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Thursday, 30 June 1994
Page: 2362


Senator COLSTON —Pursuant to notice given at the last day of sitting, on behalf of the Standing Committee on Regulations and Ordinances I now withdraw business of the Senate notice of motion No. 1 standing in my name for today for the disallowance of the ATSIC (Misbehaviour) Determination 1994 No. 1 made under section 4A of the Aboriginal and Torres Strait Islander Commission Act 1989. I seek leave to incorporate in Hansard the usual end of sitting statement about the work of the committee.

  Leave granted.

  The statement read as follows

Standing Committee on Regulations and Ordinances Statement on work of Committee during Autumn and Winter Sittings 1994

Overview

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

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

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

During the sittings the Committee scrutinised 826 instruments, which is an historic high. Of these, 237 were statutory rules, which are generally better drafted and presented than other series of delegated legislation. The other 589 instruments were the usual heterogeneous collection of different series.

Each of the 826 instruments were scrutinised by the Committee under its four principles, or terms of reference, which are included in the Standing Orders. There were 97 prima facie defects or matters worthy of comment in those 826 instruments. The defects are described below under each of the four principles.

Principle (a)

Is delegated legislation in accordance with the statute?

This principle is interpreted broadly by the Committee to include not only technical invalidity, but also every other aspect of parliamentary propriety.

Nevertheless, detection of technical validity is an important part of the work of the Committee. As usual, a number of instruments may have invalidly subdelegated legislative powers. Several apparently invalid subdelegations were to statutory authorities, another was to the Minister, another to the Minister on the recommendation of agencies and another to the Secretary of the Department. One instrument may have been invalid because it purported to incorporate foreign laws, another because it incorporated international treaties which could be amended from time to time and another because it appeared to incorporate administrative actions. Another instrument purported invalidly to exclude the application of a provision of an Act.

Other instruments did not operate validly as intended. One amending instrument appeared to amend the wrong instrument. Another did not actually effect its obvious intent to revoke an earlier instrument. The Explanatory Statement for another advised that its intended date of operation was different from the date provided in the instrument. The Explanatory Statement for another did not confirm that detailed mandatory procedures, required before making, had been met.

The drafting of delegated legislation should be of a standard equal to that of Acts. During the present sittings one instrument did not indicate the date on which it was made. Numbers of other instruments included wrong references and cross-references, numbering and citation errors, reference errors in Notes to provisions, inconsistencies and misprints. Several instruments were drafted without a citation or numbering. In two cases different agencies produced two separate instruments made under the same Act with the same numbering. One instrument referred to a statutory office abolished nine years ago. Another did not define terms which are different in each State and territory. Another used the expressions "he" and "him", rather than the more usual "he or she" and "him or her". Several instruments included undefined, uncertain and subjective expressions, such as "public disrepute", "misleading" and "seriously disruptive".

Every instrument should be accompanied by full and detailed explanatory material. Some instruments had no explanatory material at all, while other material was inadequate. Several Explanatory Statements had wrong references to statutory powers under which the instrument was made. A substituted version of an instrument did not explain why it was substituted. In several cases instruments which implemented undertakings given to the Committee did not indicate this in the Explanatory Statement.

The Acts Interpretation Act 1901 provides that delegated legislation which operates to prejudice a person retrospectively is void. Even where retrospectivity is valid, however, the Committee will ask for reasons for long periods of unexplained retrospectivity. Several instruments were expressed to operate two years before making.

The Committee always questions provisions which may give excessive power to public officials. In one case an instrument was to commence upon proclamation, with no provision for automatic commencement if not proclaimed within six months. Another instrument conferred important powers on authorised persons, with no restrictions at all on persons who could be authorised. Another provided that significant powers could be delegated to any person at all. In another case, the Minister could make important guidelines, which appeared to be legislative in nature, which were not subject to disallowance or even to tabling.

Principle (b)

Does delegated legislation trespass unduly on personal rights and liberties?

The Committee interprets this principle broadly, to include every aspect of personal rights. During the present sittings the Committee detected the following apparent defects in delegated legislation.

Provisions of delegated legislation should not operate harshly or unfairly. In one case an instrument removed the protection of the Child Abduction Convention from the territory of the former Yugoslavia, but replaced it with fresh provisions which covered only part of that territory. The Committee's scrutiny of this instrument was the subject of its Ninety-Eighth Report. Another instrument included a provision which may have been impossible to apply. In another case people were given an unreasonably short time in which to respond to demands from a public official. One instrument included a strict liability offence. Another required people to incriminate themselves. In another case provisions for the conduct of a ballot may have operated unfairly. Another instrument did not provide for recovery of money paid as security although an earlier instrument included such a provision.

