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Legislative Instruments Bill 1996 [No.2]
House: House of Representatives
Commencement: The Bill will commence on a date to be fixed by proclamation and that commencement day must be the first day of a month. If the Bill has not been proclaimed within 6 months of Royal Assent, it commences on the first day of the seventh month after Royal Assent.
Note: For detailed commentary on the Bill as first presented in 1996, readers are referred to Bills Digest No.38 of 1996-97.
This is one of a number of bills that may trigger a double dissolution election.
In the broad, the reforms proposed in the present Bill have been now before the Parliament for a number of years. An earlier Bill, the Legislative Instruments Bill 1994 (the 1994 Bill) (discussed below), was thoroughly scrutinised and considered at length during the previous Parliament.
Previous proposals and the 1994 Bill are relevant to the development of the proposed legislation, but are, of course, of little or no immediate constitutional significance.
Section 57 of the Australian Constitution provides, in part, that:
If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.
The Legislative Instruments Bill 1996 was introduced in the House of Representatives on 26 June 1996 and referred to the Main Committee on 10 September 1996. The House having incorporated 23 Government sponsored amendments, the Bill was passed on 11 September 1996.
The Bill was introduced into the Senate on 8 October 1996 and the Senate Committee on Regulations and Ordinances reported on it on 21 November 1996.
The Senate passed the Bill on 25 September 1997 but with a total of 18 Government and 36 non Government committee stage amendments. On 17 November 1997, the House of Representatives considered the Senate amendments, rejecting the non Government amendments, accepting the Government amendments and proposing a further 6 Government sponsored changes. A message was reported in the Senate on 18 November 1997.
On 3 December 1997, the Senate insisted on 36 non Government amendments rejected by the House and accepted 4 of the 6 Government amendments made by the House on 17 November 1997. On 5 December 1997, the House laid the Bill aside having reiterated its refusal to accept the non Government amendments adopted by the Senate. The House further insisted on the two (disagreed) amendments made by it on 17 November 1997.
By 5 December 1997, for the purposes of section 57 of the Constitution, the two Houses had reached an impasse in relation to 36 non Government and 2 Government sponsored amendments to the Legislative Instruments Bill 1996.
A full list of the 'disagreed' amendments and reasons for their rejection by the House are given in House of Representatives, Votes and Proceedings, No.126 of 1997, at pages 2443-2457.
The Bill was reintroduced on 5 March 1998 and will not pass the House of Representatives before the 3 month 'cooling off' period provided for under section 57 of the Constitution has elapsed.
The Legislative Instruments Bill 1996 (the Bill) seeks to reform the Commonwealth's procedures for making, scrutinising, publishing, amending and repealing subordinate legislation.
The Bill consolidates into one Act existing procedural requirements found in the Acts Interpretation Act 1901 and the Statutory Rules Publication Act 1903. The measures will allow greater scrutiny of, and public access to, delegated legislation.
The Bill seeks to achieve these aims by:
defining more clearly and comprehensively the forms of subordinate legislation subject to parliamentary review and disallowance;
allowing the Attorney-General to issue a certificate in specified circumstances to clarify the nature of an instrument;
establishing a single register of delegated legislation with legislative instruments only being enforceable if they are on the register;
introducing public notice and consultation procedures for changes to delegated legislation affecting business;
providing for the 'backcapture' of existing subordinate legislation and placement on the register;
introducing automatic sunsetting provisions requiring all legislative instruments to be reviewed every five years;
providing for Parliamentary scrutiny of all forms of delegated legislation with each instrument to be tabled in each House of Parliament within six days of registration; and
making consequential amendments to other related Acts.
Moreover, as the Attorney-General noted in his Second Reading Speech,'...the Bill performs a gatekeeper role in relation to legislative instruments, by preventing the unchecked proliferation of delegated legislation'.
As the Administrative Review Council (ARC) remarked in 1992:
The making of delegated legislation is an area of law that usually does not attract much public attention. Yet its operation can have significant effect on the way individuals or businesses conduct their affairs.
The history of the present Bill underlines this point.
Recent inquiries and legislative activity
In August 1989, the ARC convened a conference on rule-making. In June 1990, an Issues Paper was distributed calling for public comment and input from Commonwealth agencies.
In March 1992, the ARC presented its Report, Rule Making in Commonwealth Agencies, to the then Attorney-General, Mr Duffy.
The ARC recommended that:
there should be clear guidelines for determining whether a matter was dealt with by way of either primary legislation (ie an Act) or secondary/subordinate legislation (legislative instruments, regulations, rules, by-laws etc)
that the Attorney-General's Department should be responsible for maintaining quality control over the drafting of all legislative instruments
there should be a single piece of legislation dealing with the making, publication and scrutiny of all legislative instruments
the number of different types of instrument ought to be reduced
subject to legislatively defined exceptions, there should be mandatory requirements for public consultation in regard to all classes of legislative instrument
mandatory consultative requirements should be limited to 'first round' consultation only, with further consultation at the government agency's discretion
all instruments should be subject to parliamentary scrutiny and disallowance
where consultation as required by the Act was not undertaken, the parliament must be provided with reasons for consultation not taking place
instruments should be readily accessible to members of the public by means of a public register
disallowance by either House rather than positive approval should remain the norm for parliamentary control of delegated legislation
the Legislative Instruments Act should permit a deferral of the effect of a disallowance motion for up to 6 months
there should be provision for partial disallowance of a legislative instrument by either House
instruments should be subject to sunsetting provisions whereby all existing legislative instruments (including those made before the new Act) automatically have no effect after a specified date with all new instruments being subject to a 10 year sunsetting clause.
