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
CHAPTER THREE
The Fourth Commonwealth Conference on Delegated Legislation, February 1997 Wellington, New
Zealand
The Fourth Commonwealth Conference on Delegated Legislation was held in Wellington, New
Zealand from February 10 to 13, 1997. The Scrutiny of Acts and Regulations Committee sent
the following delegates: -
* Mr Murray Thompson MP, Chair of the Subordinate Legislation Subcommittee;
* Mr Carlo Carli MP, member of the Subordinate Legislation Subcommittee;
* Ms Helen Mason, Senior Legal Adviser of the Committee.
The Conference was attended by delegates from 17 Commonwealth Parliaments and gave
those attending opportunity to discuss matters of mutual interest, both formally and
informally.
A traditional warm welcome the powhiri
Prior to the opening of the Conference, the delegates visited "Arohanui Ki Te
Tangata", a place on the outskirts of Wellington more commonly known as
"Waiwhetu Marae". At Arohanui Ki Te Tangata, a traditional Maori welcoming
ceremony "the powhiri" was performed by the local people. The ceremony is a
formal exchange of greetings between the local hosts and the visitors. Our local hosts
greeted some eighty delegates from all parts of the Commonwealth including Zimbabwe, South
Africa, the United Kingdom, Hong Kong, Australia, the Isle of Man, Lesotho, Malawi and
Niue.
New Zealand
The Conference was held at Parliament House in Wellington. The Honourable Doug Kidd,
Speaker of the House of Representatives in New Zealand welcomed the delegates on behalf of
the New Zealand Parliament. The first paper was presented by the Honourable David Caygill
who spent eighteen years in Parliament. Of those eighteen years, six were served as a
Minister. The Honourable David Caygill gave an overview of the scrutiny of regulations in
New Zealand. He explained the significance of the power of the House of Representatives to
disallow regulations by way of resolution. However, he indicated that it was rarely used.
Indeed, since 1989 there has been only one instance of disallowance.
The second paper was delivered by Mr Philip Joseph, an Associate Professor of Law from
the University of Canterbury in New Zealand. Mr Joseph gave an extremely comprehensive
history of delegated legislation in New Zealand. This included the use of Henry VIII
clauses, judicial review of delegated legislation, the Regulations Review Committee and
cabinet office controls.
Government House
Following the conclusion of the first day, the delegates attended a cocktail party at
Government House hosted by Michael Hardy Boyes, the Governor-General.
The Isle of Man
The second day commenced with a fascinating paper presented by Professor St.John Bates,
the Clerk of Tynwald and Secretary of the House of Keys from the Isle of Man. The Isle of
Man has its own Parliament which represents the 70,000 inhabitants. This small country has
its own currency. On Tynwald Day, once a year, all the Acts of Parliament (approximately
30 or so) are proclaimed from the top of a hill for all the people to hear! As the Clerk
of Tynwald, it is Professor Bates' privilege to read the Acts. The Acts are not valid
until proclaimed in this manner. This tradition dates back to the 14th century.
In terms of the scrutiny of delegated legislation, the Isle of Man draws heavily from the
common law of the United Kingdom. Professor Bates, in his capacity as Counsel to the
Speaker of the House of Keys conducts the scrutiny of delegated legislation in an informal
manner.
The United Kingdom
A different perspective on delegated legislation was given by Mr Andrew Bennett MP, the
Chair of the Joint Committee on Statutory Instruments of the United Kingdom. The Joint
Committee on Statutory Instruments has fourteen members, seven from each of the House of
Lords and the House of Commons. The terms of reference of the Joint Committee on Statutory
Instruments are similar in principle to those in Victoria. Mr Bennett MP discussed the
widespread concern in the United Kingdom at the growing volume and complexity of delegated
legislation and the deficiencies in its consideration and scrutiny by Parliament. For
example, in 1996, the Government produced 3291 statutory instruments. In addition, the
regulations have tended to increase in length - sixty or seventy page regulations are no
longer a rarity. He also referred to another problem, namely, that of European Union
directives.
In essence, in the United Kingdom, an increasing number of regulations are being made
under the general powers of the European Act of Succession. The Act of Succession
implements European Union directives.
