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Regulations and Ordinances-Senate Standing Committee Reports 117th Work of the committee in 2011-12


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The Senate

Standing Committee on Regulations and Ordinances

Report on the work of the committee in 2011-12

Report no. 117

July 2011 - June 2012

ii

© Commonwealth of Australia 2013

ISBN 978-1-74229-714-9

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 2011-12

Senator Carol Brown Tasmania, ALP

(13.09.05 - 01.07.11) Senator Michaelia Cash Western Australia, LP

(02.02.10 - 07.02.13) Senator Gavin Marshall Victoria, ALP

(21.09.11 - 21.06.12) Senator the Hon Michael Ronaldson (Deputy Chair) Victoria, LP

(13.02.08 - 16.03.12) Senator the Hon Ursula Stephens (Chair) New South Wales, ALP

(30.09.10 - 01.07.11) Senator Anne Urquhart Tasmania, ALP

(01.07.11 - 21.09.11)

Secretariat

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

Committee legal adviser

Professor Stephen Bottomley

Committee contacts

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3066

Email: regords.sen@aph.gov.au

Website: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/in dex.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 ....................................................................... 3

Committee publications and resources ................................................................... 4

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 2011-12 ........................................................................ 13

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

Instruments of concern and notices ...................................................................... 13

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

Change to naming of regulations .......................................................................... 14

Guideline on consultation ..................................................................................... 14

Parliamentary Joint Committee on Human Rights ............................................... 15

Australia-New Zealand Scrutiny of Legislation Conference ............................... 15

Committee's 80th anniversary .............................................................................. 16

Examples of instruments considered .................................................................... 16

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Appendix 1 ......................................................................................................... 23

Breakdown of instruments 2011-12 ...................................................................... 23

Appendix 2 ......................................................................................................... 39

Undertakings ........................................................................................................... 39

Appendix 3 ......................................................................................................... 47

Guideline on consultation ...................................................................................... 47

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Acronyms and abbreviations

AD airworthiness directive

AIA Acts Interpretation Act 1901

(the) alert Disallowance alert (webpage)

ASIC aviation security identification card

ANZSLC Australia-New Zealand Scrutiny of Legislation

Conference

CASA Civil Aviation Safety Authority

COAG Council of Australian Governments

corporations Act Corporations Act 2001

ES explanatory statement

FRLI Federal Register of Legislative Instruments

(the) HR Act Human Rights (Parliamentary Scrutiny) Act 2011

LIA Legislative Instruments Act 2003

(the) monitor Delegated legislation monitor

OBPR Office of Best Practice Regulation

OLDP Office of Legislative Drafting and Publishing

PJCHR Parliamentary Joint Committee on Human Rights

RIS regulation impact statement

SDIL Senate disallowable instruments list

SMSF self-managed superannuation fund

TGA Therapeutic Goods Act 1989

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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 2011-12 financial year period.

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.

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.

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1.7 Current members at March 2013 were as follows:

• Senator Mark Furner (Chair); 3

• Senator the Hon Richard Colbeck (Deputy Chair); 4

• Senator Claire Moore; 5

• Senator Louise Pratt; 6

• Senator Scott Ryan;

7 and

• Senator Arthur Sinodinos AO. 8

1.8 The following senators were also members of the committee during the reporting period:

• Senator Carol Brown; 9

• Senator Michaelia Cash; 10

• Senator Gavin Marshall; 11

• Senator the Hon Michael Ronaldson (Deputy Chair); 12

• Senator the Hon Ursula Stephens (Chair); 13 and

• Senator Anne Urquhart. 14

Independent legal adviser

1.9 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.

3 Appointed 01.07.11 (elected Chair on 07.07.11).

4 Appointed 16.03.12 (appointed Deputy Chair on 22.03.12).

5 Committee member from 01.07.02 to 01.07.05; and appointed on 14.02.08.

6 Appointed 21.06.12.

7 Appointed 18.11.10.

8 Appointed 07.02.13.

9 Committee member from 13.09.05 to 01.07.11.

10 Committee member from 02.02.10 to 07.02.13.

11 Committee member from 01.07.02 to 01.07.05; and from 21.09.11 to 21.06.12.

12 Committee member from 13.02.08 to 16.03.12.

13 Committee member from 30.09.10 to 01.07.11 (Chair from 30.09.10 to 01.07.11).

14 Committee member from 01.07.11 to 21.09.11.

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The committee's mode of operation

Delivery of instruments

1.10 Legislative instruments must be registered and, within six sitting days of registration, tabled in both Houses of Parliament.15 Once registered, the instruments are delivered to the two Houses for tabling, and to the committee secretariat.

1.11 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

1.12 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.

1.13 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

1.14 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.16

1.15 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'.17

Undertakings

1.16 In many cases, ministers and other instrument makers provide an undertaking to address the committee's concern 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

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

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

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

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

Disallowable instruments list

1.18 The 'Senate disallowable instruments list' (SDIL) is a list of all disallowable instruments tabled in the Senate.18 This online resource may be used to ascertain whether or 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.

1.19 The SDIL is updated after each sitting day.

'Disallowance alert' webpage

1.20 The 'Disallowance alert' webpage (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

1.21 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.19

Ministerial correspondence

1.22 Approximately twice a year, the committee tables in the Senate volumes of ministerial correspondence relating to its scrutiny of delegated legislation.20

Senate Procedure Office seminar on delegated legislation and the Senate

1.23 The Senate Procedure Office conducts half-day seminars on the Senate's scrutiny of delegated legislation. These are tailored to parliamentary staff, government

18 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.

19 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.

20 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.

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officers and other stakeholders whose work or interests intersect with the work of the committee.

