Senator PANIZZA —On behalf of Senator O'Chee—who is, unfortunately, indisposed—and the Standing Committee on Regulations and Ordinances, I present the traditional end of sittings statement on the work of the committee and seek leave to incorporate the statement in Hansard and move a motion.

Leave granted.

The statement read as follows—

End of sittings statement, December 1996

Overview

During the present sittings the Committee scrutinised the usual large number of disallowable legislative instruments tabled in the Senate, made under the authority of scores of enabling Acts administered through virtually every Department of State. Almost every legislative scheme relies on delegated legislation to provide the administrative details of programs set out in broad policy in enabling Acts which authorise such delegated legislation.

The Committee acts on behalf of the Senate to scrutinise each of these instruments to ensure that they conform to the same high standards of parliamentary propriety and personal rights which the Senate applies to Acts. If the Committee detects any breach of these standards it writes to the Minister or other law-maker in respect of the apparent defect, asking that the instrument be amended or an explanation provided. If the breach appears serious then the Chairman of the Committee gives notice of a motion of disallowance in respect of the instrument. This allows the Senate, if it wishes, to disallow the instrument. This ultimate step is rarely necessary, however, as Ministers almost invariably take action which satisfies the Committee.

As usual, by the end of the sittings Ministers have given the Committee undertakings to amend many provisions in different instruments or enabling Acts to meet its concerns, reflecting a continuing high level of cooperation from Ministers in its non-partisan operations. The Committee is grateful for this cooperation.

During the sittings the Committee scrutinised 889 instruments. Of these, 192 were statutory rules, which are generally better drafted and presented than other series of delegated legislation. The other 697 instruments were the usual heterogeneous collection of different series.

Each of the 889 instruments was scrutinised by the Committee under its four principles, or terms of reference, which are included in the Standing Orders. There were 101 prima facie defects or matters worthy of comment in those 889 instruments. The defects are described below under each of the four principles.

Principle (a)

Is delegated legislation in accordance with the statute?

The Committee interprets this principle broadly. Together with the Committee's fourth principle, it covers not only technical validity, but also every other aspect of parliamentary propriety. The Committee noted that there may have been problems with instruments for the following reasons.

Validity

Legislative instruments are invalid if they subdelegate legislative power without express authorisation in the enabling Act. One Ordinance purported to grant power to the Minister to make Determinations, which would themselves be disallowable instruments, without any apparent legislative authority. Two other instruments purported to confer upon individuals what appeared to be legislative power. Three instruments made by a statutory authority subdelegated legislative power to itself.

Under s.49A of the Act Interpretation Act 1901 legislative instruments may, in general, only incorporate material as it exists at the time the instrument was made, not as the material exists from time to time. In one case, the enabling Act expressly authorised some material as amended to be incorporated, but not the actual documents as amended which the instrument purported to incorporate. Another enabling Act authorised the law of a foreign country as in force from time to time to be incorporated, but the instrument incorporated material as amended which did not appear to be part of that law. Another instrument purported to incorporate amended material for which there appeared to be no provision in the enabling Act to affect the operation of s.49A.

Under s.48(3) of the Acts Interpretation Act delegated legislation generally ceases to have effect if not tabled in both Houses within 15 sitting days of making. On 3 December 1996 the Chairman of the Committee, Senator Bill O'Chee, made a detailed statement to the Senate on recent failures to table. Earlier in the present sittings, however, two legislative instruments ceased to have effect because they were not tabled in time. The sole purpose of both instruments was to provide for the payment of money from one Commonwealth agency to another and this was validly done within those 15 sitting days. The Committee points out that this procedure is undesirable because it means that the Senate is not given an opportunity to scrutinise such instruments.

There were other problems affecting validity. One instrument was neither signed nor dated. Another had insufficient information to identify who made it, the date of making or the authority under which it was made; some of this material was included in a covering letter, although part of this information was wrong. The Explanatory Statements for three instruments included errors which, if correct, would have made the three instruments void. A Note to another instrument advised that, to avoid doubt, the instrument commenced on making, while the Explanatory Statement advised that it commenced on gazettal; if it actually commenced on making it would have been void for prejudicial retrospectivity. One instrument provided that it would take effect from a specified date although the Appendix to the instrument advised that it would take effect from another date. One instrument included a report on a matter while the Act required a record of the matter. Another instrument did not effect its legislative intent. A number of instruments did not comply with an earlier undertaking by the Minister to ensure that the instruments complied with the requirements of the enabling Act. The Explanatory Statement for another instrument advised that it would be administered according to what its provisions were intended to be, not what they actually were.