As Emeritus Professor of Law and former Commonwealth Ombudsman, Dennis Pearce, has observed:
The [ARC] was not breaking entirely new ground ... Both Victoria and New South Wales had taken steps to increase public involvement in the legislation-making process and both had tried to bring some order into the plethora of rules that government departments were pouring out.
Between March 1992 and the introduction of the Legislative Instruments Bill 1994 (the 1994 Bill), three significant reports dealing with issues relevant to the present Bill were published. These are:
The Cost of Justice Second Report: Checks and Imbalances (Senate Standing Committee on Legal and Constitutional Affairs, August 1993)
Clearer Commonwealth Law (House of Representatives Standing Committee on Legal and Constitutional Affairs, September 1993)
Access to Justice: An Action Plan (Access to Justice Advisory Committee, May 1994).
On 30 June 1994, a Bill proposing wholesale changes to both the Acts Interpretation Act 1901 (the AIA) and the Statutory Rules Publication Act 1903 was introduced in the Senate.
On 25 August 1994, the Senate referred the 1994 Bill to the Senate Standing Committee on Regulations and Ordinances which reported back to the Senate on 17 October 1994. The Committee endorsed the objectives of the legislation and, with some qualifications on matters of detail, also supported the general approach reflected in the Bill. The Government's response to the Senate Committee's report was tabled on 8 November 1994.
The Bill was given a Second Reading in the Senate on 9 November 1994 but further debate was deferred and on 10 November 1994 the Attorney-General asked the House of Representatives Standing Committee on Legal and Constitutional Affairs (the House Committee) to report on the legislation.
6 The House Committee reported on 9 February 1995 recommending the passage of the Bill but proposed significant changes to the legislation as introduced including that:
mandatory public consultation requirements be put in place in relation to the making of all legislative instruments as soon as possible; and
a sunsetting regime be introduced in relation to all existing and future legislative instruments as soon as practicable.
The then Government provided its Response to the House Committee on 25 September 1995 and it was tabled two days later. The Response indicated either support or in-principle support for a significant number of the Committee's recommendations and agreed that there be a review of the legislation after 3 years.
The 1994 Bill was still awaiting passage when Parliament was prorogued prior to the 1996 election.
Subject to the Constitution, the Parliament may enact laws itself or it may authorise another body to make legislation on its behalf. This authorisation is a feature of most Acts of Parliament and allows for the making of what is termed delegated or subordinate legislation by specified persons or bodies. The ARC Report provides a convenient summary of some important features of these laws stating that:
The [Parliament's] authorisation may take a variety of forms. It may allow the Governor-General to make regulations or it may confer power on some other body, such as a Minister or public servant, to make a rule in another form with another name. Whatever form it takes delegated legislation has the force of law just as if it were an Act of Parliament.
Rules made by delegated legislation have common features:
they must be authorised by Parliament;
they usually, but not always, deal with procedural details, rather than the broad framework of the legislative scheme;
their making often must be notified in the Commonwealth Gazette;
some rules can be disallowed by parliament if it does not approve them; and
most rules are required to be available to the public, but in a variety of ways.
Most forms of subordinate legislation come into effect on the day that they are made. Where such an instrument is disallowed, the disallowance does not operate retrospectively but from the date of disallowance. Hence, anything done in accordance with an instrument during the period between its making and its disallowance is not affected.
There has for sometime been considerable interest in reforming the operation of the laws governing subordinate legislation. This is not surprising. The current laws are old and at odds with the general approach to the review of government decision-making which has operated in the Commonwealth for the past two decades. As the present Attorney-General, Daryl Williams QC, suggested from Opposition in 1995:
The extensions of individual rights in relation to executive action affecting the individual have not been matched by any major reforms in the legislative process ...
Even those modest changes [public inquiries by the Senate Committees into Bills] have no counterpart in the making of delegated legislation, where the interests of the citizen have increasingly been sacrificed to governmental and bureaucratic convenience. The volume of secondary legislation has grown, the variety of forms of it has multiplied, the impact of it has become more and more significant and the ability of citizens to assess it has lessened.
The above statement captures the essence of the case for reforming the current law. One might also add, or perhaps emphasise, that the need to improve the standard of subordinate laws is not a mere matter of accessibility but also one of intelligibility. Many pieces of subordinate legislation are not drafted by experts. Many are ambiguous, convoluted or even impenetrable. In some cases this doesn't matter. In others, more weighty matters including questions bearing on individual liberty may be involved.
A particular weakness in the present arrangements is that the Statutory Rules Publication Act 1903 only requires certain delegated legislation to be published by the Australian Government Publishing Service. Accordingly, unless an instrument has been published or re-published privately, no one outside the relevant government agency may know of its existence.
As things stand
There are few limitations on the Commonwealth Parliament's capacity to delegate legislative power to subordinate bodies including statutory authorities, administrative tribunals, and other parts of the Executive. Existing limitations derive from the requirement that Commonwealth legislative power must originate from the Constitution, for example under sections 51, 52 or 122. These legislative powers must not be exceeded nor must they be improperly delegated. The latter point was discussed in Victorian Stevedoring Co Pty. Ltd. and Meakes v Dignan by
Evatt J who said:
On final analysis therefore, the Parliament is not competent to 'abdicate' its powers of legislation. This is not because Parliament is bound to perform all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or by-laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law making authority would be bad merely because it would fail to pass the test last mentioned.
Given the few limitations on the power to delegate, and the increasing complexity of the modern government, there has been a growing tendency for the Parliament to delegate its law making function to the Executive. Such delegated or secondary legislation comes in a variety of forms. For example:
Section 70 of the Administrative Appeals Tribunal Act 1975 gives the Governor-General power to make regulations required or permitted by that Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to that Act; and
Section 59 of the Federal Court of Australia Act 1976 allows the Judges of that Court, or a majority of them, to make Rules of Court governing procedure and other administrative matters.