1.24 Information on seminar dates and booking inquiries may be accessed through the Senate website.21

Structure of the report 1.25 Chapter 2 provides an overview of delegated legislation and the disallowance process, including discussion of the Legislative Instruments Act 2003.

1.26 Chapter 3 reports on the work of the committee during 2011-12.

Acknowledgements 1.27 The committee wishes to acknowledge the work and assistance of its legal adviser, Professor Stephen Bottomley.

1.28 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.

21 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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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:

…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.

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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(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 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

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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

(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.

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

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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• 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 2011-12 3.1 This chapter discusses the work of the committee and matters of note in the reporting period. 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 15 private meetings in 2011-12, at which it considered 1753 instruments.

3.3 The number of instruments examined was slightly down on 2010-11 (1809) and significantly fewer than in 2009-10 (2468). However, the fall in the latter year is attributable to a reduction in the number of airworthiness directives (ADs) made under the Civil Aviation Act 1988 (708 in 2009-10 compared to 69 in 2011-12). This followed a change (from 1 October 2009) whereby the Civil Aviation Safety Authority (CASA) is no longer required, as a matter of course, to re-issue ADs issued in a (foreign) State of Design as Australian ADs. Instead, operators must now comply with the AD as issued by the (foreign) State of Design.

3.4 Appendix 1 provides a breakdown of the instruments made in 2011-12 by Act and instrument type. For further detail on specific instruments in this period, the monitors for the relevant years should be consulted.

Instruments of concern and notices 3.5 Of the 1753 instruments examined by the committee during 2011-12, 90 instruments were identified as raising a concern.1 One of these, CASA EX48/11 - Exemption - for seaplanes [F2011L00652], was the subject of a notice of motion for disallowance given by the committee.2 The notice was ultimately withdrawn following receipt of a satisfactory response from the minister.

3.6 There were no unresolved notices of motion (given by the committee) at the end of the reporting period.

1 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.

2 The 'Disallowance alert' provides details of the notices of motion for disallowance given by the committee and individual senators and members of the House of Representatives. The alert may be accessed at http://www.aph.gov.au/Parliamentary_Business/Committee/Senate_Committees?url=regord_ctt e/alert2012.htm.

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Undertakings 3.7 During the reporting period:

• seven undertakings to amend legislation were provided to address concerns

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

• six undertakings were implemented (see table 1 at appendix 2).

3.8 Twenty-three undertakings remained outstanding (at 30 June 2012) (see table 2 at appendix 2). The committee continues to monitor the status of outstanding undertakings and, where necessary, to correspond with relevant ministers and instrument-makers regarding their implementation.

Change to naming of regulations 3.9 In February 2012, the Office of Legislative Drafting and Publishing (OLDP) advised the committee of certain changes to the office's drafting style for regulations.

3.10 First, the names of new instruments of this type are now rendered in the singular rather than the plural. For example:

• a new principal regulation is referred to as the 'XYZ regulation 2012' (as opposed to the 'XYZ regulations 2012'); and

• a new amending regulation is referred to as the 'XYZ amendment regulation' (as opposed to the 'XYZ amendment regulations 2012').

3.11 Second, the individual provisions of a regulation are now named in the same way as provisions in Acts. For example:

• the provisions of a new principal regulation are called section, subsection,

paragraph and so on;

• the provisions in a new amending regulation are called sections 1, 2, and 3

et cetera. If one of these is divided into subprovisions, these are called subsections;

• existing regulations, even if amended, continue for the time being to use regulation and subregulation.

3.12 The OLDP advised that the changes are part of a process of harmonising the drafting styles of OLDP and the Office of Parliamentary Counsel.

3.13 The committee thanks OLDP for the timely advice to the committee regarding the change.

Guideline on consultation 3.14 In September 2011, the committee produced a guideline to assist instrument makers and officers of agencies and departments responsible for the development of delegated legislation and ESs, particularly in respect of the requirements of the LIA in relation to the need to describe the nature of consultation undertaken in relation to the making of an instrument or to explain why consultation was considered unnecessary

15

or inappropriate.3 As discussed further below, the committee was prompted to develop the guideline due to persistent shortcomings in ESs in this area.

3.15 The guideline, entitled 'Guideline for preparation of explanatory statements: consultation', is reproduced in appendix 3 to this report.

3.16 The committee wishes to extend its thanks to the Attorney-General for assistance in bringing the committee guideline to the attention of ministers and their departments.

Parliamentary Joint Committee on Human Rights 3.17 On 13 March 2012, the Parliamentary Joint Committee on Human Rights (the PJCHR) was established under the Human Rights (Parliamentary Scrutiny) Act 2011 (the HR Act).

3.18 Section 7 of the HR Act sets out the functions of the committee as follows:

• to examine bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue;

• to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue;

• to inquire into any matter relating to human rights referred to it by the Attorney-General, and report to both Houses of the Parliament on that matter.

3.19 Given the scrutiny function of the PJCHR, the secretariat for the PJCHR is housed with the secretariats for the committee and the Senate Standing Committee for the Scrutiny of Bills. While each of the committees has discrete functions, the co- location of the three committee secretariats is intended to facilitate efficient administration and integration of the work of the three committees.

3.20 The committee welcomes, and has followed with interest, the progress of the PJCHR as it undertakes the important task that it has been given, and as it establishes and develops its processes for scrutinising and reporting on bills and delegated legislation in accordance with its terms of reference.

Australia-New Zealand Scrutiny of Legislation Conference 3.21 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.

3.22 From 26 to 28 July 2011, the Chair of the committee, accompanied by the Clerk Assistant (Procedure) and staff of the secretariats for the committee and the Senate Standing Committee for the Scrutiny of Bills attended the ANZSLC, hosted by the Queensland Parliament in Brisbane.

