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Regulations and Ordinances-Senate Standing Committee Reports 114th Work of the committee in the 41st Parliament


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The Senate

Standing Committee on Regulations and Ordinances

Report on the work of the committee in the 41st Parliament

Report no. 114

November 2004 - October 2007

© Commonwealth of Australia 2013

ISBN 978-0-642-71900-3

This document was prepared by the Senate Standing Committee on Regulations and Ordinances and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Committee information

Current members (March 2013) Senator Mark Furner (Chair) Queensland, ALP

Senator the Hon Richard Colbeck (Deputy Chair) Tasmania, LP

Senator Claire Moore Queensland, ALP

Senator Louise Pratt Western Australia, ALP

Senator Scott Ryan Victoria, LP

Senator Arthur Sinodinos AO New South Wales, LP

Former members 41st Parliament (16.11.04 to 17.10.07) Senator Andrew Bartlett Queensland, AD

(25.11.98 - 30.06.08) Senator Carol Brown Tasmania, ALP

(13.09.05 - 01.07.11) Senator Concetta Fierravanti-Wells New South Wales, LP

(09.02.06 - 11.02.08) Senator Gavin Marshall Victoria, ALP

(01.07.02 - 01.07.05) Senator the Hon Brett Mason Queensland, LP

(01.07.99 - 23.03.07) (Deputy Chair from 28.11.05 - 09.12.05 and 08.02.06 - 09.02.06) Senator Claire Moore Queensland, ALP

(01.07.02 - 01.07.05) (Deputy Chair from 23.06.05 - 30.06.05) Senator the Hon Kay Patterson Victoria, LP

(23.03.07 - 11.02.08) Senator the Hon Santo Santoro Queensland, LP

(18.11.02 - 07.02.06) Senator Glenn Sterle Western Australia, ALP

(01.07.05 - 13.09.05) Senator Tsebin Tchen Victoria, LP

(14.02.02 - 30.06.05) (Chair from 11.03.02 - 30.06.05) Senator John Watson Tasmania, LP

(01.07.05 - 11.02.08) (Chair from 11.08.05 - 11.02.08) Senator Dana Wortley South Australia, ALP

(01.07.05 - 12.05.10) (Chair from 19.02.08 - 12.05.10)

Secretariat Mr Ivan Powell, Secretary Ms Janice Paull, Senior Research Officer

Contact information PO Box 6100 Parliament House Canberra ACT 2600 Tel: 02 6277 3066

Email: regords.sen@aph.gov.au

Website: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/ind ex.htm

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Table of Contents

Committee information .................................................................................... iii

Acronyms and abbreviations ...........................................................................vii

Chapter 1.............................................................................................................. 1

Introduction .............................................................................................................. 1

Work of the committee ........................................................................................... 1

Committee membership .......................................................................................... 1

The committee's mode of operation ....................................................................... 2

Committee publications and resources ................................................................... 3

Structure of the report ............................................................................................. 5

Acknowledgements ................................................................................................ 5

Chapter 2.............................................................................................................. 7

Delegated legislation and the disallowance process ............................................... 7

Introduction ............................................................................................................ 7

What is delegated legislation? ................................................................................ 7

Legislative Instruments Act 2003 ........................................................................... 8

Senate procedures relating to the disallowance process ....................................... 11

Chapter 3............................................................................................................ 13

Work of the committee in the 41st Parliament ..................................................... 13

Number of instruments considered ....................................................................... 13

Instruments of concern and notices ...................................................................... 14

Undertakings ......................................................................................................... 14

Commencement of the Legislative Instruments Act 2003 .................................... 15

Interim report on consultation .............................................................................. 16

Australia-New Zealand Scrutiny of Legislation Conference ............................... 17

Examples of instruments considered .................................................................... 18

Appendix 1 ......................................................................................................... 27

Breakdown of instruments 41st Parliament ........................................................ 27

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Appendix 2 ......................................................................................................... 49

Undertakings ........................................................................................................... 49

Appendix 3 ......................................................................................................... 65

Guideline on consultation ...................................................................................... 65

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Acronyms and abbreviations

AAT Administrative Appeals Tribunal

ACT Australian Capital Territory

AFP Australian Federal Police

AGS Australian Government Solicitor

(the) alert Disallowance alert (webpage)

AIA Acts Interpretation Act 1901

ANZSLC Australia-New Zealand Scrutiny of Legislation Conference

CEO Chief Executive Officer

ES explanatory statement

FRLI Federal Register of Legislative Instruments

HSIS Hazardous Substances Information System

LIA Legislative Instruments Act 2003

(the) monitor Delegated legislation monitor

NSW New South Wales

PCT Patent Convention Treaty

SDIL Senate disallowable instruments list

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Chapter 1 Introduction

Work of the committee 1.1 The Senate Standing Committee on Regulations and Ordinances (the committee) scrutinises all disallowable instruments of delegated legislation, such as regulations and ordinances, to ensure their compliance with non-partisan principles of personal rights and parliamentary propriety.

1.2 In most years, thousands of instruments of delegated legislation are made, relating to many aspects of the lives of Australians. Instruments of delegated legislation have the same force in law as primary legislation, and may form as much as half of the law of the Commonwealth of Australia.1

1.3 The committee's work may be broadly described as technical legislative scrutiny, as it does not generally extend to the examination or consideration of the policy merits of delegated legislation. The scope of the committee's scrutiny function is formally defined by Senate Standing Order 23, which requires the committee to scrutinise each instrument to ensure:

• that it is in accordance with the statute;

• that it does not trespass unduly on personal rights and liberties;

• that it does not make the rights and liberties of citizens unduly dependent on administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and

• that it does not contain matter more appropriate for parliamentary enactment.

1.4 The committee's work is supported by processes for the registration, tabling and potential disallowance of legislative instruments, which are established by the Legislative Instruments Act 2003.2

1.5 This report on the work of the committee covers the period of the

41st Parliament.3

Committee membership 1.6 Senate Standing Order 23(1) provides that the committee is appointed at the commencement of each Parliament. The committee has six members: three senators drawn from the government party and three senators drawn from non-government parties. The committee is chaired by a government senator. Members during the 41st Parliament were:

1 Odger's Australian Senate Practice, 13th Edition (2012), p. 416.

2 The Legislative Instruments Act 2003 and the disallowance process are discussed in Chapter 2.

3 The 41st Parliament was opened on 16 November 2004 and dissolved on 17 October 2007.

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• Senator Andrew Bartlett; 4

• Senator Carol Brown; 5

• Senator Concetta Fierravanti-Wells; 6

• Senator Gavin Marshall; 7

• Senator the Hon Brett Mason; 8

• Senator Claire Moore; 9

• Senator the Hon Kay Patterson. 10

• Senator the Hon Santo Santoro; 11

• Senator Glenn Sterle; 12

• Senator Tsebin Tchen (Chair); 13

• Senator John Watson (Chair); 14 and

• Senator Dana Wortley. 15

Independent legal adviser

1.7 The committee is assisted by an independent legal adviser, who examines and reports on each instrument that comes before the committee, and provides other advice relevant to the committee's scrutiny work. The committee's legal adviser during the reporting period was Professor Stephen Bottomley.

The committee's mode of operation

Delivery of instruments

1.8 Legislative instruments must be registered and, within six sitting days of registration, tabled in both Houses of Parliament.16 Once registered, the instruments are delivered to the two Houses for tabling, and to the committee secretariat.

4 Member from 25.11.98 to 30.06.08.

5 Member from 13.09.05 to 01.07.11.

6 Member from 09.02.06 to 11.02.08.

7 Member from 01.07.02 to 01.07.05.

8 Member from 01.07.99 to 23.03.07 (Deputy Chair from 28.11.05 to 09.12.05 and 08.02.06 to 09.02.06).

9 Member from 01.07.02 to 01.07.05 (Deputy Chair from 23.06.05 to 30.06.05).

10 Member from 23.03.07 to 11.02.08.

11 Member from 18.11.02 to 07.02.06.

12 Member from 01.07.05 to 13.09.05.

13 Member from 14.02.02 to 30.06.05 (Chair from 11.03.02 to 30.06.05).

14 Member from 01.07.05 to 11.02.08 (Chair from 11.08.05 to 11.02.08).

15 Member from 01.07.05 to 12.05.10 (Chair from 19.02.08 to 12.05.10).

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1.9 In relation to non-legislative disallowable instruments, the individual department administering the authorising Act under which any such instrument is made is responsible for delivering copies to both Houses for tabling, as well as to the committee secretariat.

Scrutiny of instruments

1.10 Instruments received by the committee secretariat are recorded and copies sent to the committee's legal adviser, who provides a report to the committee on the instruments' compliance with the committee's scrutiny principles. The committee meets regularly, during sittings of Parliament, to consider whether any instruments received may breach its scrutiny principles.

1.11 Where an instrument raises a concern referable to the committee's scrutiny principles, the committee's usual approach is to write to the responsible minister seeking further explanation or information, or seeking an undertaking for specific action to address the issue of concern.

Committee's use of the disallowance process

1.12 The committee's scrutiny of instruments is generally conducted within the timeframes that apply to the disallowance process, as set out in Chapter 2. Working within these timeframes ensures that the committee is able, if necessary, to seek disallowance of an instrument about which it has concerns. Such disallowance motions based on the recommendation of the committee have, without exception, been adopted by the Senate.17

1.13 In cases where the 15 sitting days available for giving a notice of motion for disallowance is likely to expire before a matter is resolved, the committee may give a notice of motion for disallowance in order to protect the Senate's ability to subsequently disallow the instrument in question. Such notices are referred to as 'protective notices'.18

Undertakings

1.14 In many cases, ministers and other instrument makers provide an undertaking to address the committee's concerns through the taking of steps at some point in the future. Typically, an undertaking will relate to the making of amendments to primary or delegated legislation. The acceptance of such undertakings has the benefit of securing an outcome agreeable to the committee without interrupting the

administration and implementation of policy by disallowance of the instrument in question.

Committee publications and resources 1.15 The following committee publications and resources may be accessed at http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments.

16 Legislative Instruments Act 2003, sections 30, 38 and 39.

17 Odgers' Australian Senate Practice, 13th Edition (2012), p. 424.

18 Odgers' Australian Senate Practice, 13th Edition (2012), p. 432.

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Disallowable instruments list

1.16 The 'Senate disallowable instruments list' (SDIL) is a list of all disallowable instruments tabled in the Senate.19 This online resource may be used to ascertain whether and when an instrument has been tabled in the Senate, and how many sitting days remain in which a notice of motion for disallowance may be given.

1.17 The SDIL is updated after each sitting day.

'Disallowance alert' webpage

1.18 The 'Disallowance alert' webpage (the alert) is a list of all instruments subject to a notice of motion for disallowance (whether at the instigation of the committee or an individual senator or member). The progress and outcome of any such notice is also recorded.

Delegated Legislation Monitor

1.19 The Delegated Legislation Monitor (the monitor) is an online publication which records all disallowable instruments tabled in the Senate for a given period of sittings or for a consolidated year. The monitor provides a range of information for each instrument (authorising Act, administering department, FRLI number et cetera) as well as some statistical information.20

Ministerial correspondence

1.20 Approximately twice a year, the committee tables in the Senate volumes of ministerial correspondence relating to its scrutiny of delegated legislation.21

Senate Procedure Office seminar on delegated legislation and the Senate

1.21 The Senate Procedure Office conducts half-day seminars on the Senate's scrutiny of delegated legislation. These are tailored to parliamentary staff, government officers and other stakeholders whose work or interests intersect with the work of the committee.

1.22 Information on seminar dates and booking inquiries may be accessed through the Senate website.22

19 As instruments may be tabled on different dates in the Senate and the House of Representatives respectively (and hence have different disallowance timeframes), there is also a House of Representatives disallowable instruments list. This list is available at http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments.

20 Since 2013 the monitor includes reporting on the work of the committee and details matters raised in relation to instruments tabled in the Senate and subsequently scrutinised by the committee.

21 Ministerial correspondence is incorporated into the monitor when the committee concludes its interest in the relevant matter. Prior to 2013, the committee tabled separate volumes of ministerial correspondence.

22 See Parliament of Australia website, 'Seminars for public servants' http://www.aph.gov.au/About_Parliament/Senate/Public_Information_and_Events/Seminars_fo r_public_servants.

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Structure of the report 1.23 Chapter 2 provides an overview of delegated legislation, the disallowance process and the Legislative Instruments Act 2003 (commenced 1 January 2005).

1.24 Chapter 3 reports on the work of the committee during the 41st Parliament.

Acknowledgements 1.25 The committee wishes to acknowledge the work and assistance of its legal adviser, Professor Stephen Bottomley.

1.26 The committee also wishes to acknowledge the assistance of ministers and associated departments and agencies during the reporting period. The responsiveness of ministers, departments and agencies to the committee's inquiries is critical to ensuring that the committee can perform its scrutiny function effectively.

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Chapter 2

Delegated legislation and the disallowance process Introduction 2.1 This chapter provides an overview of delegated legislation, the disallowance process and the Legislative Instruments Act 2003 (LIA).