In 1988, the Senate Standing Committee on Regulations and Ordinances identified 115 different categories of disallowable instruments.
13 The types of instrument include:
regulations, which are made by Ministers and under the control of the Attorney-General's Department;
proclamations, which are made by the Governor-General on the advice of Ministers;
by-laws which are made by Government departments and other statutory authorities; and
other instruments including determinations, directives, orders, declarations, notices, plans, formal or informal guidelines, and standards. These instruments may be specific to issues, the body exercising the power, or the function of the instrument.
It is the uncertain nature of the last category of instrument that was of particular concern to the ARC.
The rapid growth in the number of statutory instruments made in the last 10-15 years is illustrated in the following tables.
Table 1 Financial Years 1982-83 to 1990-91
[TABLE IS NOT AVAILABLE ONLINE]
Source: Administrative Review Council: Rule Making in Commonwealth Agencies, Report No 35, 1992:7. *The Report does not contain figures for 1983-84.
Table 2 Calendar Years 1990-1997
[TABLE IS NOT AVAILABLE ONLINE]
Source: Senate Standing Committee on Regulations and Ordinances.
The Acts Interpretation Act 1901 deals with the construction of delegated powers under Acts, and gives considerable width of interpretation to delegations. For example, section 34AA of the AIA states that a power to delegate a power or a function under an Act is to be construed widely (unless the contrary intention appears), as applying to a person holding a specified office or position, rather than merely to that person in a solely personal capacity. Similarly, section 34AB of the AIA provides for a generous interpretation of the power to delegate powers or functions under an Act.
As with the restrictions on the power to delegate, there are few restrictions on the content of a delegation. Generally, however, delegated legislation must fall within some recognised head of Commonwealth power.
15 Delegations of power have been held invalid where the delegate has been found to be an inappropriate person to exercise the relevant power.
Accountability and Scrutiny of Delegated Legislation
Recognising the risks inherent in allowing laws to be made by bodies other than parliament, mechanisms have been developed to balance the dictates of efficient government and the basic democratic requirement that persons in authority operate within the law and are accountable for their actions. Mechanisms which limit the scope of Executive discretion and which provide for more open and accountable rule-making by government include:
The Senate Standing Committee for the Scrutiny of Bills which reports to the Senate on the appropriateness of delegation
Involvement of the Ministers and officers in the rule-making process
Section 46A and Part XII of the AIA which provide for regulations and certain other instruments to be notified in the Commonwealth Gazette and tabled in Parliament within 15 sitting days of their making. The AIA also provides for a motion of disallowance to be moved in either House within a further 15 sitting days
The Statutory Rules Publication Act 1903 which requires all statutory rules (including regulations, rules or by-laws) to be numbered, printed and sold by the Government Printer
. The Senate Standing Committee on Regulations and Ordinances which scrutinises delegated legislative instruments by reference to certain criteria
. Judicial review of delegated legislation
. Limited merits review, including internal review mechanisms within departments and agencies as well as review available through specialist bodies such as the Administrative Appeals Tribunal.
As valuable as these checks may be, they do not provide comprehensive protection from all forms of bureaucratic excess. Through mandatory consultation, more comprehensive requirements on publication of secondary legislation and the introduction of sunsetting provisions, the present Bill adds another layer of safeguards whilst creating some powerful disincentives to the unchecked growth of subordinate legislation.
As noted above, the Bill has been heavily amended. The following summary concentrates on aspects of the Bill where the House of Representatives and the Senate are in conflict. Those referring to Bill Digest No.38 of 1996-97, should also note that the present Bill incorporates a number of amendments which have been agreed by both Houses. It will also be recalled that both the Senate Committee Report (1994) and the House of Representatives Standing Committee on Legal and Constitutional Affairs Report (1995) gave general support to the 1994 Bill but recommended further changes to strengthen the proposed legislation. The 1996 Bill adopts a substantial number of those recommendations.
Clause 4 defines a number of terms used in the Bill. The Senate proposes that there be included a definition of 'gender bias'. The Government has rejected this amendment on the ground that it is unnecessary, claiming that drafters of Commonwealth laws are presently ensuring that gender neutral language is used in all new provisions and any amendments to existing legislation (but see clause 72, below).
Registration and Instruments
Clause 5defines 'legislative instrument' for the purposes of the Bill. This clause should be read with Schedule 1 which lists a range of instruments which are not legislative instruments for the purposes of the Bill. The definition of legislative instrument covers all existing subordinate legislation which must be tabled in Parliament and regulations and instruments required to be printed under the Statutory Rules Publication Act 1903. In addition, any instrument of a legislative rather than administrative nature, unless specifically excluded under Schedule 1, must also be registered under the proposed Act if that instrument is to enforceable.
The Bill appears to adopt the substance of recommendation 3 of the House Committee's Report regarding the definition of legislative instrument. That Committee recommended that the definition in the 1994 Bill be amended to provide greater guidance and certainty but not so as to limit the meaning of the term 'legislative instrument' to the classes of instrument specifically listed in the Bill. (In other words, the House Committee supported the inclusion of a definition of 'legislative instrument' in the Bill but opted for an inclusive/indicative approach rather than an exhaustive/exclusive approach.)
The Bill does not specifically adopt the final part of recommendation 3, ie that the definition should not encompass instruments of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act ). However, the substance of this recommendation appears to be embodied in subclause 5(2)and is reinforced by the operation of Schedule 1.
