type Regulations
such as the above Regulations. Rather, section 53 of the Dangerous Goods Act 1985 had
a similar purpose to the public comment provisions of the Subordinate Legislation Act
1994, that is, section 53 was intended to cover regulations that place an appreciable
burden on a sector of the public. In any event, any confusion about the application of
section 53 has now been removed by the repeal of that particular section. The repeal of
section 53 also ensures that there is no overlap with or contradiction of provisions of
the Subordinate Legislation Act 1994.
The Committee thanks Minister Hallam for this reply. Noting that the Regulations were
made after the repeal of section 53 of the Dangerous Goods Act, the Committee approved the
Regulations.
SR 14/96 FISHERIES (RECREATIONAL) (BAG LIMITS - MALLACOOTA) REGULATIONS
These Regulations were made under section 81(1)(j) of the Fisheries Act 1968 and
removed the bag limits imposed by SR 114/1995 for the taking of bream and flathead at
Mallacoota.
The bag limits are now removed because the entrance to Mallacoota Inlet has been opened
and there has been a return to normal conditions with the fish resource re-establishing
itself in the lakes.
The Committee had expressed concern that the previous Regulations were structured in
such a way as to have an on-going effect and did not contain an internal sunsetting
provision. It also noted that the Regulations were exempted from the RIS process by virtue
of a section 9(1)(e) certificate on the basis that to give notice of the Regulations would
render the proposed rule ineffective.
It wrote to the then Minister for Natural Resources on 16 November, 1995 in a letter
which reads in part as follows:
(The Committee) observes that the effect of an exemption by virtue of section
9(1)(e) of the Subordinate Legislation Act 1994 is that the regulations made
thereunder may stay in operation for 10 years.
The Explanatory Memorandum implies that a bag limit on flathead and bream is only
being imposed on all waters of the Mallacoota Inlet because of lower than average
rainfalls over the past year and the need to prevent exploitation of the fish by
recreational anglers, until such time as the fish stock recover when the Inlet eventually
opens.
The Committee expresses its surprise that SR No. 114/95 does not contain an
automatic revocation provision for either 12 or 24 months hence. If the bag limit is
actually considered to be necessary permanently, the Committee would prefer to see a
regulatory impact statement undertaken within such a time frame.
The Minister replied on 9 January, 1996 and an extract of his reply is as follows:
The bag limits for flathead and bream were put in place at the request of the
recreational peak body, which represents recreational fishing interests in Victoria. A
high compliance rate has been reported and the bag limits are strongly supported both
within the local community at Mallacoota and by the recreational fishing community
generally.
A sunset date was not included in these Regulations because, at the time of their
making, it was unknown whether or not the entrance would open and if so, when that would
occur, how long it would remain open and the effect of the closure on fish stocks. A
sunset date of 12 or 24 months may not necessarily have been long enough to manage the
problem and could, therefore, have necessitated the remaking of the Regulations to
continue the bag limits.
Nevertheless, the intention was not to put permanent bag limits in place. The
entrance has recently been opened and an undertaking was given in the explanatory
memorandum that, in the event that the entrance opened, the bag limits would be reviewed.
Consistent with this undertaking, investigations have been undertaken to determine whether
the bag limits would be removed. I understand that there are local concerns that the dusky
flathead population in the lakes system may still be under stress. Angling for this
species has been reported to be poor and removal of the bag limit could prove to be
premature. In addition, I am advised that, due to flooding late last year, spawning of
bream in the lakes system has been delayed. In order to provide some protection for both
species, it is therefore proposed to maintain the bag limits at least until the end of the
summer holiday period, when higher than normal recreational catches are likely. The
situation at Mallacoota will be subject to ongoing monitoring.
SR 14/96 fulfilled the Minister's commitment contained in the earlier explanatory
memorandum and removes bag limits on the fish species which had been subjected to bag
limits by SR 114/95. The Committee commends the Minister for this action.
SR 26/96 FISHERIES (ABALONE) REGULATIONS
The Regulations established a new framework for the management and control of the
abalone fishery in Victoria. The framework comprises several features. These include the
requirement that abalone taken by licensed divers be landed in sealed bins, as well as the
introduction of an abalone transfer certificate scheme. Certain existing provisions were
enhanced. Each of these components had been instituted with the aim of supporting the
audit trail scheme to ensure better the sustainability of the abalone fishery.