"The directives often have very wide-ranging aims and, in order to gain
acceptance in all 15 member countries, can be drafted to encourage ambiguity. Of course,
they also have to reflect 15 different legislative traditions. If the United Kingdom
Parliament refuses to implement European Union directive, it is breaking European Union
law."[12]
Mr Bennett's paper was of particular interest to Victorians faced with an analogous
problem in respect of the scrutiny of national schemes of legislation.[13]
New South Wales
Ms Jill Hall MP, Deputy Chair of the New South Wales Regulation Review Committee
outlined the success of regulatory impact statements in New South Wales. There is no doubt
that the Victorian experience is similar. However, her remarks regarding the extension of
the RIS procedures to bills may arouse great attention. She commented: -
"There are increasing calls for the extension of the RIS procedures to cover
bills.......The challenge to adopt full regulatory impact statement procedures for bills
was only recently taken up in the case of the COAG Principles and Guidelines which apply
to both bills and regulations........In its April 1995 meeting COAG agreed that all
national standards which require agreement by Ministerial Councils or standard setting
bodies should be subject to a nationally consistent assessment process. Principles and
Guidelines were adopted for the assessment of national standard setting and regulatory
action. Regulatory Impact Assessment Statements must be prepared on every proposal and
must be examined by the Office of Regulatory Review before the relevant Ministerial
Council or standard-setting body can proceed with legislation. Importantly, these
guidelines include a mandatory requirement for public consultation on proposals. Aside
from the standard RIS assessment requirements in these guidelines, there is a mechanism
for independent review of the regulatory impact statement if some jurisdictions are
concerned about whether it meets the COAG requirements or about the adequacy of any
quantitative analysis undertaken."
This of course has significant consequences for those Committees which scrutinise
bills. If a legislative requirement for an RIS process in respect of bills is introduced,
it is conceivable that the Committees' terms of reference would be expanded to embrace
such change.
The Australian Senate Standing Committee on
Regulations and OrdinancesLegislative Instruments Bill 1994 (Cth)
The afternoon of the second day was devoted to an examination of the operation of the Legislative
Instruments Bill 1994 (Cth). Mr Roger Mackay of the Attorney-General's Department of
Australia outlined the background of the Bill. In a most capable manner, Mr Mackay
described the significant features of the Bill. He emphasised the requirements for
tabling, publication and the sunset provisions. He made particular reference to
establishment of a Federal Register of Legislative Instruments and the Internet which
facilitates public access.
Senator Bill O'Chee then presented a paper entitled "Sir Humphrey Appleby is alive
and well; the Legislative Instruments Bill 1996".[14]
Senator O'Chee gave an extremely comprehensive history of the somewhat windy path the Bill
has taken. Many positive amendments have been made since its inception. However, he also
indicated that some concerns raised by the Senate Standing Committee on Regulations and
Ordinances have not, in its view, been adequately addressed at this stage. The Bill is
presently before the Senate for debate. When it passes through the Parliament it may well
be regarded as another step forward for the scrutiny of delegated legislation by the
Commonwealth.
Conference Dinner The Grand Hall in Parliament
House
On the evening of Tuesday 11 February 1997, the delegates attended a dinner hosted by
the Honourable Doug Kidd, Speaker of the New Zealand Parliament, in the Grand Hall in
Parliament House. The Speaker of the Sri Lanka Parliament, Kiri Banda Ratnayake gave a
fine impromptu speech of thanks to our hosts.
Day 3 began with an informative address by Mr Richard Northey, former Chair of the
Regulations Review Committee in New Zealand in relation to the commencement of legislation
by Order in Council. The tenor of the speech was that the commencement of legislation by
Order in Council is generally regarded as an unsatisfactory practice. Mr George Tanner,
Chief Parliamentary Counsel then provided valuable comments on recent trends in drafting.
The introduction of commencement clauses is one such innovation.