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

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Committee's 80th anniversary 3.23 The 80th anniversary of the appointment of the committee fell on 4 March 2012. To mark the occasion, all present and past members still in the Parliament were invited to sit for a photograph to commemorate the occasion. The photograph is to be hung alongside historical photos of the committee in Committee Room 1S6.

Examples of instruments considered

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

3.24 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 Legislative Instruments Act 2003 (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),4 the prohibiting of prejudicial retrospectivity,5 and the incorporation of extrinsic material.6

Explanatory statements: describing consultation

3.25 The LIA requires that instruments of delegated legislation be accompanied by an ES, and section 26 of the LIA prescribes certain information which an ES must contain.7 This includes a description of the nature of consultation undertaken or an explanation as to why consultation was considered unnecessary or inappropriate.

3.26 Since the commencement of the LIA in 2005, a failure to address the issue of consultation, or inadequate descriptions and explanations, have been persistent shortcomings in ESs. This continued throughout 2011-12, with the committee seeking further information regarding consultation in relation to a large number of instruments.8

3.27 In 27 cases, ESs made no reference whatsoever to consultation.

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,

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

5 LIA, section 12(2).

6 LIA, sections 14 and 26 (previously LIA, section 4).

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

8 As noted above at paragraph 3.14, in September 2011 the committee produced a guideline to assist those responsible for the development of delegated legislation and ESs to properly address the requirements of the LIA in relation to consultation (see appendix 3).

17

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.

3.28 In another 16 cases, ESs did address the question of consultation but contained overly bare or general descriptions of the nature of consultation undertaken, or similarly inadequate explanations as to why consultation was considered unnecessary or inappropriate. 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 or has not taken place, as in the case above, is not sufficient to satisfy the requirement that an ES describe the nature of consultation undertaken or explain why it was considered unnecessary or inappropriate. In all such cases during the

reporting period, the committee sought from the relevant rule-maker a fuller description or explanation, and generally required that the ES in question be amended to include such further information as was subsequently provided. An example of this was the Intellectual Property Legislation Amendment Regulations 2011 (No. 1) [Select Legislative Instrument 2011 No. 62] [F2011L00773] (May 2011), which amended a number of intellectual property related regulations with the intention of improving the administration of certain intellectual property matters. The ES to the instrument stated only that 'key stakeholders were consulted' in the making of the instrument, and this and similar stock phrases continue to prompt the committee to seek further information from relevant ministers and instrument-makers.

3.29 A third issue in relation to the requirement to address the matter of consultation (or the lack of it) in ESs arose from a number of cases of apparent or possible conflation of the consultation requirements of the LIA and the Regulation Impact Statement (RIS) process.9 An example of this was CASA ADCX 021/11 - Revocation of Airworthiness Directives [F2011L02040] (October 2011), which revoked a number of superseded airworthiness directives (ADs). The ES to the instrument stated:

No consultation with the Australian public has taken place on this AD cancellation. The Office of Best Practice Regulation has determined that ADs do not require a Regulatory Impact Statement.10

3.30 The committee considered that this statement appeared to be offered as a justification for consultation not being undertaken in relation to the instrument. However, while consultation requirements are a key aspect of the RIS process, these are entirely separate to the requirements of the LIA. It follows that advice from the

9 The RIS process was introduced in 1997 and is administered through the Office of Best Practice Regulation (OPBR). Instrument makers are required to prepare a RIS for any instrument that directly affects, or has a substantial indirect effect on, business. A RIS is therefore usually not required for instruments that are minor or machinery in nature and do not substantially alter existing law or arrangements.

10 CASA ADCX 021/11 - Revocation of Airworthiness Directives [F2011L02040], ES, p. 1.

18

OBPR that a RIS (and related consultation) is not necessary does not negate the need to consider the consultation requirements specified in the LIA. Accordingly, even where a RIS is required, an ES should explicitly address the requirements of the LIA regarding consultation.

Retrospectivity

3.31 The committee identified a number of instruments in the reporting period that raised concerns in relation to the question of retrospectivity.

3.32 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.11 A relatively common shortcoming of ESs for instruments with retrospective operation is that, despite containing an assertion that such retrospective operation does not disadvantage any person (other than the Commonwealth), there is insufficient information to allow the committee to make an informed assessment of this claim. It is therefore important in preparing explanatory material for an instrument that will operate retrospectively to directly address subsection 12(2) of the LIA and to provide sufficient information about its intended effect.

3.33 An example of this was the Health Insurance (Midwife and Nurse Practitioner) Determination 2011 [F2011L02162] (October 2011), which, inter alia, amended the principal determination to create a number of new items for nurse practitioner pathology services (commencing retrospectively from 1 November 2010). The retrospective operation of the instrument was necessary to correct a flaw in the principal determination, which meant that Medicare benefits had not been duly authorised for the services in question, as was intended. However, the ES to the instrument stated that those benefits would be payable only where a claim for the relevant services was yet to be submitted. The committee therefore wrote to the Minister for Health and Ageing (the Health Minister) to clarify whether any person who had submitted a claim for the relevant services between 1 November 2010 and the making of the instrument would be eligible for the benefit. The Health Minister advised that such claims had in fact been (incorrectly) paid under existing items, such that no person having submitted a claim in that period had been or would be disadvantaged.

3.34 A second issue regarding retrospectivity arose in relation to the retrospective commencement of a number of instruments made to correct a previous error, omission or ambiguity. While the effect of such an instrument is generally intended to be beneficial—for example, where it would confirm an entitlement from the date it was originally intended to be implemented or available—a key concern of the committee

11 This provision reflects a longstanding concern that a person should not be subject to a penalty for acts or omissions, or to impositions, which pre-date the existence of authorising legislation. 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.

19

in such cases is to ensure that steps have been taken to ensure that the full beneficial effect of the instrument is realised by potentially affected parties. ESs should therefore detail what steps have been or will be taken to ensure the full beneficial effect of a retrospectively commencing instrument is realised.