The Committee was aware of the economic importance of the industry to Victoria as well
as the importance of maintaining a sustainable abalone fishery.
The Committee considered reporting to the Parliament on the basis of section 21(1)(h),
(j) and (k) of the Subordinate Legislation Act. In the event, the Committee did not report
to the Parliament on any of those grounds but, instead, presented an Information Paper to
the Parliament covering the concerns which it had examined. The Information Paper was
tabled in December, 1996.11
The Committee evaluated concerns that the Regulatory Impact Statement did not simply
and fully explain why regulation was required in this area and that, accordingly, the
Regulations could be in contravention of section 10(1) of the Subordinate Legislation Act
and Parts 3 or 4 of the Premier's Guidelines made under section 26 of the Act. Reporting
to the Parliament on this basis was possible under section 21(1)(j) of the Subordinate
Legislation Act. After a full examination of the many issues raised, the Committee chose
not to report under this principle.
The Committee considered that provisions which imposed extremely narrow time limits
might be inconsistent with principles of justice and fairness (s.21(1)(h)). Amendments to
the Regulations extending certain time limits were foreshadowed, and the Committee was
inclined not to report given these anticipated changes.
Finally, a number of submissions were made on the RIS and to the Committee in relation
to compliance costs but, while the precise volume of illegal activity could not be
ascertained, the Committee took the view that the likely benefits sought to be achieved,
on balance, outweighed the alleged high compliance costs. Thus, reporting under section
21(1)(k) of the Subordinate Legislation Act was not appropriate.
The Committee approved SR 26/1996.
SR 41/96 BUSINESS FRANCHISE (TOBACCO AND PETROLEUM PRODUCTS) (AMENDMENT)
These Regulations set an application fee for a wholesale tobacconist's licence of $850
and prescribe a scale of expenses to be claimed by persons required to supply information
to the Commissioner.
The Business Franchise (Tobacco) Act 1974 states:
In section 7AA that an application for a wholesale licence must be accompanied by the
prescribed application fee. No limit is set in the Act for this fee, and
In section 15(3) that the Regulations may prescribe scales of expenses to be allowed to
persons required to attend under section 15. Again, no limit is set.
The general regulation-making power contained in section 22 of the Act authorises among
other matters the making of Regulations "authorized or required to be prescribed or
necessary or convenient to be prescribed for carrying out the provisions of the Business
Franchise Acts".
Normally, where an Act authorises the setting of a fee a RIS is prepared prior to a new
fee being imposed.
These Regulations do not have a RIS but are accompanied by an exemption certificate
under section 9(1)(c) of the Subordinate Legislation Act 1994. That certificate is
signed by the Treasurer and exempts the Regulations on the basis that they are
"essentially (sic) machinery in nature".
Inquiries revealed that the State Revenue Office had prepared documentation in order to
make the Regulations and, on request, that documentation was sent to the Committee.
That documentation contained details of how the prescribed expenses were arrived at and
noted that no objections to the proposed scale were received even though the proposed
scale had been circulated to any persons who could conceivably receive a claim for
expenses.
As far as the prescribed application fee was concerned, the departmental information
supplied to the Committee contained the following information:
Sections 7AA(3)(c) and 7AA(4)(d) of the Business Franchise (Tobacco) Act
1974 provide that applications received under sections 7AA(1) or 7AA(2) of that
Act must be accompanied by the prescribed application fee. Sections 7AA(1) and 7AA(2) of
that Act are the sections under which persons or corporations can apply for individual or
group wholesale tobacconist's licences. Only persons or corporations who do not hold an
existing licence can apply under these provisions. The prescribed application fee imposed
by the Act is set at $850 by regulations 5A of the Business Franchise (Tobacco and
Petroleum Products)(Amendment) Regulations 1996.