Senator Barney Cooney delivered an excellent paper. Given the current constitutional
climate, it was particularly stimulating for Australians. The essence of the paper was
that the recent judicial activism of the High Court is in part a consequence of
Parliament's failure to properly perform its function. His argument was that Parliament
needs to reassert its authority where legislation contravenes basic human rights. To that
end, the present terms of reference for the Senate Scrutiny of Bills Committee may be too
inchoate or germinal.[15] Senator Cooney
commented: -
"A Suggested Solution to the Problem
If the Legislature could make a bill of rights or something akin to one effective
then there would be considerably less occasion for tension between it and the Judiciary.
In mid 1996 after returning from the United States of America, Frank Brennan of the
Society of Jesus published an article[16]
in Eureka Street entitled `One vote no'. The fifth last paragraph reads:
`I return to Australia unconvinced that the complex issues of the day need to be
constitutionalised, taken completely out of the hands of politicians, and reserved
exclusively to judges who will go to great lengths in judicial reasoning to avoid simply
having to apply their own values in weighing the conflicting claims. I will continue to
look to the US Supreme Court for a jurisprudence of individual rights which can be a
corrective for those with a parliamentary system which places more trust and
accountability in the elected law makers.
I am delighted that the US has a robust tradition for debating the issues from an
individual rights perspective. But in Australia, we do not have capital punishment. We do
not interfere with the privacy of gays. Some US states still retain anti-sodomy laws which
have been upheld by the US Supreme Court.'
The last paragraph reads:
"A Senate Committee on Human Rights could scrutinise any bill proposing a
limitation of the stipulated rights. Like the Racial Discrimination Act, the Parliament's
bill of rights would become a comprehensive legislative standard. Departure from the
standard would require political argument more compelling than a routine invocation of the
popular mandate by the major political parties. This way, the controversial issues would
not regularly become the sole preserve of the judges who constitutionalise them, they
would be resolved by the legislators and the judges playing their respective roles."
A Senate Committee on Human Rights or indeed a State Committee on Human Rights is a
natural extension of the work currently performed by the Scrutiny Committees.
Constitutional change is the subject of increasing focus in Australia. For those involved
with the scrutiny of legislation, the prospect of such involvement would be of interest.
Mr Murray Thompson MP, Chairman of the Subordinate Legislation Subcommittee of the
Victorian Scrutiny of Acts and Regulations Committee gave delegates a clear insight into
the practical operation of the Committee. In December 1996, the Scrutiny of Acts and
Regulations Committee tabled an Information Paper on its review of the Fisheries
(Abalone) Regulations 1996.[17] The
Information Paper illustrates the Committee's analysis of the Fisheries (Abalone)
Regulations and the regulatory impact statement. The abalone industry is extremely
lucrative. Its regulation, therefore, is of considerable consequence to those involved in
it. Mr Thompson MP made several pertinent comments which demonstrated the Committee's
application of the relevant scrutiny principles. An accompanying slide presentation
provided a visual focus to the address.
The issue of regulatory efficiency stimulated vigorous debate. Mr Victor Perton MP,
Chairman of the Victorian Law Reform Committee presented a provocative paper entitled
"Regulatory efficiency - the next wave".[18]
His contention is that there is some impetus for introducing "Alternative Compliance
Mechanisms" into the regulatory system in Australia. He commented[19]: -
"Another area of possible reform that has been the subject of interest and
activity in Australia and overseas is the concept of `Alternative Compliance Mechanisms'
(ACM), which are embodied (in particular) in the (Canadian) Regulatory Efficiency Bill
(C-62). Under this Bill, which was introduced into the Canadian Parliament in 1994,
Ministers would be able to approve alternative methods of complying with regulations
applying to a particular business or industry. Further, there must be consultation with
affected parties before a draft `compliance order' is negotiated between the government
agency and the relevant business or industry group. It is a key feature of an ACM that,
while it does not meet the prescriptive requirements of the relevant regulations, it must
nevertheless meet the regulatory objectives. In that sense, it focuses on the end, rather
than the means."