Subclause 5(4A) provides that a declaration in a legislative instrument to the effect that another instrument is a 'legislative instrument' is ineffective if that declaration is not sanctioned by the Attorney-General.
Clause 7 states that Rules of Court are not legislative instruments. Schedule 4 to the Bill provides, however, that regulations made by the Courts under their enabling Acts are to mirroring specific features of this Bill except the requirement for parliamentary scrutiny. This approach was endorsed by the House Committee
17 and generally reflects a view that the independence of the judiciary may be compromised if governmental controls in relation to the making of subordinate legislation are imposed on the Courts.
Clause 8 provides that the Attorney-General may issue a certificate for the purpose of determining whether an existing or proposed instrument is or is not a legislative instrument for the purposes of the proposed Act. Such a certificate may be quashed by the Federal Court under the ADJR Act or, indeed, by the High Court in its original jurisdiction conferred under section 75(v) of the Constitution. As noted in the Explanatory Memorandum, this provision provides the means for dealing with those situations where the rule-maker is unsure whether an existing or proposed instrument is legislative in character.
Clause 51 provides for Attorney-General's certificates issued under clause 8 to be registered under the proposed Act.
This appears to adopt recommendations 5 and 6 of the House Committee's Report which proposed that certificates issued by the Attorney-General as to whether a particular instrument is or is not a 'legislative instrument' are reviewable under the ADJR Act.
The Senate proposes that the certificate issued by the Attorney-General under clause 8 be also treated as a disallowable instrument. The House does not accept this amendment on the basis that the normal means for reviewing such a determination by the Attorney-General is by way of judicial review in the Federal Court.
Material incorporated by reference
Clause 11 allows other material to be incorporated into a legislative instrument by reference to that document in the instrument. The incorporated document is not required to be registered but Clause 60 provides that a document incorporated (in an instrument) by reference must be made available for inspection on request by either House during the period that the instrument is subject to disallowance. Similar provisions forming part of the 1994 Bill were criticised for not providing adequate access to the law. Suggestions that some documents would be too bulky to include as part of the Register were described by Professor Pearce as a tail wagging the dog argument.
19 The House Committee accepted this criticism recommending that:
... the  Legislative Instruments Bill should be amended to provide for the registration of documents, other than Acts and other legislative instruments, incorporated by reference into a legislative instrument and for the tabling of such documents. Any changes to the incorporated document should also be registered. An exception should apply in relation to large-volume materials which should be made available to the Parliament for inspection on request.
Responsibilities of the Principal Legislative Counsel
Part 2 provides that a member of the Senior Executive Service in the Attorney-General's Department (the 'Principal Legislative Counsel') has responsibility for ensuring that legislative instruments are easy to read and readily available.
The Senate proposes that this 'quality control' function extend to ensuring that legislative instruments do not contain gender specific language unless it is to identify persons by their sex ( clause 16). The Senate also proposes similar amendments to clauses 42 and 52 of the Bill. The House rejects these amendments as unnecessary, arguing that drafters of Commonwealth laws are presently ensuring that gender neutral language is used in all new provisions and in any amendments to existing legislation (see clause 72 below).
Part 3 deals with procedures for encouraging consultation between government agencies and persons likely to be affected by subordinate legislation made by those agencies. Clause 17 provides that such consultation is mandatory in relation to the making of some legislative instruments affecting business and optional in other cases. Schedule 2 to the Bill lists those enabling Acts which the Government presently considers are likely to have an effect on business and therefore (prima facie) should trigger the consultation procedures established under Part 3. These new requirements only apply to instruments made at least 6 months after the commencement of this Bill ( clause 18).
Mandatory consultative requirements apply to all new legislative instruments made under legislation listed in Schedule 2. These requirements extend to notifying persons (or any relevant representative bodies) affected by an instrument of the underlying reasons for the instrument and to inviting them to make written submissions concerning the proposed instrument ( clause 20). Clause 34 provides that the list of enabling Acts contained in Schedule 2, ie the Acts which are likely to activate the mandatory consultation provisions, may be amended by regulation. The House Committee noted its concerns regarding this form of amending process but recognised the need to maintain flexibility given the 'inclusive/exhaustive' nature of business related enactments forming Schedule 2.
Senate amendments seek to expand the list of instruments requiring mandatory consultation to include: 'instruments likely to have a direct, or a substantial indirect, effect on any sector of the community or on the natural, Aboriginal, cultural or built environment, or which conflict with human rights legislation' (refer clauses 17 and 34). The House opposes these amendments on the basis that they overly extend the ambit of the legislation and pre-empt any review of the Act that may follow under clause 72 of the Bill.
Legislative Instrument Proposals
If after consulting with those affected ( clause 20), the rule-maker still proposes to make the relevant instrument, he or she must then prepare a written Legislative Instrument Proposal (LIP). Amongst other things, the LIP must contain a statement of the direct and indirect social and economic costs and benefits of a proposed instrument. The LIP must also contain an evaluation of other means for achieving the stated purpose of the instrument (clause 21). The LIP must be submitted to a regulatory review body that will determine whether it meets the requirements of Part 3 of the proposed Bill. Once certified, the proposal is then submitted to further public consultation ( clauses 21 and 22). Clause 22 responds to recommendation 14 of the House Committee that the Bill should provide for Ministerial consideration of the appropriateness of a public hearing where a proposed legislative instrument is controversial or sensitive. Such hearings are not mandatory. Clause 24 obliges the relevant Minister to advertise the calling of submissions or the holding of a public hearing in relation to the proposed making of a legislative instrument under clause 22 of the Bill. This provision also responds to a recommendation of the House Committee.