The Explanatory Statement which accompanies an instrument should always explain fully any changes in the level of taxes, charges, fees and allowances. It is a breach of personal rights as well as a breach of parliamentary proprieties if changes are so large or unexpected that they may operate unreasonably. In one case the monetary penalty for a number of offences was increased ten times. In another the formula for calculating the increases was given, but not the reasons for determining the formula. In another the expected increase in receipts was given but not the reasons for the increase. In another case substantial fees were halved with no explanation.

The Committee carefully scrutinises the effect of provisions in delegated legislation. In one case an instrument adapted provisions of the Crimes Act 1914 which related to pardons, quashed convictions and spent convictions and which were intended to operate to the benefit of people who had been convicted of offences. The instrument expressly used the provisions, however, to prejudice people. Retrospective delegated legislation which operates prejudicially is void under the Acts Interpretation Act. The Committees raised with Ministers a number of provisions which appeared to be void for this reason. In one case an instrument implementing an earlier undertaking to the Committee operated retrospectively to assist individuals. The instrument appeared to be void, however, because it operated to the detriment of funds which were required to pay money to the individuals. The Acts Interpretation Act actually provides that the relevant date for retrospectivity is the date of gazettal, not the date of making. In one case an instrument was made and expressed to come into effect on the same day. The instrument was not gazetted, however, until more than five weeks later and was therefore void because its provisions were prejudicial.

Principle (c)

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

Many instruments of delegated legislation provide for Ministers, statutory office holders and other public officials to exercise discretions. The committee believes that such discretions should be as narrow as possible, include objective criteria to limit and guide their exercise, and include review of the merits of decisions by an external, independent tribunal, which would normally be the Administrative Appeals Tribunal.

In some cases instruments were drafted in such a way that they could operate only if a discretion was exercised, but there was no formal provision for this or of any right of review. On the other hand, the Explanatory Statement for another instrument advised of the existence of AAT review of discretions although this was not reflected in the instrument itself.

Numbers of discretions concerning personal rights did not appear to be subject to review, such as discretions to recognise overseas trade qualifications. Other instruments provided for review of some decisions which appeared less important than others for which review was not provided.

The Committee is particularly concerned about discretions to waive or reduce fees and charges. One instrument conferred discretions to extend the time for payment of a fee, to allow payment of fees by instalment and to cut off services for unpaid fees. Another gave a discretion to remit charges and another to waive fees. There was no indication that these discretions were subject to review.

During the sittings many instruments dealt with public and private sector superannuation. These included numbers of important discretions. For instance, those concerning public sector superannuation included discretions on levels of salary, payment of premiums, involuntary retirement, payment of lump sums and whether there was a significant and sustained improvement in the invalidity retirement rate. Those concerning private sector superannuation included discretions on whether a person was suffering financial hardship and on the payment of lump sums to relieve hardship.

As usual, the Committee takes into account whether a decision maker may delegate his or her decision making powers. There is a stronger case for merits review where powers may be delegated, particularly where powers may be delegated to wide classes of people.

Principle (d)

Does delegated legislation contain matter more appropriate for parliamentary enactment?

The Committee does not raise this principle as often as its other three principles. Nevertheless, it is a principle which goes to the heart of parliamentary propriety and complements the first principle, that an instrument should be in accordance with the statute.

The Charter of the United Nations Amendment Act 1993, which provided for Australia to impose United Nations sanctions by regulation, relied substantially on the Ninety-Third Report of the Committee, which concluded that it was appropriate for delegated legislation to be used in this way. Following that Act, numbers of instruments have imposed sanctions, most recently, during this sittings, on Angola and Haiti.

Other developments

On 24 February 1994 Senator Gibson resigned from the Committee and was replaced by Senator Abetz, appointed on 24 February 1994.

During the sittings the Committee tabled its Ninety-Eighth Report, on Scrutiny by the Committee of Amendments of the Family Law (Child Abduction Convention) Regulations.

The Chairman, on behalf of the Committee, made special statements to the Senate on the Territory of Christmas Island Casino Control Ordinance and on tabling requirements.

The Committee's independent Legal Adviser since 1982, Emeritus Professor Douglas Whalan, was made a Member of the Order of Australia in the Australia Day 1994 honours list, for service to the law and to Parliament, particularly as a parliamentary legal adviser. This was an honour not only for Professor Whalan, but also for the Committee and the Senate.

The Deputy Clerk of the Senate and the Committee secretary wrote an article on commencement of Acts by proclamation which was accepted for publication in the July 1994 issue of the Parliamentarian journal. An advance copy of the article was reviewed in several publications, including the Bulletin magazine.

The staff of the Committee visited the Joint Legislative Review Committee of the Parliament of South Australia and the staff of the Legislative Council.

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