[20]
"There is an emphasis in the Victorian proposal on the fact that the proposal
does not imply any lowering of regulatory standards and an assurance that proponents of
Alternative Compliance Mechanisms (ACMs) would, in all cases, be required to demonstrate
that their proposals would meet the identified regulatory objectives and performance
standards at least as effectively as the specific regulations that they seek to replace[21]...........The proposal includes a
requirement that the relevant Minister must prescribe all the `relevant criteria' that
would be taken into account in deciding whether or not to approve an ACM.....It also
proposes that the `relevant criteria' should be open to review by the Scrutiny of Acts and
Regulations Committee of the Victorian Parliament, which would determine whether the
criteria were adequate and whether they were consistent with both the stated regulatory
objectives of the relevant statutory rule and the purposes and principles of the proposed
Bill...
.....If a Minister decided to approve an ACM, he or she would be able to do so for
whatever period he or she thought appropriate in a given case. The Minister would be
required to publish notice of his or her approving the ACM and also to table such a notice
in the Parliament."
* The ACM would operate to bind both the Government and the proponent;
* Appropriate legislation would be introduced;
* An appropriate legislative mechanism would ensure that any breach of an ACM would
render the proponent liable for criminal prosecution and penalties;
* There would be a discretionary power on the part of departments to recover the costs
incurred in providing services relating to the preparation, evaluation and approval of a
proposed ACM;
* There would be a capacity for departments to charge fees for any administrative
action taken after the approval of an ACM.
It will be interesting to see how the issues of regulatory reform develop over the next
few years. However, it seems, that according to the Victorian Law Reform Committee there
will be yet another role for Scrutiny Committees to play.
Effective scrutiny of uniform legislation? Can Parliaments prevail where
Governments in a federal system cooperate to pass uniform legislation?
Senator Winston Crane from the Commonwealth, the Honourable Phillip Pendal from Western
Australia and Mr Jon Sullivan from Queensland formed a panel. The theme of the discussion
was the scrutiny of national schemes of legislation in Australia. This is certainly a
topic of some moment.[22] The speakers gave a
succinct history of national schemes of legislation and the two options currently being
promoted. In summary, the options are: -
* Option 1 proposes the establishment of a National Scrutiny Committee. The Committee
would scrutinise any legislation which forms part of a national scheme. There are however,
two views as to the appropriate time for such scrutiny. The first view is that scrutiny of
such legislation should take place when the draft legislation is in its final form, before
it is introduced into the Parliament. The second view is that scrutiny should follow the
current practice and take place after the legislation has been introduced into the
Parliament.
* Option 2 proposes that each Parliament make appropriate changes to the relevant
standing orders in respect of bills introduced for the purpose of implementing a national
scheme of legislation. It is envisaged that where a matter is raised by a Scrutiny
Committee in respect of such a bill, the debate be delayed until the responsible Minister
reports back to the Parliament.
The representatives from the United Kingdom made the point that their experience was
similar in respect of directives from the European Union. It may be that Australia can
learn from the United Kingdom. Apparently, South Africa too, has a similar problem in
respect of its provinces. Clearly, Australia has some way to go to resolve the problem but
at least the Position Paper[23] provides a
starting point.
Pencarrow sheep station is a 900 hectare farm located on Wellington Heads on the
south-east coast of the North Island. Forty minutes drive from the city, Pencarrow Station
is one of the largest in the Wellington area.
The final morning Mr Malefetsane Nkhahle in Africa gave an absorbing account of the
Lesotho Parliament's scrutiny of delegated legislation. Mr Nkhahle told us of Lesotho's
recent history under a military regime. In 1993, the Constitution of Lesotho was enacted.
Lesotho subscribes to the principles, traditions and conventions of the Westminster model
of Parliament.[24] The Interpretation
(Amendment) Act was passed by the Parliament in 1993 "to amend the Interpretation
Act 1977 to provide Parliament with a power of disallowance of subsidiary legislation and
to make other amendments".[25]The National
Assembly can exercise its power of disallowance if it accepts the recommendation of the
Senate.[26] Mr Nkhahle was of the view that
although there are some procedures in place for dealing with delegated legislation, there
is room for further reforms. The following issues are yet to be addressed[27]: -
* gazettal of delegated legislation might be best done following tabling in Parliament;
* increasing the number of days during which the subordinate legislation is being
considered by the Parliament, eg. from ten to twenty days in both Houses;
* setting up a flow system for draft legislation with built-in checks to ensure that
such legislation will take strictly the amount of time allotted to it at any one spot in
the scrutineering cycle.
* establishing standing committees on delegated legislation in both Houses and agreeing
comprehensive terms of reference;
* examining the provisions dealing with delegated legislation in existing laws with a
view to standardisation or alternatively amending the Interpretation Act to give
precedence to the provisions of the Act over any other provisions in any other law where
such provisions deal with procedures relating to delegated legislation;
* amending the Standing Orders of both Houses to prescribe the procedure for dealing
with delegated legislation.
Mr Nkhahle was most interested in the scrutiny procedures in operation elsewhere in the
Commonwealth. It may be that he will return home to see the beginning of a new reign of
scrutiny in Lesotho.
The Honourable Mrs Elizabeth Wong Chien Chi-lien gave an informal speech about the
changes taking place in Hong Kong with the changeover due to take place on 1 July 1997.
She expressed great regret and sadness at leaving the Commonwealth. Mrs Wong told the
delegates of the changes already made to the legislation; for example, marching in Hong
Kong can now only occur with a permit. A permit is not always readily granted. Prior to
the amendments, anyone could march freely without permits, provided the police were
notified in advance to allow sufficient time to clear the roads. The Honourable Albert
Chan expressed reservations about the freedom of the press.
The Honourable Doug Kidd, the Speaker of the House of Representatives thanked the
delegates for their attendance and participation. South Africa, it seems, is to be the
venue for the next conference. The Victorian Scrutiny of Acts and Regulations Committee
volunteered to be part of the Working Party for the next conference. Essentially, this
will mean liaising with other States and Countries by email, telephone and facsimile as
the next conference draws closer, to put forward possible items for the agenda. The
Conference was a great success. Congratulations are to be offered to the New Zealand
Parliament for being such gracious hosts. Conferences such as these offer important
opportunities for formal and informal discussions relating to the scrutiny of legislation.
[12] "Delegated Powers: Uses and
Abuses of Regulations", Mr Andrew F. Bennett MP, Chairman of the Joint Committee
on Statutory Instruments, United Kingdom, Fourth Commonwealth Conference on Delegated
Legislation, New Zealand, 10-13 February 1997, p 6.
[13] Scrutiny of National Schemes of
Legislation, Position Paper, By the Working Party of Representatives of Scrutiny of
Legislation Committees throughout Australia, October, 1996.
[14] "Sir Humphrey Appleby is alive
and well; the Legislative Instruments Bill 1996" Senator Bill O'Chee, Chairman,
Standing Committee on Ordinances and Regulations, Australia, Fourth Commonwealth
Conference on Delegated Legislation, New Zealand, 10-13 February 1997.
[15] "Evolving Civil Rights - The Role
of Parliament and the Courts", Senator Barney Cooney, Chair, Senate Standing
Committee for the Scrutiny of Bills, Fourth Commonwealth Conference on Delegated
Legislation, New Zealand, 10-13 February 1997, p 13.
[16] Eureka Street Volume 6 Number 6,
July/August 1996, 18 at 21.
[17] Abalone--Taking Stock, Review of
the Fisheries (Abalone) Regulations 1996 under the Subordinate Legislation Act 1994 -
Information Paper, Scrutiny of Acts and Regulations Committee, December, 1996.
[18] "Regulatory efficiency - the next
wave" , Mr Victor Perton MP, Chair, The Law Reform Committee of Victoria, The Fourth
Commonwealth Conference on Delegated Legislation, New Zealand, 10-13 February 1997.
[19] Ibid. at p.6.
[20] Ibid. at p.7.
[21] See Office of Regulation Reform,
Discussion Paper: Regulatory Efficiency Legislation.
[22] Scrutiny of National Schemes of
Legislation, Position Paper, op.cit.
[23] Ibid.
[24] "Delegated Legislation in Lesotho -
an overview", Mr Malefetsane Nkhahle, Parliament of Lesotho, Commonwealth Conference
on Delegated Legislation, New Zealand, 10-13 February 1997, p. 1.
[25] Ibid. at p.3.
[26] Ibid. at.p.5.
[27] Ibid. at p.7.
Scrutiny
of Acts and Regulations Committee
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