Once consultation has occurred, a 'consultation statement' must be prepared and attached to the explanatory statement
21 and must be lodged with the Principal Legislative Counsel ( clauses 27 and 44). The instrument will then be registered and tabled in both Houses together with the explanatory statement and any accompanying consultation statement ( clauses 44 and 59).
The Senate proposes that paragraph 21(2)(c) specifically include environmental considerations in the statement of costs and benefits that the rule-maker must set out in a LIP. The House has rejected this amendment on the ground that it is unnecessary given existing Commonwealth environmental legislation.
Clause 28 provides for exemptions from the mandatory consultation requirements established under clauses 20-25, for example:
in relation to minor machinery matters [ paragraph 28(1)(a)(ii)]
where an instrument simply meets an obligation of the Commonwealth under an international agreement by replicating the terms in another form of instrument relied on or referred to in the international agreement [ paragraph 28(1)(a)(iii)]
where an instrument gives effect to a decision announced in the Federal Budget to: (a) repeal, impose or vary a fee, tax or charge; or (b) confer, revoke or alter a benefit; or (c) impose, revoke or alter an obligation [ paragraph 28(1)(a)(iv) and subclause 28(2)]
where the instrument is required for national security purposes [ paragraph 28(1)(a)(v)].
Under clause 30, a rule-maker may decide that there is another adequate reason for non-compliance with the consultative requirements established under sections 20-25 of the Bill. This exemption applies only in relation to mandatory requirements in respect of legislative instruments likely to affect business (see Schedule 2). It is also subject to a number of controls and safeguards as well as the constraint that it may only be applied once in relation to an instrument or instruments dealing with similar subject matter where the reasons for relying on this exemption are substantially the same in each case. Subclause 30(4) limits the life of such exemptions to 12 months.
By virtue of clause 31, the consultative requirements created by clauses 22-25 need not be met where the rule-maker is already bound by alternative requirements under another relevant enabling law, for example:
where a regulatory review body certifies that the rule-maker is required to comply with other consultative provisions established under another enabling Act or under an agreement [ subclause 31(1)]; and
where a designated regulatory review body has certified that the costs of conducting consultation under the proposed Act would outweigh the benefits from the consultation and there is provision for satisfactory alternative forms of consultation under an enabling Act or agreement [ subclause 31(2)].
The above provisions also seek to address concerns raised by the House Committee regarding the width and application of exemptions available under the 1994 Bill .
As was the case with the 1994 Bill, this legislation (clause 33) provides that a failure to comply with the consultative requirements of the proposed Act does not affect the validity or enforceability of a legislative instrument. Information regarding the consultative process must, however, be communicated to the Parliament when an instrument is tabled, thus providing the basis for possible disallowance.
The Senate proposes either eliminating or winding back the above exemptions. The House has rejected these amendments as unduly burdensome and impractical.
Clause 36 provides for a Federal Register of Legislative Instruments divided into parts A, B, and C and an index.
In broad terms, Part A is to consist of new instruments made after the proposed Act commences and also includes amendments to pre-existing instruments (clause 41). Part B is to consist of instruments made before the proposed Act commences (clause 48). Part C consists of certificates issued by the Attorney-General (see above). Instruments, on being added to Part A, become subject to disallowance by the Parliament. Instruments, on being added to Part B, ie old instruments backcaptured by the proposed Act, do not automatically become subject to disallowance. Both Part A and Part B instruments are, however, subject to the sunsetting provisions set out in clause 66.
Clause 55 provides, subject to specific exceptions, that an instrument first made after the proposed Act comes into effect (a Part A instrument) is not enforceable unless it is registered.
Subject to certain exceptions relating principally to revenue matters, Part B/'backcaptured' instruments cease to be enforceable and are deemed to be repealed if they are not registered in accordance with the requirements set out in clause 49. Such instruments are deemed to be repealed on the day after the last possible day of lodgement ( clause 56).
Clause 52 provides for the creation of the index to the Register. Subclause 52(4) details an extensive list of requirements relating to the identification of instruments on the Register. The index is to be maintained by the Principal Legislative Counsel who is a designated statutory office holder located in the Attorney-General's Department ( clauses 14, 15 and 52)
The Attorney-General must notify the Parliament of any significant defect in the Register within 6 sitting days of becoming aware of such a defect (clause 54).
The text of information contained in the Register will be searchable at AGPS bookshops and on the Internet. As noted in the Minister's Second Reading Speech, on 26 June 1996, '[u]ltimately all Commonwealth delegated legislation will be available and searchable in one location'.
The Senate proposes amendments to clauses 42 and 52 to prohibit the use of gender specific language. For reasons already noted, the House has not accepted this proposal.
A Senate amendment to clause 44 was accepted to include a new subclause (2A) regarding the making of declarations and the production of certificates under subclause 5(4A). The House also accepted a related amendment to clause 61.
Scrutiny and Disallowance
Part 5of the Bill deals with the Parliamentary scrutiny of legislative instruments . The Part replaces the provisions of Part XII of the Acts Interpretation Act 1901 which provides for scrutiny and disallowance of regulations and 'disallowable instruments' as defined under section 46A of the AIA. The new provisions extend the scope for scrutiny and disallowance of all but a limited range of legislative instruments. The new provisions also apply to instruments made under enabling laws passed before the commencement of the proposed Act [ subclause 58(2)].
Clause 58 provides that legislative instruments must be placed before the House of Representatives and the Senate not later than 6 sittings days after registration. This reduces by 9 days the present maximum period that an instrument may be in effect before being subject to scrutiny and possible disallowance. This change is presumably made possible by improvements in printing technology.