3.35 An example of this was the Health Insurance (Patient Episode Initiation) Determination 2011 (No. 1) [F2011L02560] (December 2011), which allowed for the payment of benefits for specified services. The instrument was to be taken as

having commenced retrospectively, from 1 November 2007, to fix an oversight whereby the services in question had been omitted from the table which enabled the payment of the relevant benefits. As it was not clear from the information contained in the ES, the committee sought and received an assurance from the Health Minister that all patients who had received one of the affected services would be eligible for the benefit; the Health Minister noted also that all such patients had been sent an amended account to enable them to claim the benefit.

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

3.36 Scrutiny principle (b) requires that instruments of delegated legislation must not trespass unduly on personal rights and liberties. The committee interprets this principle broadly such that it may encompass a range of matters. Accordingly, it is important to ensure that, where an instrument may affect personal rights and liberties, the ES sufficiently describes all considerations and limitations which are relevant to its operation.

Offences of strict and vicarious liability

3.37 Given the limiting nature and potential consequences for individuals of strict and vicarious liability offence provisions,12 the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation. As a range of jurisdictional, technical and other factors may be relevant to the framing of offences, ESs should be drafted as stand-alone documents with sufficient context and detail as to allow the committee to properly assess any offence provisions (particularly strict and vicarious liability offences). In particular, an ES should clearly state the justification for the framing of an offence, and its intended scope and operation.

3.38 An example of the committee's consideration of strict liability offences in the reporting period was the Superannuation Industry (Supervision) Amendment Regulations 2011 (No. 2) [F2011L01360] (June 2011), which amended the principal regulations to specify rules with which self-managed superannuation fund (SMSF) trustees must comply when investing in collectables and personal use assets. While

12 '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.

20

the ES for the instrument stated that the offences were intended to ensure that investments in collectables and personal-use assets by SMSF trustees were made for genuine retirement income purposes (as opposed to providing a benefit for trustees), there was no information as to the justification for the offences being ones of strict liability. In response to the committee's inquiry about the matter, the Minister for Financial Services and Superannuation (the Financial Services Minister) explained that the offences were consistent with the regulatory framework more broadly, in which less serious offences subject to lower penalties attracted strict liability. This approach generally provided a more effective and administratively convenient deterrent, and was appropriate given that trustees were legally obliged to be aware of any legislative constraints on their investment decisions.

Imposition of an obligation

3.39 Also under scrutiny principle (b), the committee wrote to a number of ministers in the reporting period seeking clarification about the scope and content of obligations imposed by delegated legislation.

3.40 An example of this was the Work Health and Safety Regulations 2011 [Select Legislative Instrument 2011 No. 262] [F2011L02664] (December 2011), which provided for the application of national occupational health and safety laws in the Commonwealth jurisdiction. The committee noted that regulation 326 required a worker carrying out construction work to 'keep available' for inspection his or her general construction induction training card (with a failure to do so carrying a penalty of $1250). The committee considered that the requirement to keep the card 'available for inspection' imposed a potentially unclear obligation. In answer to the committee's

inquiry, the Minister for Employment and Workplace Relations (the Workplace Relations Minister) advised that the wording of the requirement was intended to allow for some flexibility in application, on the basis that a more stringent obligation to keep a card available for immediate inspection at all times would not be a fair or reasonable requirement in all circumstances. However, in acknowledgment of the committee's strong preference for obligations to be unambiguous in the scope of their application, the Workplace Relations Minister proposed that the committee's concerns be assessed by a forthcoming Council of Australian Governments (COAG) review of work, health and safety laws. On the basis of this proposal, the committee concluded its interest in the matter.

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

3.41 Scrutiny principle (c) relates broadly to the natural justice considerations which underpin the field of administrative law. Where delegated legislation authorises the making of administrative decisions, the committee will usually seek to ensure that

the framing of powers and discretions is in accordance with the tenets of natural justice, such as clearly defined criteria in relation to decision making, the availability of independent review of decisions and appropriate notification of decisions.

21

Discretions appropriately defined and merits review

3.42 An example of the concerns which may arise under this scrutiny principle was the Aviation Transport Security Amendment Regulations 2011 (No. 1) [Select Legislative Instrument 2011 No. 61] [F2011L00777] (May 2011), which amended the principal regulations to provide the Secretary of the Department of Infrastructure and Transport (the Secretary) with a discretion to revoke, on his or her own initiative, the authorisation of a body to issue aviation security identification cards (ASICs). The committee noted that the discretion was intended to operate alongside an existing regulation that allowed the Secretary to revoke a body's authorisation to issue ASICs under certain circumstances. It appeared uncertain, however, how the distinct powers might be exercised in cases where the discretion could be exercised under either regulation. Further, in relation to the availability of merits review, the ES stated that any decision under the new regulation would not be subject to such review, despite a decision under the existing regulation being reviewable. In reply to the committee's inquiries, the Minister for Infrastructure and Transport (the Transport Minister) clarified that the distinct powers would be applied to revoke the authorisation of an issuing body under different factual situations. Whereas the existing power was intended to be used punitively in cases where a body had contravened a certain part of the regulations, the new power was to be used administratively to revoke an authorisation to reduce the total number of issuing bodies, taking into account a number of factors. In relation to merits review, the Transport Minister advised that the ES accompanying the instrument was incorrect in stating that a decision under the new regulation would not be reviewable, as any such decision would be subject to review by the Administrative Appeals Tribunal.