Drafting

The Committee considers that the quality of drafting of legislative instruments should not be less than that of Acts. This standard was not always met.

Regulations which implemented firearms controls after the Port Arthur killings provided for guns to be tested by dropping from a height of not more than 45 centimetres, when it appeared that not less than 45 centimetres was intended. One instrument provided for offences with no apparent penalties. Another provided for approved persons with no provision for approval. Several instruments had no numbering while others had the same numbering. One instrument included apparently contradictory provisions. The Explanatory Statement for one instrument advised that it was removing an unworkable provision; the Committee asked why an unworkable provision was included. Other instruments included reference errors and deficiencies in drafting style. Three sets of Regulations were made on the same day, amending the same principal Regulations.

Retrospectivity

Under s.48(2) of the Acts Interpretation Act legislative instruments which operate retrospectivety are void if they adversely affect any person apart from the Commonwealth. The Committee, however, will write to Ministers about any unusual retrospectivity, or delay, even if it is valid. One instrument, not amended since 1984, included references to provisions of Acts repealed a decade ago. One instrument, providing for the imposition of tax, operated with four years retrospectivety. Another provided for grants of money to private companies which could have been made a year earlier. Another provided for 10 months retrospectivity even though the authorities had known for three years that the instrument would be needed.

Explanatory Statements

Due to the initiative of the Committee all legislative instruments are now accompanied by Explanatory Statements. Some of these, however, do not give sufficient information to enable informed scrutiny of the instrument by individual Senators. One Explanatory Statement gave insufficient details of an important new primary dispute resolution process. Others were too brief to be useful. Others did not advise that the purpose of the instrument was to implement an undertaking given by a Minister to the Committee. Others did not advise of the date of gazettal of instruments which commenced on gazettal.

Delegation

It is a breach of parliamentary propriety if a legislative instrument provides for inappropriate delegation of administrative powers. Several instruments provided for wide delegation of power, in one case to any person at all.

Principle (b)

Does delegated legislation trespass unduly on personal rights and liberties?

The Committee also interprets this provision broadly, to include every aspect of personal rights. The Committee noted possible breaches of personal rights for the following reasons.

Decision making safeguards

Legislative instruments which provide for administrative decisions to be made should include appropriate safeguards. One instrument provided for time limits for some decisions but not for others. Another provision required notice in writing of a decision to be given but not, as appeared appropriate in the circumstances, for a statement of reasons for the decision. Another expressly advised that a decision maker could take into account the commercial reputation of an applicant, but there was no requirement for the applicant to be made aware of any adverse material or to respond to it. Another provided subjective criteria for a decision maker to apply, including the criterion of any other matter which the decision maker considers relevant. One instrument, which was made partly to provide for the 2000 Sydney Olympic Games, reduced the existing rights of competitive athletes selected for drug testing. Another instrument provided an international organisation with a 10 months retrospective right to sue. The Explanatory Statement for another instrument advised that it removed an existing right because legal advice was received that the enabling Act did not provide the authority for such a right; the Committee asked if the Act would be amended to provide such authority.

Privacy

The Committee protects personal privacy. One instrument provided for the disclosure of personal information, subject only to subjective criteria, but gave no indication of to whom the information could be disclosed. Another instrument provided that a class of agent must provide information about people for whom the Agent acts when required to do so by a government agency. A number of instruments provided for the disclosure of private information in circumstances where it would have been appropriate for the Privacy Commissioner to have been consulted.

Safeguards for business

The Committee ensures that legislative instruments which affect business operations should operate as fairly as possible. One instrument prescribed four well known private companies as the only companies which could do certain work for a government agency, including work connected with the 2000 Olympics; but the Explanatory Statement gave no indication of how the companies were chosen. Another instrument provided for unfair and apparently unintended restrictions on certain business activity, while another unrelated instrument provided for an unfair and unintended interruption to a permission to carry on business. The Explanatory Statement for another instrument advised of potential inconvenience for business people affected by an aspect of the official launch of the logos and mascots of the Sydney Organising Committee for the Olympic Games.

Taxes and charges

The Committee questions changes to taxes, charges and financial provisions generally, which in the circumstances may not operate fairly. One instrument increased a fee from $368 to $500 while another instrument increased a similar fee from $368 to $800, with no explanation for the difference. Another instrument increased an allowance for Commonwealth public servants by 40 per cent, four years after the previous increase. Another instrument had the potential to operate unfairly in respect of the recovery of medical and dental costs from members of the Australian Defence Force. One instrument provided only a Canberra telephone number for inquiries from everywhere in Australia from athletes selected for mandatory drug testing, but the number was not a free call. One instrument provided that agents must keep separate accounts for those whom they represent, but there was no requirement that the separate accounts be trust accounts. One instrument, made to correct an earlier instrument, inadvertently resulted in a hiatus in the payment of an allowance to Commonwealth public servants.

Principle (c)

Does delegated legislation make rights unduly dependent upon administrative decisions which are not subject to independent review of their merits?

Many legislative instruments provide for Ministers, statutory office holders and other public offices to exercise discretions. The Committee considers that such discretions should be as narrow as possible, include objective criteria to guide and limit the exercise of the discretion, and provide for appropri ate review of the merits of a decision by an external, independent tribunal, which would usually be the Administrative Appeals Tribunal.

Discretions affecting business

A number of instruments affecting business did not appear to provide for review of administrative decisions. One instrument provided for discretions relating to compliance by miners with mandatory requirements. Another granted a power to withdraw accreditation of commercial premises, with only subjective criteria. A number of amending instruments provided for unreviewable discretions although the principal instrument provided for review of similar discretions; one of these included a number of decisions affecting the commercial operations of a casino operator. One instrument provided a discretion to recover the costs of an inquiry into a business operator. Another provided a discretion to release commercially sensitive information. The Explanatory Statement for another instrument advised of review rights in respect of a discretion, but it was not apparent what these were. One instrument provided a discretion to exempt certain containers and packs from mandatory standards. The Explanatory Statement for another advised that a discretion was intended to operate as a sanction for a certain commercial decision. Another instrument provided a discretion relating to the operation of a pharmacy.

Discretions affecting individuals

A number of instruments did not appear to provide for review of decisions affecting individuals. These included power to refuse to provide hearing services, to affect superannuation benefits and to import firearms. Other discretions were to undertake or discontinue inquiries about disputes with a statutory authority, to authorise people as counsellors and mediators and to exempt people from the payment of fees.

Principle (d)

Does delegated legislation contain matters more appropriate for parliamentary enactment?

The Committee raises this principle less often than its other principles. It is a principle, however, which goes to the heart of parliamentary propriety and complements the first principle of the Committee, that an instrument should be in accordance with the statute.

Other developments

In addition to its main task of scrutinising delegated legislation, the Committee was active in other ways during the present sittings.

On 16 October 1996 the Chairman, Senator O'Chee, together with the Chairman of the Standing Committee for the Scrutiny of Bills, Senator Cooney, tabled a Position Paper on Scrutiny of National Schemes of Legislation.

The Chairman made the following special statements to the Senate:

Instruments made in respect of the Australian Census; 22 August 1996

Instruments made under the Native Title Act 1993 ; 10 October 1996

Legislative Instruments Bill 1996; 21 November 1996

Late tabling of legislative instruments; 3 December 1996

Aspects of the Crimes Regulations ; 12 December 1996

During its scrutiny of the Legislative Instruments Bill 1996 the Chairman, the Legal Adviser and the Secretary had two lengthy meetings with the Attorney-General, the Hon Daryl Williams AC QC MP. The Committee is grateful to the Minister for his personal attention to its concerns.

During its scrutiny of the Crimes Regulations officers of the Attorney-General's Department attended upon the Committee. The Committee is grateful to the Attorney-General for releasing these officers.

On 22 August 1996 the Committee hosted a visit by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament.

On 3 December 1996 the Committee made a submission to the inquiry by the Legal and Constitutional Legislation Committee into the Administrative Review Council.

The Committee would like to record its appreciation of the sterling work of its independent Legal Adviser, Emeritus Professor Douglas Whalan AM.

The Committee is grateful for the support which it has received from the Senate during the present sittings.

Senator PANIZZA —I move:

That the Senate take note of the statement.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.