The issue of a wholesale tobacconist's licence to an applicant is the granting of a
valuable right by the Government. The application fee reflects both the value of the right
which is being granted and the considerable costs imposed on the stringent checks required
to be done on this type of licence applicant under the Act. The Act, as you are no doubt
aware, has had significant amendments made to it in the last few Parliamentary sessions in
order to address wide scale avoidance and to protect legitimate market participants. Part
of this regime involves the carrying out of probity and other checks on potential licence
holders, some of which must be carried out by obtaining information from external agencies
such as the ASC, Federal Court and Police Commissioner. Some of these agencies charge the
SRO for the provision of such information. For example, disbursements are incurred for:
- ASC searches which are required to verify office holders of companies, associated
companies and associates generally (see sections 7AB(1)(b), 7AB(3), 7AB(4)(d);
- bankruptcy searches at the Federal Court and Sheriff's Office searches to ensure that
a person has sufficient financial resources to carry on wholesaling (see
sections7AB(1)(c));
- business name searches(see sections 7AB(1)(b) and 7AB(4)(d); and
- investigations relating to suitability of premises, and other aspects of licensing.
An analysis of the costs incurred in processing licence applications over the first
6 months under the new requirements was undertaken. To give a level of certainty when
lodging applications and to avoid the necessity of recovering the fee after the
application had been processed, and perhaps rejected, a flat fee was decided upon. The fee
of $850 was struck as representing an average cost per licence application which could be
charged to go part of the way towards recovering the full cost of probity checks.
After examination of this information, the Committee still had concern about the
absence of a RIS even though the letter indicated that issues similar to those required to
be addressed in the RIS process had been considered. It was apparent that the focus of
Regulations was not revenue-raising but the Committee was curious as to how many of the
applications were made.
The State Revenue Office supplied the statistics set out below in a letter dated 12
September, 1996:
| Month |
Total applications
received |
| March 1996 |
19 |
| April 1996 |
17 |
| May 1996 |
16 |
| June 1996 |
17 |
As the figures in the above table show, the number of applications for wholesale
tobacconist's licences have remained fairly constant over the four month period between
March 1996 to June 1996.
Upon receipt of this information, the Committee was prepared to approve SR 41/1996
because the impact of the fee did not appear to be widespread. However, the Committee
wishes to emphasize that it was anxious to ensure that the RIS process is not avoided by
blatant non-compliance with the Subordinate Legislation Act.
SR 66/96 ENVIRONMENT PROTECTION (SCHEDULED PREMISES AND EXEMPTIONS) REGULATIONS 1996
Regulations of the same name made in 1994 were the subject of a Report to the
Parliament on the basis of a RIS about which the ORR had given only qualified approval.
The Committee did not move for disallowance of those Regulations as the EPA had begun a
process which led to the Protocol relating to RIS under which SR 66/96 was made.
In relation to SR 66/96, the Committee wished to commend the EPA for its efforts in
formulating the Protocol and in producing its first Regulation in accordance with it. It
wrote to the Minister for Conservation and Land Management on 26 February, 1997 as
follows:
The Subcommittee on Subordinate Legislation met and approved the above statutory
rule recently.
The Subcommittee noted that SR No. 66/1996 was the first to come before it since the
Environment Protection Authority established a Protocol for the Development of Regulations
and the Preparation of Regulatory Impact Statements.
We commend the EPA for the application of the Protocol to the Regulatory Impact
Statement Process. Please pass on our acknowledgment and appreciation of the EPA's effort
to the Chairman and to other appropriate officers.
It received this reply on 12 March 1997 from the Chairman of the EPA:
Minister Tehan has passed on to me your letter about our Protocol.
We put a lot of thought and effort into the Protocol, and EPA staff will be very
pleased that it has been favourably received by your Subcommittee. Thank you for your kind
words.
Is likely to result in administration and compliance costs which outweigh the
likely benefits sought to be achieved by the statutory rule.
SR 108/95 ROAD SAFETY (VEHICLES) (LOADING) REGULATIONS
These Regulations form part of a package approved by the National Road Transport
Commission in late 1993 and by the Ministerial Council in late 1994.
The aim of the Regulations is to increase road safety and reduce the administration
costs of road transport through a strategy of providing a set of nationally uniform
requirements for the loading of heavy vehicles.
The Regulations incorporate a "Load Restraint Guide" for the assistance of
drivers and owners, both of whom are held responsible under the Regulations should the
vehicle be loaded in an unsafe or unstable way.