Instruments not tabled within 6 sitting days cease to have effect [ subclause 58(3)].
Clause 59 provides that instruments lodged with the Parliament must include copies of the Explanatory Statement required under clause 44 of the Bill.
Any document incorporated in subordinate legislation by reference must (on request) be made available to the Parliament for inspection when the instrument of incorporation is tabled ( clause 60).
Clause 61 sets out the circumstances in which an instrument will be disallowed or be deemed to be disallowed. The provisions replicate and expand existing provisions relating to disallowance by providing for deferred disallowance by Parliament [ subclause 61(4)] and make possible the partial disallowance of an instrument [refer use of term 'provision' in subclauses and paragraphs 61(1), (2)(a), (3), (4), (5), (7) and clause 62].
Subclause 61(8) exempts certain instruments from disallowance. These include Proclamations made solely for the purpose of commencing an Act or provision in an Act, proclamations made under the Quarantine Act 1908, and various university rules.
The provisions relating to deferral allow either House to place a rule-maker on notice that unless the instrument in question is not re-made to its satisfaction within a defined period (not exceeding 6 months), then the instrument will cease to have effect. This appears to comply with the House Committee's recommendation 32. That recommendation was that the Bill should permit either House to pass a motion disallowing an instrument whilst simultaneously delaying the operation of the motion effecting disallowance.
The Bill restricts the capacity of the Executive to remake a disallowed instrument within designated periods. This is to prevent the Executive from overriding the will of either House by simply replacing a disallowed instrument with an identical one which remains in effect until it too is disallowed. Given that instruments operate until disallowed and may only be disallowed whilst either House is sitting, these restrictions on the remaking of instruments are fundamental to maintaining parliamentary control over delegated legislation.
Clauses 63 - 65 largely re-enact sections 48A, 48B and subsection 49(1) of the AIA which impose restrictions on the remaking of regulations and disallowable instruments. The provisions in the Bill apply to all legislative instruments, not just those currently covered by the AIA.
The Senate proposes amendments to allow either House to disallow part of an instrument [the Senate's proposed new subclauses 61(1A) and (1B)]. The House did not accept this amendment noting that:
In its Report on the Legislative Instruments Bill 1994, the House of Representatives Committee on Legal and Constitutional Affairs specifically considered this issue. The Committee noted the proposal that provision was being made for disallowance of a provision of a legislative instrument when only some of it was objectionable. The provision was so drafted so that it would apply to some discrete and self-contained part of the instrument that can be severed quite neatly and stand alone. This House agrees with the Committee's views on the matter.
The Senate also proposes an amendment to omit subclause 61(7) which exempts from disallowance legislative instruments made under enabling legislation to facilitate the operation of an inter-governmental body or scheme involving the Commonwealth and one or more States. The House does not accept this amendment on the ground that the amendment fails to take into account proposals to strike a balance between the principles of accountability and the practical problems of maintaining the integrity of schemes requiring the co-operation of multiple governments.
The Senate proposes removing paragraph 61(8)(d) that provides a general exemption for proclamations made under the Quarantine Act 1908 affecting the control of pests and diseases. The reasons for the Government opposing this amendment are addressed in some detail in the Minister's Second Reading Speech.
The 1994 Bill did not adopt a process of automatic repeal of subordinate legislation as recommended by a number of reports including the ARC's 1992 Report on Rule-Making. As recorded by the House Committee, there was significant opposition to sunsetting within the Australian Public Service.
25 The House Committee, however, rejected these concerns,
26 noting that sunsetting provisions apply to subordinate legislation in five of the States.
Clause 66 details the regime relating to the automatic repeal of legislative instruments made after the commencement of the proposed Act and those 'backcaptured' by the Act. In essence, all new instruments will be automatically repealed 5 years after they have been placed on the register and all existing/'backcaptured' instruments will cease to have effect from the last date that they could have been placed on the Register and still remain in force. Thus, for a measure to have continuing effect beyond the statutory cut-off, it will be necessary for a replacement instrument to be made.
Subclause 66(1) lists certain instruments that are not subject to sunsetting. These generally relate to matters where the instrument by its very nature could be expected to remain in force for a period exceeding 5 years. Such instruments include those giving effect to international treaty obligations and Proclamations formally commencing the operation of Acts of Parliament.
Subclause 66(4) provides that where an instrument has two or more commencement dates, the sunsetting date is calculated from the earliest of those dates.
The Senate proposed the deletion of the sunsetting provisions of the Bill and for their replacement with annual reports to Parliament by individual Ministers outlining steps taken to review delegated legislation in their portfolios.
The House rejected these proposed amendments noting that the proposed regime follows the recommendations of the House Committee and, in any event, is subject to review under clause 72 of the Bill.
Review of the Act
Clause 72provides for an independent review of the Legislative Instruments Act to be instituted by the Attorney-General. The review team is to be appointed in the three months following the third anniversary of the Act coming into effect. The review must be completed within 15 months of the third anniversary of the Act and the ensuing report must be tabled in Parliament within 6 days of each House sitting after the Attorney-General has received the Report.
The Senate proposed an amendment to subclause 72(3) to replace 'chairman' with 'chair'. The House does not accept this amendment.
Clause 73 provides for a separate review of the sunsetting provisions once the Act has been in operation for 7 years.
Government Employee - Terms and Conditions
Item 14 of Schedule 1 makes it plain that instruments that determine terms and conditions of employment of persons engaged by the Commonwealth (including public servants, employees of Commonwealth Statutory Authorities, Government Business Enterprises and Members of the Defence Force and the Australian Federal Police) are not legislative instruments for the purposes of the Act.
