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Thursday, 21 August 2003
Page: 19285


Mr GEORGIOU (11:59 AM) —I was incited to speak today on the Legislative Instruments Bill 2003 and the Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003 because one commentator described them as covering the `least sexy topic in Australia'. If the commentator had been able to hear the speech of the member for Barton I am sure he would not have pursued that view, because the fact is that, while it may not be sexy, it is important, and commentators have welcomed the legislation as an `attempt to clean up and control the “black hole”' in administrative law.

While the Legislative Instruments Bill 2003 contains substantive provisions, to which I shall refer, its companion bill—the Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003—makes consequential amendments to the Acts Interpretation Act and other relevant acts. Legislative instruments are written instruments of a legislative character that are made in the exercise of a power delegated by the parliament. A regulation is an archetypal example of a legislative instrument. Regulations are relatively accessible, being published under a numbering and publications system prescribed by the Statutory Rules Publication Act 1903. However, there is a raft of other forms of legislative instruments—including guidelines, orders, rules and determinations—which are often far less accessible and which may also suffer from poor drafting.

The first aspect of this bill is to establish a consistent, coherent regime for the making, registering, tabling, scrutinising and automatic repeal—if they are no longer required—of Commonwealth legislative instruments. The second aspect of this bill is to provide for the establishment of an authoritative, complete and publicly accessible online register of legislative instruments. There is currently no comprehensive and authoritative online register of Commonwealth legislative instruments, so this will fill a significant void.

Certain instruments are specifically excluded from the operation of this bill and others may be excluded by the act or instrument giving authority for the instrument to be made. Examples of instruments that are specifically excluded are private and public taxation rulings, employment arrangements, and orders made by the Australian Federal Police Commissioner under the AFP Act. Generally, the exemptions are because an instrument is not actually legislative in character or because it is inappropriate for a particular instrument to be publicised. However, while the application of the act will not be entirely universal, certainty as to the application of the act can be assured by seeking a conclusive certificate from the Attorney-General as to whether or not the act applies to a particular instrument.

The first aspect of the legislation which I will look at concerns the drafting of legislative instruments. This legislation will give the Secretary of the Attorney-General's Department a range of powers in relation to the drafting of instruments, including the power to supervise the drafting of legislative instruments, and also the ability to provide training in drafting and drafting precedents to other agencies. These measures are intended to empower the secretary to enhance the legal effectiveness, clarity and intelligibility of legal instruments.

The legislation also deals with requirements for consultation in the preparation of legislative instruments. Forerunners of this proposed legislation contained quite prescriptive consultation procedures. In contrast, the bill now before the House encourages but does not compel consultation on legislative instruments when they are being made. This is a fine balance, encouraging the appropriate consultation and facilitating oversight, without imposing mandatory procedures which may be inefficient or inappropriate—for example, for budget decisions or national security measures. In order to enhance parliament's scrutiny of the consultation process, the bill requires that the explanatory statement for every instrument includes a description of the consultation that occurred or, if there was no consultation, an explanation as to why not. This will enhance the transparency of the process of making legislative instruments.

I will turn to the tabling and disallowance procedures provided for in this legislation. These procedures ensure that there is a comprehensive regime for parliamentary scrutiny of legislative instruments, and this Legislative Instruments Bill substantially re-enacts the existing process for the disallowance of legislative instruments which is contained in the Acts Interpretation Act 1901 and extends the scheme to all legislative instruments. The Attorney-General's Department will be responsible for tabling new legislative instruments in both the Senate and the House of Representatives within six sitting days after the instrument is registered—a matter which I will come back to in a moment.

The procedures will reflect the current approach to disallowance, in that either house of the parliament may give a notice of motion of disallowance within 15 sitting days of the instrument being tabled. If the motion is passed, the instrument will cease to have effect. This is subject to appropriate exemptions—for example, where it is intended that an instrument be within the control of the executive, such as ministerial directions to agencies, or where there is a requirement for commercial certainty that would be jeopardised by disallowance. The government's intention is that all instruments that are currently subject to a disallowance process will continue to be so. And even instruments that are exempted from the disallowance process will have to be tabled, which will enhance the scope for parliamentary scrutiny.

Turning to the sunset provisions, the automatic repeal of a legislative instrument after 10 years is a very important aspect of the Legislative Instruments Bill. This measure will ensure that legislative instruments are regularly reviewed by the agency responsible for them, retained only if needed and kept current. In the previous proposed versions of this legislation, the sunset period was five years. There was concern, however, that this was too short a period, and this concern has obviously been addressed in the bill before the House.

The sunset provision is an important mechanism to unclutter the statute books by removing archaic instruments. It seems to be a matter of commonsense not to have outmoded laws on the books, and it seems to me that this will enhance the efficiency of the legal system. Other Australian jurisdictions have certainly seen such advantages, and five states already have sunset provisions. At first glance, automatic sunsetting might raise concern that the automatic repeal of legislative instruments might leave a vacuum. However, there are some general safeguards to prevent inadvertent sunsetting. First, under the bill, lists of instruments are required to be tabled 18 months before they are due to sunset. Second, in limited circumstances the Attorney-General may defer sunsetting for up to a year. Third, either house of parliament may resolve, by majority resolution, that an instrument should remain in force. In addition, limited exemptions to the sunsetting regime seek to ensure that instruments do endure in appropriate circumstances. These include instruments that are intended to have permanent effect—for example, the proclamation of a Defence Force flag or a national park. The exemptions will also cover instruments that are required to be permanent for the purposes of ensuring commercial certainty—for example, fishery management plans that are intended to operate for 30 years, and instruments which are part of an intergovernmental scheme or body between the Commonwealth and another government.

Finally, I turn to what the Attorney-General has described as the centrepiece of the new regime created by these bills: the establishment of an authoritative database of legislative instruments, the Federal Register of Legislative Instruments. This will be maintained by the Attorney-General's Department. The database will be publicly accessible via the Internet and will be almost 100 per cent complete, with the exception of the few instruments not covered by the legislation, to which I have previously referred.

Registration will be ensured by making it a requirement that new legislative instruments be registered in order for them to be enforceable. Existing legislative instruments must also be lodged for registration in order to be enforceable. Instruments made during the five years preceding the commencement of this legislation must be lodged for registration within one year after commencement. Older legislative instruments must be lodged within three years of the commencement of this legislation.

The register will also contain the explanatory statements for legislative instruments. Compilations of legislative instruments will be published in the register, which will be particularly useful for determining the state of the law at a particular time. No doubt businesses, the courts and members of the public will be greatly assisted in their use of legislative instruments by being able to access and rely upon this authoritative and comprehensive legal resource.

This legislation has had a long gestation. It had its origins in the Administrative Review Council's 1992 report Rule making by Commonwealth agencies. Back then, over 10 years ago, the framework of principles and procedures for the making of delegated legislative instruments was described by the ARC as `patchy, dated and obscure'. One cannot imagine that things have improved awfully much over the past years, and one suspects that the situation has actually deteriorated. For some time the government and the Attorney-General have been committed to establishing a comprehensive regime for the management of, and provision of public access to, Commonwealth legislative instruments. Indeed, similar legislation to the bills currently before the House has been proposed before. It has failed to be enacted—twice because it lapsed when an election was called and once because it was laid aside after being considered by the Senate.

The current legislation does contain significant enhancements on previous models, and once again I would like to congratulate the Attorney-General. It does take advantage of technological advances and, as I have already noted, elements that may have had adverse effects on effective administration—notably the mandatory consultation provisions—have been revised. It is gratifying that the opposition has been supportive of the aims embodied in this legislation and that the matters that were of concern to the opposition have essentially been taken into account in the drafting of the current legislation. In addition, provision is made for this legislation to be reviewed three years after it commences and for the general sunsetting provisions to be further reviewed 12 years after commencement. This will allow the opportunity for the operation of this legislation to be assessed and, if necessary, further refined.

In short, relevance, clarity, scrutiny and accessibility will be the important achievements accomplished by the enactment of these bills. I conclude by quoting a legal expert in this area, partly because quoting a lawyer called Mr Argument is totally irresistible. Mr Argument believes so strongly in this legislation that he is quoted in the AustralianFinancial Review as saying:

We really need to get this legislation through and will do what we can to lobby to get it up.

I commend these bills to the House.