The Committee was concerned that it was the intention of VicRoads to put out technical
bulletins as supplements to the Load Restraint Guide. The Committee wrote to the Minister
for Roads and Ports on 11 October, 1995 as follows -
Now that the Load Restraint Guide is available for purchase at $5.00 per copy, the
Committee asks whether it would be possible to reprint it from time to time incorporating
the necessary corrections for a similar low cost. The Committee is well aware that loose
sheets of paper are easily misplaced, and believes the Load Restraint Guide should be
issued as a single unit as outlined.
The Minister replied by letter of 7 November, 1995 in this way-
I refer to your letter dated 11 October 1995 regarding technical bulletins being
issued as supplements to the Load Restraint Guide.
The Load restraint Guide is produced by the National Road Transport Commission
(NRTC). The Commission is responsible for future reprints and any necessary supplementary
information.
Vicroads has advised me that it has spoken to the NRTC in respect of the issue you
have raised. The NRTC has agreed that when the Load Restraint Guide needs updating it will
be done as a complete document and not with separate addendum sheets. Notwithstanding, the
NRTC has advised that, in response to industry requests for more detailed information on
specific technical aspects contained within the Load Restraint Guide, it intends to
produce technical bulletins as supplements to the Load Restraint Guide. Depending on the
level of technical detail and relevance to the general transport industry, the NRTC
advises it may include this supplementary information in future editions of the Load
Restraint Guide.
The Committee thanks the Minister for this response and approved the Regulation.
SR 178/95 GAS INDUSTRY (SUPPLY) REGULATIONS 1995
These Regulations were presented to the Committee without the required documentation.
There was no section 6, 13, 8 or 9 certificate and no Explanatory Memorandum. Preliminary
attempts were made to have the documents located and sent to the Committee so that the
Committee might properly scrutinise the Regulations. These attempts failed. Significant
staff changes also impacted on the finding of the files. Indeed, the Subordinate
Legislation Subcommittee had itself had several staff changes. All of these alterations
may have effected locating the files.
The Committee examined the Regulation without formal paperwork and resolved that the
Chairman of the Subcommittee should write to the Minister if further informal contact
should prove unsuccessful. In the event, the documents were located, albeit long after the
Committee could take any action under the Act should the Regulation be found not to comply
with the Subordinate Legislation Act in other regards.
The Committee accepted the information provided. It is for the public record that the
matter of delay in forwarding the documents to the Committee is mentioned in this Report.
SR 13/95 GOODS (SALES AND LEASES) REGULATIONS
These Regulations, which prescribe an amount of $20,000 as the maximum cash price for
goods and services or for lease of goods to which Part IV of the Goods Act 1958
applies, were presented with a section 9(1)(c) exemption certificate. This certified that
the Minister was of the opinion that the rule was of a fundamentally declaratory or
machinery nature.
The Committee queried the use of this exemption in correspondence, arguing in a letter
of 24 May, 1995:
On the face of the regulation, something in the nature of a cost is imposed on a
sector of the public, namely manufacturers or lessors, who are required to ensure that
goods and services meet certain implied conditions when the item has a face value of
$20,000 or less The fact that the amount of $20,000 was already in place is neither here
nor there.
The linking of `declaratory' with `machinery' in the exemption permitted by section
9(1) (c) of the Subordinate Legislation Act 1994 suggests that a declaratory provision
should not impact on rights in the way that this provision arguably does.
Accordingly, the Committee seeks your opinion on the use of section 9(1) (c) here.
It is aware that a consumer (or a vendor) may pursue legal action based on this very
question and that certainty of law is in the public interest.
The Minister for Fair Trading replied on 14 August 1995 as follows:
Thank you for your letter on the Goods (Sales and Leases) Regulations, S.R. 13/95.
The Committee's comments on this statutory rule are appreciated. Of course in the process
of making each regulation, a certain judgement is required concerning the need for a
Regulatory Impact Statement. It is acknowledged that this particular regulation could have
benefited from preparation of such a Statement.
In light of the Committee's advice, I am happy to give an undertaking that the
Regulations will not run for their 10 year term, but will be fully reviewed in conjunction
with the commencement of the Credit Code in Victoria during 1996. A full Regulatory Impact
Statement will be prepared in remaking the Regulations at that stage.
The Committee approved the Regulations and thanks the Minister for her reply.
| Footnotes |
| 11 |
Abalone--Taking Stock, a Review of the Fisheries
(Abalone) Regulations 1996. |
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria |