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Monday, 27 February 2012
Page: 954

Attorney-General

(Question No. 1497)

Senator Boyce asked the Minister representing the Attorney-General, upon notice, on 19 December 2011:

With reference to the answer provided to question no. 72 taken on notice during the 2011 12 Supplementary Budget Estimates of the Legal and Constitutional Affairs Legislation Committee:

(1) Can statistics be provided on the number of regulations promulgated for each of the past 5 calendar years, including a break-up by department.

(2) Does the department have information on where Australia fits in the world league table of regulation makers for example United Kingdom, Canada, South Africa and the United States of America; if so, can a table detailing that information be provided.

(3) Does the department liaise with its state and offshore counterparts to benchmark the production of new regulations, and has it attended any conferences on this topic; if so, can the conference outcomes be provided.

(4) Has the department inquired into the level of powers conferred by regulation rather than by statute; if so, were these inquiries conducted internally and/or by external consultants to examine this matter and can a copy of the results/outcomes be provided.

(5) (a) What role, if any, does the department play in minimising the growth of regulations; (b) what checks and balances are in place; and (c) which branch and section of the department is responsible for recommending policy on growth of new regulations and/or administrative procedures relating to new regulations.

(6) What mechanisms are in place within the department to expunge old and outdated regulations and, if these mechanisms are different for other departments, can an outline be provided of those that differ from the Attorney-General's Department.

(7) What role does the Office of Parliament Counsel play in generating new regulations and does it have a role in monitoring and/or advising on 'regulation creep', for example, does it have an internal procedure to ensure that, where possible, material which might be included in subsequent regulations is actually inserted into a parent statute.

Senator Ludwig: The Attorney-General has provided the following answer to the honourable senator's question.

(1) Information on Australian Government law by type, year and portfolio is available free of charge on the whole of government ComLaw website www.comlaw.gov.au as maintained by my department.

(2) My department has provided ComLaw data to independent benchmarking bodies notably the Australian Productivity Commission and the international Organisation for Economic Co-operation and Development (the OECD), and the results of such benchmarking are available online (see www.pc.gov.au and www.oecd.org respectively).

Comparisons between jurisdictions are problematic if only because, to quote the Productivity Commission's 2011 report on Identifying and Evaluating Regulation Reforms, “Australia is one of the few countries to have a complete database of all major government regulation”.

(3) Under the current Administrative Arrangements Order, monitoring and reducing the burden of government regulation is a function of the Department of Finance and Deregulation. My department's focus is on legislative drafting and publishing, and on specific policy issues such as criminal law.

(4) In 1992 the Administrative Review Council released a report on rule-making by Commonwealth agencies which made a range of relevant recommendations. This report is available online (see www.ag.gov.au/agd/WWW/arcHome.nsf).

In response, guidelines on what matters should be dealt with only through Acts were developed and these have now been endorsed by successive governments. They form part of the Legislation Handbook published by the Department of the Prime Minister and Cabinet (see www.pmc.gov.au).

In addition, the first Legislative Instruments Bill was introduced. The Legislative Instruments Act 2003 now provides for the Parliament to veto or disallow any legislative instrument unless it has previously agreed to exempt an instrument from disallowance or from registration.

(5) Under the current Administrative Arrangements Order, reducing the burden of government regulation is a function of the Department of Finance and Deregulation. Details of key policies and processes can be found in the Best Practice Regulation Handbook (see www.obpr.gov.au).

(6) Under the Legislative Instruments Act 2003, all legislative instruments are subject to sunsetting, that is, they cease automatically after 10 years unless they are exempt from sunsetting or their sunsetting is deferred in accordance with that Act.

The first large list of sunsetting instruments will be tabled on or after 1 October 2012, and if no action is taken all the instruments listed will sunset on 1 April 2015. Instruments will be listed and will sunset at 6-monthly intervals afterwards.

More frequent reviews may be undertaken as required by specific Acts, at the discretion of individual lawmakers and as issues emerge. More information about such matters can be found in the Productivity Commission report mentioned above (see www.pc.gov.au).

(7) The Office of Parliamentary Counsel (OPC) drafts government Bills based on instructions from policy departments and agencies. more information about policy approval processes and about OPC's role can be found in the Legislation Handbook (see www.pmc.gov.au).

When drafting provisions that delegate the power to make laws, OPC gives careful consideration to factors including how much Parliamentary scrutiny may be appropriate, how often changes may be needed, and the existing structure of an Act and any instruments made under it.