The Senate proposed deleting proposed item 14, thereby bringing those instruments within the scope of the Bill. The House opposes the amendment.
Statutory Rules Publication Act 1903
The Statutory Rules Publication Act 1903 is repealed by item 20 of Schedule 4.
The present set of proposals has a long, and arguably tortured, legislative history. This reflects not only a degree of bureaucratic trepidation about the likely effect of the proposed changes, but also their importance in ensuring that government is both accountable and responsive.
The Bill contains a number of significant reforms. However, like other measures designed to provide for more open decision-making and greater accountability in government, some of the proposals may raise the cost of government operations.
28 These additional costs, such as those flowing from the proposed sunsetting provisions and new consultative requirements, may be in part offset by improvements in decision-making. As Professor Pearce notes:
Much has been made in discussions of the ARC proposals of the cost of consultation. What is not added into the equation is the cost to the community of defective or inefficient legislation, the making of which could be avoided if those affected could point to the problems that it might cause.
This argument has some force although one would not want to be too confident that mandatory consultative requirements are necessarily going to produce better decisions. In many instances there will not be much scope for improving the 'mindset' of public officials either because there is nothing wrong with their current approach or because the cost constraints within which the decision-makers presently work will continue to apply. A more probable result is that we are likely to end up with fewer rather than inherently 'better' legislative instruments.
Commonwealth public servants have for many years been subject to a panoply of accountability mechanisms of the traditional variety associated with the doctrines of responsible government,
31 judicial review and, more recently, under the so called 'new' administrative law'. Enhanced parliamentary (principally Senate) scrutiny of government activity also provides a valuable adjunct to these controls. Likewise more transparent financial and accounting practices within the Australian Public Service itself are part of this formal matrix of checks on executive excess and hubris. Each of these protections on its own is a less than perfect bulwark for protecting the public interest. However, when combined with what generally is regarded as a pretty robust administrative ethic within the APS, existing protections are not as ineffectual as is popularly supposed. Accordingly, the Bill's initiatives will operate at the margin, re-inforcing what is, when compared with other domestic and overseas models, a relatively strong accountability regimen.
Critics within the federal bureaucracy might argue that a further layer of accountability measures is unnecessary and unhelpful. And it is at least probable that the Bill's detailed consultative procedures will make for overly cautious decision-making at a time when public sector managers are being pressed to be less risk averse and more results oriented. On the other hand, and as noted above, similar laws operate in the majority of Australian States, so there is no more reason for overstating possible costs than there is for exaggerating the likely benefits of the proposals.
Where the proposed changes may have a marked impact is in reducing compliance costs incurred by business and others subject to government regulation. Not only will the odd 'dead-letter' be finally interred but the enthusiasm for making new instruments may also be curtailed. The new legislation, as the Attorney-General has stated on more than one occasion, 'will perform a gatekeeper role in relation to legislative instruments, preventing the unchecked proliferation of delegated legislation.'
32 Whilst acknowledging this point, there is a case for tempering more enthusiastic claims predicting that the law will greatly reduce business regulation.
33 Two or three cautionary comments may serve to put the proposed changes in perspective.
First, the proposed changes will have only a slight impact on total business costs if they are not matched by complementary changes in all the States and Territories and in local government areas of responsibility such as town planning. Ideally, if business costs are to be reduced, a truly national approach incorporating a single access point for all statutory rules and quasi-legislation should be pursued.
34 A uniform approach to statutory interpretation and sunsetting delegated legislation might also make it simpler to conduct business in more than one State or Territory. The Corporations Law and the Hilmer reforms show the potential and some of the pitfalls of such an approach.
Secondly, oft repeated concerns about the growing size of the 'statute books' may now need to be re-considered. Electronic storage and searching of legislation is now not only feasible but relatively inexpensive. The growth of the 'statute books' is less of a concern than the relative strengths and weaknesses of the various 'search engines' available for scanning legal databases including those readily available on the Internet. However, given the Parliament's seemingly unending enthusiasm for law-making, clarity of expression and the use of Plain English in drafting statute law and delegated legislation are now more important than ever.
Lastly, the Bill should also serve to focus attention on whether there ought to be clear guidelines for determining what matters are included in primary legislation (Acts of Parliament) and what can be left to subordinate legislation. Professor Pearce, writing in relation to the 1994 Bill, notes that:
No provision is included relating to the ARC's recommendation on the division of matters that should be included in Acts and in legislative instruments . . . It will be recognised that, paradoxically, the effect of the Legislative Instruments Act is that there is likely to be more public involvement and influence on the content of the secondary form of legislation than there is on Acts.
At present there are no fixed rules for making this decision and existing practice is driven by a range of factors, some constitutional, some political and others random or ad hoc. As the ARC's 1990 Issues Paper notes:
The theoretical division was for matters of substance to go in the Act while the detail of implementation, in particular procedural matters, should be left for regulations and other legislative instruments. This division is clearly not always followed - some Acts seem to include a great deal of minor details while others form only a skeleton for subordinate legislative instruments which will contain the substance of the matter in question . . .
Choosing the means of implementing government policy itself raises both political and technical legal issues. The political dimension of such choices is illustrated by the Government's recent decision to attempt to overcome parliamentary opposition to its proposed changes to the Australian Public Service through administrative changes and regulations.
Given such considerations, it will be interesting to see whether the balance between primary and secondary laws shifts if the present Bill is enacted into law. With subordinate legislation subject to greater and more effective scrutiny as well as being more readily available, the case for removing many standard form and technical provisions from primary legislation and including them in subordinate legislation is strengthened. Such an approach would, however, have to take account of other factors. One impediment to the greater use of secondary legislation is the practical difficulty in resolving deadlocks between the two Houses in relation to subordinate legislation whilst each retains an unfettered power to disallow legislative instruments.