Notification of decisions

3.43 A second example was the Export Control (Plants and Plant Products) Order 2011 [F2011L02005] (September 2011), which provided for the regulation of the export of prescribed plants and plant products for which phytosanitary or other

certificates were required. The committee noted that section 29 of the order provided that an authorised officer could cancel a (shipping) container approval if there was reasonable cause to believe that the conditions of the container had changed. However, there was no attendant requirement that a person to whom a container approval had been issued be notified in the event that their approval would be or had been cancelled. In response to the committee's inquiry, the Minister for Agriculture, Fisheries and Forestry (the Agriculture Minister) advised that, while notification requirements for cancellation decisions were contained in the department's internal work instructions, the orders would be amended within 12 months to include as a legislative requirement that container approval holders be notified that cancellation of an approval had or would be made under section 29.

22

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

3.44 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. Concerns related to this principle are less commonly raised by the committee (or, at least, less commonly characterised in such terms), and no significant matters were identified under this scrutiny principle in the reporting period.

Senator Mark Furner

Chair

23

Appendix 1

Breakdown of instruments 2011-12 The table below provides a breakdown of instruments considered in 2011-12 by Act and instrument type. For further detail on particular of instruments, the consolidated Delegated legislation monitor for the relevant years should be consulted.

A New Tax System (Family Assistance) Act 1999

determination 4

specification 2

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

determination 6

A New Tax System (Goods and Services Tax) Act 1999

determination 3

regulation 4

Aboriginal Land Rights (Northern Territory) Act 1976

regulation 1

Acts Interpretation Act 1901

regulation 3

Administrative Appeals Tribunal Act 1975

regulation 3

Aged Care Act 1997

determination 24

principles 7

Agricultural and Veterinary Chemicals Code Act 1994

regulation 1

Airports Act 1996

regulation 1

Airports (Transitional) Act 1996

regulation 1

Annual Appropriations Acts

determination to reduce appropriation 14

Antarctic Treaty (Environment Protection) Act 1980

proclamation 2

Anti-Money Laundering and Counter Terrorism Financing Act 2006

rules 6

regulation 1

24

Australian Capital Territory (Planning and Land Management) Act 1988

amendment to National Capital Plan 1

Australian Citizenship Act 2007

instrument of authorisation 2

Australian Civilian Corps Act 2011

direction 1

regulation 1

Australian Federal Police Act 1979

approval 1

regulation 2

Australian Film, Television and Radio School Act 1973

determination 1

regulation 2

Australian Hearing Services Act 1991

determination 1

regulation 1

Australian Maritime Safety Authority Act 1990

determination 1

Australian Meat and Live-stock Industry Act 1997

order 8

regulation 1

Australian National Registry of Emissions Units Act 2011

regulation 3

Australian Participants in British Nuclear Tests (Treatment) Act 2006

instrument 2

principles 5

Australian Prudential Regulation Authority Act 1998

determination 24

instrument 2

regulation 1

Australian Radiation Protection and Nuclear Safety (Licence Charges) Act 1998

regulation 1

Australian Radiation Protection and Nuclear Safety Act 1998

regulation 1

Australian Securities and Investments Commission Act 2001

regulation 1

Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy Act 2011

determination 2

25

Authorised Deposit-taking Institutions Supervisory Levy Imposition Act 1998

determination 1

Authorised Non-operating Holding Companies Supervisory Levy Imposition Act 1998

determination 1

Automotive Transformation Scheme Act 2010

order 1

Autonomous Sanctions Act 2011

declaration 1

list 8

regulation 1

Aviation Transport Security Act 2004

instrument 1

regulation 4

Banking Act 1959

direction 7

exemption 17

prudential standard 12

regulation 1

Bankruptcy (Estate Charges) Act 1997

determination 1

Bankruptcy Act 1966

determination 1

Broadcasting Services Act 1992

declaration 4

determination 6

guidelines 1

licence area plan 12

notice 15

scheme 4

standard 3

Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012

regulation 1

Building Energy Efficiency Disclosure Act 2010

determination 2

Business Names Registration Act 2011

determination 1

regulation 2

26

Business Names Registration (Fees) Act 2011

regulation 2

Business Names Registration (Transitional and Consequential Provisions) Act 2011

regulation 1

Carbon Credits (Carbon Farming Initiative) Act 2011

specification 2

regulation 2

Charter of the United Nations Act 1945

determination 1

regulation 2

Child Support (Registration and Collection) Act 1988

specification 2

Christmas Island Act 1958

determination 1

list of Acts of the Western Australian Parliament wholly or partly in force in Christmas Island 2

Civil Aviation Act 1988

airworthiness directive 69

Australian technical standard 1

direction 14

exemption 82

instruction 14

instrument 35

manual of standards 13

order 29

regulation 3

revocation of airworthiness directive 27

Civil Dispute Resolution Act 2011

regulation 1

Classification (Publications, Films and Computer Games) Act 1995

regulation 1

Clean Energy (Consequential Amendments) Act 2012

regulation 1

Clean Energy Act 2011

regulation 3

Clean Energy (Household Assistance Amendments) Act 2011

determination 1

Coal Mining Industry (Long Service Leave Funding) Act 1992

regulation 1

27

Coal Mining Industry (Long Service Leave) Administration Act 1992

rules 1

Cocos (Keeling) Islands Act 1955

determination 1

list of Acts of the Western Australian Parliament wholly or partly in force in Cocos (Keeling) Islands 2