What is delegated legislation? 2.2 Many Acts of Parliament delegate to executive government the power to make regulations, ordinances, rules and other instruments (such as determinations, notices, orders and guidelines). Such instruments supplement their authorising Act, and have the same force in law. 'Delegated legislation' is a collective term referring to such instruments.

2.3 Because they are made under a delegated power, instruments of delegated legislation are not directly enacted by the Parliament, as must happen for a bill to become an Act with the force of law. Therefore, to ensure that Parliament retains effective oversight, any such instrument is usually: (a) required to be registered on the Federal Register of Legislative Instruments (FRLI);1 (b) required to be tabled in the Parliament; and (c) subject to a disallowance process prescribed by the LIA, which may be initiated by any member of either the Senate or the House of Representatives.

What is a disallowable instrument?

2.4 A 'disallowable instrument' is an instrument of delegated legislation that is subject to the disallowance process prescribed by the LIA (see below for a description of the disallowance process).

Legislative instruments

2.5 The LIA generally requires that disallowable instruments will be those instruments that are 'legislative' in character, meaning those instruments which define the law as opposed to those which apply the law in a specific case (and are therefore 'non-legislative' in character);2 and which affect a privilege, interest or right. Specifically, section 5 of the LIA states that a legislative instrument is:

1 FRLI may be accessed at http://www.comlaw.gov.au/.

2 An example of this distinction is that an instrument which grants a licence applies the law whereas an instrument that sets out the criteria for the grant of a licence defines or establishes the content of the law (and hence would be a legislative instrument subject to disallowance under the LIA).

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…an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

2.6 The LIA also declares certain instruments to be legislative instruments, thereby making all such instruments subject to its general scheme. Specifically, subsection 5(3) provides that an instrument registered on FRLI is taken, by virtue of that registration, to be a legislative instrument; and section 6 provides that particular types of instrument, such as regulations and ordinances, are to be classed as legislative instruments. Subsection 5(4) provides that an instrument of mixed character (that is, one that has both a legislative and non-legislative character) is deemed to be a legislative instrument.

Disallowable non-legislative instruments

2.7 An instrument that is non-legislative in character may nevertheless be subject to the scheme of the LIA by virtue of the operation of the Acts Interpretation Act 1901 (the AIA).

2.8 Subsection 46B of the AIA provides, inter alia, that where an Act confers a power to make a non-legislative instrument, and that Act provides that the instrument is a disallowable instrument, then it is subject to the same procedures for parliamentary scrutiny as a legislative instrument.

Exemptions from disallowance

2.9 The LIA provides that certain instruments are exempt from disallowance by providing either that a type of instrument is not a legislative instrument for the purposes of the LIA or is otherwise not subject to disallowance.

2.10 Section 7 declares certain instruments not to be legislative instruments for the purposes of the LIA. This includes legislative instruments listed in the table set out in the provision, and legislative instruments that are declared not to be legislative instruments by the Act or instrument under which they were made.

2.11 Section 44 of the LIA provides that the disallowance process contained in section 42 does not apply to certain legislative instruments, including those instruments listed in the table set out in that provision.

Legislative Instruments Act 2003 2.12 Prior to 2005, the committee's scrutiny of delegated legislation was wholly governed by the AIA, which contained the scheme requiring regulations and other

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disallowable instruments to be tabled in Parliament and subject to the disallowance regime.

2.13 On 1 January 2005, the AIA scheme was replaced by the scheme set out in the LIA. While the LIA largely replicates the previous scheme, it includes a number of important innovations, such as the requirement for the registration of instruments on FRLI.

2.14 The main elements of the scheme contained in the LIA are:

• instruments of delegated legislation that are of a legislative character are

subject to the disallowance process outlined in the Act;

• such instruments must be registered on FRLI, along with an explanatory statement;

• once registered, such instruments must be delivered within six sitting days to each House of Parliament for tabling;3 and

• any member of the Senate or the House of Representatives may initiate the process to disallow any such instrument within 15 sitting days of it being tabled. Once such a notice has been given, a further period of 15 sitting days is available to resolve the motion.

Disallowance

Purpose

2.15 The ability of the executive—usually ministers and other executive office holders—to make delegated legislation without parliamentary enactment is a 'considerable violation of the principle of the separation of powers, [and] the principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government'.4

2.16 The ability of senators and members of the House of Representatives to seek disallowance of legislative instruments is therefore critical to ensuring that Parliament retains effective oversight of delegated legislation.

The disallowance process

2.17 The disallowance process is set out in subsection 42(1) of the LIA, which provides:

(1) If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

3 Under subsection 38(3), an instrument that is not tabled in each House within six sitting days of registration ceases to have effect immediately after the sixth day.

4 Odgers' Australian Senate Practice, 13th Edition (2012), p. 413.

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(b) within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision;

the instrument or provision so disallowed then ceases to have effect.

2.18 In summary, subsection 42(1) provides that any member of the Senate or House of Representatives may, within 15 sitting days of a disallowable legislative instrument being tabled, give notice that they intend to move a motion to disallow the instrument or a provision of that instrument. There is then a further 15 sitting days in which the motion may be resolved.

2.19 The maximum time for the entire disallowance process to run its course is therefore 30 sitting days (assuming the maximum available period elapses for both the giving of notice and the resolution of the motion to disallow the instrument or provision).

Unusual disallowance processes

2.20 In some cases, the disallowance process may be modified by the authorising legislation under which an instrument is made, affecting the period available for giving or resolving a notice of motion for disallowance.

2.21 For example, for a determination made under section 20(1) or (2) of the Financial Management and Accountability Act 1997, the time available for both giving and resolving a notice of motion for disallowance is only five sitting days.5

Effect of disallowance

2.22 Subsections 42(1) and 45(1) of the LIA provide that, where a motion is passed to disallow a legislative instrument or a provision of an instrument, that instrument or provision ceases to have effect from the time the motion was passed.

2.23 If the disallowed instrument or provision repealed all or part of an earlier instrument, then that earlier instrument or part is revived.6

2.24 Subsection 42(2) of the LIA provides that, where a notice of motion to disallow a legislative instrument or a provision of an instrument remains unresolved after 15 sitting days of being given (for example, where it has not been withdrawn or put to the question), the instrument or provision is deemed to have been disallowed and therefore ceases to have effect from that time. This provision ensures that the disallowance process cannot be frustrated by allowing a motion for disallowance to be adjourned indefinitely.

Restrictions on re-making legislative instruments

2.25 In order to ensure that Parliament's power of disallowance may not be circumvented, and to preserve the Parliament's intention in any case where a House has disallowed an instrument, the LIA imposes restrictions on the re-making of

5 Financial Management and Accountability Act 1997, section 22 (this provision was preserved by Schedule 4 to the Legislative Instruments Regulations 2004).

6 LIA, subsection 45(2).

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legislative instruments that are the 'same in substance' as an existing or recently disallowed instrument. These are:

• for a period of seven days, unless approved by resolution by both Houses of Parliament, an instrument may not be made that is the same in substance as a registered instrument that has been laid before both Houses of Parliament (or, if it was tabled on different days, seven days after it was last tabled). This prevents the disallowance provisions from being circumvented by an instrument being successively repealed and remade;7

• an instrument may not be made that is the same in substance as an existing

instrument that is subject to a notice of motion for disallowance (unless the notice is withdrawn; the instrument is deemed to have been disallowed under subsection 42(2); or the motion is withdrawn, otherwise disposed of or subject to the effect of subsection 42(3)). This prevents an instrument simply being remade in response to notice of a motion for disallowance; and

• for a period of six months, an instrument may not be made that is the same in

substance as an instrument that has been disallowed under section 42 (unless the House which disallowed the instrument, or in which the instrument was deemed to have been disallowed, rescinds the resolution that disallowed the instrument or approves it being made). This prevents an instrument that has been disallowed, or deemed to have been disallowed, from simply being remade.8

Senate procedures relating to the disallowance process 2.26 A number of the Senate's procedures are relevant to the disallowance process in the LIA.

2.27 Standing Order 78(3) is a significant example of one such procedure, whereby any senator has the opportunity to take over a motion for disallowance if the original mover seeks to withdraw that motion. This ensures that the Senate is not denied the right to disallow an instrument where the time for giving notice has passed; and that the right of individual senators to move for disallowance is not lost by the withdrawal of the notice.9

2.28 Another example is Standing Order 86, which prevents the proposing of a question that is the same in substance as any question that has been determined during the same session (the same question rule). This order is qualified by the proviso that it shall not prevent a motion for the disallowance of an instrument substantially the same in effect as one previously disallowed.

2.29 For further detail on Senate procedures relevant to delegated legislation and disallowance, see Odgers' Australian Senate Practice, 13th Edition (2012), Chapter 15.

7 LIA, section 46.

8 LIA, sections 46, 47 and 48. For more detail see Odgers' Australian Senate Practice, 13th Edition (2012), pp 420, 434-435.

9 Odgers' Australian Senate Practice, 13th Edition (2012), p. 430.

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Chapter 3

Work of the committee in the 41st Parliament 3.1 This chapter discusses the committee's work and matters of note in the reporting period.1 Some representative examples of instruments and issues considered by the committee are also provided.

Number of instruments considered 3.2 The committee held a total of 46 private meetings in the 41st Parliament, comprising:

• 13 meetings in 2004-05;

• 17 meetings in 2005-06; and

• 16 meetings in 2006-07.

3.3 The committee examined 7230 instruments, comprising:

• 2432 instruments in 2004-05;

• 2449 instruments in 2005-06; and

• 2349 instruments in 2006-07

3.4 The figures above show that the number of instruments of delegated legislation made was consistent for each year of the 41st Parliament. There was, however, a significant increase in the number of instruments made during this period compared to the 40th Parliament (4768 in total),2 due to the commencement of the Legislative Instruments Act 2003 (LIA) and its requirements regarding the registration and tabling of existing and new legislative instruments (see below).

3.5 Details of all instruments scrutinised by the committee were recorded in the committee publication, the Delegated legislation monitor (the monitor). The committee published 45 periodical monitors in the 41st Parliament, as well as the consolidated monitors for 2004, 2005 and 2006.

3.6 Appendix 1 provides a breakdown of the instruments made during the 41st Parliament by Act and instrument type. For further detail on specific instruments made in this period, the monitors for the relevant years should be consulted.

1 The 41st Parliament was opened on 16 November 2004 and dissolved on 17 October 2007.

2 Comprising 1546 in 2001-02, 1661 in 2002-03 and 1561 in 2003-04.

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Instruments of concern and notices 3.7 Of the 7230 instruments examined by the committee, 728 were identified as raising a concern.3

3.8 Eighty-three notices of motion for disallowance were given by the committee, 66 of which were ultimately withdrawn following receipt of satisfactory responses or undertakings from relevant instrument makers.4 Seventeen notices (given by the committee) remained unresolved at the end of the 41st Parliament.5

3.9 Table 1 provides a breakdown by year of the number of instruments identified by the committee as raising a concern; and the number of notices of motion for disallowance given by the committee.

Table 1: instruments of concern and notices

Year Instruments examined Instruments of concern Disallowance notices

2004-05 2432 268 13

2005-06 2449 252 45

2006-07 2349 208 25

Undertakings 3.10 During the 41st Parliament:

• thirty-four undertakings to amend legislation were provided to address

concerns raised by the committee (see tables 1 and 2 at appendix 2 for details); and

• thirty-eight undertakings were implemented (see table 1 at appendix 2).

3.11 Twenty undertakings remained outstanding at the dissolution of the 41st Parliament (17 October 2007) (see table 2 at appendix 2). The committee continues to monitor the status of outstanding undertakings and, where necessary, to

3 Details of these instruments may be found on the 'Scrutiny of disallowable instruments' webpage at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_c tte/scrutinyleginst2012.htm.

4 The 'Disallowance alert' (the alert) provides details of all notices of motion for disallowance given by the committee, as well as by individual senators and members of the House of Representatives. The alert may be accessed at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_c tte/alert2012.htm.

5 Subsection 42(3) of the LIA provides that any instruments subject to unresolved notices at the time the House of Representatives is dissolved or expires, or the Parliament is prorogued, are taken to have been tabled on the first sitting day following the dissolution or expiry of the House of Representatives, or proroguing of Parliament (effectively making the instrument subject to the disallowance process afresh).

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correspond with relevant ministers and instrument-makers regarding their implementation.

Commencement of the Legislative Instruments Act 2003 3.12 A significant event in the reporting period was the commencement of the LIA on 1 January 2005. The explanatory memorandum to the Legislative Instruments Bill 2003 explained:

This Bill establishes a comprehensive regime for the registration, tabling, scrutiny and sunsetting of Commonwealth legislative instruments. The Bill originated from a 1992 report of the Administrative Review Council, Rule Making by Commonwealth Agencies…[which] described the framework governing Commonwealth legislative instruments as "patchy, dated and obscure"…

The Bill will introduce a consistent system for registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments [based around the establishment of] an authoritative, complete and accessible register of those instruments…6

3.13 The main elements of the LIA are set out in chapter 2. The committee notes that, on the whole, the transition to the LIA scheme was smooth, with most departments and agencies showing an adequate degree of preparedness, and a good understanding of the disallowance provisions and main requirements regarding the registration of new instruments on the Federal Register of Legislative Instruments (FRLI). However, in relation to the requirements of the LIA regarding consultation, the committee identified some need for improved understanding and consistency in application across departments (see paragraph 3.19).

3.14 The LIA also provided for the back-capture of legislative instruments previously in force.7 Under section 29 of the LIA, instruments made up to five years before its commencement were required to be lodged for registration within 12 months of commencement. Instruments made more than five years before commencement were required to be lodged within three years.

3.15 The commencement of the LIA subjected a number of instruments to the potential disallowance and thus to the committee's scrutiny for the first time, due to the operation of the LIA's definition of 'legislative instrument'.8

3.16 A related matter of interest concerning the implementation of and transition to the LIA arose in connection with the committee's consideration of the Legislative Instruments Amendment Regulations 2005 (No. 5) [Select Legislative Instrument

6 Legislative Instruments Bill 2003, explanatory memorandum, p. 2.

7 See LIA, Division 3 and section 29.

8 See Chapter 2, paragraph 2.5.

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2005 No. 300] [F2005L04094] (February 2006),9 which exempted a number of instruments from the operation of the LIA. While the instruments in question were generally exempted on the basis that they were not regarded as being legislative in character, the committee noted that determinations under subsection 1084(1) or 1118B(2) of the Social Security Act 1991 were being exempted on the basis that they were 'probably' not legislative instruments. As the committee had understood the legislative scheme of the LIA to be inclusive in cases where the character of an instrument was in doubt or mixed,10 advice was sought from the Attorney-General as to the basis for this decision. In response, the Attorney-General advised that the following approach was applied to any request for exemption from the LIA scheme:

• a requesting agency must provide a copy of independent legal advice as to the

proper characterisation of the instrument (that is, whether it is legislative or non-legislative in character);

• the agency must explain why the proposed exemption is needed and provide a strong argument as to why a departure from the general policy of the LIA is justified; and

• the agency's request must be supported in writing by the responsible minister.

3.17 The Attorney-General's advice provided the committee with a useful insight into the way in which the provisions of the LIA interact with the legislative policy approach in determining exemptions from the scheme of the LIA.

Interim report on consultation 3.18 Section 17 of the LIA directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument, particularly where that instrument is likely to have an effect on business. Section 18, however, provides that in some circumstances such consultation may be unnecessary or inappropriate. The explanatory statement (ES) which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (section 26).

3.19 On 21 June 2007, the committee tabled an interim report on consultation, titled Consultation under the Legislative Instruments Act 2003 (the consultation report). The consultation report examined the operation of the consultation provisions of the LIA in the two years after its commencement.

3.20 The committee's consultation report may also be seen in the broader context of the development and evolution of the Legislative Instruments Bill 2003 and its earlier counterparts (the Legislative Instruments Bill 1994 and Legislative Instruments

9 The full text of instruments and explanatory statements may be accessed through the Federal Register of Legislative Instruments (FRLI) by entering the relevant FRLI number into the FRLI search field (available at www.comlaw.gov.au). The FRLI number is a unique identifier, contained in square brackets following the first citation of an instrument in this report.

10 See for example LIA, section 5(4)

17

Bill 1996). In its report on the 2003 bill (the bill report),11 the committee noted that the consultation requirements proposed in that bill (and ultimately enacted) were less rigorous than the mandatory and more defined requirements that had been earlier proposed. The bill report described the consultation requirements in the 2003 bill as being more general and less prescriptive in nature, noting that they sought to encourage 'appropriate consultation' before an instrument is made, particularly where that instrument is likely to have a direct or a substantial indirect effect on business or restrict competition.

3.21 While the consultation report made no recommendations as such, it highlighted the following issues:

Lack of information regarding consultation

3.22 The committee noted persistent failures to describe the nature of consultation undertaken in relation to the making of legislative instruments, or to provide an explanation of why consultation was considered unnecessary or inappropriate.12

Inadequate descriptions of consultation undertaken

3.23 The committee noted that in a significant number of cases overly bare or general descriptions of consultation had been inadequate to sufficiently describe the 'nature' of consultation as required by the LIA.

Inadequate explanations of why consultation was not undertaken

3.24 Similarly, the committee noted persistent shortcomings in relation to explanations as to why consultation had not been undertaken. These included:

• overly bare or general assertions that did not sufficiently explain why

consultation was not undertaken;

• claims that an instrument was 'minor or machinery' in nature which did not appear justified with reference to the effect of the instrument;

• reliance on consultations into authorising or related legislation that did not specifically address the substantive provisions of an instrument; and

• statements that consultation was not undertaken because an instrument did not have a significant impact on business (which is not in itself necessarily a sufficient reason to forego consultation).

Australia-New Zealand Scrutiny of Legislation Conference 3.25 The Australia-New Zealand Scrutiny of Legislation Conference (ANZSLC) is held every two years, and provides a forum for parliamentary scrutiny committees to discuss matters relevant to the work of legislative scrutiny.

11 Senate Regulations and Ordinances Committee, Legislative Instruments Bill 2003 [and] Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003 (111th Report), October 2003, p. 7.

12 LIA, sections 17, 18 and 26 (previously LIA, section 4).

18

3.26 During the 41st Parliament the ANZSLC was held in Canberra in March 2005 and in Wellington, New Zealand, in July 2007.

3.27 The Canberra conference was hosted by the Australian Capital Territory Legislative Assembly and attended by 59 delegates from the Commonwealth, Australian states and territories and New Zealand. The theme of the conference was 'Legislative scrutiny in a time of rights awareness'. Issues canvassed at the conference included:

• fostering awareness of the role of the scrutiny committees in protecting

individual rights;

• fostering constructive dialogue on the role of the scrutiny committees within the broader context of a human rights environment; and

• promoting broader access to delegated and primary legislation.

3.28 The Wellington conference was hosted by the New Zealand Parliament and was attended by 79 delegates from the Commonwealth, Australian states and territories, New Zealand, Kiribati and Samoa. The theme of the conference was

'Democracy in legislation: the role of scrutiny committees'. Issues canvassed at the conference included:

• fostering public participation in the making of delegated and primary

legislation;

• maintaining legislative controls over delegated legislation; and

• fostering constructive dialogue between human rights institutions and legislative scrutiny committees.

Examples of instruments considered

Scrutiny principle (a): ensuring that delegated legislation is in accordance with statute

3.29 Scrutiny principle (a) requires that an instrument of delegated legislation be validly made, in accordance with both its authorising Act or instrument and any other relevant legislation, such as the LIA and the Acts Interpretation Act 1901 (the AIA). The LIA, for example, imposes specific requirements relating to the provision and content of explanatory statements (ESs),13 the prohibiting of prejudicial retrospectivity,14 and the incorporation of extrinsic material.15

13 LIA, section 26 (previously LIA, section 4).

14 LIA, section 12(2) (prejudicial retrospectivity).

15 LIA, section 14 (incorporation of extrinsic legal and non-legal sources) and section 26 (previously LIA, section 4).

19

Explanatory statements: describing consultation

3.30 Since the commencement of the LIA on 1 January 2005, instruments of delegated legislation must be accompanied by an ES. As noted above, section 26 of the LIA prescribes certain information which an ES must contain,16 and this includes a description of the nature of consultation undertaken or an explanation as to why consultation was considered unnecessary or inappropriate. During the reporting period, the committee identified a relatively large number of instruments that failed to meet the requirements of the LIA in this regard.

3.31 In 216 cases, ESs made no reference whatsoever to consultation as per the requirements of the LIA. Correspondence with relevant ministers generally indicated that this was due to administrative oversight in the preparation of explanatory material, rather than a lack of awareness about the requirements of the LIA. In all such cases, the committee requested from the rule-maker the relevant information regarding consultation, required that the ES for the instrument be updated and sought an assurance that future explanatory material would be prepared in accordance with the requirements of the LIA.

3.32 In another 57 cases, the committee identified concerns with the use of overly bare or general language to describe the nature of consultation undertaken, or to explain why consultation was considered inappropriate or unnecessary. While the committee does not usually interpret section 26 of the LIA as requiring a highly

detailed description of consultation undertaken, it considers that a bare or very general statement of the fact that consultation has taken place is not sufficient to satisfy the requirement that an ES describe the nature of consultation undertaken. In all such cases in the reporting period, the committee sought a fuller description or explanation from the rule-maker, and generally required that the ES in question be amended to include such further information as was subsequently provided.

3.33 An example of this was Instrument CASA 130/05 - Direction - Parachute operations in the vicinity of Barwon Heads aerodrome [F2005L00909] (May 2005), which specified a restriction on parachute operations within the vicinity of Barwon Heads aerodrome. The ES stated only that 'the instrument has been made after consulting with persons likely to be affected', which prompted the committee to seek more information regarding the particular nature of the consultation, including how it was publicised, how many comments had been received and how any comments had been taken into consideration.

3.34 The committee has since produced, and now disseminates with relevant correspondence, a guidance note on consultation, 'Guideline for preparation of ESs: consultation' (reproduced at appendix 3).

16 LIA, section 26 (previously LIA section 4). See also sections 17 and 18 regarding consultation requirements.

20

Retrospectivity

3.35 Subsection 12(2) of the LIA provides that an instrument which commences retrospectively, and which would disadvantage or impose a liability on any person other than the Commonwealth, is of no effect.17 Retrospective commencement is a relatively common feature of delegated legislation, and the committee identified concerns in a number of such cases in the reporting period.

3.36 An example which reveals the committee's approach to the question of retrospective operation was the Crimes Amendment Regulations 2004 (No.1) [Statutory Rules 2004 No. 164] [F2004B00187] (August 2004), which prescribed periodic detention orders under the Australian Capital Territory (ACT) and New South Wales (NSW) as sentencing alternatives for the purposes of

subsection 20AB(1) of the Crimes Act 1914.18 The amendments were expressed as commencing retrospectively from 1 September 1995 in the ACT and 3 April 2000 in NSW, to address concerns that, on a narrow reading of section 20AB(1), periodic detention orders may not have been authorised as a sentencing alternative. Notwithstanding an assurance in the ES that the instrument would not disadvantage any person (as the committee usually expects), the committee sought further advice from the Minister for Justice and Customs (the Justice Minister) as to how the instrument could be seen as beneficial to any persons subject to periodic detention orders in the relevant period. Subsequent advice from the Justice Minister and officers of the Attorney-General's Department suggested that the effect of the instrument could be characterised in this way because the alternative to periodic detention orders was generally full time custody, and this view was ultimately accepted by the committee.

Incorporation of extrinsic material by reference

3.37 Section 14 of the LIA provides that delegated legislation may incorporate extrinsic material by reference,19 meaning that instruments may adopt the provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time;20 or may incorporate non-statutory material in any other instrument or in writing only as in force or existing at the time the incorporating instrument takes effect.21

3.38 The committee examined numerous instruments that incorporated extrinsic material in the reporting period. In a number of these cases, the ES accompanying the instrument did not include specific reference to or consideration of the LIA's

17 However, subsection 12(3) of the LIA provides that the restriction on prejudicial retrospectivity may be overturned by any contrary provision in the Act under which the instrument is made.

18 Subsection 20AB(1) provides for the imposition of alternative sentences on federal offenders in state and territory courts, where such arrangements are ordinarily available as sentencing options for state offenders.

19 Material incorporated into instruments of delegated legislation may include, for example, technical, scientific and medical standards; policy guidelines; and legal definitions.

20 LIA, paragraph 14(1)(a).

21 LIA, paragraph 14(1)(b); subsection 14(2).

21

prescriptions regarding incorporated material, prompting the committee to make inquiries.

3.39 An interesting example of this arose in relation to the Veterans’ Entitlements (Special Disability Trust Beneficiary Requirements) Nomination of Agreement 2006 [F2006L03097] (December 2006), which nominated an agreement for the purposes of qualifying as a special disability trust under subsection 52ZZZWA(3) of the Veterans’ Entitlements Act 1986. As the instrument did not specify whether the agreement was nominated as in force from time to time or as at a particular date, and the ES made no reference to section 14 of the LIA, the committee sought clarification from the Minister for Veterans' Affairs (the Veterans' Minister). In response, the Veterans' Minister advised that the instrument did not in fact incorporate the agreement in question. Rather, the agreement was nominated in accordance with the

power conferred under subsection 52ZZZWA(3), and hence the considerations around incorporation of extrinsic material in the LIA were not relevant in this case.

3.40 More generally in relation to incorporated material, the committee wrote to a number of ministers seeking further information on how incorporated material could be obtained or accessed, and noting that its usual expectation is that ESs contain enough information to ensure that all substantive elements of an instrument are readily available to stakeholders. An example of this was the Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 2005 (No. 1) [Select Legislative Instrument 2005 No. 30] [F2005L00543] (March 2005), which incorporated the Hazardous Substances

Information System (HSIS) as in force on 10 March 2005. While the ES provided a web address to access the HSIS, the committee sought and received an assurance from the Minister for Employment and Workplace Relations that the incorporated version would remain available online in the event that the HSIS was subsequently updated.

Unclear terms and phrases

3.41 The committee examines instruments of delegated legislation to ensure that the scope of their intended operation and application is clear. The committee wrote to a number of ministers during the reporting period seeking clarification of unclear terms and phrases.

3.42 An example of this arose in relation to the Farm Household Support Amendment Regulations 2004 (No. 1) [Statutory Rules 2004 No. 206] [F2004B00221] (August 2004), which, for the purposes of section 8B of the Farm

Household Support Act 1992, defined a 'prescribed adviser' as a person with 'relevant financial qualifications'. As neither the regulations nor the ES provided any definition of what would be considered to be a relevant financial qualification, the committee sought clarification from the Minister for Agriculture, Fisheries and Forestry (the Agriculture Minister). In response, the Agriculture Minister advised that the relevant financial qualifications would be any that were obtained by completing a course conducted by a higher education institute or training organisation. Acknowledging the committee's preference for clearly defined terms, the Agriculture Minister undertook to amend the regulations to include this advice on how the term would be interpreted. The regulations were subsequently amended on 22 April 2005.

22

3.43 A second example is found in the committee's consideration of the Export Control (Plants and Plant Products) Orders 2005 [F2005L00523] (March 2005), which specified standards for equipment and facilities for sampling rooms in registered establishments. First, subparagraph 8.1(c)(i) of Schedule 2 provided that a sampling room must comply 'substantially' with relevant state, territory and Commonwealth occupational health and safety requirements. Second, suborder 10.1 in Part 4 prohibited the export of prescribed goods unless the trade description applied to those goods was 'adequate and accurate'. The committee considered that, without further guidance on how these qualifying terms would be interpreted, their intended application was unclear and could give rise to dispute. In response to the committee's inquiry, the Agriculture Minister acknowledged the committee's concern regarding the terms 'substantially' and 'adequate', and undertook to amend the instrument to remove them (the term 'accurate' was not considered to be problematic, as it was clearly determinable against descriptions that could be characterised as being false, deceptive or potentially misleading). The instrument was amended accordingly on 27 November 2006.

Scrutiny principle (b): ensuring that delegated legislation does not trespass unduly on personal rights and liberties

3.44 Scrutiny principle (b) requires that instruments of delegated legislation must not trespass unduly on personal rights and liberties.

Treatment of personal information

3.45 A number of issues in relation to treatment of personal information arose in connection with the committee's scrutiny of the Australian Federal Police Amendment Regulations 2006 No. 1 [Select Legislative Instrument 2006 No. 326] [F2006L03972] (February 2007), which prescribed matters to do with the suspension of Australian Federal Police (AFP) appointees and drug testing. The committee

queried a provision setting out requirements for the keeping of records relating to breath tests, blood tests or prohibited drug tests, and specifically that records of a test that did not indicate the presence of alcohol or prohibited drugs (a negative test) were required to be kept for two years. As it was not clear to the committee why records of a negative test should be kept for such a significant period, and potentially for longer than records of a positive test, the committee sought advice from the Minister for Justice and Customs (the Justice Minister). In response, the Justice Minister advised that retention of clear sample records was necessary, inter alia, to permit subsequent testing where there was doubt about a result, or where facts emerged suggesting that re-testing might lead to a positive result. While the committee accepted the legitimate intent and procedural protections for the retention of clear samples for these purposes, it could not identify a legislative authority for such further testing, and so advised the Justice Minister. Subsequently, on the basis of advice from the Australian Government Solicitor (AGS) and the AFP, the Justice Minister undertook to amend the regulations to remove the power to retain and re-test clear samples. The regulations were amended accordingly on 6 September 2007.

23

Imposition of an obligation

3.46 Also under scrutiny principle (b), the committee wrote to a number of ministers seeking clarification about the scope and content of obligations imposed by delegated legislation. The committee is particularly careful to ensure that such obligations are clearly defined where penalties may be imposed for non-compliance.

3.47 An example of this arose in relation to the Export Control (Meat and Meat Products) Amendment Orders 2006 (No. 1) [F2006L01737] (June 2006), which prescribed conditions and restrictions on the export of meat and meat products, and made provision for such things as inspections, audits and registration of registered establishments. In the context of ensuring that any person managing or operating an export operation was 'fit and proper', new subclause 12.5 required any such person convicted of a serious offence to provide written notification to the department within seven days, with a failure to do so being an offence under the regulations. However, given that a 'serious offence' was defined to include an offence punishable by a period of imprisonment, the committee was prompted to inquire of the Agriculture Minister as to the potential for a person to commit the offence as a consequence of being impeded in their ability to notify the department due to being imprisoned. The Agriculture Minister acknowledged that such cases would be a potential concern, and undertook to amend the orders accordingly.

3.48 The committee also noted a requirement that the occupier of a registered establishment give the operations manager or controller written notice of the obligation to notify the department of any such conviction 'as soon as practicable'. As there was no qualification to the requirement to provide the notice 'as soon as practicable', the committee sought advice from the Agriculture Minister. The Agriculture Minister advised that it was intended that the obligation would arise at the time the amendments commenced, within a reasonable time after their commencement or, in the case of a person who later assumed management or control, within a reasonable time of their assuming control. As above, the Agriculture Minister undertook to amend the provision to clarify its application in line with this advice. The orders were amended accordingly on 13 October 2008.

Offences of strict and vicarious liability22

3.49 Given the limiting nature and potential consequences of strict and vicarious liability offence provisions for individuals, the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation, and seeks to ensure that they are framed as clearly and narrowly as possible.

22 'Strict liability' is a standard for liability in relation to both civil penalties and criminal offences, in which a person may be found legally responsible for, or guilty of, an act or omission regardless of culpability or fault. 'Vicarious liability' is a form of strict secondary liability in which a person may be found liable for an act or omission done by another person, such as in cases where an employer may be liable for the conduct of an employee.

24

3.50 An example of this was the Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 131] [F2006L01832] (June 2006) and the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 132] [F2006L01809] (June 2006), which, inter alia, introduced strict liability offences for a person operating a vessel failing to move away from a cetacean (a marine mammal) at 'a constant slow speed'. The committee considered this might be a potentially imprecise obligation, and sought advice from the Minister for the Environment and Heritage (the Environment Minister) as to whether the offences would apply more clearly if a particular speed or range of speeds were specified. In response, the Environment Minister noted that a decision had been taken not to impose a specific speed limit because safety considerations might require vessels to maintain higher speeds in certain conditions; and because not all vessels would necessarily have equipment to enable them to measure their speed. However, acknowledging the committee's concern about the potential for inadvertent breaches and inconsistent enforcement in cases of borderline infringements, the Environment Minister undertook to amend the instruments to require instead that vessels maintain a 'constant speed less than six knots', and to provide guidance by way of a note on rules of thumb for calculating a vessel's speed. The instruments were amended accordingly on 15 February 2007 and 1 March 2007.

Scrutiny principle (c): ensuring delegated legislation does not make rights unduly dependent on administrative decisions not subject to independent merits review

3.51 Scrutiny principle (c) relates broadly to decision making and the natural justice considerations which underpin the field of administrative law. Accordingly, where delegated legislation authorises the making of administrative decisions, the committee will seek to ensure that the framing of those powers is in accordance with the tenets of natural justice, such as objective criteria in relation to decision making, discretions appropriately defined and the availability of independent merits review of decisions.

Discretions appropriately defined

3.52 The committee's approach to issues of this kind is demonstrated by its consideration of the Migration Amendment Regulations 2005 (No. 9) [Select Legislative Instrument 2005 No. 240] [F2005L03190] (November 2005), which made numerous changes to the migration regulations in relation to visas. The committee noted that the Minister for Immigration and Multicultural and Indigenous Affairs (the Immigration Minister) was given a broad discretion to define the terms 'regional Australia' and 'seasonal work' for the purpose of determining eligibility for the grant of a further Working Holiday visa. In response to the committee's inquiry about whether the terms could be expressly defined, the Immigration Minister noted that the aim of the visa class in question was to assist regional employers by offering an incentive for holidaymakers to undertake seasonal work. In this context, the targeted areas and types of seasonal work would both be subject to regular and sometimes rapid change, depending on such factors as shifting demographics, industry change and availability of labour. Given this, the committee accepted that the

25

discretion allowed to the Immigration Minister was administratively necessary and appropriate.

Merits review

3.53 Scrutiny principle (c) underlines the availability of merits review for executive decisions authorised by delegated legislation as being of fundamental importance, and the committee regularly seeks clarification from ministers regarding the availability or operation of merits review in relation to particular decisions. An example of this arose in connection with the Navigation (Coasting Trade) Regulations 2007 [Select Legislative Instrument 2007 No. 15] [F2007L00383] (February 2007), which repealed and replaced previous regulations concerning coastal trade permits and licences. Regulations 7 and 14 of the new regulations stipulated processes governing decisions by the Minister for Transport and Regional Services (the Transport Minister) to refuse or grant a permit or licence. However, the committee was not able to discern on the face of the instrument and its supporting ES whether any such decision was amenable to review by the Administrative Appeals Tribunal (AAT). In response to the committee's inquiries, the Transport Minister advised that, while such decisions were subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977, they were not subject to merits review by the AAT. The Transport Minister noted that the policy impetus for the making of the new regulation had been merely to redraft the previous regulation in a modern form. However, noting the committee's position that discretions affecting business operations should generally be subject to merits review, the Transport Minister advised that the committee's view would be given significant weight in any subsequent review or consideration of the Navigation Act 1912.

Scrutiny principle (d): ensuring delegated legislation does not contain matters more appropriate for parliamentary enactment

3.54 Scrutiny principle (d) reflects the view that delegated legislation should not deal with matters which should, by their nature, be subject to the full legislative processes of the Parliament.

3.55 While concerns related to this principle are less commonly raised by the committee (or, at least, less commonly characterised in such terms), the following matter provides an example of the types of concerns which may arise.

Henry VIII clauses

3.56 Provisions in delegated legislation which amend a primary Act or Acts are referred to as 'Henry VIII clauses', and the committee closely examines any such instruments to ensure that there is adequate justification for their use.

3.57 An example of such a case was the Patents Amendment Regulations 2004 (No. 4) [Statutory Rules 2004 No. 395] [F2005B00016] (February 2005), which made amendments to the Patents Act 1990 and the Patents Regulations 1991 to streamline the processing of certain patent applications. Noting that two schedule items in the instrument had the effect of modifying the Patents Act 1990, the committee sought advice from the Minister for Industry, Tourism and Resources (the Industry Minister) as to why the amendments were not being made to the Patents Act

26

1990 directly. In response, the Industry Minister advised that the amendments arose from a need to clarify the process for preliminary examination of patents under the Patent Convention Treaty (PCT). As Australia was one of only 12 Preliminary Examining Authorities of the 126 PCT members, it was important that Australia was able to respond quickly to frequent amendments to the PCT rules by amending its domestic patent legislation. The Patents Act 1990 in fact recognised the necessity of rapidly incorporating changes to the international patent system into domestic processes, by explicitly providing for the regulations to modify the operation of the Act to give effect to the PCT (paragraphs 228(1)(e) and 228(2)(t)). Notwithstanding the clear intent of the Patents Act 1990 in this regard, the Industry Minister acknowledged the importance of legislative transparency, and indicated that he would therefore consider amending the Patents Act 1990, when next reviewed, to reflect the modifications brought about by the amending regulations.

Senator Mark Furner

Chair

27

Appendix 1

Breakdown of instruments 41st Parliament The table below provides a breakdown of instruments scrutinised in the 41st Parliament by Act and instrument type. For further detail on particular instruments, the consolidated Delegated legislation monitor for the relevant years should be consulted.

Act/instrument type 2004-05 2005-06 2006-07

A New Tax System (Commonwealth-State Financial Arrangement) Act 1999 regulation

-

-

1

A New Tax System (Family Assistance) (Administration) Act 1999 determination guidelines

3

-

3

-

11 1

A New Tax System (Goods and Services Tax) Act 1999 determination direction instrument regulation

6

1

-

4

7

-

-

-

5

-

1

-

A New Tax System (Wine Equalisation Tax) Act 1999 determination regulation

-

-

2

1

-

-

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 regulation

1

-

-

Aboriginal Land Grant (Jervis Bay Territory) Act 1986 by-laws regulation

-

-

1

-

-

1

ACIS Administration Act 1999 determination guidelines permission regulation scheme

2

-

1

-

1

-

1

-

1

-

-

-

1

-

1

Acts Interpretation Act 1901 order

1

-

-

Administrative Appeals Tribunal Act 1975 regulation

-

1

-

Admiralty Act 1988 regulation

-

-

1

Aged Care Act 1997 determination principles

1

10

27 17

27 10

28

Act/instrument type 2004-05 2005-06 2006-07

Agricultural and Veterinary Chemicals (Administration) Act 1992 instrument principles regulation

-

-

2

2

-

2

-

2

-

Agricultural and Veterinary Chemicals Code Act 1994 regulation

5

3

-

Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 regulation

-

2

-

Air Navigation Act 1920 regulation

4

-

1

Airports Act 1996 regulation

2

-

-

Air Services Act 1995 instruments

6

-

-

Annual Appropriation Acts determination

2

14

22

Antarctic Treaty (Environment Protection) Act 1980 proclamation

-

1

-

Anti-Personnel Mines Convention Act 1998 principles

-

1

-

Anti-Money Laundering and Counter Terrorism Financing Act 2006 rules

-

-

3

Asbestos-related Claims (Management of Commonwealth Liabilities) (Consequential and Transitional Provisions) Act 2005 regulation

-

1

-

Auditor-General Act 1997 standard

-

-

1

Australian Capital Territory (Planning and Land Management) Act 1988 national capital plan - amendment

5

1

7

Australian Capital Territory (Self-Government) Act 1988 instrument regulation

-

-

1

1

-

-

Australian Citizenship Act 1948 regulation

1

-

-

Australian Communications and Media Authority Act 2005 determination

10

5

17

29

Act/instrument type 2004-05 2005-06 2006-07

Australian Crime Commission Act 2002 regulation

-

3

2

Australian Energy Market Act 2004 regulation

-

1

-

Australian Federal Police Act 1979 determination regulation

1

-

-

1

2

Australian Hearing Services Act 1991 declaration

-

1

-

Australian Institute of Health and Welfare Act 1987 regulation

-

-

1

Australian Land Transport Development Act 1988 determination

-

1

1

Australian Meat and Live-stock Industry Act 1997 order regulation

7

1

6

1

7

-

Australian Participants in British Nuclear Tests (Treatment) Act 2006 determination instrument principles

-

-

-

-

-

-

1

2

1

Australian Passports Act 2005 determination

-

2

1

Australian Prudential Regulation Authority Act 1998 determination instrument regulation

13 2

1

16 3

-

16 5

1

Australian Radiation Protection and Nuclear Safety Act 1998 regulation

2

-

1

Australian Securities and Investments Commission Act 2001 regulation

2

1

1

Australian Sports Anti-Doping Authority Act 2006 instrument order regulation

-

4

2

-

-

2

1

-

-

Australian Tourist Commission (Repeal and Transitional Provisions) Act 2004 regulation

2

-

-

Australian Wine and Brandy Corporation Act 1980 regulation

2

1

-

30

Act/instrument type 2004-05 2005-06 2006-07

Australian Workplace Safety Standards Act 2005 regulation

-

1

-

Authorised Deposit-taking Institutions Supervisory Levy Imposition Act 1998 determination

1

1

1

Authorised Non-operating Holding Companies Supervisory Levy Imposition Act 1998 determination

1

1

1

Aviation Transport Security Act 2004 notice regulation

1

1

-

8

-

3

Banking Act 1959 consent - use of restricted expressions determination direction exemption regulation

-

1

-

-

-

3

12 2

1

-

-

-

1

6

1

Bankruptcy (Estate Charges) Act 1997 determination

-

-

1

Bankruptcy Act 1966 determination guidelines regulation

-

-

1

-

-

1

2

1

2

Broadcasting Services Act 1992 determination guidelines licence area plan

notice regulation standard

1

-

12 3

-

-

2

1

9

-

-

2

-

1

7

-

2

1

Building and Construction Industry Improvement Act 2005 direction regulation

-

-

1

4

-

4

Census and Statistics Act 1905 proclamation regulation

-

-

1

1

-

-

Charter of the United Nations Act 1945 goods list regulation

-

3

-

1

1

7

Chemical Weapons (Prohibition) Act 1994 instrument regulation

-

-

-

-

1

1

31

Act/instrument type 2004-05 2005-06 2006-07

Cheques Act 1986 determination regulation

1

-

-

1

-

-

Child Support (Assessment) Act 1989 proclamation regulation

-

2

-

-

1

3

Child Support (Registration and Collection) Act 1989 proclamation regulation

-

1

-

-

1

3

Christmas Island Act 1958 determination list of Western Australian Acts that apply in territory

order ordinance regulation

1

2

1

3

1

1

2

-

4

-

2

2

1

-

1

Civil Aviation Act 1988 airworthiness directive airworthiness directive - revoke and remake exemption instrument manual of standards order regulation

623 365 32 41

2

111 6

598 -

41 31 3

34 9

548 -

52 36 1

15 5

Classification (Publications, Films and Computer Games) Act 1995 regulation

-

1

-

Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 regulation

-

1

-

Cocos (Keeling) Islands Act 1955 determination list of Western Australian Act that apply in territory order ordinance regulation

-

2

1

2

-

1

2

-

2

-

1

2

-

3

1

Commonwealth Authorities and Companies Act 1997 instrument order regulation

1

-

2

1

1

2

1

-

2

Commonwealth Electoral Act 1918 appointment of polling and pre-polling places regulation

2

2

-

2

-

2

Commonwealth Places (Application of Laws) Act 1970 regulation

-

1

-

Commonwealth Places (Mirror Taxes) Act 1998 notice regulation

-

-

-

1

1

1

32

Act/instrument type 2004-05 2005-06 2006-07

Consular Privileges and Immunities Act 1972 determination

1

2

-

Copyright Act 1968 regulation

5

-

1

Corporations Act 2001 accounting standard auditing standard class order - Australian Securities and Investments Commission instrument notice regulation rules

50 -

8

1

2

10 -

19 35 50 -

1

7

-

8

2

29 1

-

3

1

Crimes (Overseas) Act 1964 regulation

1

1

-

Crimes Act 1914 determination regulation

-

3

1

3

1

3

Criminal Code Act 1995 regulation

18

2

17

Criminology Research Act 1971 regulation

-

-

1

Currency Act 1965 determination

14

9

12

Customs Act 1901 approval declaration defence and strategic goods list determination direction guidelines instrument regulation

38 -

1

-

2

-

-

24

102 1

-

1

4

-

-

18

-

-

1

1

-

1

1

20

Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004 specification

-

3

-

Dairy Produce Act 1986 regulation scheme

1

2

2

-

1

-

Defence Act 1903 by-laws declaration determination regulation

-

-

45 6

-

1

72 4

1

1

81 4

33

Act/instrument type 2004-05 2005-06 2006-07

Defence Force (Home Loans Assistance) Act 1990 declaration regulation

-

1

3

1

1

-

Defence Force Discipline Act 1982 regulation rules

1

-

-

1

-

-

Defence Force Retirement and Death Benefits Act 1973 order regulation

2

1

-

-

-

-

Designs Act 1906 regulation

2

-

2

Diplomatic Privileges and Immunities Act 1972 determination regulation

1

1

2

-

-

-

Disability Services Act 1986 guidelines

-

1

-

Do Not Call Register Act 2006 determination regulation

-

-

-

-

3

1

Education Services for Overseas Students Act 2000 national code of practice

-

-

1

Electronic Transactions Act 1999 regulation

1

1

1

Energy Efficiency Opportunities Act 2006 instrument regulation

-

-

-

-

1

2

Energy Grants (Cleaner Fuels) Scheme Act 2004 regulation

-

1

1

Energy Grants (Credits) Scheme Act 2003 regulation

-

-

1

Environment Protection and Biodiversity Conservations Act 1999 declaration list of exempt native specimens - amendment list of specimens taken to be suitable for live import - amendment list of key threatening processes - inclusion list of threatened ecological communities - inclusion list of threatened species - amendment list of threatened species - inclusion plan proclamation regulation

-

57 16 2

3

-

12 12 -

-

-

45 13 1

3

-

4

22 -

2

1

9

7

-

-

1

12 12 1

2

34

Act/instrument type 2004-05 2005-06 2006-07

Excise Act 1901 determination guideline regulation

-

-

1

-

-

1

11 1

2

Excise Tariff Amendment (Fuel Tax Reform and Other Measures) Act 2006 regulation

-

-

1

Export Control Act 1982 order

13

20

15

Export Inspection (Establishment Registration Charges) Act 1985 regulation

-

-

1

Export Market Development Grants Act 1997 guidelines

1

-

3

Extradition Act 1988 regulation

10

3

2

Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006 guidelines

-

-

4

Family Assistance Legislation Amendment (More Help for Families - One-off Payments) Act 2004 scheme

1

-

-

Family Law Act 1975 approval determination proclamation regulation rules

6

5

-

7

1

5

1

-

4

-

-

-

3

6

-

Farm Household Support Act 1992 regulation scheme

2

4

-

2

1

-

Federal Court of Australia Act 1976 regulation rules

2

3

5

6

Federal Magistrates Act 1999 regulation

2

6

2

Film Licensed Investment Company Act 2005 determination rules

-

-

2

1

-

-

Financial Management and Accountability Act 1997 determination - special account order regulation

16 1

4

38 1

6

72 1

8

35

Act/instrument type 2004-05 2005-06 2006-07

Financial Sector (Collection of Data) Act 2001 determination exemption

8

1

106 5

91 1

Financial Sector (Transfer of Business) Act 1999 rules

2

-

-

Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 determination - banking prudential standard

-

-

7

Financial Transactions Reports Act 1988 regulation

-

-

1

Fisheries (Administration) Act 1991 regulation

1

-

1

Fisheries Levy Act 1984 regulation

1

2

1

Fisheries Management Act 1991 declaration determination direction management plan temporary order regulation

-

6

10 6

4

8

-

16 17 5

3

4

2

10 17 4

2

2

Fishing Levy Act 1991 regulation

1

-

1

Food Standards Australia New Zealand Act 1991 code - amendment regulation

1

1

-

-

-

-

Foreign Acquisitions and Takeovers Act 1975 regulation

2

-

3

Freedom of Information Act 1982 regulation

1

-

1

Fringe Benefits Tax Act 1986 regulation

-

-

3

Fringe Benefits Tax Assessment Act 1986 regulation

2

2

-

Fuel Quality Standards Act 2000 determination

2

3

-

Fuel Tax Act 2006 determination regulation

-

-

-

-

5

2

General Insurance Supervisory Levy Imposition Act 1998 determination

2

1

1

36

Act/instrument type 2004-05 2005-06 2006-07

Gene Technology Act 2000 determination regulation

-

-

-

-

1

2

Great Barrier Reef Marine Park Act 1975 plan of management regulation

-

3

2

3

-

5

Hazardous Waste (Regulation of Exports and Imports) Act 1989 regulation

1

1

1

Health and Other Services (Compensation) Act 1995 determination

1

-

1

Health Insurance Act 1973 declaration determination guidelines instrument principles regulation

4

10 1

-

1

31

3

11 -

1

2

22

3

16 -

-

1

22

Hearings Services Administration Act 1997 determination rules

-

1

1

2

1

1

Higher Education Funding Act 1988 declaration determination guidelines

-

10 1

2

3

-

2

-

-

Higher Education Support Act 2003 approval - higher education provider declaration determination guidelines list

33 -

1

17 1

15 2

-

11 -

19 -

-

14 2

Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003 guidelines

2

-

-

HIH Royal Commission (Transfer of Records) Act 2003 regulation

1

-

-

Horticultural Marketing and Research and Development Services Act 2000 order

-

1

-

Human Services Legislation Amendment Act 2005 regulation

-

2

-

Immigration (Education) Act 1971 instrument regulation

-

1

-

-

1

1

37

Act/instrument type 2004-05 2005-06 2006-07

Immigration (Guardianship of Children) Act 1946 instrument

-

-

1

Imported Food Control Act 1992 order regulation

1

-

1

1

1

-

Import Processing Charges Act 2001 regulation

-

1

-

Income Tax Assessment Act 1936 lodgement of returns regulation

-

5

2

8

1

6

Income Tax Assessment Act 1997 determination guidelines regulation

-

-

6

4

-

3

-

1

6

Independent Contractors Act 2006 regulation

-

-

1

Indigenous Education (Targeted Assistance) Act 2000 regulation

1

1

1

Industrial Chemicals (Notification and Assessment) Act 1989 regulation

4

3

1

Industry Research and Development Act 1986 direction

-

3

1

Inspector of Transport Security Act 2006 regulation

-

-

1

Insurance Act 1973 determination

3

8

6

International Organisations (Privileges and Immunities) Act 1963 regulation

2

1

1

International Transfer of Prisoners Act 1997 regulation

2

2

3

Interstate Road Transport Act 1985 determination regulation

-

1

-

1

3

3

Jervis Bay Territory Acceptance Act 1915 determination ordinance

2

1

-

1

1

-

Judiciary Act 1903 court rules legal services directions regulation

2

-

1

2

2

1

1

-

-

38

Act/instrument type 2004-05 2005-06 2006-07

Jury Exemption Act 1965 regulation

-

1

-

Lands Acquisition Act 1989 declaration regulation

1

1

-

1

-

-

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Act 2005 regulation

-

1

-

Law Enforcement Integrity Commissioner Act 2006 regulation

-

-

1

Legislative Instruments Act 2003 regulation

3

3

1

Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 regulation

1

-

-

Life Insurance Act 1995 actuarial standard determination regulation

-

2

1

1

12 -

-

7

-

Life Insurance Supervisory Levy Imposition Act 1998 determination

-

1

1

Lighthouses Act 1911 regulation

-

-

1

Local Government (Financial Assistance) Act 1995 principles

-

1

-

Maintenance Orders (Commonwealth Officers) Act 1966 regulation

1

-

-

Marine Navigation Levy Act 1989 regulation

1

-

-

Marine Navigation (Regulatory Functions) Levy Act 1989 regulation

1

-

-

Marine Navigation Levy Collection Act 1989 regulation

-

1

1

Maritime Transport and Offshore Facilities Security Act 2003 notice regulation

-

2

2

5

-

4

Marriage Act 1961 proclamation regulation

-

-

1

2

-

1

39

Act/instrument type 2004-05 2005-06 2006-07

Medical Indemnity (Competitive Advantage Payment) Act 2005 regulation

-

1

-

Medical Indemnity (IBNR Indemnity) Contribution Act 2002 regulation

1

-

-

Medical Indemnity (Run-off Cover Support Payment) Act 2004 regulation

1

1

-

Medical Indemnity (UMP Support Payment) Act 2002 regulation

-

1

-

Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 determination regulation

1

3

-

-

-

1

Medical Indemnity Act 2002 protocol regulation scheme

1

2

3

-

2

-

3

1

2

Medicare Australia Act 1973 regulation

-

1

-

Migration Act 1958 determination instrument notice - migration agents continuing professional development regulation

1

1

9

14

-

4

19 15

-

2

26 10

Military Rehabilitation and Compensation Act 2004 approval determination guidelines instrument principles regulation scheme

2

6

-

2

2

2

2

-

2

1

-

1

1

-

-

4

-

-

2

1

-

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 regulation

1

-

-

Military Superannuation and Benefits Act 1991 declaration trust deed

1

4

1

2

-

-

Motor Vehicle Standards Act 1989 determination guidelines regulation standard

3

-

1

-

1

-

2

50

1

2

-

91

Murray-Darling Basin Act 1993 instrument

-

-

1

40

Act/instrument type 2004-05 2005-06 2006-07

Mutual Assistance in Criminal Matters Act 1987 regulation

2

3

2

National Environment Protection Council Act 1994 measure

3

1

-

National Handgun Buyback Act 2003 regulation

1

-

-

National Health Act 1953 arrangement declaration determination instrument private patient hospital charter regulation rules standard

4

17 46 -

1

4

1

-

15 8

69 3

1

3

-

3

28 15 79 -

-

8

-

-

National Health and Medical Research Council Act 1992 guidelines

1

-

-

National Measurement Act 1960 guidelines regulation

1

1

-

-

-

-

National Residue Survey (Excise) Levy Act 1998 regulation

-

-

4

National Security Information (Criminal and Civil Proceedings) Act 2004 regulation

-

2

2

National Security Information (Criminal Proceedings) Act 2004 regulation

2

1

-

Native Title Act 1993 guidelines regulation

-

-

-

4

1

1

Naval Defence Act 1910 regulation

-

-

1

Navigation Act 1912 direction marine order regulation

-

10 -

-

9

-

1

14 5

Norfolk Island Act 1979 regulation

-

1

-

Nuclear Non-Proliferation (Safeguards) Act 1987 regulation

1

1

2

41

Act/instrument type 2004-05 2005-06 2006-07

Occupational Health and Safety (Commonwealth Employment) Act 1991 code of practice notice regulation

-

1

5

1

2

4

1

1

4

Occupational Health and Safety (Maritime Industry) Act 1993 code of practice regulation

-

1

-

-

1

1

Occupational Health and Safety Act 1991 regulation

-

-

1

Offshore Petroleum (Safety Levies) Act 2003 regulation

1

-

1

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 regulation

5

1

2

Parliamentary Contributory Superannuation Act 1948 order

-

1

-

Parliamentary Entitlements Act 1990 regulation

-

2

1

Passports Act 1938 determination regulation

-

2

2

1

-

-

Patents Act 1990 regulation

4

1

-

Payment Systems (Regulation) Act 1998 declaration regulation

-

-

-

-

2

1

Payment Systems and Netting Act 1998 regulation

1

-

-

Petroleum (Submerged Lands) Act 1967 regulation

6

4

-

Petroleum (Submerged Lands) (Registration Fees) Act 1967 regulation

1

-

-

Petroleum (Submerged Lands) Fees Act 1994 regulation

1

-

1

Petroleum Resource Rent Tax Act 1987 regulation

-

1

-

Petroleum Retail Marketing Sites Act 1980 regulation

-

1

-

42

Act/instrument type 2004-05 2005-06 2006-07

Plant Breeder's Rights Act 1994 approval

-

1

-

Plant Health Australia (Plant Industries) Funding Act 2003 determination

-

1

1

Primary Industries and Energy Research and Development Act 1989 regulation

-

1

1

Primary Industries (Customs) Charges Act 1999 regulation

6

5

5

Primary Industries (Excise) Levies Act 1999 regulation

7

5

9

Primary Industries Levies and Charges Collection Act 1991 regulation

4

5

6

Privacy Act 1988 determination regulation

3

-

5

1

3

5

Private Health Insurance (ACAC Review Levy) Act 2003 regulation

1

1

-

Private Health Insurance (Council Administration Levy) Act 2003 regulation

1

1

1

Private Health Insurance (Reinsurance Trust Fund Levy) Act 2003 regulation

1

-

1

Private Health Insurance Act 2007 rules

-

-

26

Private Health Insurance Complaints Levy Act 2007 regulation

-

1

2

Private Health Insurance Incentives Act 1998 regulation

-

-

1

Proceeds of Crime Act 1987 regulation

1

-

4

Product Stewardship (Oil) Act 2000 regulation

1

-

2

Protection of the Sea (Civil Liability) Act 1981 regulation

-

-

1

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 regulation

-

-

1

Protection of the Sea (Powers of Intervention) Act 1981 regulation

-

-

1

43

Act/instrument type 2004-05 2005-06 2006-07

Public Accounts and Audit Committee Act 1951 regulation

-

1

-

Public Lending Right Act 1985 scheme modification

1

1

1

Public Order (Protection of Persons and Property) Act 1971 regulation

-

-

1

Public Service Act 1999 regulation

2

-

1

Public Works Committee Act 1969 regulation

1

-

1

Quarantine Act 1908 determination regulation

-

2

3

-

1

1

Radiocommunications (Receiver Licence Tax) Act 1983 determination

1

1

1

Radiocommunications (Spectrum Licence Tax) Act 1997 determination

1

-

-

Radiocommunications (Transmitter Licence Tax) Act 1983 determination

3

1

2

Radiocommunications Act 1992 class licence declaration determination notice plan principles regulation standard

-

1

12 3

2

-

1

5

3

1

10 1

-

1

1

1

4

1

5

1

4

-

-

1

Registration of Deaths Abroad Act 1984 regulation

1

-

-

Remuneration and Allowances Act 1990 regulation

-

1

-

Remuneration Tribunal Act 1973 determination regulation

20 1

18 2

20 2

Renewable Energy (Electricity) Act 2000 regulation

3

4

3

Research Involving Human Embryos Act 2002 regulation

-

1

-

44

Act/instrument type 2004-05 2005-06 2006-07

Retirement Savings Account Act 1997 declaration regulation

1

5

-

4

1

2

Retirement Savings Account Providers Supervisory Levy Imposition Act 1998 determination

1

1

1

Royal Commissions Act 1902 regulation

-

-

2

Safety, Rehabilitation and Compensation Act 1988 approval guidelines notice regulation variation

-

-

4

-

-

-

5

9

1

-

2

-

9

1

2

Schools Assistance (Learning Together - Achievement Through Choice and Opportunity) Act 2004 regulation

-

3

3

Seafarers Rehabilitation and Compensation Levy Collection Act 1992 notice regulation

-

-

1

1

-

1

Seas and Submerged Lands Act 1973 proclamation

-

4

-

Services Trust Fund Act 1947 rules

-

1

-

Shipping Registration Act 1981 regulation

-

-

1

Skilling Australia's Workforce (Repeal and Transitional Provisions) Act 2005 regulation

-

1

-

Social Security Act 1991 agreement declaration determination guidelines instrument principles regulation specification

-

3

4

-

-

-

1

-

-

-

53 1

-

-

-

-

3

2

21 3

2

2

-

1

Social Security (Administration) Act 1999 determination regulation

-

1

-

-

3

-

Social Security (International Agreements) Act 1999 regulation

1

1

1

45

Act/instrument type 2004-05 2005-06 2006-07

Statutory Declarations Act 1959 regulation

1

2

-

Stevedoring Levy (Collection) Act 1998 notice regulation

-

-

1

-

-

2

Student Assistance Act 1973 instrument regulation

1

1

-

1

-

-

Superannuation (Financial Assistance Funding) Levy Act 1993 regulation

1

1

-

Superannuation (Government Co-contribution for Low Income Earners) Act 2003 lodgement of statements by superannuation providers regulation

-

2

-

1

1

1

Superannuation (Productivity Benefit) Act 1988 declaration determination regulation

-

-

4

3

1

-

3

1

-

Superannuation (Resolution of Complaints) Act 1993 regulation

-

1

1

Superannuation Act 1976 declaration order regulation

-

-

4

5

2

2

-

-

-

Superannuation Act 1990 amendment of trust deed declaration regulation

2

-

1

3

4

-

2

1

-

Superannuation Act 2005 declaration

-

4

2

Superannuation Guarantee (Administration) Act 1992 regulation

1

3

3

Superannuation Industry (Supervision) Act 1993 determination instrument regulation

1

-

10

-

3

7

-

-

3

Superannuation Industry (Supervision) Act 1997 declaration

1

-

-

Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1918 regulation

-

-

1

46

Act/instrument type 2004-05 2005-06 2006-07

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 regulation

-

-

1

Superannuation Supervisory Levy Imposition Act 1998 determination

1

1

1

Supported Accommodation Assistance Act 1994 determination

-

1

-

Sydney Airport Curfew Act 1995 notice

-

2

-

Taxation Administration Act 1953 determination notice regulation withholding schedule

1

-

1

4

-

-

1

3

-

1

4

2

Telecommunications (Carrier Licence Charges) Act 1997 determination

11

10

6

Telecommunications (Consumer Protection and Service Standards) Act 1999 determination direction regulation standard

3

-

-

-

11 -

1

-

-

1

1

1

Telecommunications (Interception and Access) Act 1979 declaration instrument regulation

1

-

-

-

8

2

3

9

1

Telecommunications (Numbering Charges) Act 1997 determination

3

2

3

Telecommunications Act 1997 declaration determination instrument notice numbering plan - variation regulation rules scheme standard technical standard

1

6

-

2

6

-

-

-

-

6

4

7

-

1

4

1

1

-

-

5

1

4

4

2

7

1

-

1

2

7

Terrorism Insurance Act 2003 regulation

-

-

1

47

Act/instrument type 2004-05 2005-06 2006-07

Textile, Clothing and Footwear Strategic Investment Program Act 1999 determination regulation scheme

-

1

2

1

-

-

-

-

-

Therapeutic Goods Act 1989 advertising code exemption notice order regulation

1

4

-

3

4

1

1

5

4

4

2

4

3

2

3

Torres Strait Fisheries Act 1984 notice regulation

-

-

4

1

5

-

Trade Marks Act 1995 regulation

2

1

1

Trade Practices Act 1974 determination guidelines notice principles regulation standard

-

-

1

-

3

-

-

-

-

-

5

2

1

1

3

1

8

-

Tradesmen's Rights Regulation Act 1946 regulation

-

-

1

Trans-Tasman Mutual Recognition Act 1997 regulation

1

1

1

Veterans' Entitlements Act 1986 agreement declaration determination guidelines instructions instrument principles regulation statement of principles

-

1

2

-

-

1

1

3

45

-

-

26 -

3

1

4

1

68

1

1

15 1

-

4

-

3

106

Water Efficiency Labelling and Standards Act 2005 determination regulation

-

1

1

-

2

-

Wheat Marketing Act 1989 regulation

-

1

-

Wool Services Privatisation Act 2000 regulation

-

1

1

48

Act/instrument type 2004-05 2005-06 2006-07

Workplace Relations Act 1996 guidelines regulation

1

4

-

5

-

5

Workplace Relations and Other Legislation Amendment Act 1996 regulation

-

1

-

Workplace Relations (Work Choices) (Consequential Amendments) Act 2005 regulation

-

2

-

Number of regulations 390 334 371

Number of other instruments 2042 2115 1978

Total number of instruments 2432 2449 2349

49

Appendix 2

Undertakings

Table 1: Undertakings implemented in the 41st Parliament

Instrument Date of undertaking Undertaking Implemented by

Department of Agriculture, Fisheries and Forestry

Export Control (Animals) Order 2004 [F2005B00456]

16 February 2005 Order 2.12: amend to clarify the meaning of 'further period' and to allow operators to re-apply for approval of registration no later than a specified number of days before the registration expires

Order 2.14: amend to clarify the time an operator may show cause will start from 14 days after the service of the notice and enable the Secretary to suspend the registration of premises

Order 2.45: amend to include any condition the Secretary has imposed in the list of information that an exporter is required to give to an operator of registered premises

Export Control (Animals) Amendment Order 2006 (No. 1) [F2006L02382] [9 July 2006]

Export Control (Meat and Meat Products) Amendment Orders 2005 (No. 1) [F2005L00998]

6 September 2005 Order 12.4: amend to impose a direct obligation on a person in management or control to notify Secretary within 7 days of being convicted of a serious offence; and to place an obligation on the occupier to inform all persons in management and control of this requirement

Export Control (Meat and Meat Products) Amendment Orders 2006 (No. 1) [F2006L01737] [24 May 2006]

50

Instrument Date of undertaking Undertaking Implemented by

Export Control (Eggs and Egg Products) Orders 2005 [F2005L02703]

Export Control (Fish and Fish Products) Orders 2005 [F2005L02705]

3 November 2005 Amend the orders to place an obligation on auditors to clearly identify themselves to the occupier and to conduct the audit in an expeditious manner than does not interfere unreasonably with the auditee's operations

Export Control (Eggs and Egg Products) Amendment Orders 2006 (No. 1) [F2006L03924] [27 November 2006]

Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2) [F2006L03927] [27 November 2006]

Export Control (Milk and Milk Products) Orders 2005 [F2005L02871]

3 November 2005 Amend the orders to place an obligation on auditors to clearly identify themselves to the occupier and to conduct the audit in an expeditious manner than does not interfere unreasonably with the auditee's operations

Export Control (Milk and Milk Products) Amendment Orders 2006 (No. 2) [F2006L03928] [27 November 2006]

Export Control (Plant and Plant Products) Orders 2005 [F2005L00917]

2 June 2005 Order 10.1: amend to

clarify the criterion in relation to adequacy

Schedule 2, subparagraph 8.1.(c)(i): delete the word 'substantial' from the compliance requirements for the sampling room.

Correct a typographical error in subparagraph 20(b)(ii) of Schedule 5 which should read '1 or 2 in total of all stages'

Export Control (Plant and Plant Products) Amendment Orders 2006 (No. 2) [F2006L03929] [27 November 2006]

Export Control (Plant and Plant Products) Orders 2005 (No. 1) [F2005L01836] [23 June 2005]

51

Instrument Date of undertaking Undertaking Implemented by

Farm Household Support Amendment Regulations 2004 (No. 1) [Statutory Rules 2004 No. 206] [F2004B00221]

24 December 2004 Subregulation 5(1): include a note advising that a person can obtain relevant financial qualifications by completing a course of post-secondary study that is relevant to giving financial advice and recognised by a professional association whose members normally give financial advice

Farm Household Support Amendment Regulations 2005 (No. 1) [Select Legislative Instrument 2005 No. 68] [F2005L00948] [22 April 2005]

NPF Direction No. 90 - First Season Closures [F2006L00867]

31 May 2006 Revoke and remake the

instrument to include the year the mid-season closures will end

NPF Direction No. 95 - First Season Closures [F2006L01560] [17 May 2006]

Attorney-General's Department

Australian Federal Police Amendment Regulations 2000 (No.2), [Statutory Rules 2000 No.138] [F2000B00146]

28 September 2000 Amend the regulations to clarify the grounds for suspending Australian Federal Police appointees from duty

Australian Federal Police Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 326] [F2006L03972] [13 December 2006]

Australian Federal Police Amendment Regulations 2006 (No 1) [Select Legislative Instrument 2006 No. 326] [F2006L03972]

1 August 2007 Amend the regulations to remove the power to retain and re-test 'clear samples' taken from Australian Federal Police employees

Australian Federal Police Amendment Regulations 2007 (No 1) [Select Legislative Instrument 2007 No. 264] [F2007L0351] [6 September 2007]

52

Instrument Date of undertaking Undertaking Implemented by

Customs Act 1901 - CEO Instrument of Approval No. 88 of

2005 [F2005L02977]

Customs Act 1901 - CEO Instrument of Approval No. 95 of 2005 [F2005L02985]

19 November 2005 Amend Customs Act 1901 - CEO Instruments of Approval Nos 65 and 107 of 2005 to remove the temporary importation circumstances

Customs Act 1901 - CEO Instrument of Approval No 111 of 2005 [F2005L03627] [16 November 2005]

Customs Act 1901 - CEO Instrument of Approval No. 112 of 2005 [F2005L03628] [16 November 2005]

Legal Services Directions 2005 [F2006L00320]

24 March 2006 Paragraph 12.3: amend to refer to a Corporations Act company

Impose by substantive provisions, the obligation on agencies to advise the other party to a settlement of a dispute

Paragraph 10.8: amend note 2 to recommend notification rather than impose an obligation to do so

Impose by substantive provision an obligation on agencies to advise opposing parties if it is not possible, in a particular case, for the representative of an agency to settle a matter to finality in an alternative dispute resolution process

Legal Services Amendment Directions 2006 (No. 1) [F2006L00961] [24 March 2006]

53

Instrument Date of undertaking Undertaking Implemented by

Department of Communications, Information Technology and the Arts

Radiocommunications (Compliance Labelling - Electromagnetic Radiation) Notice 2003 [F2005B00259]

5 May 2003 Clause 15: amend to

correct the terminology for the body responsible for testing devices

Radiocommunications (Compliance Labelling - Electromagnetic Radiation) Amendment Notice 2006 (No. 1) [F2006L00342] [2 February 2006]

Telecommunications Numbering Plan Variation 2004 (No. 3) [F2005B00158]

3 August 2004 Clause 3.37B: amend to clarify the intent of the provision and include an explanation of the phrase 'a number' in subclause 3.37B(2)

Telecommunications Numbering Plan Variation 2004 (No. 6) [F2005B00169] [8 September 2004]

Telecommunications (Customer Service Guarantee) Amendment Standard 2001(No.1) [F2005B00308]

23 April 2002 Amend the standard to

include definitions of what is 'reasonable' and what is 'sufficient information' for the purposes of a carriage service provider making a 'reasonable offer' to a customer, or supplying 'sufficient information' to enable the customers to make an informed judgement

Telecommunications (Customer Service Guarantee) Amendment Standard 2006 (No. 1) [F2006L03547] [26 October 2006]

Department of Defence

Cadet Forces Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 141] [F2006L01935]

29 August 2006 Amend the regulations to identify appropriate levels of delegation

Cadet Forces Amendment Regulations 2007 (No. 1) [Select Legislative Instrument 2007 No. 93] [26 April 2007]

54

Instrument Date of undertaking Undertaking Implemented by

Defence (Inquiry) Amendment Regulations 2003 (No.1) [Statutory Rules 2003 No.311] [2003B00325]

11 March 2004 Paragraph 102(3)(a) : amend to introduce the subparagraphs with the words 'the following persons' and omitting 'or' at the end of each of the subparagraphs

Defence (Inquiry) Amendment Regulations 2005 (No. 1) [Select Legislative Instrument 2005 No. 70] [22 April 2005]

Defence (Inquiry) Amendment Regulations 2005 (No. 2), [Select Legislative Instrument 2005 No. 276]

23 February 2006 Subregulations 74(3A) and 96(3): amend to include a note advising that witness statements made to inquiries would not be admissible in civil or criminal proceedings

Defence (Inquiry) Amendment Regulations 2006 (No.2) [Select Legislative Instrument No. 2006 No. 142 ] [F2006L01947] [22 June 2006]

Defence (Inquiry) Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 66] [F2006L00978]

11 July 2006 Regulation 35: amend to

make it consistent with subregulation 34(2) to require the President of the Board to forward to the affected person a copy of the relevant evidence and inform them of their right to appear before the Board and to submit a written statement

Defence (Inquiry) Amendment Regulations 2007 (No 1) [Select Legislative Instrument 2007 No. 155] [F2007L01828] [21 June 2007]

Defence (Public Areas) Amendment By-laws 2001 (No.1) [Statutory Rules 2001 No.331] [F2004B00336]

5 April 2002 Rule 8: amend to make

it unequivocal that it is not an offence for a vision and hearing impaired person to take an animal into a public area

Defence (Public Areas) Amendment By-laws 2006 (No. 1) [F2006L02960] [20 July 2006]

Department of Education, Science and Training

Higher Education Support Act 2003 - Administration Guidelines (10/08/2004)

4 May 2005 Revoke the previous

guidelines by legislative instrument

Higher Education Support Act 2003 - Administration Guidelines (15/04/2005) [F2005L01196] [15 April 2005]

55

Instrument Date of undertaking Undertaking Implemented by

Guidelines for the use of the word 'university in company names (24/05/2007) [F2007L01747]

3 September 2007 Amend the guidelines to authorise the Group Manager, Higher Education Group and the Branch Manager, Quality Branch in the Higher Education Group, on behalf of the minister, to grant or refuse to grant consent to applications to use the word 'university' in the name of a company

Guidelines for the use of the word 'university in company names [F2007L03885] [20 September 2007]

Department of Employment and Workplace Relations

Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 [Select Legislative Instrument 2005 No. 305] [F2005L04059]

16 March 2006 Amend the regulations to clarify their operation with regard to the internal review process

Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2006 (No 1) [Select Legislative Instrument 2006 No. 117] [F2006L01683] [1 June 2006]

Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 2006 (No. 2) [Select Legislative Instrument 2006 No. 9] [F2006L00370]

17 July 2006 Amend the National

Standards to include a note to provide further guidance regarding the use of the phrase 'change in circumstances' with reference to Comcare's code of practice for when a emergency plan requires review

Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 2007 (No. 2) [Select Legislative Instrument 2007 No. 30] [F2007L00461] [1 March 2007]

56

Instrument Date of undertaking Undertaking Implemented by

Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 2007 (No. 2) [Select Legislative Instrument 2007 No. 30] [F2007L00461]

21 May 2007 Amend the regulations

to require that safety signs are clearly visible

Occupational Health and Safety (Safety Standards) Amendment Regulations 2007 (No. 1) [Select Legislative Instrument 2007 No. 305] [F2007L03833] [26 September 2007]

Department of the Environment and Heritage

Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 [Statutory Rules 2000 No.6] [F2000B00010]

29 June 2000 Amend the regulations

to include criteria for determining the environmental significance of the impact of a discharge; and a broad time limit by which the authority must make a decision on an application

Great Barrier Reef Marine Park (Aquaculture) Amendment Regulations 2007 (No 1) [Select Legislative Instrument 2007 No. 33] [F2007L00537] [1 March 2007]

Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 131] [F2006L01832]

Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1) [Select Legislative Instrument 2006 No. 132] [F2006L01809]

11 October 2006

21 November 2006

Amend the regulations to provide for an operator of a vessel to travel at a speed 'less than 6 knots' when near cetaceans

Amend the regulations to include a note explaining the accepted equivalent of 6 knots is a brisk walking pace as outlined in the Maritime Safety Queensland Recreational Boating and Fisheries Guide

Environment Protection and Biodiversity Conservation Amendment Regulations 2007 (No 1) [Select Legislative Instrument 2007 No. 9] [F2007L00410] [15 February 2007]

Great Barrier Reef Marine Park Amendment Regulations 2007 (No. 1) [Select Legislative Instrument 2007 No. 32] [F2007L00516] [1 March 2007]

57

Instrument Date of undertaking Undertaking Implemented by

Department of Finance and Administration

Tenth Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons (the Public Sector Superannuation Scheme) [F2005B01226]

7 August 1996 Amend the

Superannuation Act 1990 to validate administrative actions

Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003 [Act No. 64 of 2003] [30 June 2003]

Department of Health and Ageing

National Health Act 1953 - Arrangements made under subparagraph 100(1)(b)(i) - Chemotherapy Pharmaceuticals Access Program (No. PB 8 of 2005) [F2005L00802]

12 June 2005 Clause 24: amend to

replace the term 'on-patient' with the defined term 'patient'.

National Health Act 1953 - Arrangements made under subparagraph 100(1)(b)(i) - Chemotherapy Pharmaceuticals Access Program (No. PB 22 of 2005) [F2005L02120] [28 July 2005]

Investigation Principles 2007 [F2007L01117]

4 September 2007 Amend the principles to require the Secretary to make 'all reasonable attempts' to advise the informant, before releasing confidential information that has been provided to the Aged Care Complaints Investigation Scheme by the informant.

Investigation Amendment Principles 2007 (No. 1) [F2007L03718] [13 September 2007]

58

Instrument Date of undertaking Undertaking Implemented by

Department of Immigration and Citizenship

Migration Amendment Regulations 2007 (No 5) [Select Legislative Instrument 2007 No. 190] [F2007L01980]

28 August 2007 Amend the regulations to insert a note after new subregulations 1.20DA(2A) and (2B), 1/20D(2A) and (2B) and 1.20H(1A) and (1B) to clarify the circumstances in which the minister may approve an application for a sponsor if he or she considers it reasonably appropriate to do so

Migration Amendment Regulations 2007 (No. 9) [Select Legislative Instrument 2007 No. 273] [F2007L03557] [6 September 2007]

Department of Transport and Regional Services

Civil Aviation Amendment Regulations 2004 (No 1) [Statutory Rules 2004 No. 134] [F2004B00154]

30 August 2004 Amend the Civil Aviation Safety Regulations 1998 to clarify CASA's obligation to register an aircraft and to approve an application for change to an aircraft's existing registration mark

Civil Aviation Amendment Regulations 2004 (No. 4) [Statutory Rules 2004 No. 345] [F2004B00403] [1 December 2004]

Manual of Standards Part 65 - Standards Applicable to Air Traffic Services Licensing and Training Requirements [F2005B00288]

14 August 2003 Amend the standards to remove surplus words in clause 3.1.6.2(b) and to specify the level of knowledge and/or experience required by the holder of an aerodrome control rating

Manual of Standards Part 65 Amendment Instrument (No. 1) 2005 [F2005L00112] [17 January 2005]

Manual of Standards Part 139H - Standards Applicable to the Provision of Aerodrome Rescue and Fire Fighting Services [F2005B00290]

14 August 2003 Amend the standards to delete a redundant provision

Manual of Standards (No. 1) 2004 [F2005L00113] [31 December 2004]

59

Instrument Date of undertaking Undertaking Implemented by

Marine Orders - Part 54: Coastal Pilotage, Issue 3 (Order No.6 of 2001)

29 August 2001 Amend the orders to delete the wide delegation of powers in provision 6.5.6

Marine Orders - Part 54: Coastal Pilotage, Issue 4 (Order No. 10 of 2006) [F2006L02604] [1 August 2006]

The Treasury

Australian Prudential Regulation Authority instrument fixing charges No. 1 of 2006 [F2006L00530]

2 August 2006 Amend instrument to correct an error in the date it was signed; and to make the definition of 'NCPD insurer' in the general interpretation section consistent with the definition in clause 7

Australian Prudential Regulation Authority instrument fixing charges No. 8 of 2006 [F2006L02657] [8 August 2006]

Currency (Perth Mint) Determination 2005 (No. 3) [F2005L03858]

7 March 2006 Amend the

determination to include the year in which $1 coins were minted.

Currency (Perth Mint) Determination 2005 (No. 3) Amendment Determination 2006 (No. 1) [F2006L01117] [5 April 2006]

Currency (Royal Australian Mint) Determination 2005 (No. 1) [F2005L00325]

23/6/2005 Amend the

determination to correct the inscriptions for two coins

Currency (Royal Australian Mint) Determination 2005 (No. 1) Amendment Determination 2005 (No. 1) [F2005L02201] [15 July 2005]

Department of Veterans' Affairs

Guide to Determining Impairment and Compensation (MRCA) Instrument No. 1 of 2004) [F2005B01864]

25 February 2005 Amend the guidelines to ensure consistency and clarity with the use only of the defined term 'non-accepted condition'

Guide to Determining Impairment and Compensation (GARP M) [No. M9 of 2005] [F2005L01293] [26 May 2005]

60

Table 2: Undertakings outstanding at the end of the 41st parliament

Instrument Date of undertaking Undertaking

Department of Agriculture, Fisheries and Forestry

Export Control (Animals) Amendment Order 2006 (No. 1) [F2006L02383]

13 September 2006 Amend subsection 3.07(4) to clarify that a notice may be subject to conditions

Amend sections 3.13 and 2.51 to provide for merits review of a decision concerning the costs that an exporter is required to pay

Export Control (Meat and Meat Products) Amendment Orders 2006 (No. 1) F2006L01737]

2 August 2006 Clause 12.4: amend to clarify notification requirements for persons convicted of a 'serious offence'

Clause 12.5: amend to clarify notification requirements for occupier of a registered establishment

NPFGD Direction No. 03 - Gear Determination [F2006L02448]

7 September 2006 Clause 3: amend to clarify intent of the preamble

Primary Industries Levies and Charges Collection Amendment Regulations 2001 (No.5) [Statutory Rules 2001 No.235] [F2001B00315]

2 November 2001 Amend to provide for merits review of decisions to refuse to grant or continue exemptions for lodging quarterly levy returns for farmed prawns

Primary Industries Levies and Charges Collection Amendment Regulations 2003 (No.8), [Statutory Rules 2003 No.222] [F2003B00233]

13 October 2003 Amend to include a cross reference from the export wheat charge to regulation 12 that indicates the retention periods for records

61

Instrument Date of undertaking Undertaking

Attorney-General's Department

Australian Federal Police Amendment Regulations 2000 (No.2) [Statutory Rules 2000 No.138] [F2000B00146]

28 September 2000 Amend the regulations clarify from whom salary deductions are to be made for judgment debts

Customs Regulations (Amendment) [Statutory Rules 1998 No.38] [F1998B00034]

7 July 1998 Amend to provide that public officials must make a decision within 21 days (r.72) and take into account objectively rather than subjectively relevant information (r.74A(5)(b))

Customs Act 1901 - Infringement Notice Guidelines (2006)

[F2006L01860]

4 September 2006 Amend the Customs Act 1901 to include in the list of matters that must be included in an infringement notice the statement that a person cannot be prosecuted if the fine is paid within 28 days of the service of the notice

Department of Communications, Information Technology and the Arts

Australian Sports Anti-Doping Authority Regulations 2006 [Select Legislative Instrument 2006 No. 47] [F2006L00765]

26 April 2006 Amend the regulations to specify a more precise definition of 'athlete'; and require notification of other persons if ASADA asks an athlete who is a minor to provide a sample or to inform ASADA of their location

Broadcasting Services (Anti-Terrorism Requirements for Subscription Narrowcasting Services) Standard 2006 [F2006L00871]

Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006 [F2006L00870]

5 September 2006 Amend the standards to replace the expression 'terrorist organisation' with 'listed terrorist' to provide narrowcast broadcasters with greater certainty when determining whether a program will breach the standards

62

Instrument Date of undertaking Undertaking

Department of Families, Community Services and Indigenous Affairs

Aboriginal Land Grant (Jervis Bay Territory) By-laws 2005 [F2005L04071]

23 March 2006 Amend to:

Clarify the position with regard to the return of confiscated items

Clarify scope of 'commercial activities'

Require wardens to produce an identity card

Clarify the provision concerning the keeping of dogs and cats within the community

Department of Health and Ageing

Therapeutic Goods Amendment Regulations 2003 (No.5) [Statutory Rules 2003 No.301] [F2003B00315]

11 March 2004 Amend the regulations to clarify the meaning of 'narrowcast transmission' in regulation 5BA; and the terms 'special interest groups' and 'programs of limited appeal'

Department of Transport and Regional Services

Air Navigation Amendment Regulations 1998 (No.1) [Statutory Rules 1998 No.321] [F1998B00339]

9 March 1999 Amend the regulations to clarify the safeguards for identity cards

Airports (Environment Protection) Amendment Regulations 1998 (No.3) [Statutory Rules 1998 No.349] [F1998B00366]

16 March 1999 Amend the regulations to provide for a reasonable period for reporting (r.6.03(1))

Civil Aviation Amendment Regulations 2002 (No.2) [Statutory Rules 2002 No.167] [F2002B00162]

26 September 2002 Amend the strict liability offence in regulation 65.060 of the Civil Aviation Safety Regulations 1998 to include an appropriate defence

63

Instrument Date of undertaking Undertaking

Civil Aviation Amendment Regulations 2003 (No.4) [Statutory Rules 2003 No.189] [F2003B00198]

18 September 2003 Amend r. 173.175 of the Civil Aviation Safety Regulations 1998 to include similar provisions to 173.340(4) concerning information that CASA intends to rely on when considering appointments of certified designers or the Chief Designer

Manual of Standards Part 139H - Standards Applicable to the Provision of Aerodrome Rescue and Fire Fighting Services [F2005B00290]

14 August 2003 Amend r. 139.875 of the Civil Aviation Safety Regulations 1998 to require records to be kept for a maximum of seven years to align with Airservices Australia National Operating Standard Document 001

Marine Orders - Part 6: Marine Radio Qualifications, Issue 5 (Order No.5 of 2000) [F2006B00278]

27 October 2000 Amend to clarify the intent of paragraph 8.4.1 and to remove the reference to paragraph 8.4.2 being a penal provision

The Treasury

Excise Regulations (Amendment [Statutory Rules 1995 No.425] [F1996B03088]

16 May 1996 Amend the Excise Act 1901 to provide for Administrative Appeals Tribunal review of decisions made under s.61C of that Act

65

Appendix 3 Guideline on consultation

1

AUSTRALIAN SENATE

STANDING COMMITTEE ON REGULATIONS AND ORDINANCES

Guideline for preparation of explanatory statements: consultation

Role of the committee The Standing Committee on Regulations and Ordinances (the committee) undertakes scrutiny of legislative instruments to ensure compliance with non-partisan principles of personal rights and parliamentary propriety.

Purpose of guideline This guideline provides information on preparing an explanatory statement (ES) to accompany a legislative instrument, specifically in relation to the requirement that such statements must describe the nature of any consultation undertaken or explain why no such consultation was undertaken.

The committee scrutinises instruments to ensure, inter alia, that they meet the technical requirements of the Legislative Instruments Act 2003 (the Act) regarding the description of the nature of consultation or the explanation as to why no consultation was undertaken. Where an ES does not meet these technical requirements, the committee generally corresponds with the relevant minister seeking further information and appropriate amendment of the ES.

Ensuring that the technical requirements of the Act are met in the first instance will negate the need for the committee to write to the relevant minister seeking compliance, and ensure that an instrument is not potentially subject to disallowance.

It is important to note that the committee's concern in this area is to ensure only that an ES is technically compliant with the descriptive requirements of the Act regarding consultation, and that the question of whether consultation that has been undertaken is appropriate is a matter decided by the rule-maker at the time an instrument is made.

However, the nature of any consultation undertaken may be separately relevant to issues arising from the committee's scrutiny principles, and in such cases the committee may consider the character and scope of any consultation undertaken more broadly.

Requirements of the Legislative Instruments Act 2003 Section 17 of the Act requires that, before making a legislative instrument, the instrument-maker must be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument, particularly where that instrument is likely to have an effect on business.

Section 18 of the Act, however, provides that in some circumstances such consultation may be 'unnecessary or inappropriate'.

2

It is important to note that section 26 of the Act requires that explanatory statements describe the nature of any consultation that has been undertaken or, if no such consultation has been undertaken, to explain why none was undertaken.

It is also important to note that requirements regarding the preparation of a Regulation Impact Statement (RIS) are separate to the requirements of the Act in relation to consultation. This means that, although a RIS may not be required in relation to a certain instrument, the requirements of the Act regarding a description of the nature of consultation undertaken, or an explanation of why consultation has not occurred, must still be met. However, consultation that has been undertaken under a RIS process will generally satisfy the requirements of the Act, provided that that consultation is adequately described (see below).

If a RIS or similar assessment has been prepared, it should be provided to the committee along with the ES.

Describing the nature of consultation To meet the requirements of section 26 of the Act, an ES must describe the nature of any consultation that has been undertaken. The committee does not usually interpret this as requiring a highly detailed description of any consultation undertaken. However, a bare or very generalised statement of the fact that consultation has taken place may be considered insufficient to meet the requirements of the Act.

Where consultation has taken place, the ES to an instrument should set out the following information:

Method and purpose of consultation An ES should state who and/or which bodies or groups were targeted for consultation and set out the purpose and parameters of the consultation. An ES should avoid bare statements such as 'Consultation was undertaken'.

Bodies/groups/individuals consulted An ES should specify the actual names of departments, bodies, agencies, groups et cetera that were consulted. An ES should avoid overly generalised statements such as 'Relevant stakeholders were consulted'.

Issues raised in consultations and outcomes An ES should identify the nature of any issues raised in consultations, as well the outcome of the consultation process. For example, an ES could state: 'A number of submissions raised concerns in relation to the effect of the instrument on retirees. An exemption for retirees was introduced in response to these concerns'.

Explaining why consultation has not been undertaken To meet the requirements of section 26 of the Act, an ES must explain why no consultation was undertaken. The committee does not usually interpret this as requiring a highly detailed explanation of why consultation was not undertaken. However, a bare statement that consultation has not taken place may be considered insufficient to meet the requirements of the Act.

In explaining why no consultation has taken place, it is important to note the following considerations:

3

Specific examples listed in the Act Section 18 lists a number of examples where an instrument-maker may be satisfied that consultation is unnecessary or inappropriate in relation to a specific instrument. This list is not exhaustive of the grounds which may be advanced as to why consultation was not undertaken in a given case. The ES should state why consultation was unnecessary or inappropriate, and explain the reasoning in support of this conclusion. An ES should avoid bare assertions such as 'Consultation was not undertaken because the instrument is beneficial in nature'.

Timing of consultation The Act requires that consultation regarding an instrument must take place before the instrument is made. This means that, where consultation is planned for the implementation or post-operative phase of changes introduced by a given instrument, that consultation cannot generally be cited to satisfy the requirements of sections 17 and 26 of the Act.

In some cases, consultation is conducted in relation to the primary legislation which authorises the making of an instrument of delegated legislation, and this consultation is cited for the purposes of satisfying the requirements of the Act. The committee may regard this as acceptable provided that (a) the primary legislation and the instrument are made at or about the same time and (b) the consultation addresses the matters dealt with in the delegated legislation.

Seeking further advice or information Further information is available through the committee's website at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regor d_ctte/index.htm or by contacting the committee secretariat at:

Committee Secretary Senate Regulations and Ordinances Committee PO Box 6100 Parliament House Canberra ACT 2600 Australia

Phone: +61 2 6277 3066 Fax: +61 2 6277 5881 Email: RegOrds.Sen@aph.gov.au