These cautionary comments notwithstanding, the Bill has much to commend it. Likewise, many of the concerns reflected in the Senate's proposed amendments also raise important questions. At its core, the Bill, however, remains about balancing (the sometimes competing) demands for greater accountability and more effective scrutiny with the costs inherent in more open and responsive government.
17 November 1997.
To quote the Australian Law Reform Commission's Issues Paper (1990:5):
There is an astonishing diversity of legislative instruments. The more formal are usually known as regulations, rules or by-laws and are drafted in the same general form as Acts of Parliament. Once one goes beyond these instruments, it is possible to find orders, determinations, proclamations, notices, schemes, etc. The choice of name of these instruments and the form they take does not usually seem to follow any particular pattern. It appear[s] ... that, setting aside the question who should make a legislative instrument, very little turned on the name or form of the instrument. Nomenclature seemed to be influenced more by tradition than by any real consideration of the choice of name.
3 House of Representatives, Parliamentary Debates, 5 March 1998, 384.
Rule Making By Commonwealth Agencies, Report No.35, 1992, 2.
5 'Legislative Instruments Bill 1994: A Background Paper', Canberra Bulletin of Public Administration, February 1996, 54
57 at 54.
As the House Committee on Legal and Constitutional Affairs points out, this was the first time that the Committee had been asked to consider a bill that had already been considered by a Senate Committee. House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on Legislative Instruments Bill 1994, 1.
Recommendations 7 and 23.
Attorney-General, Government Response to the Report on the Bill by the House of Representatives Standing Committee, 27 September 1995, 1.
9 ARC, op cit, 2.
10 The ARC had recommended that disallowance be replaced by an approval procedure whereby legislative instruments would not have come into effect until formally approved by Parliament.
11 'Legislative Instruments Bill: How Will It Work?' A Paper to the 1995 Administrative Law Forum, Administrative Law Public Administration: Form vs Substance, edit Kathryn Cole, Canberra 1996, esp 95
12 (1931) 46 CLR 73 at 121.
13 ARC, op cit, 8.
14 Refer endnote 1.
15 Refer The Hon Mr Justice David Malcolm, 'The Limitations, if any, on Powers of the Parliament to Delegate the Power to Legislate', 1992 66 Australian Law Journal 247, esp at 248 and 257.
16 R v Burnley Justices (1916) 32 TLR 695; Conroy v Shire of Springvale and Noble Park  VR 737; and Ex Parte Forster; Re University of Sydney  NSWR 1000.
op cit, 96.
Legislative Instruments Bill 1996 [No.2], 5
1996, op cit, 56.
op cit, 84.
An 'explanatory statement' means a statement prepared by the rule-maker under section 44 explaining the purpose and operation of the instrument. A failure to prepare such a statement does not, however, affect the validity of the instrument [ subclause 44(3)].
House of Representatives, Parliamentary Debates, 2829.
House of Representatives, Votes and Proceedings No.126, 17 November 1997, 2454.
House of Representatives, op cit., 5 March 1998, 385.
op cit, 64.
op cit, 61.
No estimate is given in the Explanatory Memorandum of the additional cost to government agencies arising out of the new consultation and 'sunsetting' processes. The Memorandum merely states that such costs are to be borne by the originating agency out of its normal running costs vote (page 2). In these days of user-pays, creative agencies will no doubt discover mechanisms for shifting a substantial portion of any financial burden imposed on them by the Bill back onto those affected by the legislation.
K Cole edit, op cit, 99.
Not necessarily a bad thing in itself.
For example, the Executive Council plays a valuable (and undervalued) role in sifting the contents of statutory rules. Indeed this is also one of the frequently unrecognised yet important functions performed by the Governor-General.
Katherine Murphy, 'Government Slashes Red Tape', Australian Financial Review, 28 June 1996. See also Second Reading Speech, op cit, 5 March 1998, 384.
The ARC 1992 Report, Rule Making By Commonwealth Agencies, suggested that similar general principles should apply in relation to Court Rules and to rules made under intergovernmental schemes for nationally uniform regulations. op cit: xvi.
1996, op cit, 97
op cit, 3.
Dr David Kemp, Minister Assisting the Prime Minister for the Public Service, Government to Bypass Senate on Public Service Reform, Media Release, 25 February 1998.
The absence of such a mechanism proved fatal to the Australia Card legislation which had provided the trigger for the 1987 simultaneous dissolution. The Senate indicated it would disallow the necessary operation provisions of the Australia Card Bill which were to come into force on a date to be fixed by regulation. Refer G F Carney, 'Section 57 of the Constitution - the Sixth Double Dissolution', 18 Federal Law Review: 178
Backcapture: The registration of legislative instruments made before the commencement of the Legislative Instruments Act
Disallowable instruments: Commonwealth secondary legislation to which section 46A of the Acts Interpretation Act 1901 applies
Gazette: Commonwealth of Australia Gazette
Instrument: A formal legal document
Legislative instrument: That is legislative in character
Primary legislation: Enactment of a legislature
Register: The Federal Register of Legislative Instruments
Rule-maker: A person or body empowered to make secondary legislation
Secondary legislation: Legislation made under a power conferred by primary legislation
Sunsetting: The automatic repeal of legislation
Source: House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on Legislative Instruments Bill 1994, vii
Note: Unless otherwise stated, the terms 'delegated legislation' 'subordinate legislation' and 'secondary legislation' are used interchangeably. Similarly, the terms 'enabling Act' and 'primary legislation' are synonymous for the purposes of this Digest.