Commonwealth Authorities and Companies Act 1997

order 2

regulation 1

Commonwealth Electoral Act 1918

regulation 2

Competition and Consumer Act 2010

consumer protection notice 6

declaration 1

regulation 3

standard 1

Construction Industry Reform and Development Act 1992

regulation 1

Corporations Act 2001

accounting standard 17

auditing standard 1

class order 23

market integrity rule 8

regulation 12

Crimes Act 1915

regulation 2

Criminal Code Act 1995

declaration 1

regulation 6

Currency Act 1965

determination 8

Customs Act 1901

guidelines 1

instrument 3

regulation 16

Defence Act 1903

Defence and strategic goods list 1

determination 54

regulation 1

28

Defence Force Discipline Act 1982

regulation 1

Defence Home Ownership Assistance Scheme Act 2008

determination 1

Dental Benefits Act 2008

rules 1

Designs Act 1906

regulation 2

Disability Services Act 1986

determination 1

Do Not Call Register Act 2006

determination 2

specification 1

Education Services for Overseas Students Act 2000

determination 1

regulation 2

standard 2

specification 1

Electronic Transactions Act 1999

regulation 1

Energy Efficiency Opportunities Act 2006

regulation 1

Energy Grants (Cleaner Fuels) Scheme Act 2004

regulation 1

Environment Protection and Biodiversity Conservation Act 1999

amendment - list of exempt native specimens 58

amendment - list of specimens taken to be suitable for live import 3

amendment - list of threatened species 12

instrument 8

plan 6

regulation 1

Evidence Act 1995

proclamation 1

Excise Act 1901

determination 4

regulation 1

Explosives Act 1961

regulation 1

29

Export Control Act 1982

order 9

Export Inspection (Establishment Registration Charges) Act 1985

regulation 3

Export Inspection (Quantity Charge) Act 1985

regulation 1

Export Inspection and Meat Charges Collection Act 1985

regulation 3

Export Market Development Grants Act 1997

guidelines 1

Fair Work Act 2009

regulation 5

rules 2

Fair Work (Building Industry) Act 2012

regulation 1

Fair Work (Transitional Provisions and Consequential Amendments)Act 2009

regulation 4

Family Law Act 1975

proclamation 1

regulation 5

Farm Household Support Act 1992

instrument 1

Federal Court of Australia Act 1976

rules 3

Federal Financial Relations Act 2009

determination 1

Federal Magistrates Act 1999

determination 1

regulation 1

rules 3

Film Licensed Investment Company Act 2005

determination 1

Financial Management and Accountability Act 1997

determination - special account 4

guidelines 1

order 1

regulation 7

30

Financial Sector (Collection of Data) Act 2001

determination - reporting standard 17

First Home Saver Account Providers Supervisory Levy Imposition Act 2008

determination 1

Fisheries Management Act 1991

determination 36

direction 17

management plan 3

order 3

proclamation 1

regulation 4

Foreign Acquisitions and Takeovers Act 1975

regulation 1

Foreign Evidence Amendment Act 2010

regulation 1

Freedom of Information Act 1982

determination 1

Fuel Tax Act 2006

determination 2

regulation 1

General Insurance Supervisory Levy Imposition Act 1998

determination 1

Great Barrier Reef Marine Park Act 1975

regulation 2

Health Insurance Act 1973

declaration 4

determination 20

guidelines 1

regulation 14

Hearing Services Administration Act 1997

determination 1

rules 1

Higher Education Support Act 2003

approval - higher education provider 7

approval - VET provider 23

guidelines 12

instruments 5

31

Human Services (Centrelink) Act 1997

specification 3

regulation 2

Human Services (Medicare) Act 1973

specification 2

Immigration (Guardianship of Children) Act 1946

instrument 1

Imported Food Control Act 1992

order 1

Income Tax (Transitional Provisions) Act 1997

determination 1

Income Tax Assessment Act 1936

lodgement of returns 2

regulation 3

Income Tax Assessment Act 1997

determination 1

regulation 2

rules 2

Independent Contractors Act 2006

regulation 1

Indigenous Education (Targeted Assistance) Act 2000

regulation 1

Industrial Chemicals (Notification and Assessment) Act 1989

regulation 2

Industry Research and Development Act 1986

principles 1

regulation 1

Insurance Act 1973

declaration 1

determination - prudential standard 4

guidelines 1

International Transfer of Prisoners Act 1997

regulation 2

Interstate Road Transport Act 1985

regulation 1

Jervis Bay Territory Acceptance Act 1915

determination 2

32

Judiciary Act 1903

legal services direction - amendment 1

rules 2

Life Insurance Supervisory Levy Imposition Act 1998

determination 1

Long Service Leave (Commonwealth Employees) Act 1976

regulation 1

Marriage Act 1961

determination 1

Maritime Transport and Offshore Facilities Security Act 2003

regulation 1

Migration Act 1958

notice 3

regulation 9

specification 2

Military Justice (Interim Measures) Act (No. 1) 2009

regulation 3

Military Rehabilitation and Compensation Act 2004

determination 5

instrument 1

treatment principles 5

Ministers of State Act 1952

regulation 1

Motor Vehicles Standards Act 1989

standard 18

National Consumer Credit Protection Act 2009

class order 2

regulation 3

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

regulation 1

National Environment Protection Council Act 1994

measure 2

National Greenhouse and Energy Reporting Act 2007

determination 1

regulation 3

33

National Health Act 1953

determination 1

instrument - pharmaceutical benefits (PB series) 98

regulation 3

scheme 2

National Measurement Act 1960

instrument 1

regulation 2

National Rental Affordability Scheme Act 2008

regulation 1

National Measurement Act 1960

regulation 1

National Transmission Network Sale Act 1998

exemption 1

National Vocational Education and Training Regulator Act 2011

instrument 1

regulation 1

Nation-building Funds Act 2008

instrument 2

Native Title Act 1993

guidelines 1

regulation 2

Navigation Act 1912

marine order 14

Norfolk Island Act 1979

regulation 1

Nuclear Non-Proliferation (Safeguards) Act 1987

regulation 1

Occupational Health and Safety Act 1991

notice 1

regulation 1

Offshore Petroleum and Greenhouse Gas Storage Act 2006

regulation 7

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

regulation 1

Paid Parental Leave Act 2010

rules 1

34

Parliamentary Entitlements Act 1990

regulation 1

Parliamentary Precincts Act 1988

regulation 1

Personal Property Securities Act 2009

determination 4

instrument 1

regulation 2

Primary Industries (Customs) Act 1999

regulation 3

Primary Industries (Excise) Levies Act 1999

declaration 1

regulation 8

Primary Industries Levies and Charges Collection Act 1991

regulation 1

Privacy Act 1988

determination 7

guidelines 1

Private Health Insurance Act 2007

rules 39

Product Stewardship Act 2011

regulation 2

Public Lending Right Act 1985

instrument 3

Public Service Act 1999

regulation 1

Radiocommunications Act 1992

class licence 5

declaration 2

determination 11

notice 1

plan 4

principles 1

regulation 1

Remuneration Tribunal Act 1973

determination 19

regulation 1

35

Renewable Energy (Electricity) Act 2000

determination 1

regulation 8

Resale Royalty Right for Visual Artists Act 2009

regulation 1

Retirement Savings Accounts Act 1997

determination 1

regulation 4

Safety, Rehabilitation and Compensation Act 1988

guidelines 3

notice 3

regulation 1

Seafarers Rehabilitation and Compensation Act 1982

guidelines 2

Seas and Submerged Lands Act 1973

proclamation 1

Schools Assistance Act 2008

regulation 1

Shipping Registration Act 1981

regulation 2

Social Security (Administration) Act 1999

determination 1

specification 2

Social Security Act 1991

determination 24

guidelines 4

principles 2

specification 7

Social Security (International Agreements) Act 1999

regulation 4

Steel Transformation Plan Act 2011

plan 1

Student Assistance Act 1973

determination 2

Superannuation (Productivity Benefit) Act 1988

declaration 3

determination 1

36

Superannuation Act 1976

declaration 3

order 1

Superannuation Act 1990

declaration 1

determination 1

trust deed 2

Superannuation Act 2005

declaration 1

trust deed 2

regulation 1

Superannuation Industry (Supervision) Act 1993

determination 1

regulation 4

Tax Agent Services Act 2009

regulation 2

Taxation Administration Act 1953

guidelines 1

instruments 6

regulation 5

Telecommunications (Carrier Licence Charges) Act 1997

determination 4

Telecommunications (Consumer Protection and Service Standards) Act 1999

determination 7

instrument 2

standard 1

Telecommunications (Interception and Access) Act 1979

instrument 11

Telecommunications (Numbering Charges) Act 1997

determination 1

37

Telecommunications Act 1997

declaration 2

determination 7

guidelines 1

instrument 3

notice 1

plan 1

regulation 1

rules 3

standard 1

Television Licence Fees Act 1964

regulation 1

Tertiary Education Quality and Standards Agency Act 2011

determination 3

standard 1

Therapeutic Goods Act 1989

determination 1

notice 4

order 7

regulation 5

specification 1

Tobacco Plain Packaging Act 2011

regulation 2

Torres Strait Fisheries Act 1984

instrument 5

Trans-Tasman Proceedings Act 2010

regulation 1

Veterans’ Entitlements Act 1986

determination 5

instrument 7

principles 5

specification 1

statement of principles 81

Water Act 2007

regulation 2

Water Efficiency Labelling and Standards Act 2005

determination 1

38

Wine Australia Corporation Act 1980

regulation 2

Work Health and Safety Act 2011

codes of practice 1

notice 1

regulation 1

Total number of regulations 290

Total number other 1463

Total 1753

39

Appendix 2

Undertakings

Table 1: Undertakings implemented in 2011-12

Instrument Date of undertaking Undertaking Implemented by

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 from whom salary deductions are to be made for judgment debts

Australian Federal Police Amendment Regulations 2011 (No. 1) [Select Legislative Instrument 2011 No. 202] [F2011L02444] [23 November 2011]

Department of Broadband, Communications and the Digital Economy

Telecommunications Universal Service Obligation (Standard Telephone Service - Requirements and Circumstances) Determination (No. 1) 2011 [F2011L00417]

5 July 2011 Amend the

determination to correct references to 'premises' to use the plural form of the verb

Telecommunications Universal Service Obligation (Standard Telephone Service - Requirements and Circumstances) Determination (No. 1) 2011 (Amendment No. 1 of 2012) [F2012L01125] [3 May 2012]

40

Instrument Date of undertaking Undertaking Implemented by

Department of Defence

Defence Determination 2010/8 made under section 58B of the Defence Act 1903

2 December 2010 Amend subclause 5.4.10.1 to read 'A member must report to the Defence Health Service when she believes she is pregnant'

Amend subclause 5.4.10.2 to permit the requirement for some form of evidence to be provided by the member, or someone on her behalf, six weeks after the end of the pregnancy

Defence Determination 2011/33 [13 July 2011]

Family Court of Australia

Family Law Amendment Rules 2011 (No. 2) [Select Legislative Instrument 2011 No. 286] [F2011L02792]

5 April 2012 Amend the rules to

clarify the meaning of 'a court event'

Family Law Amendment Rules 2012 (No. 1) [Select Legislative Instrument 2012 No. 95] [F2012L01153] [28 May 2012]

Department of Health and Ageing

Therapeutic Goods Amendment Regulations 2011 (No. 1) [Select Legislative Instrument 2011 No. 30] [F2011L00431]

31 May 2011 Amend subregulation

10H(1) to make the offence of failing to return a certificate to the secretary one of strict liability

Therapeutic Goods Amendment Regulations 2011 (No. 3) [Select Legislative Instrument 2011 No. 281] [F2011L02595] [7 December 2011]

The Treasury

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

16 May 1996 Amend the Excise Act

1901 to provide for AAT review of decisions made under s. 61C of that Act

Excise Amendment (Reducing Business Compliance Burden) Act 2012 [Act No. 36 of 2012] [15 April 2012]

41

Table 2: Undertakings outstanding at 30 June 2012

Instrument Date of undertaking Undertaking

Department of Agriculture, Fisheries and Forestry

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

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 (Poultry Meat and Poultry Meat Products) Orders 2010 [F2010L03051]

Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010 [F2010L03050]

14 June 2011 Amend the orders to specify that the

scope of an audit is to be determined prior to its commencement

Export Control (Poultry Meat and Poultry Meat Products) Orders 2010 [F2010L03051]

Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010 [F2010L03050]

24 August 2011 Amend the orders to remove the term 'destroy' from provisions concerning electronic permits and certificates; and to apply the orders only to paper government certificates and permits

Export Control (Fees) Amendment Orders 2011 (No. 1) [F2011L01865]

21 November 2011 Amend the orders to include a note in order 5B about the possible applications of order 49 to remit the whole or part of a fee if the Secretary of the Department of Agriculture, Fisheries and Forestry thinks there is sufficient reason to do so

42

Instrument Date of undertaking Undertaking

Export Control (Plant and Plant Products) Order 2011 [F2011L02005]

23 November 2011 Amend the order to require that approval holders (for both container and vessel approvals) be notified in a reasonable manner that cancellation of the approval holder's approval has been made, or will occur, in circumstances where conditions relating to the container and/or vessel have changed following the inspection by an authorised officer; and clarify the use of the uncertain term 'forthwith' in the order

Attorney-General's Department

Auscheck Regulations 2007 [Select Legislative Instrument 2007 No. 137] [F2007L01570]

4 October 2007 Amend the note to regulation 11 to include a reference to the Cost Recovery Impact Statement that was prepared during the making of the regulations

Department of Broadband, Communications and the Digital Economy

Telecommunications Service Provider (Mobile Premium Services) Determination 2010 No. 1 [F2010L00639]

23 November 2010 Amend section 13 of the determination to clarify compliance timeframes

Department of Climate Change and Energy Efficiency

Clean Energy Amendment Regulation 2012 (No. 1) [Select Legislative Instrument 2012 No. 12] [F2012L00417]

12 April 2012 Amend the regulation to revise the definition of ASTM (the American Society for Testing and Materials) to clarify that the reference to those standards are those as updated from time to time, unless a certain date is specified for the standard

43

Instrument Date of undertaking Undertaking

Department of Defence

Defence Determination 2011/34, Financial support for legal or financial advice on death of a member under section 58B of the Defence Act 1903

29 November 2011 Amend the determination to specify as a mandatory requirement that the Defence Community Organisation (DCO) social worker be required to inform a potential recipient that this assistance may be accessed if they meet the relevant criteria; to clarify that submissions are to be submitted through the DCO social worker; and to specify an inclusive list of conditions which may cause difficulty with financial literacy.

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

Disability Services (Eligible Services) Approval (FaHCSIA) 2008 [F2008L01381]

15 August 2008 Amend section 5 to make the delegation powers consistent with those provided for in section 33 of the Disability Services Act 1986

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'

44

Instrument Date of undertaking Undertaking

Department of Infrastructure and Transport

Air Navigation Amendment Regulations 2009 (No. 1) [Select Legislative Instrument 2009 No. 23] [F2009L00564]

6 April 2009 Amend regulation 18 to require the

Secretary of the Department of Infrastructure and Transport to provide a statement of reasons for a decision to refuse an application for an international airline licence

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 (regulation 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

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

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

Civil Aviation Safety Amendment Regulations 2008 (No. 1) [Select Legislative Instrument 2008 No. 192] [F2008L03483]

11 November 2008 Amend regulations 99.115 and 99.120 to clarify the intent of the provisions regarding the need for consent in obtaining a sample for drug and alcohol testing (undertaking subsequently amended to considering the matter further when considering next substantive amendments to regulations)

Civil Aviation Safety Regulations 1998 [F2012C00363]

14 August 2003 Amend regulation 139.875 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) [F2006B0027]

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

45

Instrument Date of undertaking Undertaking

Department of Sustainability, Environment, Water, Population and Communities

Environment Protection and Biodiversity Conservation Amendment Regulations 2010 (No. 1) [Select Legislative Instrument 2010 No. 100] [F2010L01366

15 November 2010 Review the application of the offence provision in paragraph 12.58(2)(b) (likelihood of a parachutist landing in a Commonwealth reserve); and the apparent duplication of requirements in paragraph 10.02AD(a) and clarify the intent of the provision

Department of Veterans' Affairs

Treatment Principles (Australian Participants in British Nuclear Tests) 2006 (Claims/Dental/Fees) Instrument 2010 (No. R9/2010) [F2010L02630]

23 November 2010 Amend paragraph 3.5.1 (o) to specify that acceptance of an 'other GP' fee must be dependent on the GP complying with the principles

Military Rehabilitation and Compensation (Weekly Payments - Class of Persons) Specification 2011 [F2011L00238]

17 May 2011 Amend the instrument to include

examples in a note explaining the term 'financially vulnerable and significantly disadvantaged' when it is next amended; and consider at that time the suitability of the phrase

Veterans' Entitlements (Weekly Payments - Class of Persons) Specification 2011 [F2011L00240]

17 May 2011 Amend the instrument to include

examples in a note explaining the term 'financially vulnerable and significantly disadvantaged' when it is next amended; and consider at that time the suitability of the phrase

47

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 For further advice regarding the requirements of the Act in relation to consultation or any other matters, please consult the Legislative Instruments Handbook: a practical guide for compliance with the Legislative Instruments Act 2003 and related matters (December 2004), published by the Office of Legislative Drafting and Publishing.

Further information is also 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